[Federal Register: November 17, 2008 (Volume 73, Number 222)]
[Rules and Regulations]
[Page 67933-68133]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no08-23]
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Part II
Department of Labor
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Wage and Hour Division
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29 CFR Part 825
The Family and Medical Leave Act of 1993; Final Rule
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DEPARTMENT OF LABOR
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: Final rule.
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SUMMARY: This document provides the text of final regulations
implementing the Family and Medical Leave Act of 1993 (``FMLA''), the
law that provides eligible employees who work for covered employers the
right to take job-protected, unpaid leave for absences due to the birth
of the employee's son or daughter and to care for the newborn child;
because of the placement of a son or daughter with the employee for
adoption or foster care; in order to care for a son, daughter, spouse,
or parent with a serious health condition; or because of the employee's
own serious health condition that makes the employee unable to perform
the functions of his or her job. The final regulations also address new
military family leave entitlements included in amendments to the FMLA
enacted as part of the National Defense Authorization Act for FY 2008,
which provide additional job-protected leave rights to eligible
employees of covered employers who provide care for covered
servicemembers with a serious injury or illness and because of
qualifying exigencies arising out of the fact that a covered military
member is on active duty or has been notified of an impending call or
order to active duty in support of a contingency operation.
EFFECTIVE DATE: These rules are effective on January 16, 2009.
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 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
regulations may be directed to the nearest Wage and Hour Division (WHD)
District Office. Locate the nearest office by calling the WHD'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 WHD's Web site for a
nationwide listing of WHD District and Area Offices at: http://
www.dol.gov/esa/contacts/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Background
A. What the FMLA Provides
The Family and Medical Leave Act of 1993, Public Law 103-3, 107
Stat. 6 (29 U.S.C. 2601 et seq.), was enacted on February 5, 1993, and
became effective for most covered employers on August 5, 1993. As
enacted in 1993, FMLA entitled eligible employees of covered employers
to take job-protected, unpaid leave, or to substitute appropriate
accrued paid leave, for up to a total of 12 workweeks in a 12-month
period for the birth of the employee's son or daughter and to care for
the newborn child; for the placement of a son or daughter with the
employee for adoption or foster care; to care for the employee's
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.
On January 28, 2008, President Bush signed into law H.R. 4986, the
National Defense Authorization Act for FY 2008 (``NDAA''), Public Law
110-181. Section 585(a) of the NDAA expanded the FMLA to allow eligible
employees of covered employers to take FMLA-qualifying leave
``[b]ecause of any qualifying exigency (as the Secretary [of Labor]
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.'' See 29 U.S.C.
2612(a)(1)(E) (referred to herein as ``qualifying exigency leave'').
The NDAA also provided that ``an eligible employee who is the spouse,
son, daughter, parent, or next of kin of a covered servicemember shall
be entitled to a total of 26 workweeks of leave during a [single] 12-
month period to care for the servicemember.'' See 29 U.S.C. 2612(a)(3)-
(4) (referred to herein as ``military caregiver leave''). In addition
to establishing these two new leave entitlements (referred to together
throughout this document as the ``military family leave provisions''),
section 585(a) of the NDAA included conforming amendments to
incorporate the new military family leave entitlements into the FMLA's
current statutory provisions relating to the use of FMLA leave and to
add certain new terms to the FMLA's statutory definitions. The NDAA
amendments were enacted January 28, 2008. The amendments require the
Secretary of Labor to define ``any qualifying exigency'' through
regulation. See 29 U.S.C. 2612(a)(1)(E).
To be eligible for FMLA leave, an employee must have been employed
for at least 12 months by the employer and for at least 1,250 hours of
service with the employer during the 12 months preceding the leave, and
be employed at a worksite at which the employer employs at least 50
employees within 75 miles of the worksite. See 29 U.S.C. 2611(2).
Employers covered by the FMLA must maintain any preexisting group
health coverage for an eligible employee during the FMLA 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 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 is administered by the U.S. Department of Labor
and applies to private sector employers of 50 or more employees, public
agencies and certain federal employers and entities, such as the U.S.
Postal Service and Postal Regulatory Commission. Title II is
administered by the U.S. Office of Personnel Management and 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.\1\ Title IV
[[Page 67935]]
(also administered by the Department of Labor) 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.
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\1\ 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.''
See http://www.dol.gov/esa/whd/fmla/fmla/1995Report/family.htm. In
1999, the Department updated the employee and establishment surveys
conducted in 1995 and published a report in January 2001,
``Balancing the Needs of Families and Employers: Family and Medical
Leave Surveys, 2000 Update.'' See http://www.dol.gov/esa/whd/fmla/
fmla/toc.htm.
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B. Regulatory History
The FMLA required the Department to issue initial regulations to
implement Titles I and IV of the FMLA within 120 days of enactment, or
by June 5, 1993, with an effective date of August 5, 1993. The
Department issued a Notice of Proposed Rulemaking (``NPRM'') on March
10, 1993 (58 FR 13394), inviting comments until March 31, 1993, on a
variety of questions and issues. After considering the comments
received 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, the Department issued an interim final
rule on June 4, 1993 (58 FR 31794), which became effective on August 5,
1993, and which also invited further public comment on the interim
regulations. Based on this second round of public comments, the
Department published final regulations on January 6, 1995 (60 FR 2180),
which 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.
On December 1, 2006, the Department published a Request for
Information (``RFI'') in the Federal Register (71 FR 69504) requesting
the public to comment on its experiences with, and observations of, the
Department's administration of the law and the effectiveness of the
FMLA regulations. The RFI's questions and areas of focus were derived
from stakeholder meetings, a number of rulings of the U.S. Supreme
Court and other federal courts, the Department's 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 the Congress
on the FMLA's costs and benefits.\2\ The Department received more than
15,000 comments in response to the RFI from workers, family members,
employers, academics, and other interested parties.\3\ 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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\2\ These OMB reports may be found at the following Web sites:
2001 report: http://www.whitehouse.gov/omb/inforeg/
costbenefitreport.pdf; 2002 report: http://www.whitehouse.gov/omb/
inforeg/2002_report_to_congress.pdf; 2004 report: http://
www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf.
\3\ Comments are available for viewing at 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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On February 11, 2008, the Department published an NPRM in the
Federal Register (73 FR 7876) inviting public comments for 60 days on
proposed changes to the FMLA's implementing regulations. The proposed
changes were based on the Department's experience of nearly 15 years
administering the law, the two previous Department of Labor studies and
reports on the FMLA issued in 1996 and 2001, several U.S. Supreme Court
and lower court rulings, and a review of the public comments received
in response to the RFI. The NPRM also sought public comment on issues
to be addressed in final regulations to implement the 2008 amendments
to the FMLA providing for military family leave pursuant to section
585(a) of the NDAA. The Department's NPRM included a description of the
relevant military family leave statutory provisions, a discussion of
issues the Department had identified under those provisions, and a
series of questions seeking comment on subjects and issues for
consideration in developing the final regulations.
In response to the NPRM, the Department received 4,689 comment
submissions (the majority via the Federal eRulemaking Portal at http://
www.regulations.gov) during the official comment period from a wide
variety of individuals, employees, employers, trade and professional
associations, labor unions, governmental entities, Members of Congress,
law firms, and others. Two submissions attached the views of some of
their individual members: The American Federation of Teachers (528
individual comments) and MomsRising.org (4,712 individual comments).
Additional comments submitted via the Regulations.gov eRulemaking
Portal after the comment period closed were not considered part of the
official record and were not considered. (Comments may be viewed on the
Regulations.gov Web site at http://www.regulations.gov/fdmspublic/
component/main?main=DocketDetail&d=ESA-2008-0001.)
Nearly 90 percent of the comments received in response to the NPRM
were either: (1) Very general statements; (2) personal anecdotes that
do not address any particular aspect of the proposed regulatory
changes; (3) comments addressing issues that are beyond the scope or
authority of the proposed regulations, ranging from repeal of the Act
to expanding its coverage and benefits; or (4) identical or nearly
identical ``form letters'' sent in response to comment initiatives
sponsored by various constituent groups, such as the American Postal
Workers Union and several of its affiliated local unions, the
Associated Builders and Contactors, MomsRising.org, the National
Organization of Women, the Society for Human Resource Management,
Teamsters for a Democratic Union, and Women Employed. The remaining
comments reflect a wide variety of views on the merits of particular
sections of the proposed regulations. Many include substantive analyses
of the proposed revisions. The Department acknowledges that there are
strongly held views on many of the issues presented in this rulemaking,
and it has carefully considered all of the comments, analyses, and
arguments made for and against the proposed changes.
The major comments received on the proposed regulatory changes are
summarized below, together with a discussion of the changes that have
been made in the final regulatory text in response to the comments
received. In addition to the more substantive comments discussed below,
the Department received some minor editorial suggestions (e.g.,
suggested grammatical revisions and correction of misspelled words),
some of which have been adopted and some of which have not. A number of
other minor editorial changes have been made to improve the clarity of
the regulatory text.
II. Summary of Comments on Changes to the FMLA Regulations
This summary begins with a general overview of how the new military
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family leave entitlements have been incorporated into the existing FMLA
regulatory framework, followed by a section-by-section presentation of
the major comments received on the Department's other proposed
revisions. As proposed in the NPRM, the section headings in the final
rule have been reworded from a question into the more common format of
a descriptive title, and several sections have been restructured and
reorganized to improve the accessibility of the information. In
addition, proposed sections of the regulations have been renumbered in
the final rule to allow for the addition of new regulatory sections
addressing the military family leave entitlements as described below.
Incorporation of New Military Family Leave Entitlements Into the FMLA
Regulations
In crafting these final regulations on military family leave, the
Department was mindful of the special circumstances underlying the need
for such leave. In recognition of the military families who may have
the need to take FMLA leave under these new entitlements, the
Department worked to finalize these regulations as expeditiously as
possible. In addition, because many of the NDAA provisions providing
for military family leave under the FMLA adopt existing provisions of
law generally applicable to the military, the Department engaged in
extensive discussions with the Departments of Defense and Veterans
Affairs before finalizing these regulations. The Department also
consulted with a number of military service organizations. These
discussions focused on creating regulatory requirements under the FMLA
that reflect an understanding of and appreciation for the unique
circumstances facing military families when a servicemember is deployed
in support of a contingency operation or injured in the line of duty on
active duty, as well as providing appropriate deference to existing
military protocol. The Departments of Defense and Veterans Affairs are
fully cognizant of the central role each of them will play in ensuring
that military families are able to avail themselves of the new
entitlements when needed and to comply with the statutory and
regulatory requirements for the taking of job-protected leave under the
FMLA when a servicemember is deployed or seriously injured or ill. The
Department also acknowledges the critical role employers play in
helping the men and women serving in the military, especially those in
the National Guard and Reserves. In workplaces around the country,
employer support is vital to the implementation of the military family
leave provisions in a manner that recognizes and contributes to the
success of the members of the military and their families.
In the NPRM, the Department specifically requested comments on
whether the new military family leave entitlements should be
incorporated into the broader FMLA regulatory framework, or whether
completely separate, stand-alone regulatory sections should be created
for one or both of the new entitlements. The Department proposed to
adopt many of the same or similar procedures for taking military family
leave as are applied to other types of FMLA leave and suggested a
number of sections to which conforming changes would need to be made in
order to reflect these new leave entitlements. For example, the
Department cited Sec. Sec. 825.100 and 825.112(a) as sections that
would need to be updated to reflect the military family leave
entitlements. Among other items, the Department also suggested that the
poster and general notice discussed in proposed Sec. 825.300(a), the
eligibility notice in proposed Sec. 825.300(b), and the designation
notice in proposed Sec. 825.300(c) would need to incorporate
appropriate references to the military family leave entitlements. The
Department also requested comments on any other regulatory sections
that should be revised in light of the military family leave
entitlements.
After reviewing the public comments, the Department concurs with
the majority of comments that stated that the procedures used when
taking military family leave should be the same as those used for other
types of FMLA leave whenever possible. The Department believes that
this approach is beneficial to both employees and employers--each of
whom should find it easier to apply the same or similar procedures for
taking and administering FMLA leave regardless of the qualifying
reason. Accordingly, the Department has, when feasible, incorporated a
discussion of the new military family leave entitlements into the
proposed regulatory provisions that concern the taking of FMLA leave
for other qualifying reasons. The Department also has created four new
regulatory sections--numbered as Sec. Sec. 825.126, 825.127, 825.309
and 825.310--which address specific employee and employer
responsibilities for purposes of military family leave.
The Department received a few comments regarding the incorporation
of the military family leave entitlements into the proposed FMLA
regulatory framework. The National Partnership for Women & Families and
MomsRising.org both stated:
Because the military leave provisions have different time
requirements, different certification requirements, and different
definitions than the rest of the FMLA, we strongly recommend that
the regulations for these provisions not be incorporated in the rest
of the FMLA regulations. Rather, these regulations should have their
own sections within the FMLA regulations and can refer to the rest
of the FMLA when necessary. This organization will reduce confusion
and will allow DOL to issue the military leave regulations much more
promptly.
The Pennsylvania Governor's Office of Administration also recommended
``that the regulations for [the military family leave entitlements] be
separate from the FMLA regulations.''
On the other hand, a number of commenters urged that the
Department, as much as possible, incorporate the new regulations
regarding military servicemember leave into the existing FMLA
regulations. For example, TOC Management Services argued:
The DOL should take its cue from Congress, which chose to
incorporate the provisions of H.R. 4986 into the existing FMLA
statutes * * *. By organizing the statutes this way, Congress has
clearly shown an intent to have the new FMLA provisions be an
integrated part of the FMLA; not a stand-alone provision within the
other FMLA provisions. Although carving out a section to address the
new military servicemember leave provisions would be the most
convenient option for the DOL, it would ultimately lead to
confusion. Employees and employers reading through the regulations
to determine their leave rights/obligations may not be aware that
there is an entirely separate section dealing with military
servicemember leave. For instance, an employee may read Sec.
825.112 to determine whether they qualify for leave to care for
their injured servicemember spouse and end their inquiry after
reading through that section. It would be confusing to have an
entirely different section regarding qualifying reasons for leave
that relates only to military servicemembers. To the extent
possible, the DOL should follow Congress's lead in incorporating the
new provisions into the existing ones.
Similarly, the Illinois Credit Union League stated that, ``[because]
the military and medical provisions are companion regulations, they
should be incorporated into one statutory scheme to ensure consistency.
To act otherwise would be to assure a regulatory legal patchwork * *
*.'' WorldatWork also suggested that the Department ``should
incorporate the notice provisions provided in this section with the
notice provisions provided elsewhere in the FMLA regulations.
Consistency will help in administration.''
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The Department has decided to incorporate, wherever feasible, the
new military family leave entitlements into the proposed FMLA
regulations governing the taking of job-protected leave for other
qualifying reasons. The Department believes that completely separating
the military family leave provisions from the provisions governing the
taking of other types of FMLA leave would create unnecessary confusion
and complexity for employees and employers. By integrating the military
family leave provisions into the proposed FMLA regulations where
applicable and appropriate, employees and employers will be better able
to understand their rights and obligations under the new entitlements.
Because Congress chose to incorporate the new entitlements into the
existing FMLA statutory framework rather than create a new entitlement
separate from the rest of the FMLA, ensuring that the totality of the
FMLA regulations reflects the new military family leave provisions is
both necessary and consistent with congressional intent.
In most cases, these changes are modest technical changes that
acknowledge the military leave entitlements in the context of the FMLA.
For example, some references to certification in the regulations have
been altered to clarify whether they refer only to ``medical
certifications'' of a serious health condition or if they refer also to
``certifications'' under the military family leave provisions. In some
places, certain references to an employee's entitlement to 12 workweeks
of leave are changed to simply reference the employee's leave
entitlement, including the entitlement of up to 26 workweeks for
military caregiver leave. Minor changes such as this occur in
Sec. Sec. 825.101, 825.112, 825.122, 825.124, 825.200, 825.202-
825.207, 825.213, 825.300, 825.301, 825.305-825.308, 825.400, and
825.500. In some instances, the changes are more substantial, such as
in the notice provisions in Sec. Sec. 825.302 and 825.303, and the
general description of the FMLA in Sec. 825.100. In addition, several
new terms related to the military family leave provisions have been
added to the definitions in Sec. 825.800. Where significant, the
specific changes required to incorporate the new military family leave
entitlements into the proposed FMLA regulations are discussed in
greater detail in the section-by-section analysis of the final
regulations which follows.
The Department also recognizes that the NDAA amendments to the FMLA
created certain new concepts that are applicable only to the taking of
military family leave. Accordingly, the final rule includes four new
regulatory sections, numbered Sec. Sec. 825.126, 825.127, 825.309, and
825.310, which address those unique aspects of the military family
leave entitlements. These four sections are discussed in greater detail
below in the section-by-section analysis. Generally speaking,
Sec. Sec. 825.126 and 825.127 discuss an employee's entitlement to
qualifying exigency and military caregiver leave respectively. Sections
825.309 and 825.310 of the final rule cover the certification
requirements for taking qualifying exigency and military caregiver
leave respectively. The proposed FMLA provisions beginning with Sec.
825.309 and ending with Sec. 825.311 have been renumbered in the final
rule as Sec. Sec. 825.311-825.313 to allow for the addition of these
two new military family leave certification provisions.
Section-by-Section Analysis of Final Regulations
Section 825.100 (The Family and Medical Leave Act)
The Department proposed no substantive changes to this section.
Section 825.100 in the final rule is amended to include a description
of the military family leave provisions in the general discussion of
the FMLA. Section 825.100(a) reflects that the FMLA has been amended,
and also adds the new qualifying reasons for taking leave. Section
825.100(b) adds the serious injury or illness of a covered
servicemember for whom the employee is eligible to provide care under
the FMLA as another reason that precludes an employer from recovering
health benefits from an employee who does not return to work. Section
825.100(d) now includes references to military caregiver leave and
qualifying exigency leave in the overview of certification.
Section 825.101 (Purpose of the Act)
The Department proposed no substantive changes to this section.
Section 825.101(a) in the final rule is amended to include a reference
to the military family leave provisions in the general discussion of
the purpose of the FMLA.
Sections 825.102-825.103 (Reserved)
The NPRM proposed to delete and reserve Sec. Sec. 825.102
(Effective date of the Act) and 825.103 (How the Act affected leave in
progress on, or taken before, the effective date of the Act), because
they are no longer needed. The final rule reserves these sections.
Section 825.104 (Covered Employer)
The Department proposed no changes to this section, which discusses
employer coverage under the FMLA, and received no comments on this
section. The final rule adopts the section as proposed.
Section 825.105 (Counting Employees for Determining Coverage)
The Department proposed no substantive changes to this section,
which addresses how to count employees for purposes of determining
coverage. The only change proposed was to update the dates used in the
example in paragraph (f). The final rule adopts the section as
proposed.
TOC Management Services stated that it believes the rule is
confusing because it states in paragraph (c) that there is no employer/
employee relationship when an employee is laid off. It noted that there
may be a continuing obligation to that employee, such as under a
collective bargaining agreement, because the employee has an
expectation of recall in the event that business picks up again. It
also stated that many employers mistakenly use the word ``layoff'' when
the action truly is an administrative termination or downsizing and the
employee has no expectation of recall.
The Department has not heard from any other commenters that this
rule is confusing. Moreover, the fact that an employer may have
continuing contractual obligations to an individual on layoff does not
mean that it has a current employer-employee relationship with that
person within the meaning of the FMLA. Employees who are laid off
typically are eligible for unemployment insurance benefits, which
demonstrates the lack of an ongoing employer/employee relationship as
it is commonly understood. Therefore, the Department is not making any
changes to the section and is adopting the rule as proposed.
Section 825.106 (Joint Employer Coverage)
Section 825.106 addresses joint employment. The proposed rule added
a new paragraph at Sec. 825.106(b)(2) to address joint employment in
the specific context of a Professional Employer Organization (``PEO'').
PEOs are unlike traditional placement or staffing agencies that supply
temporary employees to clients. PEOs operate in a variety of ways, but
typically provide payroll and administrative benefits services for the
existing employees of an employer/client. The proposed rule stated that
PEOs that contract with clients merely to perform administrative
[[Page 67938]]
functions are not joint employers with their clients; however, where
the PEO has the right to hire, fire, assign, or direct and control the
employees, or benefits from the work they perform, such a PEO would be
a joint employer.
The commenters generally applauded the Department's recognition of
the differences between PEOs and traditional staffing agencies, but
they had a number of suggestions for further improvements and
clarifications. See, e.g., Strategic Outsourcing, Inc.; TriNet Group;
National Association of Professional Employer Organizations
(``NAPEO''); American Federation of Labor and Congress of Industrial
Organizations (``AFL-CIO''); and Fulbright & Jaworski. But see Harrill
& Sutter (stating proposed change is completely unnecessary and
probably harmful because companies will begin to call themselves PEOs
regardless of facts). Based on the comments received, the Department
has made a number of additional changes, as described below.
First, many of the commenters expressed concern regarding the
proposed rule's focus on a PEO's ``right'' to make certain employment
decisions rather than the ``actual'' role it exercises when evaluating
whether the PEO is a joint employer. They were concerned particularly
in light of the fact that several states' laws require PEOs to reserve
such rights in their contracts with client employers. The commenters
had different suggestions for further clarification on this point. For
example, NAPEO noted that PEOs ``contractually assume or share certain
employer obligations and responsibilities.'' Therefore, NAPEO conceded
that the ``reality of PEO arrangements is that PEOs do co-employ client
worksite employees.'' NAPEO recommended, however, that the regulation
designate PEO clients as the primary employers for FMLA purposes. See
also TriNet Group. Both NAPEO and TriNet Group stated that PEOs do not
create the jobs for which they provide administrative services; rather,
the client employer creates those jobs and the PEO has no authority to
move an employee to another client. Therefore, they believed that the
primary employer duty of job restoration should be the responsibility
of the entity that creates the job opportunity. The AFL-CIO similarly
stated that ``it makes no sense to consider PEOs as primary employers.
In fact, designating the PEO as the primary employer for purposes of
job restoration threatens to deprive employees of their key post-leave
FMLA right.'' See also Greenberg Traurig (PEOs do not fit the model of
a primary employer because they do not hire and place employees at a
work location and thus should not be responsible for reinstatement).
On the other hand, Strategic Outsourcing, Inc. objected to NAPEO's
per-se rule designating the clients of PEOs as the primary employers,
stating that the PEO industry has changed throughout its history and
will continue to evolve, and that there is great variety among PEOs as
to the scope of services they deliver. ``[A]ny per-se rule that fails
to take into account the unique facts of each case will inevitably
result in improper application of the FMLA.'' Therefore, Strategic
Outsourcing, Inc. asked the Department to focus on the economic
realities of the situation, both to determine whether a joint
employment relationship exists and, if so, to determine which employer
is the primary employer. ``Such an approach would allow for the
multifarious forms PEOs take, and would avoid making the application of
the FMLA dependent on state law and nuances of contractual terms.''
Fulbright & Jaworski similarly noted that the FMLA borrows the
definition of ``employ'' from the FLSA, which utilizes an economic
realities analysis. Moreover, it disagreed with NAPEO's suggestion,
stating that PEOs that do not exercise control over a client's
employees and that do not hire and fire should not be considered joint
employers. See also Duane Morris (disagreeing with NAPEO's assertion
that PEOs are always joint employers); Greenberg Traurig (suggesting
that the regulation follow the case law ``which emphasizes that it is
the economic realities of the relationship and actual practices that
determine the employer/employee relationship''); Kunkel Miller & Hament
(referencing a number of court decisions holding that PEOs/employee
leasing companies were not joint employers).
Jackson Lewis concluded that the joint employment concept ``is
entirely inapposite to the relationship between a PEO and its client
companies'' because, although a PEO assumes a number of employer
responsibilities, it does not have the day-to-day control over the
employees, cannot meaningfully affect the terms and conditions of their
employment, and does not benefit from the work of those employees.
Proskauer Rose similarly stated that, although each relationship must
be evaluated in its totality, with no single factor controlling, ``the
joint employer doctrine should rarely, if ever, be applied to PEOs,''
and that the right to hire and fire ``should be irrelevant to the joint
employer analysis unless the PEO actually exercises that right.'' In
contrast, the Equal Employment Advisory Council emphasized that the
proposed language (stating that where the 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'') makes a ``critical'' point that ``must be
retained, since an organization maintaining one or more of these types
of control indeed would be a `joint employer' under the FMLA and other
laws.''
Some of these commenters also addressed the issue of how employers
must count their employees, if the PEO is a joint employer, to
determine whether there are 50 employees within 75 miles. See, e.g.,
Proskauer Rose, Greenberg Traurig, and NAPEO. They noted that the size
of the average PEO client (17 employees) falls squarely within the
statutory exception to coverage, and they stated that a small company
that would otherwise be exempt from the FMLA should not be deprived of
the exception just because it partners with a PEO.
Finally, a number of commenters stated that the Department used
confusing terminology in the proposed rule that did not keep clear the
distinction between a traditional temporary placement or staffing
agency and an employee leasing agency or PEO. See, e.g., American
Staffing Association.
The Department agrees with the commenters that suggested that the
economic realities analysis is the proper standard for assessing
whether a PEO is a joint employer. See Sec. 825.105(a). The FMLA
incorporates the FLSA definition of ``employ,'' which is ``to suffer or
permit to work.'' 29 U.S.C. 2611(3), incorporating 29 U.S.C. 203(g). As
the Supreme Court has repeatedly recognized, that definition is
strikingly broad. See, e.g., Rutherford Food Co. v. McComb, 331 U.S.
722, 730 (1947). Whether an employment relationship exists must be
determined in light of the economic realities of the situation.
Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33 (1961).
An economic realities analysis does not depend on ``isolated factors
but rather upon the circumstances of the whole activity.'' Rutherford
Food Co., 331 U.S. at 730. The Department also applied this economic
realities principle when it promulgated regulations to clarify the
definition of ``joint employment'' under the Migrant and Seasonal
Agricultural Worker Protection Act, 29 U.S.C. 1802(5), which also
incorporates the FLSA definition of ``employ.'' See 62 FR 11734 (Mar.
12, 1997); 29 CFR Part 500.
Therefore, the final rule modifies Sec. 825.106(b)(2) of the
proposed rule by
[[Page 67939]]
adding a sentence to clarify that the ``determination of whether a PEO
is a joint employer also turns on the economic realities of the
situation and must be made based upon all the facts and
circumstances.'' The final rule retains the proposed sentence
clarifying that a PEO is not a joint employer if it simply performs
administrative functions, such as those related to payroll and benefits
and updating employment policies. The final rule modifies the proposed
sentence pertaining to the right to hire, fire, assign, or direct and
control to clarify that ``such rights may lead to a determination that
the PEO would be a joint employer with the client employer, depending
upon all the facts and circumstances.'' The final rule also adds a
sentence at the end of Sec. 825.106(c) to clarify that, unlike the
situation involving traditional placement agencies, the client employer
most commonly would be the primary employer in a joint employment
relationship with a PEO.
With regard to how to count employees in the joint employment
context, some of the comments demonstrated confusion about which
employees an employer must count. There appeared to be a misperception
that if a PEO jointly employs its client employers' employees, each
client employer therefore also must jointly employ (and count) both the
office staff of the PEO and the employees of the PEO's other unrelated
clients. That would only be true, however, if the economic realities
showed that the PEO office staff or the employees of the other
unrelated clients were economically dependent on the client employer,
something which is unlikely. Therefore, the final rule adds a new
sentence in Sec. 825.106(d) to clarify employee counting in the PEO
context.
Finally, the final rule makes minor editorial changes in response
to the comments noting that the terminology used was confusing with
regard to leasing agencies. The Department deleted that terminology,
and the final rule refers only to temporary placement agencies and
PEOs, the two main categories of employment agencies. Of course, the
labeling or categorization of a particular employer does not control
the outcome; all the facts and circumstances in each situation must be
evaluated to assess whether joint employment exists and, if so, which
employer is the primary employer.
Section 825.107 (Successor in Interest Coverage)
No changes were proposed in this section of the current rule, and
no substantive comment was received. The final rule adopts this section
as proposed.
Section 825.108 (Public Agency Coverage)
The Department proposed no changes to this section, which addresses
what constitutes a ``public agency'' for purposes of coverage. The
current regulation states that, 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's ``Census of
Governments'' will be determinative. In contrast, the regulations
implementing the Fair Labor Standards Act use this test as just one
factor in determining what constitutes a separate public agency. See 29
CFR Sec. 553.102. Because the FMLA incorporates the FLSA's definition
of ``public agency'' (see 29 U.S.C. 2611(4)(A)(iii), incorporating 29
U.S.C. 203(x)), the proposal asked whether the FMLA regulation should
be conformed to the test in the FLSA regulations. The final rule makes
this regulation consistent with the FLSA regulation.
Very few commenters addressed this issue. The AFL-CIO stated that
the ``FLSA test is more appropriate'' because the FLSA factors include
employment-specific criteria rather than relying primarily on
governance and taxation issues as the Census does. In contrast,
Catholic Charities, Diocese of Metuchen stated that a change was not
necessary because the Census test was ``sufficient for determining
whether a public agency is a separate and distinct entity.'' It stated
that, because the test focuses on whether the agency has independent
fiscal powers and looks at the type of governing body that the agency
has and the functions that this body performs, the factors are clear
and concise and less subjective than the FLSA case-by-case
determination. See also Harrill & Sutter (no need for an amendment
because, although the FMLA definition of ``public agency'' incorporates
the FLSA definition, the definition of ``employer'' is broader and
refers simply to conduct affecting commerce); Robert Jusino (agencies
should promulgate their rules by using standardized tests and
definitions unless the FLSA multiple factors tests is significantly
superior).
The final rule amends this section to be consistent with the FLSA
regulation, pursuant to which the Census is just one factor. Because
the FMLA incorporates the FLSA's definition of ``public agency,'' the
Department believes that the regulatory tests should be consistent.
Moreover, as the AFL-CIO noted, the FLSA test allows employment-related
factors to play a greater role than they do in the Census analysis,
which the Department believes is appropriate.
Section 825.109 (Federal Agency Coverage)
The NPRM proposed to update the existing regulations that identify
the Federal agencies covered by Title I of the FMLA and the Department
of Labor's regulations to reflect changes in the law resulting from the
Congressional Accountability Act of 1995, 2 U.S.C. 1301, and a
nomenclature change in the Postal Regulatory Commission required by
section 604(f) of the Postal Accountability and Enhancement Act, Public
Law 109-435, Dec. 20, 2006, 120 Stat. 3242. No substantive comments
were received on this section and it is adopted in the final rule as
proposed.
Section 825.110 (Eligible Employee)
Section 825.110 addresses the requirement that employees are
eligible to take FMLA leave only if they have been employed by the
employer for at least 12 months and have at least 1,250 hours of
service in the 12-month period preceding the leave. The proposed rule
added a new paragraph at 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 also proposed a new paragraph (b)(2) setting
forth two exceptions to the five-year rule for: (1) A break in service
resulting from an employee's fulfillment of National Guard or Reserve
military service obligations; and (2) where a written agreement,
including a collective bargaining agreement, exists concerning the
employer's intention to rehire the employee after the break in service.
In those situations, the proposed rule provided that prior employment
must be counted regardless of the length of the break in service. The
proposed rule also stated, in paragraph (b)(4), that an employer may
consider employment prior to a break in service of more than five
years, provided that it does so uniformly with respect to all employees
with similar breaks. The proposed rule stated in paragraph (c)(2) that
an employer must credit an employee returning from his or her National
Guard or Reserve obligation with the hours of service that would have
been performed but for the military service when evaluating the 1,250-
hour requirement, and paragraph (b)(2)(i) stated that the period of the
military service also must be counted toward the
[[Page 67940]]
12-month requirement. Proposed paragraph (d) clarified that an
ineligible employee on non-FMLA leave may become eligible for FMLA
leave while on leave (by meeting the 12-month requirement), and that
any portion of the leave taken for a qualifying reason after the
employee becomes eligible would be protected FMLA leave. The proposed
rule also deleted portions of current paragraphs (c) and (d), based
upon the Supreme Court's decision in Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81 (2002), because they improperly ``deemed'' employees
eligible for FMLA leave. Finally, the proposal moved the notice
provisions in current paragraph (d) to Sec. 825.300(b) and deleted
current paragraph (e), which relates to counting periods of employment
prior to the effective date of the FMLA. The final rule adopts the
changes made in the proposed rule with one modification that extends
the period for breaks in service from five years to seven years.
Many commenters addressed various aspects of the proposed rule.
Numerous employee representatives opposed the proposed five-year cap on
breaks in service in order for prior employment to count toward the 12-
month requirement. They asserted that the proposal was contrary to the
statutory text, which does not have any time limit for the 12-month
requirement; that the legislative history is clear that the months of
employment do not need to be consecutive; and that the current
regulation is appropriate and therefore any change would be arbitrary
and contrary to the remedial purpose of the law. See, e.g., AFL-CIO;
American Postal Workers Union; Maine Department of Labor; Legal Aid
Society--Employment Law Center; Sargent Shriver National Center on
Poverty Law; and Harrill & Sutter. The AFL-CIO stated that most
employers retain records for seven years as a routine business
practice, and that employees also might have records for longer than
five years. It further stated that employer objections regarding the
administrative burdens associated with combining previous periods of
employment were not credible in light of the advances in electronic
compilation and retrieval of data. Therefore, the AFL-CIO suggested
that, if any limit is imposed, it should be lengthened to seven years
to conform to standard recordkeeping practices. The American Postal
Workers Union similarly commented that a five-year cap strikes the
wrong balance between employees' need for FMLA leave and employers'
ability to identify prior periods of service. It stated that in most
cases there will be no question whether an employee had a period of
prior service sufficient to qualify the employee for protection, and
that the increasing use of electronic recordkeeping will minimize the
burden on employers. The National Partnership for Women & Families, the
Coalition of Labor Union Women, and Women Employed all emphasized that
the proposed change would cause particular hardships for women, who
more frequently take extended time off to raise children or to care for
ill family members and then return to their jobs; the National
Partnership suggested six or seven years might have a less harmful
effect. The Cleveland-Marshall College of Law, Employment Law Clinic,
commented that an employer is not required to rehire a separated
employee; therefore, the issue arises only if the employer has made a
conscious decision to rehire a former employee after determining that
the burden of hiring an employee who qualifies for FMLA rights sooner
is outweighed by the value that the former employee would have to the
employer.
Numerous employers expressed the opposite view and stated that
having some cap on the length of the gap was at least a step in the
right direction. For example, the Equal Employment Advisory Council
(``EEAC'') noted that with the passage of time, manufacturing methods,
technology, equipment, customers, marketing methods and product lines
may change dramatically, and an employee who has been gone for a number
of years is functionally no different from a new employee. Therefore,
EEAC commented that having an established cutoff beyond which a break
in service will be ignored balances the interests of employers and
employees and allows employers to focus benefits on employees who
exhibit loyalty. However, EEAC and many other employers stated that
allowing a five-year gap was too long. They suggested that the
Department should allow a gap of three years, because that would be
consistent with the length of the FMLA record keeping requirement and,
thus, there would be appropriate documentation available. They
commented that allowing a five-year gap would cause administrative
problems by putting pressure on employers to retain records for that
longer period, which would be burdensome and yet of little practical
value to employees because so few would return to their employer after
that long a gap. See, e.g., EEAC; Chamber of Commerce of the United
States of America (the ``Chamber''); HR Policy Association; Fisher &
Phillips; Food Marketing Institute; and Catholic Charities, Diocese of
Metuchen.
Other employers suggested that there should be an even shorter
period. For example, the National Coalition to Protect Family Leave
stated that the eligibility determination should be based simply upon
continuous service for a 12-month period, and it opposed any
aggregation of service other than pursuant to the two exceptions in
paragraph (b)(2). See also College and University Professional
Association for Human Resources; Spencer Fane Britt & Browne;
Metropolitan Transportation Authority (NY); and National Business Group
on Health. Jackson Lewis commented that the Department should reject an
absolute time period, and instead look to each employer's normal
``break in service'' policies applicable to seniority, eligibility for
benefits, and accrual of paid leave time; however, if an absolute limit
is necessary, it suggested a cap of two years. Jackson Lewis regarded
it as unfair that a returning employee who left employment five years
ago would be entitled to FMLA leave before a colleague who had recently
devoted 12 consecutive months of service to the company, and that the
unfairness would be compounded unless the rules also accounted for FMLA
leave taken in the last few months of that individual's previous
employment.
Some employers stated that allowing a five-year gap brings clarity
to the decision and strikes the right balance between allowing an
employee to count previous periods of employment and protecting an
employer from the burden of tracking former employees for potentially
long periods of time. They viewed the proposal as consistent with the
Act, which does not require the 12 months of employment to be
consecutive, but which also recognizes that there must be balance and
that the goals must be accomplished in a way that takes account of
employers' legitimate interests. See, e.g., Burr & Forman; TOC
Management Services; Retail Industry Leaders Association; Association
of Corporate Counsel's Employment and Labor Law Committee; Society of
Professional Benefit Administrators; Cummins Inc.; Domtar Paper
Company.
Finally, a number of employers suggested that the Department should
clarify that employers are required to maintain employee records for
only three years and provide further guidance on what it means that the
employee is responsible for putting forth some proof of the prior
[[Page 67941]]
employment for the earlier years. See, e.g., the Chamber; College and
University Professional Association for Human Resources; Hewitt
Associates; Retail Industry Leaders Association; Fisher & Phillips.
Hewitt Associates asked: What would happen if the employer actually has
the data from the earlier years; what if the data would be difficult to
retrieve; and how can an employer challenge the employee's proof?
Vercruysse Murray & Calzone asked whether it would be sufficient for an
employee to merely assert, by affidavit or otherwise, that he or she
was employed for a specific period of time five years ago, or to
present a document evidencing previous employment, even though that
document may not contain sufficient information to establish the actual
duration of the previous employment. EEAC suggested that employees
should be required to provide proof such as pay stubs, W-2 forms, or
other documentary evidence beyond the employee's mere word that he or
she is a former employee. In contrast, the AFL-CIO commented that an
employee should only have to prove prior employment where the employer
does not have records, because it stated that most employers keep
employment and tax records for several years beyond the three years the
FMLA requires.
Only a few commenters addressed the two exceptions to the five-year
rule in proposed Sec. 825.110(b)(2), which are applicable where the
break in service is for National Guard or Reserve service or where
there is a written agreement regarding the employer's intention to
rehire the employee. Those commenters generally agreed with or did not
oppose the exceptions. See, e.g., HR Policy Association; National
Coalition to Protect Family Leave; EEAC. Burr & Forman stated that the
military exception is unnecessary because the same administrative
burdens apply when an employee is gone for over five years for military
reasons, and the proposed rules already provide sufficient protection
by counting military service both toward the 12-month requirement and
toward the 1,250 hour requirement in determining employee eligibility.
With regard to proposed Sec. 825.110(c)(2), which counts the hours
the employee would have worked for the employer but for the National
Guard or Reserve service, EEAC stated that it should be deleted because
it was beyond the Department's authority to legislate FMLA eligibility
for employees who have been absent for military service and thus lack
the minimum 1,250 hours of service within the previous year, as
statutorily required. EEAC recognized that the Department's proposal
codifies guidance previously issued concluding that, because the
Uniformed Services Employment and Reemployment Rights Act (``USERRA'')
entitles returning service members to the rights and benefits they
would have had if they had been continuously employed, they are
entitled to count the time. EEAC disagreed, however, with the
Department's reconciliation of the two statutes.
Several commenters addressed the clarification in proposed Sec.
825.110(d) providing that an employee who is on non-FMLA leave may
become eligible for FMLA leave while on leave (by meeting the 12-month
requirement), and that any portion of the leave taken for a qualifying
reason after the employee becomes eligible would be protected FMLA
leave, while any leave taken before the employee passed the 12-month
mark would not be FMLA leave. The AFL-CIO approved of this
clarification, which is consistent with the court's decision in Babcock
v. Bell South Advertising and Publishing Corporation, 348 F.3d 73 (4th
Cir. 2003), stating that this is the interpretation of the regulation
that best effectuates the 12-month eligibility requirement of the FMLA.
See also Society of Professional Benefit Administrators (agreeing that
the proposal would clarify a very confusing issue for employers);
Domtar Paper Company.
Other commenters opposed the proposal and suggested that
eligibility for FMLA leave should attach only to leave that actually
begins after the employee meets the 12-month and 1,250-hour
requirements, regardless of whether and when the employee gives notice
by requesting leave, and should not attach to a block of leave or
intermittent leave that begins before the employee becomes eligible and
continues after the employee becomes eligible. See, e.g., National
Coalition to Protect Family Leave; EEAC; National Business Group on
Health; and Food Marketing Institute. EEAC stated that, in situations
where employers provide more generous leave benefits than the FMLA
requires by providing leave for those who lack the minimum 12 months of
service, the employer then must provide future FMLA benefits that it
would not otherwise be required to provide. It stated this ``creates a
perverse incentive for employers (1) not to provide leave in excess of
the FMLA requirements and (2) to act swiftly to terminate employees
before they become eligible for FMLA protection.'' EEAC also noted that
it results in an employee with only nine months of service who is
allowed to take three months of approved leave becoming eligible for
three more months of leave at the 12-month mark, while an employee with
nine years of service is eligible for only three months total. See also
Spencer Fane Britt & Browne; Vercruysse Murray & Calzone (also
commenting that the proposal would create significant administrative
burdens for employers because they would have to revisit employees'
eligibility for FMLA leave during the middle of their non-FMLA leave,
and when an employee reaches 12 months of service the employer will
have to issue an Eligibility Notice a second time). This commenter also
asked what happens if the employer's policies do not require group
health benefits to be continued during the period of a non-FMLA
absence. Hewitt Associates stated that employers might fear that
replacing an employee during the first non-FMLA portion of the leave
would run afoul of the FMLA's prohibition against interfering with an
employee's right to take leave, thereby effectively extending the
FMLA's protections through the first non-FMLA portion of the leave and
providing an employee with greater than 12 weeks of leave. Therefore,
Hewitt Associates suggested that the Department clarify that the
employee would have no expectation of, or right to, these FMLA non-
interference protections during the first non-FMLA phase of the leave.
Finally, Jackson Lewis urged the Department to provide that any non-
FMLA leave that would otherwise qualify counts towards an employee's
annual entitlement of 12 weeks of FMLA leave.
A number of the commenters also asked the Department to create
consistency between the language in Sec. 825.110(d), which states that
eligibility is determined when the leave commences, and Sec.
825.110(e), which states that the determination of whether an employer
has 50 employees within 75 miles is made when the employee gives notice
of the need for leave. See, e.g., National Coalition to Protect Family
Leave; Associated Builders and Contractors; International Franchise
Association. The National Coalition to Protect Family Leave stated that
it applauded the Department's interest in promoting as much advance
notice of an employee's need for leave as possible to allow both the
employer and the employee to plan, but it believed that the statute
requires the 50/75 eligibility determination to be made when the
employee actually takes leave rather than when advance notice is given.
On the other hand, EEAC stated that it ``understands the Department's
[[Page 67942]]
reasoning for selecting a different date,'' and it simply sought
clarification that the employer could reevaluate the 50/75
determination at the beginning of each new FMLA leave year, consistent
with other provisions.
Finally, a number of commenters applauded the Department for the
deletions from existing Sec. 825.110(c) and (d) in response to the
Supreme Court's decision in Ragsdale. See, e.g., EEAC; HR Policy
Association; and Association of Corporate Counsel's Employment and
Labor Law Committee. The National Association of Letter Carriers,
however, objected to the deletion of the requirement that the employer
must project when an employee will become eligible for leave or advise
the employee when the employee becomes eligible, stating that the
requirement minimizes disputes.
With regard to the cap in proposed Sec. 825.110(b)(1) on gaps in
service in order for the prior employment to count toward an employee's
12-month requirement, the final rule modifies the proposal by extending
the permissible gap to seven years. The court in Rucker v. Lee Holding
Co., 471 F.3d 6 (1st Cir. 2006), in permitting the five year gap at
issue in that case, recognized that the statutory language is ambiguous
as to whether previous periods of employment count toward the 12-month
requirement, and it stated that the appropriate way to resolve this
important policy issue was through agency rulemaking. The Department
believes that a seven-year cap draws an appropriate balance between the
interests of employers and employees. It recognizes and gives effect to
the legislative history's clear statement that the 12 months of
employment need not be consecutive, while limiting the burden on
employers of attempting to verify an employee's claims regarding prior
employment in the distant past. In light of the legislative history,
the Department rejects the comments suggesting that no gap should be
permitted. By allowing a gap of up to seven years, the rule takes
account of the comments noting that employees sometimes take extended
leaves from the workforce to raise children or to care for ill family
members and emphasizing that women are particularly likely to fill this
role. The final rule also recognizes that many employers keep records
for seven years for tax or other standard business reasons; thus,
allowing a seven-year gap will not impose a burden on those employers.
The FMLA, however, only requires employers to keep records for three
years, and the burden of proving eligibility is always on the employee.
Accordingly, if an employer retains records only for the required three
years, it may base its initial determination of the employee's
eligibility for leave on those records. If it therefore advises the
employee in the eligibility notice that the employee is not eligible
for FMLA leave, the employee will have to submit sufficient proof of
his or her periods of employment in years four through seven to
demonstrate eligibility. Such proof might include W-2 forms; pay stubs;
a statement identifying the dates of prior employment, the position the
employee held, the name of the employee's supervisor, and the names of
co-workers; or any similar information that would allow the employer to
verify the dates of the employee's prior service. Any application for
employment the employee had completed also might provide additional
relevant information.
The final rule also adopts the two exceptions to the cap set forth
in paragraph (b)(2) for breaks in service resulting from an employee's
fulfillment of National Guard or Reserve military service obligations
and breaks where a written agreement exists concerning the employer's
intention to rehire the employee after the break in service. The final
rule also adopts the provision in paragraph (b)(4) stating that an
employer may consider prior employment falling outside the cap,
provided that it does so uniformly with respect to all employees with
similar breaks. There were very few comments addressing these
provisions and they generally were supportive. The Department believes
these exceptions are quite limited and will not impose any burden on
employers. The final rule does make conforming changes in paragraphs
(b)(2) and (b)(4) to reflect the change from five years to seven years.
The final rule also includes the proposed provisions regarding
counting the time an employee would have worked for the employer but
for the employee's fulfillment of National Guard or Reserve military
obligations toward the 12-month and 1,250-hour requirements. USERRA
requires that service members who conclude their tours of duty and are
reemployed by their employer must receive all benefits of employment
that they would have obtained if they had remained continuously
employed, except those benefits that are considered a form of short-
term compensation, such as accrued paid vacation. Therefore, the
Department believes that USERRA requires this outcome.
The final rule clarifies in Sec. 825.110(d), as did the proposed
rule, that an employee may attain FMLA eligibility while out on a block
of leave when the employee satisfies the requirement for 12 months of
employment. Some commenters indicated that this would result in newly-
hired employees being treated more favorably than long-term employees.
Any such peculiar situations that may occur, however, are not the
result of the FMLA, but rather would result from the employer's own
policies. An employer that voluntarily allows a new employee with no
FMLA rights to go out on leave for a family or medical condition could
similarly voluntarily allow a more senior employee with the same
condition to extend a leave beyond the legally required 12 weeks.
Nothing in the FMLA prohibits an employer from treating employees who
have exhausted their FMLA rights more favorably than the law requires.
Moreover, the Department believes that this clarification of the
current rule is the best interpretation of the statutory language,
which defines an ``eligible employee'' as one ``who has been employed
for at least 12 months.'' 29 U.S.C. 2611(2)(A). Because an employee
remains employed while out on employer-provided leave, the employee
becomes eligible under the statutory definition upon reaching the 12-
month threshold. Of course, as the proposed and final rules also
clarify, any leave that employers voluntarily provide before an
employee attains eligibility under the FMLA is not FMLA leave.
Therefore, the FMLA protections do not apply to such leave, and
employers may apply their normal policies to such leave. Employers may
not, however, count any such non-FMLA leave toward the employee's 12-
week FMLA entitlement. Finally, as the Department explained in Opinion
Letter FMLA2006-4-A (Feb. 13, 2006), the FMLA only requires an employer
to ``maintain'' group health insurance coverage at the same level and
under the same conditions as prior to the FMLA leave; it does not
require an employer to provide insurance if it did not do so at the
commencement of the FMLA leave.
The final rule also adopts the proposed changes in paragraphs (c)
and (d), deleting the ``deeming'' provisions. In light of the Supreme
Court's decision in Ragsdale, the Department believes that it does not
have regulatory authority to deem employees eligible for FMLA leave who
do not meet the 12-month/1,250-hour requirements, even where the
employer fails to provide the required eligibility notices to employees
or provides incorrect information. As noted in Sec. 825.300(e),
however, such failures may have the effect of interfering with,
restraining or denying the employee the exercise of FMLA
[[Page 67943]]
rights and result in harm, in which case the employee would have
statutory remedies. Section 825.300(b) also requires employers to
provide employees with an eligibility notice, and if the employee is
not yet eligible for leave, the notice must inform the employee of the
number of months the employee has been employed by the employer or
other reason why the employee is ineligible.
Finally, the Department is making no changes in Sec. 825.110(e),
which states that the determination of whether an employer employs 50
employees within 75 miles is made when the employee gives notice of the
need for leave. The Department continues to believe that retaining the
standard in the current rule encourages as much advance notice of an
employee's need for leave as possible and allows both the employer and
the employee to plan for the absence. This is consistent with the
statutory requirement that, when the need for leave is foreseeable,
employees must provide at least 30 days' advance notice or such notice
as is practicable if the leave must begin in less than 30 days.
Therefore, consistent with the proposed rule, the Department is making
no changes to this provision.
Section 825.111 (Determining Whether 50 Employees Are Employed Within
75 Miles)
The NPRM proposed one change to Sec. 825.111(a)(3) of the current
rule, relating to the location of an employee's worksite when the
employee is jointly employed by two or more employers and is stationed
at a fixed worksite for at least one year. The proposed rule stated
that after one year at the fixed worksite, the employee's worksite for
purposes of determining employee eligibility is the actual physical
place where the employee works, rather than the primary employer's
office from which the employee is assigned or reports. The proposed
change responded to the court's decision in Harbert v. Healthcare
Services Group, Inc., 391 F.3d 1140 (10th Cir. 2004), in which the
court held that the current regulation is arbitrary and capricious as
applied to an employee with a long-term fixed worksite. The court held
that the current regulation contravened the plain meaning of the term
``worksite''; contradicted Congressional intent that employers with
fewer than 50 employees within 75 miles who could cover for an absent
employee should not have to provide FMLA leave; and created an
arbitrary distinction between sole and joint employers. Although the
court acknowledged the legislative history stating that the term
``worksite'' should be construed in the same manner as the term
``single site of employment'' under the Worker Adjustment and
Retraining Notification (``WARN'') Act and its implementing
regulations, the court held that that definition ``governs only
employees without a fixed place of work.''
The final rule adopts the proposed rule, stating in Sec.
825.111(a)(3) that, for purposes of determining an employee's
eligibility, the worksite of a jointly employed employee 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 commenters expressed a variety of divergent views about the
proposed change. The National Coalition to Protect Family Leave
supported the proposed change to follow the court's decision in
Harbert, stating that it concurred with the court's reasoning that
there should be a distinction ``between a jointly employed employee who
is assigned to a fixed worksite, versus a jointly employed employee who
has no fixed worksite and changes worksites, be it regularly or
irregularly.'' Vercruysse Murray & Calzone stated that the proposed 12-
month rule establishes the same type of arbitrary standard struck down
by the court, and that the standard ``should be whether or not the
leased employee is assigned to a fixed worksite, not how long the
leased employee has been assigned to a fixed worksite.'' Thus, only if
the leased employee's worksite is variable should the worksite be the
location from which the employee receives his or her assignments or
reports. Burr & Forman stated that the 12-month period is too short and
recommended that an employee's worksite change from the primary
employer's office to the customer's premises only after the temporary
employee has worked on the premises for two years, to reduce the burden
on small, start-up employers that use a significant number of temporary
employees and would have to count them when determining the eligibility
of their own direct employees.
Jackson Lewis commented that the Department's proposal was
``ineffective and misguided'' and it urged the Department to define
``worksite'' as ``the physical location where the person works, both
for single and jointly employed workers.'' Jackson Lewis noted that the
purpose behind the requirement for 50 employees within 75 miles was to
protect employers that cannot readily replace absent workers who are
assigned to smaller, remote locations. It stated that the length of
time that a jointly employed employee has been working at a small,
remote location has nothing to do with whether his or her primary
employer can find a replacement employee; it also found it anomalous
that an employee assigned to such a location for a short period of time
may remain entitled to FMLA leave (because that employee's worksite is
the primary employer's office), while an employee assigned for more
than a year is less likely to receive FMLA leave.
The AFL-CIO opposed the proposed modification for different
reasons, stating that the current regulation is a permissible
construction of the statute, as the dissent found in Harbert. It stated
that defining the worksite in a joint employment situation as the
primary employer's office appropriately maintains the focus on the
entity most likely to have the ability to find a replacement worker. It
added that shifting the worksite after 12 months to the physical
location where the employee performs his or her work does not
effectuate the statutory purpose behind the 50/75 rule, since that
worksite belongs to an employer who bears no responsibility for hiring
and transferring the employee. The AFL-CIO concluded that the proposal
creates an arbitrary distinction between jointly employed employees who
have a fixed worksite for at least a year and those who do not,
resulting in an employee who is eligible for FMLA leave on one day
becoming ineligible for leave the next day because the worksite has
shifted to a new location where the employee cannot satisfy the 50/75
rule. The AFL-CIO agreed, however, that the current rule creates a
reasonable distinction between sole and joint employers, which is in
harmony with the purpose of the Act, because it alleviates the burden
on small businesses to find replacement workers in situations where
they would not normally bear that burden. The National Partnership for
Women & Families similarly opposed this change, stating that the
legislative history of the FMLA shows clearly that the term
``worksite'' was to be defined as it is under the WARN Act. It stated
that while ``the WARN Act regulations do not specifically address
situations where employees are placed in a temporary worksite long
term, there is no sound reason to consider these employees differently
than other temporary employees.'' It further stated that the Department
has not explained why one year should be the cut off, and asserted that
it is contradictory to count the
[[Page 67944]]
assigning employer as the primary employer with the majority of FMLA
responsibilities but to count the worksite of the employee as that of
the employer to which he or she is assigned.
Hewitt Associates requested further guidance regarding the worksite
of ``virtual'' or telecommuting employees under the rule, particularly
for employees who work out of their home and may receive assignments
from various locations. Catholic Charities, Diocese of Metuchen wanted
clarity regarding the example in Sec. 825.111(a)(2), which states that
construction workers sent from New Jersey to Ohio to work at a
construction site opened in Ohio would continue to have the
headquarters in New Jersey as their ``worksite.'' This commenter stated
the regulations should clarify whether the ``worksite'' of these
workers might eventually change from New Jersey to Ohio if these
workers are employed in Ohio for a long period of time.
The commenters' divergent views reflect the difficulty of crafting
a simple resolution that fits perfectly in all situations. The
Department continues to believe that its proposed rule, which modifies
the current rule only with regard to jointly employed employees who
have been assigned to a fixed worksite for at least 12 months, is the
best solution. The general definition of ``worksite'' remains the same
and, in accordance with the legislative history, it is consistent with
the WARN Act standards. The Department does not believe it would be
appropriate to adopt the Jackson Lewis suggestion that the definition
for all employees should be the actual physical location of their work,
because the WARN Act's regulatory definition for employees with no
fixed worksite refers to such employees' home base, from which their
work is assigned, or to which they report. The Department also does not
believe it is appropriate to adopt the suggestion of Vercruysse Murray
& Calzone that how long the employee has been assigned to a fixed site
is irrelevant, because a series of one-week or one-month assignments do
not constitute fixed worksites.
Because the WARN Act regulation is silent, however, as to joint
employment and long-term fixed worksites, the proposal created an
exception for those few cases where an employee who is jointly employed
is assigned to a fixed worksite for more than one year. As the Harbert
court held, the plain meaning of the term ``worksite,'' the general
FMLA principle that an employer with fewer than 50 employees within 75
miles should not have to find temporary replacements for employees on
leave, and the interest in having consistency between sole and joint
employers counsel in favor of a different rule in that situation. When
a temporary employee has worked for a secondary employer for such an
extended length of time, the employer depends upon the temporary
employee to the same degree as it does its direct employees, and it
faces the same difficulties in obtaining a fully adequate replacement
employee. Therefore, the final rule adopts the proposed rule's change
with regard to jointly employed employees who have physically worked
for at least one year at a facility of a secondary employer, in which
case the worksite is that location.
Finally, with regard to the commenters' requests for clarification,
both the proposal and the final rule add the term ``telecommuting'' in
Sec. 825.111(a)(2) to the existing rule's use of the term
``flexiplace.'' This further clarifies that ``virtual'' employees who
work out of their home do not have their personal residence as their
worksite; rather, they are considered to work in the ``office to which
they report and from which assignments are made.'' Because the current
definition of ``worksite'' remains unchanged for employees who are not
jointly employed, the worksite for construction employees who travel
from their headquarters to a construction site remains their home base,
i.e., the company's headquarters.
Section 825.112 (Qualifying Reasons for Leave, General Rule)
The Department proposed no substantive changes to this section,
which addresses the qualifying reasons that entitle an eligible
employee to take FMLA leave. The proposal did, however, move several
paragraphs of the current rule to other sections to improve the
organization (for example, to place all provisions that address leave
taken for the birth of a child in one section, and all provisions
related to leave for adoption or foster care in another section). The
final rule adopts the rule as proposed with additional modifications to
reflect the military leave entitlements.
Very few commenters addressed this section. WorldatWork stated that
it agreed with the proposed reorganization, both specifically with
regard to this section as well as with regard to other sections that
were similarly reorganized to put a particular topic in one spot.
WorldatWork noted that it will make the regulations much easier to read
and make it easier to find relevant topics. In contrast, Harrill &
Sutter opposed the change, stating that people have been working with
the FMLA regulations for 13 years, and a change is going to lead to
more confusion. TOC Management Services again commented that the
Department should eliminate the statement that the employer/employee
relationship ends when an employee is placed on layoff status and
clarify the statement made in Sec. 825.112(c) that an employee must be
recalled or otherwise be re-employed before being eligible for FMLA
leave.
The Department believes that the reorganization of sections to put
information related to particular topics in one spot is an improvement.
Many commenters approved of the reorganization overall, without
commenting on specific sections. See, e.g., National Coalition to
Protect Family Leave; the Chamber; Equal Employment Advisory Council.
Thus, the Department does not believe that this reorganization will
lead to confusion. Furthermore, as explained previously with regard to
Sec. 825.105, the Department believes that the employment relationship
ends for purposes of the FMLA when an employee is laid off. Proposed
Sec. 825.112(c) is identical to paragraph (f) of the current
regulation. The Department is not aware of any confusion regarding this
section and other commenters did not identify problems with its
implementation. Therefore, the Department is adopting the rule as
proposed. In addition, in Sec. 825.112(a), new paragraphs (a)(5) and
(a)(6) have been added to reflect the two new qualifying reasons for
taking leave under the military family leave provisions.
Introduction to Sections 825.113, 825.114, and 825.115 (Serious Health
Condition, Inpatient Care, and Continuing Treatment)
The FMLA 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 defined
in the Act and Congress did not establish any ``bright-line'' rules of
what conditions were covered.
The appropriate meaning of the term ``serious health condition''
has been the topic of debate for many years. The Department's Report on
the RFI (see 72 FR at 35563-70 (June 28, 2007)) and the NPRM (see 73 FR
7885-89 (Feb. 11, 2008)) both contained a discussion of this debate and
the positions taken by the courts and the Department in opinion letters
in defining ``serious health condition.'' The proposed rule
[[Page 67945]]
reorganized the structure of the regulations defining ``serious health
condition'' for clarity, but maintained the substance of the current
regulation's definition with some modifications to clarify the time
period in which continuing treatment following a period of incapacity
must take place and the frequency of periodic treatment for chronic
conditions. The Department concluded, after extensive consideration,
that there was no alternative approach to the existing regulatory
definition that would more effectively cover the types of conditions
Congress intended to cover under the FMLA without also including some
conditions that many believe should not be covered.
An overwhelming majority of comments from employers and employer
groups voiced disappointment that the proposed rule failed to address
their concerns that the rule is an overly broad definition of serious
health condition. See, e.g., U.S. Postal Service; Food Marketing
Institute; National Association of Convenience Stores; National
Association of Manufacturers. For example, the National Restaurant
Association commented that it ``does not believe that the intent of
Congress in enacting FMLA was to include such minor illnesses within
its coverage. Unfortunately, however, the DOL proposals, while
acknowledging this area of concern, fail to address the issue.''
Hoffinger Industries commented, ``a definitive, more precise definition
of Serious Health Condition should be developed that will not allow an
employee to transform a short-term acute condition into a qualifying
serious health condition.'' The Equal Employment Advisory Council said
it was ``disappointed that the Department is not proposing to * * *
narrow * * * the definition of `serious health condition' * * *. In our
view, this provision grants FMLA coverage in many, many situations in
which a health condition is not actually `serious.' '' The Retail
Industry Leaders Association commented, ``[t]he definition of a serious
health condition has provided FMLA coverage for many non-serious
conditions where Congress intended no such coverage * * *. RILA member
companies are disappointed that the DOL has retained essentially the
current definition of serious health condition.'' The Chamber
commented, ``[t]hese minor changes fall well short of the revisions
necessary to clarify the current definition of serious health
condition, which employers believe is overbroad and inconsistent with
the intent behind the Act.''
Comments from employee representatives generally favored the
proposal's retention of the current definition of ``serious health
condition,'' but did not support the few proposed changes to the
definition. For example, the AFL-CIO commented, ``[w]e support the
Department's substantive treatment of serious health condition because
it does not--despite the urging of many employers--rewrite the
definition against Congress's intent * * * [but the changes proposed
interfere] with the legitimate decisions of health care providers * * *
[and] will likely result in a financial hardship for a significant
number of employees.'' The National Partnership for Women & Families
supported the Department's decision not to make ``major changes'' to
the definition of serious health condition, but expressed concern that
the Department lacked data to show the effect of the changes it did
propose. The National Postal Mail Handlers Union and the Coalition of
Labor Union Women objected to the proposed changes because they
believed the changes would result in employees being required to have
additional medical appointments. Finally, the Communications Workers of
America supported the retention in the proposed rule of an objective
test to define ``serious health condition,'' but objected to the
additional requirements the Department proposed for defining continuous
treatment and chronic serious health conditions.
Section 825.113 (Serious Health Condition)
Proposed Sec. 825.113, ``Serious health condition,'' provided the
general rules and accompanying definitions governing what constitutes a
serious health condition. Proposed Sec. 825.113(a) provided the basic
definition of what constitutes a serious health condition currently
found in Sec. 825.114(a). Proposed Sec. 825.113(b) incorporated the
definition of ``incapacity'' from current Sec. 825.114(a)(2)(i).
Proposed Sec. 825.113(c) incorporated the definition of ``treatment''
found in current Sec. 825.114(b) with minor editorial changes. The
final rule makes no changes to the proposed text for these three
paragraphs.
Proposed Sec. 825.113(d) incorporated language from current Sec.
825.114(c), which addresses the types of treatments and conditions not
ordinarily expected to be covered by the definition of a serious health
condition. The language states, in part: ``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.'' This provision has been the
focus of longstanding debate as to whether the conditions enumerated
can or cannot be serious health conditions. The NPRM contained a
discussion of the history of both the Department's and the courts'
interpretation of this language. 73 FR 7886-87 (Feb. 11, 2008). In the
NPRM, the Department maintained that this provision merely illustrates
the types of conditions that would not ordinarily qualify as serious
health conditions. Id. at 7886. The Department also stated its belief
that this language (1) does not categorically exclude the listed
conditions; and (2) does not create its own definition separate and
apart from the objective regulatory definition of serious health
condition in current Sec. 825.114(a) (and proposed Sec. Sec.
825.113(a), 825.114, 825.115). Id. The Department received significant
comments from both employer and employee groups regarding the retention
of this provision in the regulations, which are discussed below. The
final rule makes no substantive changes to proposed Sec. 825.113(d).
In their comments, a number of employer groups agreed with the
Department's view that the list should be preserved because it serves a
baseline purpose as explanatory language similar to that in a preamble.
For example, Southwest Airlines commented that ``[i]t is clear that the
list is not a per se rule of exclusions, but rather provides helpful,
useful examples of minor conditions that in the absence of
complications do not qualify as serious health conditions under the
FMLA. The list aids all who are involved in the medical certification
process and with the administration of FMLA leaves.''
Many employer groups, however, differed as to when a non-serious
health condition can become a serious health condition. The Society for
Human Resource Management and the National Coalition to Protect Family
Leave both argued that ``the situations where any condition on this
list rises to the level of a serious health condition should be
construed narrowly'' and suggested that the Department ``add language
to the regulation specifying that some sort of serious complication
must result in order for an otherwise `non-serious' health condition to
be considered a serious health condition.'' The U.S. Postal Service and
the Chamber both expressed concern that the rule as proposed would
result in continued confusion on the part of both employers and the
courts as to when otherwise minor conditions rise to the level of
serious health conditions. The Chamber
[[Page 67946]]
urged the Department to ``explicitly exclude minor ailments from the
definition of serious health condition, even where such conditions may
require a regimen of continuing, supervised treatment.''
Comments received from employees and employee groups overwhelmingly
supported the Department's decision to retain the existing definition
of serious health condition instead of creating a per se list of
covered conditions. The AARP and the National Partnership for Women &
Families both commented that the current definition of serious health
condition allows employees the opportunity to be covered by the FMLA
depending on how the specific illness affects that particular employee,
rather than depending on how the illness affects individuals generally.
See also American Association of University Women. The Communications
Workers of America commented that ``an objective test provides the
fairest way to define the statute's coverage of [serious health
conditions], especially because every individual's experience with a
medical condition or disease can vary widely.''
PathWaysPA addressed the Department's decision to retain the list
of conditions that ordinarily are not serious health conditions in
proposed Sec. 825.113(d) and argued that the provision was surplusage.
This commenter stated that ``no `list' of conditions should be defined
as unable to qualify for FMLA certification.'' The AFL-CIO agreed with
the Department's interpretation in the NPRM of this provision, stating
that ``employers have long complained that certain illnesses should
never qualify as serious health conditions and have argued that Section
825.114(c) supports such a restrictive definition. Courts have rejected
this argument * * *. The Department has taken an important step towards
foreclosing argument on this point by explaining in the NPRM that the
definition of serious health condition does not `categorically exclude'
the `common ailments and conditions' enumerated * * *.''
The Department carefully considered the comments received on the
definition of serious health condition and has concluded that there is
no regulatory alternative that would address the concerns raised by the
business community regarding coverage of what some perceive to be minor
ailments without excluding absences that should be FMLA-protected. The
final rule reflects the Department's conclusion that the objective test
defining what constitutes a serious health condition under the FMLA (in
both the proposed and final versions of Sec. Sec. 825.113(a), 825.114,
and 825.115) is the controlling regulatory standard, and the list of
common ailments such as colds and flu (in proposed and final Sec.
825.113(d)) is helpful as identifying ailments that ordinarily will not
qualify for FMLA leave because they generally will not satisfy these
regulatory criteria.
On a different matter, the Associated Builders and Contractors and
the Navy Federal Credit Union commented that the phrase ``resulting
from stress'' should be removed from the last sentence of proposed
Sec. 825.113(d). The Society for Human Resource Management and the
National Coalition to Protect Family Leave agreed, commenting that
``[t]he cited phrase improperly suggests that stress alone can cause
mental illness * * *. Also, by placing allergies in sequence, it
suggests that mental illness can be developed from allergies.'' The
Department has deleted the phrase ``resulting from stress'' in Sec.
825.113(d) of the final rule to clarify that a mental illness,
regardless of its cause, can be a serious health condition under the
FMLA if all the regulatory requirements are met. No other changes to
the text of Sec. 825.113 have been made in the final rule.
Section 825.114 (Inpatient Care)
Section 825.114 of the proposed rule defined what constitutes
inpatient care, adopting language from the current regulations. The
definition of ``inpatient care'' in current Sec. 825.114(a)(1)
incorporates a definition of ``incapacity,'' which was removed from
proposed Sec. 825.114 and replaced by a cross-reference to the stand-
alone definition of ``incapacity'' in proposed Sec. 825.113(b).
The Equal Employment Advisory Council commented, ``[w]e hope that
setting `incapacity' apart will emphasize for both employees and health
care providers that actual inability to work is a fundamental
prerequisite for FMLA protection.'' There were no substantive comments
on this section of the proposal, and the Department made no changes to
the proposed text of this section in the final rule.
Section 825.115 (Continuing Treatment)
Proposed Sec. 825.115 defined ``continuing treatment'' for
purposes of establishing a serious health condition, incorporating the
five different definitions contained in current Sec. 825.114(a)(2)(i)-
(v) with some changes. Proposed Sec. 825.115(a) (``Incapacity and
treatment'') incorporated language from current Sec. 825.114(a)(2)(i),
which provides that the continuing treatment requirement is satisfied
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 course of a prescription medication, or two visits to a health
care provider. The proposal made one change to the current definition,
specifying in proposed Sec. 825.115(a)(1) that the two visits to a
health care provider must occur within 30 days, unless extenuating
circumstances exist. The Department indicated in the NPRM that it did
not believe the 30-day time limit should be applied to proposed Sec.
825.115(a)(2) (treatment on one occasion resulting in regimen of
continuing treatment), but invited comments on the issue. Proposed
Sec. 825.115(b), titled ``Pregnancy or prenatal care,'' incorporated
language from current Sec. 825.114(a)(2)(ii) without change except for
a cross-reference to the new consolidated section in proposed Sec.
825.120, addressing leave for pregnancy and childbirth. Proposed Sec.
825.115(c), ``Chronic conditions,'' retained the definition in current
Sec. 825.114(a)(2)(iii) with one change, specifying that the term
``periodic treatment'' be defined as treatment two or more times a
year. Proposed Sec. 825.115(d), ``Permanent or long-term conditions,''
incorporated language from current Sec. 825.114(a)(2)(iv) without
change. Proposed Sec. 825.115(e), ``Conditions requiring multiple
treatments,'' incorporated 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. The Department did not receive substantive comments regarding
proposed Sec. 825.115(b), (d), or (e) and the final rule adopts these
sections as proposed. The Department has made additional changes to
Sec. 825.115(a) and (c), which are discussed below.
Although the Department did not propose to change the period of
incapacity required to satisfy the ``incapacity and treatment''
definition of continuing treatment in proposed Sec. 825.115(a), many
employers and employer groups urged the Department to expand the period
of incapacity from the current requirement of ``more than three
consecutive calendar days.'' The
[[Page 67947]]
Society for Human Resource Management, the National Coalition to
Protect Family Leave, and other employer groups commented that the
current requirement for a period of incapacity of more than three
consecutive calendar days has played a significant role in permitting
otherwise minor medical conditions to satisfy the definition of serious
health condition. These commenters suggested that extending the period
of incapacity to five consecutive scheduled work days or seven
consecutive calendar days would significantly reduce the instances in
which these minor ailments receive FMLA protection. The Pennsylvania
Governor's Office of Administration also suggested a five consecutive
day period of incapacity, commenting specifically on the difficulty it
has encountered in trying to protect three-day absences. The Chamber
commented that ``[t]he brevity of the three-day period creates
significant administrative burdens for employers'' and suggested that
the period be extended to five business days or seven calendar days.
The Society for Human Resource Management, the National Coalition to
Protect Family Leave, and others suggested that a longer period of
incapacity would be consistent with the waiting period employed in many
short-term disability plans. Additionally, the Society for Human
Resource Management and others stated that the final rule should
clarify that ``more than three consecutive, calendar days'' refers to
whole or complete calendar days.
Employee groups, on the other hand, strongly supported maintaining
the ``more than three calendar days'' minimum requirement for
incapacity. For example, 9to5, the National Association of Working
Women commented, ``[t]he current definition reflects the practical
reality that serious health conditions requiring family or medical
leave can sometimes be of a fairly short duration * * * such as
pneumonia, acute appendicitis, or kidney stones.'' The National
Partnership for Women & Families supported the Department's decision to
maintain the standard of more than three ``calendar days'' rather than
``workdays.''
After reviewing the comments, the Department continues to believe
it is more appropriate to keep the basic regulatory requirement of a
minimum period of incapacity of ``more than three consecutive calendar
days'' than to adopt a ``work day'' or ``business day'' test or to
increase the number of calendar days required. In the Department's
view, a test based on calendar days of incapacity measures the severity
of an illness better than a test based on days absent from work. This
is particularly true for employees who do not work a traditional, fixed
five-day week. The Department recognizes the legitimate employer
concerns about the ability to verify employee incapacity over weekends,
but to increase the minimum number of days of incapacity required would
invariably exclude some employees the statute currently protects. The
final rule does make one minor clarification, as suggested by the
Society for Human Resource Management and others, that the test cannot
be met by partial days. To eliminate any possible misunderstanding of
the existing requirement, the word ``full'' is added to the test in the
final rule (i.e., a period of incapacity of more than three
consecutive, ``full'' calendar days).
Many employer groups offered different views about the proposed
change in Sec. 825.115(a)(1) that the two treatments occur within 30
days. Those employer groups opposed to it urged that the regulations
require that the minimum of two treatments occur during the ``more than
three day'' period of incapacity. Several groups, including the Society
for Human Resource Management and the National Coalition to Protect
Family Leave, commented that the Department should reconsider its
position and adopt the Tenth Circuit's ruling in Jones v. Denver Public
Schools, 427 F.3d 1315 (10th Cir. 2005), that the two visits must occur
within the period of incapacity. The Society for Human Resource
Management and the National Coalition to Protect Family Leave stated,
``[u]nder the Department's proposal, the employer's hands would be tied
for 30 days, which would create uncertainty for all parties * * *.''
They also stated, however, that if the 30-day requirement becomes part
of the final regulations, the 30-day period should run from the first
day the employee is incapacitated and the second visit should always be
at the direction of the health care provider. The Portland (OR) Office
of Management and Finance commented that the proposal would ``allow
employees to obtain FMLA protection simply by scheduling a second
doctor's appointment.'' The Pennsylvania Governor's Office of
Administration commented that the 30-day period would force employers
to retroactively designate leave as FMLA-protected. Other employers,
however, supported the proposed 30-day period for the two treatments.
The National Association of Manufacturers, the National Roofing
Contractors Association, AT&T, and other employer groups commented that
the proposal would clarify what is currently a vague area in the rules.
See also National Business Group on Health.
A number of employee groups, for different reasons, opposed the
proposed requirement in Sec. 825.115(a)(1), that the two treatments
occur within 30 days. The AFL-CIO commented that the 30-day period was
arbitrary and would prove a significant obstacle to employees seeking
FMLA leave. Commenters including the Association of Professional Flight
Attendants, the National Postal Mail Handlers Union, and the National
Treasury Employees Union offered the examples of conditions that would
incapacitate employees for more than three days, but generally do not
require follow-up appointments within 30 days. The National Employment
Lawyers Association noted that it can often take more than 30 days to
schedule an appointment with a specialist and suggested that a three to
six months time period would be more appropriate. Finally, the American
Postal Workers Union objected to any temporal limitation on treatment
appointments, arguing that any limitation was inconsistent with the
statute, which requires only continuing treatment by a health care
provider.
A number of employee and employer groups asked for clarification of
the ``extenuating circumstances'' exception to the 30-day rule and
suggested that a definition of ``extenuating circumstances'' should be
included in the regulatory text. The Society for Human Resource
Management and the National Coalition to Protect Family Leave asserted
that leaving ``extenuating circumstances'' undefined would result in
``extensive litigation.'' See also Hewitt Associates. The National
Partnership for Women & Families commented that the preamble example of
scheduling difficulties as extenuating circumstances was not reflected
in the regulation. See also Association of Professional Flight
Attendants; National Postal Mail Handlers Union. The National Retail
Federation recommended deleting the ``extenuating circumstances''
exception altogether.
Employee and employer groups also generally agreed with the
Department's decision not to apply a 30-day time limit to Sec.
825.115(a)(2), which addresses treatment by a health care provider on
at least one occasion that results in a regimen of continuing treatment
(e.g., a course of prescription medication). See, e.g., Society for
Human Resource Management. The American Postal Workers Union asserted
that applying a 30-day time frame under Sec. 825.115(a)(2)
[[Page 67948]]
would be unreasonable. The National Association of Manufacturers
commented that in situations covered under Sec. 825.115(a)(2), the
treatment visit with the health care provider should take place during
the initial period of incapacity. Vercruysse Murray & Calzone commented
that employees should be required to receive the regimen of continuing
treatment during the initial period of incapacity because to permit the
regimen of treatment to commence after the employee returns to work
would allow employees to retroactively qualify for FMLA leave.
Finally, some commenters asked whether a phone call or email
contact with a health care provider could qualify as a visit or
treatment under either prong of Sec. 825.115(a). See, e.g., Spencer
Fane Britt & Browne; Society for Human Resource Management, Northern
California Human Resources Association, Legislative Affairs Committee.
The Department continues to believe that the proposed ``30-day''
limit in Sec. 825.115(a)(1) is useful because the current regulation,
Sec. 825.114(a)(2)(i)(A), provides no guidance as to the time frame
during which the two treatments by a doctor must occur. The Department
recognizes that many of the comments from employers and employer groups
favor the adoption of the ruling by the United States Court of Appeals
for the Tenth Circuit in Jones v. Denver Public Schools, 427 F.3d 1315
(10th Cir. 2005), that both treatments must occur during the period of
the incapacity in order for the condition to qualify as a serious
health condition. Nonetheless, the Department believes a 30-day test is
a more appropriate guideline than a test limited to just the period of
incapacity because it is consistent with usual treatment plans, and
guards against employers making quick judgments that deny FMLA leave
when employees otherwise should qualify for the law's protections. To
clarify when the 30-day period begins, Sec. 825.115(a)(1) of the final
rule states that the 30-day period begins with the first day of
incapacity. By starting the 30-day period on the first day of
incapacity, the final rule provides a clearly defined period during
which the continuing treatment must occur.
Some employer groups expressed the concern that under the proposed
rule an employee retroactively would be able to transform a minor
condition into a serious health condition by going to a health care
provider for the first time as much as 30 days after the initial
incapacity in an effort to foreclose any proposed disciplinary action.
The Department notes that a single visit to a health care provider will
not satisfy the requirements of Sec. 825.115(a) unless the health care
provider determines that additional treatment (either visits or a
regimen of treatment) is medically necessary, and therefore employees
will not be able to ``transform'' a condition into a FMLA-protected
serious health condition as suggested by these commenters. Nonetheless,
a new paragraph (3) of Sec. 825.115(a) has been added to the final
rule to provide that the first visit (in the case of Sec.
825.115(a)(1)) and the only visit (in the case of Sec. 825.115(a)(2))
must occur within seven days of the first day of incapacity. As with
the requirement for two treatment visits within 30 days, the Department
believes that the need to make an initial visit to a health care
provider within seven days of the day on which the incapacity begins is
an appropriate indicator of the seriousness of the medical condition.
The Department considered whether the first visit should be required
during the initial period of incapacity. As some employer commenters
pointed out, the initial treatment visit will normally occur during the
incapacity and the treatment regimen (such as prescription medication)
will be prescribed at that time. See, e.g., National Association of
Manufacturers. The Department is cognizant, however, that it can often
take several days to get an appointment with a health care provider,
particularly in rural areas and communities with limited numbers of
providers, and therefore believes that a seven-day outer limit for the
first visit or only visit is more appropriate. Additionally, in
response to comments about whether a phone call or email contact with
the health care provider qualifies as treatment, Sec. 825.115(a)(3)
also clarifies that treatment means an in-person visit to a health care
provider for examination, evaluation, or specific treatment, and does
not include, for example, a phone call, letter, email, or text message.
The 30-day test is intended to gauge the health care provider's
assessment of the severity of the illness. Accordingly, in response to
comments from employers who suggested that employees may schedule
follow-up appointments simply to meet the test of a second visit, a new
paragraph (4) is added to Sec. 825.115(a) of the final rule to clarify
that the health care provider, and not the employee or the patient,
must make the determination as to whether a second visit during the 30-
day period is needed. The Department anticipates that in many cases the
health care provider will determine at the initial treatment visit
whether an additional visit is required and, if so, when it should
occur. There will, however, be some situations in which the health care
provider initially determines that such follow-up treatment is not
necessary, but because the condition does not resolve or deteriorates,
the health care provider later determines that an additional treatment
visit is needed within the 30-day time period. Providing the other
requirements of the definition are met, the Department intends the
final rule to cover all situations in which the health care provider
determines that additional treatment is necessary within the 30-day
period.
Finally, in response to the comments from both employer and
employee groups regarding the ``extenuating circumstances'' exception
to the 30-day limit, the final rule includes a new paragraph (5) in
Sec. 825.115(a) that provides an explanation of ``extenuating
circumstances.'' The new paragraph provides that the term ``extenuating
circumstances'' means circumstances that prevent the follow-up visit
from occurring as planned by the health care provider, and includes an
example of such circumstances.
As discussed in the NPRM, the Department did not propose
substantive changes to the construction of chronic serious health
conditions under the regulations. See 73 FR 7888-89 (Feb. 11, 2008).
The Department, however, did propose in Sec. 825.115(c) to define the
term ``periodic treatment,'' which is used in the definition of a
chronic serious health condition, as treatment ``at least twice a
year.''
Several employers and employer groups supported defining ``periodic
visits'' as ``at least twice a year.'' See, e.g., TOC Management
Services; National Association of Manufacturers; Southwest Airlines.
The U.S. Postal Service called the proposal ``reasonable'' and
commented that ``the potential benefit of such monitored medical care
strikes a comfortable balance with the minimal burden involved.''
Other employer commenters suggested requiring more frequent
treatment than twice per year. The Portland (OR) Office of Management
and Finance suggested that the Department consider requiring biannual
visits for employees with no more than two days of absence per month
and quarterly visits for employees absent more frequently. A labor
attorney, Scott MacDonald, suggested that treatment ``at least once
every four months'' would be more appropriate and that if the twice per
year standard were maintained it should be clarified as ``at least once
[[Page 67949]]
every six months.'' The Southern Company and the Society for Human
Resource Management suggested that the appropriate standard should be
four treatment visits per year. Catholic Charities, Diocese of Metuchen
and the National Association of Convenience Stores suggested that
treatment only twice per year indicates that the condition is not
serious. See also Illinois Credit Union League. Finally, Spencer Fane
Britt & Browne argued that requiring only two treatment visits per year
``will render just about any condition to be a `chronic' one and
totally eliminates the need for the condition to be `serious' in
nature.'' They suggested that chronic conditions should not be
separately included in the definition of serious health condition and
that incapacity due to such conditions should only be covered when it
exceeds three calendar days as required by Sec. 825.115(a).
On the other hand, many employees and employee groups viewed the
requirement of treatment visits of ``at least twice a year'' as
excessive. The AFL-CIO commented that after an initial series of
treatment visits at the onset of a chronic condition, many individuals
may only visit their health care providers once per year. The National
Postal Mail Handlers Union commented that requiring a second visit in a
year, regardless of whether the employee's condition has changed, would
impose an unnecessary burden on both the employee and the health care
system. The National Partnership for Women & Families also expressed
concern about the additional cost the proposed requirement would impose
on employees. See also A Better Balance: The Work and Family Legal
Center.
The Department recognizes employers' concerns regarding requiring
only two treatment visits per year, and their desire for some clearer
way to assess the seriousness of a chronic health condition, but is
concerned that imposing some greater standard could effectively render
ineligible many employees who are entitled to the protections of the
law. On the other hand, the Department does not agree with comments
from employee groups that because many chronic conditions are stable
and require limited treatment, the twice per year standard is
unreasonable since that effectively ignores the requirement for
``periodic'' visits in the current regulations. The need for two
treatment visits per year is a reasonable indicator that the chronic
condition is a serious health condition. The Department believes the
requirement for two visits per year thus strikes a reasonable balance
between no minimum frequency at all, as supported by many employee
groups, or four or more times per year, as suggested by many employer
groups, for employees who use FMLA leave for chronic serious health
conditions. As with the requirement of two treatment visits within 30
days under Sec. 825.115(a), the determination of whether two treatment
visits per year are necessary is a medical determination to be made by
the health care provider. Because the need for treatment visits is a
function of the condition, the Department does not agree with comments
suggesting the rule will increase the burden or cost to employees. The
Department also notes that ``two visits to a health care provider''
every year is not the sole criterion in the regulations for determining
a covered chronic serious health condition.
As discussed in the NPRM, the legislative history of the Act
clearly indicates that Congress intended to cover chronic serious
health conditions (73 FR 7888, Feb. 11, 2008); the Department therefore
specifically rejects the suggestion that chronic serious health
conditions should not be separately included in Sec. 825.115.
Sections 825.116-825.118 (Reserved)
The proposed rule moved the provisions in current Sec. 825.116
defining the phrase ``needed to care for'' a family member to Sec.
825.124, which is discussed below. The proposal moved the provisions in
current Sec. 825.117 regarding the ``medical necessity'' for taking
and scheduling intermittent or reduced schedule leave to Sec. Sec.
825.202 and 825.203, which are discussed below. Current Sec. 825.118
defining ``health care provider'' was renumbered as Sec. 825.125 in
the proposed rule. Sections 825.116-825.118 were designated as
``reserved'' in the proposal to reflect these organizational changes.
The final rule adopts the proposed organizational changes.
Section 825.119 (Leave for Treatment of Substance Abuse)
The Department proposed no substantive changes in this new section,
which consolidates in a single location the provisions in current
Sec. Sec. 825.112(g) and 825.114(d) related to substance abuse. It
reaffirms that FMLA leave is available for the treatment of substance
abuse when it qualifies as a serious health condition, but not for an
absence because of the employee's use of the substance, and that the
FMLA does not prevent an employer from taking action against an
employee for violating the employer's uniformly-applied substance abuse
policy. The final rule adopts the rule as proposed.
Very few commenters addressed this reorganization. TOC Management
Services suggested that the rule should clarify that an absence because
of a family member's use of the substance, rather than for treatment,
also does not qualify for FMLA leave. The National Retail Federation
stated that the clarification regarding permitted employment actions
for violation of a substance abuse policy was helpful. Robert Jusino
commented that an employer should be barred from taking adverse action
against an employee for breaking company policy.
The Department continues to believe that the rule, which is simply
a consolidation of existing sections, is clear and sets forth the
appropriate distinction between an absence for treatment for a serious
health condition and an absence because of an employee's use of the
substance. The general lack of comments supports that view. Therefore,
the final rule is adopted as proposed.
Section 825.120 (Leave for Pregnancy or Birth)
The current regulations contain guidance pertaining to pregnancy
and birth throughout a number of different sections. Proposed Sec.
825.120 collected the existing guidance from these various regulatory
sections into one comprehensive section. Proposed Sec. 825.120(a)(1),
titled ``[g]eneral rules,'' restated 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 Sec. 825.120(a)(2) restated
language from current Sec. 825.201 explaining that FMLA-protected
leave following the birth of a healthy child (``bonding time'') must be
completed within a year from the birth. Proposed Sec. 825.120(a)(3)
incorporated 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). Proposed Sec.
825.120(a)(4) combined 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)(5)
summarized a husband's right to take leave when needed to care for his
pregnant spouse because of her serious
[[Page 67950]]
health condition. Proposed Sec. 825.120(a)(6) was added to make clear
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. Finally, proposed Sec. 825.120(b)
combined language from current Sec. Sec. 825.203(b) and 825.204(a),
which provides that intermittent or reduced schedule leave may only be
taken to care for a healthy newborn child with the employer's
agreement, and, in such cases, the employer may temporarily transfer
the employee to an alternative position that better accommodates the
leave schedule. See 29 U.S.C. 2612(b)(1). The final rule adopts Sec.
825.120 as proposed with one minor clarification discussed below.
Additionally, the final rule clarifies language in the regulatory text
of Sec. 825.120(a)(2).
The U.S. Postal Service commented that proposed Sec.
825.120(a)(5), regarding a father's right to use FMLA leave to provide
care for his spouse in connection with the pregnancy or birth,
overstates these rights. The Department has modified the language of
this provision to clarify that a husband is entitled to FMLA-protected
leave if he is needed to care for his spouse who is incapacitated due
to her pregnancy (e.g., if the pregnant spouse is unable to transport
herself to a doctor's appointment). As stated in the NPRM (73 FR 7888
(Feb. 11, 2008)), and as with all care for covered family members under
the FMLA (see current Sec. 825.116(a) and final Sec. 825.124(a)),
such care may include providing psychological comfort and reassurance.
This provision merely codifies a husband's right to FMLA leave to care
for his pregnant spouse under the current regulations--it neither
expands nor contracts that right. As with any leave to care for a
covered family member with a serious health condition, the employer has
the right to request medical certification to verify the employee's
need for leave. The wording of this provision has been changed in the
final rule from ``father'' to ``husband'' to clarify that FMLA leave to
care for a pregnant woman is available to a spouse and not, for
example, to a boyfriend or fianc[eacute] who is the father of the
unborn child.
On a related note, Southwest Airlines suggested that the 12-week
combined limit on leave to care for a healthy newborn taken by spouses
employed by the same employer in Sec. 825.120(a)(3) should apply
equally to unmarried parents who work for the same employer. The
Department notes that this provision is based on section 102(f) of the
statute, which was intended to eliminate employer incentives to refuse
to hire married couples and applies only to ``a husband and wife.'' See
29 U.S.C. 2612(f); S. Rep. No. 103-3, at 28 (1993); H. Rep. No. 103-8,
at 38 (1993).
No other changes have been made to Sec. 825.120 in the final rule.
Section 825.121 (Leave for Adoption or Foster Care)
The Department also proposed a single consolidated section on FMLA
rights and obligations with regard to adoption and foster care in
proposed Sec. 825.121. The current regulations contain guidance
pertaining to adoption and foster care throughout a number of sections.
Proposed Sec. 825.121(a)(1) provided that leave for adoption or foster
care may begin prior to the actual birth or adoption. Proposed Sec.
825.121(a)(2) contained language from current Sec. 825.201 explaining
that FMLA-protected leave for adoption or foster care must be completed
within a year from the placement. Proposed Sec. 825.121(a)(3)
incorporated 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.
See 29 U.S.C. 2612(f). Proposed Sec. 825.121(a)(4) was added to
clarify that both spouses may each take their full 12 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), ``Use of intermittent and reduced
schedule leave,'' combined language from current Sec. Sec. 825.203(b)
and 825.204(a), which provides that intermittent or reduced schedule
leave after placement of a healthy child for adoption or foster care
may only be taken with the employer's agreement and, in such cases, an
employer may temporarily transfer the employee to an alternative
position that better accommodates the leave. See 29 U.S.C. 2612(b)(2).
Proposed Sec. 825.121(b) also clarified 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.
The Department received very few comments on this provision. The
final rule clarifies language in the regulatory text at Sec.
825.121(a)(2). Otherwise, the final rule adopts Sec. 825.121 as
proposed.
Section 825.122 (Definitions of Spouse, Parent, Son or Daughter, Next
of Kin of a Covered Servicemember, Adoption, Foster Care, Son or
Daughter on Active Duty or Call to Active Duty Status, Son or Daughter
of a Covered Servicemember, and Parent of a Covered Servicemember)
The proposed rule, at Sec. 825.122, made minor changes to the
definition of ``parent'' in current Sec. 825.113, clarifying that a
parent can be a biological, adoptive, step or foster mother or father,
as well as an individual who stood in loco parentis to the employee.
The proposal also added a definition of ``adoption,'' incorporated the
statement in current Sec. 825.112(d) that the source of the adoption
is not relevant to FMLA leave eligibility, and moved the current rule's
definition of ``foster care'' from Sec. 825.112(e) to this section. In
the definition of ``son or daughter'' in Sec. 825.122(c), the proposal
also specified that an adult child must be incapable of self-care
because of a disability ``at the time leave is to commence.'' This
addition was intended to eliminate the confusion about coverage that is
caused when eligibility decisions are based on facts and circumstances
that occur after the leave commences. Finally, the proposed rule stated
in Sec. 825.122(f) that an employer could require an employee to
provide documentation to confirm a family relationship, such as a
sworn, notarized statement or a submitted and signed tax return.
The final rule makes the clarifying changes to the definition of
``parent,'' adds the definition of ``adoption,'' and moves the
definition of ``foster care,'' as set forth in the proposal. The final
rule clarifies in paragraph (c) that whether an adult child has a
disability is based upon the facts as they exist when the leave
commences, as proposed. Paragraph (c) also makes clear that the
definition of ``son or daughter'' is for purposes of FMLA leave taken
for birth or adoption, or to care for a family member with a serious
health condition. The final rule does not adopt the changes proposed in
paragraph (f) to the documentation necessary to confirm the necessary
family relationship, but rather retains the current regulation and
moves the text to new paragraph (j). Lastly, to address terms that are
unique to the military family leave provisions, the final rule contains
definitions of ``next of kin of a covered servicemember'' in paragraph
(d), ``son or daughter on active duty or call to active duty status''
in paragraph (g), ``son or daughter of a covered servicemember'' in
paragraph (h), and, ``parent of a covered
[[Page 67951]]
servicemember'' in paragraph (i), respectively.
A number of commenters addressed the change in proposed Sec.
825.122(c) stating that an adult child must be incapable of self-care
because of a disability ``at the time that FMLA leave is to commence.''
The preamble to the proposed rule explained that the clarifying change
was made in response to the court's decision in Bryant v. Delbar, 18
F.Supp.2d 799 (M.D. Tenn. 1998), in which the court analyzed whether an
adult child had a disability for FMLA coverage purposes based on facts
and circumstances that occurred well after the leave commenced. The
Department stated that a coverage decision should not take into account
such after-the-fact developments.
A few commenters supported this clarification, including the Equal
Employment Advisory Council; Retail Industry Leaders Association; and
TOC Management Services. A few other commenters found the proposal
unclear. For example, the National Treasury Employees Union (``NTEU'')
described the Department's preamble as going farther than the proposed
regulation, because the preamble stated that ``the new language is
intended to specify that `the determination' of whether an adult child
has a disability is to be made at the time leave is to commence.'' NTEU
opposed such a change, because the need for leave to care for a
qualifying adult child might arise on relatively short notice, and it
thought the ``proposal would make it too easy for an employer to deny
FMLA rights by insisting on immediate pre-leave certification of three
difficult facts: That the adult child needs care for a serious health
condition, is incapable of self-care, AND has a disability within the
meaning of the Americans with Disabilities Act.'' The AFL-CIO stated
that it was concerned that the regulation could be read to mean that,
where an employee takes non-FMLA leave to care for an adult child who
``does not have a disability when the leave commences, the employee
does not have the right to convert the absence into FMLA leave if the
adult child subsequently satisfies the definition.'' It wanted
clarification that subsequent leave might qualify as FMLA leave,
consistent with the Department's clarification that an employee who has
not worked 12 months for the employer at the start of the leave has the
right to treat the leave as FMLA-qualifying once the employee meets the
12-month eligibility requirement. See Sec. 825.110(d).
Proposed Sec. 825.122(f) added a notarized statement or submitted
tax return as reasonable documentation to establish the family
relationship. A number of commenters objected to the proposed change
from the current regulation, which states that an employee may confirm
the requisite family relationship with a simple statement. For example,
the AFL-CIO stated that the regulations have allowed a simple statement
for 15 years, and in the ``absence of any evidence that simple non-
notarized statements have proven problematic, this change is nothing
more than one more hurdle for employees to qualify for FMLA leave.''
NTEU described the additional requirement as ``needless'' and an
``obstacle'' and stated that it ``imposes a substantial new burden on
an employee needing to care for a family member.'' The National
Partnership for Women & Families similarly commented that ``DOL has not
offered any data or rationale as to why this change is necessary, nor
has it received widespread complaints regarding abuse of the definition
of family member. This change could simply serve to make it more
difficult for certain employees to take leave and should not be made.''
See also AARP; Family Caregiver Alliance; American Association of
University Women.
Many of the same commenters objected on privacy grounds to
submitting a tax return, and they questioned whether an employer could
require a tax return even if the employee had provided other
documentation. In addition, Hewitt Associates expressed concern about
the use of an employee's tax return to establish the family
relationship. In light of ``the heightened sensitivity around data
privacy, the use of a tax return to prove a family relationship will
likely require careful employer safeguards for such a limited purpose.
Furthermore, such a provision may need to be reconciled with the tax
code, particularly 26 U.S.C. 6103 which concerns the confidentiality of
tax returns.'' Hewitt Associates also noted that, although the preamble
to the proposed rule suggested that a tax return might be helpful with
regard to establishing an in loco parentis relationship, such a
document actually would be ineffective where the employee is requesting
leave for an in loco parentis parent, because that relationship was
established when the employee was a child. Given the availability of
other forms of documentation, Hewitt Associates suggested eliminating
this clause from the regulations. A number of individual employee
commenters also opposed this provision, stating that it was an
unnecessary invasion of personal privacy. See, e.g., Tom Landis; Cindy
Whitmore; Nathan Grant.
A few employers favored the proposed changes. See, e.g., National
Association of Manufacturers; AT&T; Pennsylvania Governor's Office of
Administration. They did not indicate, however, that there had been any
problem or abuse involving the current rule's simple statement
requirement. The Equal Employment Advisory Council (``EEAC'') offered a
rationale for the requirement for a notarized statement, commenting
that it ``underscores the gravity of claiming federal protection for an
absence from work and also confirms for employees that an actual family
relationship must exist.'' EEAC acknowledged, however, that ``most
employees would not even think of lying to their employer about a
family relationship to obtain leave,'' but stated that the proposed
change would help ``employers to combat the potential for abuse by the
few who would.''
With regard to the proposed change clarifying that an adult child
must be incapable of self-care because of a disability ``at the time
FMLA leave is to commence,'' the Department did not intend to suggest
that the employer's final determination as to whether the adult child
was covered had to be made on the date the leave commenced, and that an
employee could not subsequently communicate further information, such
as in response to an employer request for a medical certification or if
the child's condition changed. The intent of the proposal, as explained
in the preamble, was to avoid a situation where the decision regarding
whether there was coverage at one point in time was affected by events
that did not occur until a much later date.
Thus, the focus is on the adult child's condition at the time of
the parent's leave. The current rule states that a child who is 18 or
older must be incapable of self-care ``because of a physical or mental
disability,'' and it further defines the term ``disability'' as a
``physical or mental impairment that substantially limits one or more
of the major life activities of an individual.'' The current rule cites
the EEOC regulations implementing the ADA (at 29 CFR 1630.2) defining
those terms, including the term ``substantially limits,'' which relates
generally to the nature, severity, duration and long-term impact of the
impairment. The proposal did not make any changes in this area from the
current rule.
Therefore, for example, if a 25-year-old son breaks a leg in a car
accident and is expected to recover in a short period of time, he would
not normally be incapable of self-care because of a
[[Page 67952]]
physical or mental disability. The proposal clarifies that any leave
the parent took to care for the adult child would not be FMLA-protected
if the disability standard is not met. If the 25-year-old later
suffered a stroke that left him with substantial and permanent mobility
impairments, he likely would meet the regulatory standard. At that
point, any subsequent leave the parent took to care for the adult child
who is incapable of self-care due to a physical or mental disability
would be protected by the FMLA. However, that protection would not
extend retroactively to the parent's leave taken when the 25-year-old
son had only a broken leg.
The Department believes that the proposed regulatory text, which
refers to an adult child incapable of self-care due to a disability
``at the time FMLA leave is to commence,'' clarifies the requirements.
That language mirrors the language in Sec. 825.110(d), which addresses
whether an employee has 12 months of service ``as of the date the FMLA
leave is to start.'' Therefore, the Department is adopting the proposal
as written, to clarify that circumstances that occur later affecting an
adult child's disability status do not affect whether previous leave
qualifies for FMLA protection.
Paragraph (c) in the final rule provides that if the FMLA leave is
taken for birth or adoption, or to care for a family member with a
serious health condition, then ``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.
The Department has decided not to adopt the proposal's requirement
for a notarized statement regarding the family relationship. Given the
absence of evidence of actual problems with the current rule's simple
statement requirement, and the comments stating that it would cause
needless expense and delay for employees to have to obtain a notarized
statement and intrusion into personal privacy to provide a tax return,
the Department has decided to retain the current rule. Of course, an
employer can require an employee to assert in the statement that the
requisite family relationship exists. In other words, the employer may
require the employee to state that he or she wants leave to care for a
spouse, a son or daughter, or a parent, as defined in the regulations.
This assertion will ensure that the employee fully understands that one
of the specific family relationships must exist in order to qualify for
FMLA leave.
In addition, to reflect the military family leave provisions, Sec.
825.122 now contains a definition of ``next of kin of a covered
servicemember'' in paragraph (d), with a cross-reference to Sec.
825.127(b)(3), which also contains this definition of ``next of kin of
a covered service member'' and provides examples and further detail.
Section 825.122 of the final rule also contains a definition of ``son
or daughter on active duty or call to active duty status'' with a
corresponding cross-reference to Sec. 825.126(b)(1), which contains
this definition, as well as a definition of ``son or daughter of a
covered servicemember'' with a corresponding cross-reference to Sec.
825.127(b)(1), which contains this definition. In addition, final Sec.
825.122 includes a definition of ``parent of a covered servicemember''
in paragraph (i), with a corresponding cross-reference to Sec.
825.127(b)(2) containing this definition. These definitions are
discussed in more detail in the preamble accompanying Sec. Sec.
825.126 and 825.127.
Section 825.123 (Unable To Perform the Functions of the Position)
The Department proposed no substantive changes to this section,
which implements the statutory requirement that an individual must be
unable to perform the functions of a job in order to qualify for FMLA
leave. The proposal stated, as the current rule does, that an
individual must be ``unable to work at all'' or be unable to perform
``one or more of the essential functions of the job'' in order to
qualify, and that an employer may provide a statement of the employee's
essential functions to the employee's health care provider. The
proposal also clarified in paragraph (b) that a sufficient medical
certification must specify what functions the employee is unable to
perform. The final rule adopts the proposed rule, but clarifies that a
certification will be sufficient if it specifies what functions of the
position the employee is unable to perform such that an employer can
determine whether the employee is unable to work at all or is unable to
perform any one of the essential functions of the employee's position.
A few commenters addressed the unchanged definition in this
section. The Chamber stated that the Department should change the rule
so that an employee qualifies for FMLA leave only when the employee is
unable to work at all or unable to perform the majority of his or her
essential functions. This commenter described it as a ``loophole'' that
employees can take leave when their condition prohibits them from
performing only one aspect of the job and they are able to perform many
other essential functions. The National Coalition to Protect Family
Leave suggested that the Department change the definition to ``unable
to perform the essential functions of the employee's position, unless
modified by the employer to accommodate a temporary restriction.'' See
also Associated Builders and Contractors; International Franchise
Association; Jackson County (MO) Department of Corrections. The
National Coalition to Protect Family Leave stated that employers should
be allowed to require an employee to work in either the same job minus
the restricted duties or in some other position, whether or not a part
of a formal ``light duty'' program. This commenter approved of the
clarification that the certification must specify what essential
function the employee cannot perform. Southwest Airlines and the Equal
Employment Advisory Council also supported this change. The Illinois
Credit Union League stated that there should be consistency between the
use of the term ``function'' and ``essential functions,'' but it
emphasized that an employer should not be required to identify
essential job functions, because employers are not required to draft
job descriptions, and essential functions may change.
The National Association of Letter Carriers objected to the
requirement that the health care provider specify the particular
functions the employee cannot perform, stating that this is more
onerous than section 103 of the Act, which requires only a statement
that the employee is unable to perform the functions of the position.
See also National Treasury Employees Union. Another commenter, Scott
MacDonald, Esq., noted that unless the employer includes all of the
essential functions on the form, it will be impossible for the medical
care provider to indicate whether the employee is unable to perform any
of them.
The Department believes that the proposed rule, which made only a
minor change to the current rule, is the best interpretation of the
statutory provision authorizing FMLA leave when an employee is ``unable
to perform the functions of the position of such employee.'' 29 U.S.C.
2612(a)(1)(D). The Department continues to believe that if an employee
cannot perform one or more essential functions of the job, the Act
gives that employee the right to take leave, even if the employer is
willing to provide a light duty job or modify the job in a way that
would allow the employee to continue working. While
[[Page 67953]]
employers may not require employees to perform modified or light duty
work in lieu of taking FMLA leave, employees may voluntarily agree to
such arrangements. See also Sec. 825.220(d). The Department believes
that the additional clarification in this section that a sufficient
medical certification must identify the function(s) that the employee
cannot perform will not be burdensome, that it is consistent with
medical certification requirements of current and proposed Sec.
825.306, and that it is a reasonable interpretation of the statutory
requirements that a certification provide both appropriate medical
facts regarding the employee's condition and a statement that the
employee is unable to perform the functions of the position. See 29
U.S.C. 2613(b)(3) and (4)(B). In response to the concern of some
commenters, the Department notes that the rule gives employers the
option of providing a list of essential functions when it requires a
medical certification; an employer is not required to do so. Finally,
in order to explain why the term ``functions'' and not ``essential
functions'' is used in paragraph (b), the final rule clarifies that a
certification will be sufficient if it provides information regarding
the functions the employee is unable to perform so that an employer can
then determine whether the employee is unable to perform one or more
essential functions of the job. This revision reflects the fact that
the determination of whether a particular job duty is an essential
function is a legal, not a medical, conclusion, and is in accord with
the medical certification requirements in Sec. 825.306 and the
Department's prototype medical certification form.
Section 825.124 (Needed To Care for a Family Member or a Covered
Servicemember)
The FMLA 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). The legislative history indicates that the ``phrase `to
care for' * * * [is to] be read broadly to include both physical and
psychological care.'' S. Rep. No. 103-3, at 24 (1993); H.R. Rep. No.
103-8, at 36 (1993). The statute also provides leave to care for a
covered servicemember. 29 U.S.C. 2612(a)(3). The current regulations
define the phrase ``needed to care for'' a family member in Sec.
825.116. The proposed rule moved this section to Sec. 825.124 without
making any substantive changes, other than to clarify that the employee
need not be the only individual, or even the only family member,
available to provide care to the family member with a serious health
condition. The final rule adopts this provision as proposed, with minor
revisions to reflect the new military caregiver leave entitlement.
A number of employers commented that employees should only be
entitled to FMLA leave to care for a family member when they are
actually providing care. For example, the Manufacturers Alliance/MAPI
and the Metropolitan Transportation Authority (NY) commented that if an
employee has arranged for others to care for the family member, the
employee is not needed to provide care and should not be entitled to
FMLA leave. Southwest Airlines commented, ``[l]eave to care for a
family member should not include, for example, an employee who lives
out of state from the family member and who does not travel to the
family member needing the care during the employee's entire FMLA leave.
The logical meaning of `to care for' a family member, whether it be
physical or psychological care, is active caregiver participation by
the employee needing the leave.''
The Equal Employment Advisory Council recommended ``that the
Department further revise this section by reiterating in Sec.
825.124(c), with a cross reference to Sec. 825.202 and Sec. 825.203,
that in order to qualify for intermittent leave to care for a family
member, that leave must be medically necessary.'' (Emphasis in
original.) Burr & Forman commented that the regulations should clarify
that FMLA leave cannot be used to perform the job duties of either the
ill family member (during the period in which the ill family member
seeks treatment) or another family member (who then provides care to
the ill family member).
On the other hand, AARP and many employee groups supported the
Department's clarification that employees may take FMLA leave to care
for a family member even if they are not the only caregiver available.
The Family Caregiver Alliance commented that, in many cases, having
more than one caregiver available for support and relief helps ensure
the health and safety of the caregivers, as well as the care receiver.
The National Partnership for Women & Families commented that the
legislative history makes clear that Congress anticipated that both
parents may take leave to care for a child, or that multiple siblings
may take leave to care for a parent, and that such leave may be taken
on either an overlapping or sequential basis.
Finally, Working America/Working America Education Fund included
with its comments a number of short quotes from its members that help
put a human face on the wide variety of situations in which employees
need to care for a family member: ``As a Hospice social worker, I have
found FMLA to be extremely important to allow family members to care
for loved ones in their final days.'' ``I have a friend who first took
care of one dying parent and then was the sole caretaker of her second,
remaining terminally ill parent. She took FMLA to care for her
remaining parent and did not lose her sanity or her job.'' ``I had to
use the FMLA a few times after my mother developed Alzheimers. We live
200 miles apart. I needed to go see her occasionally so that she didn't
forget me and that I didn't just let go of her as well.'' ``* * * I am
a widowed mother of five children. If one of them were to become
seriously ill, I would need to take care of them.'' These examples
illustrate the difficulty in trying to include in the regulations
prescriptive requirements for family leave when that leave may be
needed in many different circumstances.
The Department acknowledges the difficulties employers face in
meeting the FMLA's requirements to provide employees with the
opportunity to use leave to care for family members. Nonetheless, the
Department continues to believe that the FMLA does not permit adding
requirements for family leave, such as a requirement that the employee
furnish information about the availability of other caregivers. An
employee is entitled to use FMLA leave to care for a spouse or covered
family member, assuming the eligibility and procedural requirements are
met, no matter how many other family members, friends, or caregivers
may be available to provide this care. However, as a number of employer
commenters stated, such FMLA leave may be taken only to care for the
family member with a serious health condition or the covered
servicemember with a serious illness or injury. An employee may not use
FMLA leave to work in a family business, for example. No regulatory
changes are necessary to address this, however, as both the statute and
Sec. Sec. 825.112(a)(3) and 825.124 make clear that FMLA leave is
available only ``to care for'' a covered relative.
Finally, in order to qualify for intermittent leave to care for a
family member or covered servicemember, the intermittent leave must be
medically necessary as required by the statute. 29 U.S.C. 2612(b)(1).
The cross-reference in Sec. 825.124(c) to Sec. Sec. 825.202-825.205
for the rules governing the use of intermittent or reduced schedule
leave addresses this matter sufficiently.
[[Page 67954]]
Section 825.125 (Definition of Health Care Provider)
The proposed rule, at Sec. 825.125, modified the definition of
``health care provider'' by clarifying the status of physician
assistants (``PAs''). The proposal added PAs to the list of recognized
health care providers and deleted the requirement that they operate
``without supervision by a doctor or other health care provider.'' The
proposal made corresponding changes to proposed Sec. 825.115
(Continuing treatment) and Sec. 825.800 (Definitions). The current
rule's definition of ``health care provider'' (at Sec. 825.118) does
not expressly mention PAs. However, as the preamble to the proposed
rule noted, they generally fall within the current definition under
Sec. 825.118(b)(3), which includes 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. The final rule adopts the proposed
rule's definition of ``health care provider.''
Most of the commenters that addressed this issue supported the
proposed change. For example, the American Academy of Physician
Assistants (``AAPA'') noted that the current regulations cause
confusion because PAs are not named as health care providers, and yet
they are usually covered as providers because the ``overwhelming
majority of private and public insurance plans reimburse medical care
by PAs.'' The AAPA stated that PAs are covered providers of physician
services through Medicare, Medicaid, Tri-Care, Federal Employee Health
Benefit plans and most private insurance plans; they may diagnose and
treat injured workers through nearly all state workers' compensation
programs; and the Department of Transportation regulations define PAs
as ``medical examiners'' for purposes of performing the medical exam
and signing the certificate of physical examination for truck drivers.
The AAPA also stated that the current regulatory references to a PA
working ``under direct supervision of a health care provider'' cause
confusion because they suggest that the FMLA imposes supervisory
requirements that are not required by state law. Finally, the AAPA
stated that clarifying the status of PAs will avoid disruption in the
continuity of care for workers who seek FMLA-related medical treatment
or certification from a PA. Other commenters also expressed approval
for the proposed change. See National Retail Federation; Retail
Industry Leaders Association; HIV-Policy Collaborative; and Redfield
Medical Clinic.
The Metropolitan Transportation Authority (NY) opposed the change,
stating that it does not believe that a PA ``has sufficient training or
expertise to make the medical determinations necessary under the Act.''
The Society of Professional Benefit Administrators commented that the
change ``will have a significant impact on plans by ratcheting up the
potential for physician billing abuse,'' and ``would serve to disclose
employees [sic] medical information to scrutiny by non-professionals
which may have the potential of infringing on a patient's right to
privacy and interfere in their relationships with their doctors.'' The
American Association of Occupational Health Nurses suggested adding
occupational and environmental health nurses, who are registered
nurses, as health care providers because they interface with workers,
human resource personnel, safety personnel and others in administering
the FMLA in many workplaces.
The Department believes that the express inclusion of PAs in the
definition of ``health care provider'' is an appropriate clarification,
not a significant change. As the AAPA noted, PAs generally already are
included within the definition because the vast majority of group
health plans accept them when substantiating a claim for benefits.
Moreover, other government agencies recognize them as providers of
health care services. Both of these facts demonstrate that PAs do have
the necessary training to make the determinations required by the Act.
The Department does not believe that this clarification will have an
impact on potential billing abuse or the disclosure of medical
information. Therefore, the final rule includes PAs as health care
providers in Sec. 825.125(b)(2), and it makes conforming changes in
Sec. Sec. 825.115 and 825.800. The final rule does not add
occupational and environmental health nurses to the list of health care
providers. Registered nurses are not currently included on the list,
and the rulemaking record does not demonstrate that these registered
nurses should be treated differently than other nurses.
Section 825.126 (Leave Because of a Qualifying Exigency)
The NDAA provides a new qualifying reason for taking FMLA leave
which allows eligible employees of covered employers to take leave for
any qualifying exigency arising out of the fact that a spouse, son,
daughter, or parent is on active duty or has been notified of an
impending call or order to active duty in support of a contingency
operation. The Department has organized the discussion of this new
leave entitlement into two major categories: (1) An employee's
entitlement to qualifying exigency leave; (2) the specific
circumstances under which qualifying exigency leave may be taken.
Entitlement to Qualifying Exigency Leave
Under the NDAA, an eligible employee of a covered employer may take
leave for a qualifying exigency arising out of the fact that the
employee's spouse, son, daughter, or parent 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. 29 U.S.C. 2612(a)(1)(E).
Specifically, the statute defines ``active duty'' as duty under both a
``call or order to active duty'' and under a provision of law referred
to in 10 U.S.C. 101(a)(13)(B). 29 U.S.C. 2611(14). In the NPRM, the
Department proposed to add the NDAA's definition of ``active duty'' to
proposed Sec. 825.800 by cross-referencing 10 U.S.C. 101(a)(13)(B).
The Department suggested that the statutory definition did not require
additional clarification and thus did not further explain the various
provisions of law that are specifically referenced in 10 U.S.C.
101(a)(13)(B).
The Department has added the statutory definition of ``active
duty'' to Sec. 825.800 in the final rule as proposed. In addition, in
response to public comments requesting that the Department further
explain the types of active duty service by the spouse, son, daughter,
or parent of an employee that would trigger an entitlement to
qualifying exigency leave, Sec. 825.126(b)(2) of the final rule
specifically enumerates the provisions of law referred to in 10 U.S.C.
101(a)(13)(B): Sections 688, 12301(a), 12302, 12304, 12305, and 12406
of Title 10 of the United States Code, chapter 15 of Title 10 of the
United States Code, and any other provision of law during a war or
during a national emergency declared by the President or Congress. This
section of the regulations also makes clear that these existing
provisions of military law refer only to duty under a ``call or order
to active duty'' by members of the Reserve components and the National
Guard, and also to certain retired members of the Regular Armed Forces
and retired Reserve. Consistent with the statutory definition, this
leave entitlement does
[[Page 67955]]
not extend to family members of the Regular Armed Forces on active duty
status because members of the Regular Armed Forces either do not serve
``under a call or order to active duty'' or are not identified in the
provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The final
rule also provides that a ``call or order to active duty'' for purposes
of leave taken because of a qualifying exigency refers to a Federal
call to active duty, as opposed to a State call to active duty.
Many of the public comments received by the Department with regard
to the military family leave provisions did not discuss the definition
of ``active duty'' for purposes of qualifying exigency leave. A number
of commenters, however, recognized the limiting nature of the statutory
definition provided by Congress. See Society for Human Resource
Management; Bank of the Commonwealth. The law firm of Spencer Fane
Britt & Browne noted that this limited definition was logical:
In case of the Regular Armed Forces, those servicemembers are
employed by the Federal government itself as a conscious career
choice and have accepted the terms and conditions of that
employment. In the case of Reservists and the National Guard, those
individuals may work elsewhere, but are willing to serve the Federal
government if necessary and are willing to allow their lives to be
disrupted by a call to active duty. They have not, however, accepted
the terms and conditions of employment with the Federal government
except as it may be necessary in connection with a call to active
duty. It is the unexpected disruption to their lives that appears to
be the focus of exigency leave.
This view is consistent with the statement of Representative Jason
Altmire on the floor of the U.S. House of Representatives, who
introduced the provision providing leave for a qualifying exigency:
[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.
153 Cong. Rec. H15326 (see daily ed. Dec. 12, 2007).
Several commenters urged the Department to provide additional
detail and explanation in the final rule as to the statutory references
contained in the NDAA, noting that most employers are not familiar with
the specific statutory references and that both employees and employers
would likely be confused without an explanation of who is covered. See
National Coalition to Protect Family Leave; National Association of
Manufacturers; Colorado Department of Personnel & Administration;
Willcox & Savage. The Bank of the Commonwealth noted that without
specific guidance there is a risk of discrimination complaints being
brought by servicemembers in military towns. In contrast, the Equal
Employment Advisory Council concurred with the Department's original
position that the definition of ``active duty'' needed no further
clarification.
The Department also concludes that the statutory language found in
10 U.S.C. 101(a)(13)(B) is unambiguous. Congress expressly incorporated
an existing provision of law regarding active duty when defining an
employee's entitlement to qualifying exigency leave under the FMLA. As
such, Congress provided that leave for a qualifying exigency is
intended for use by employees who have a spouse, son, daughter, or
parent called to active duty as a part of the Reserve components and
the National Guard, or as certain retired members of the Regular Armed
Forces and retired Reserve Employees who have a spouse, son, daughter,
or parent on active duty status as a member of the Regular Armed Forces
are not entitled to qualifying exigency leave.
Had Congress intended qualifying exigency leave to extend to family
members of those in the Regular Armed Forces, it would have provided a
different statutory definition that referenced alternative provisions
of Title 10 to define ``active duty.'' For example, a definition of
``active duty'' that cited to both 10 U.S.C. 101(a)(13)(A) and (B),
rather than to (B) only, would have provided clear coverage to all
members of the Armed Forces. Alternatively, a reference to the
provisions of 10 U.S.C. 101(d) would have also provided a broader
definition of ``active duty.'' In comparison, the provisions of the
NDAA allowing an eligible employee to take leave to care for a
``covered servicemember'' (also referred to as ``military caregiver
leave'') do provide a broader definition of the military service
covered by that leave entitlement. In that instance, the NDAA defines a
``covered servicemember,'' in part, as ``a member of the Armed Forces
(including National Guard or Reserves).'' This distinction further
highlights the limitation Congress imposed for who should be eligible
to take qualifying exigency leave.
The Department also concurs with the commenters that more specific
guidance regarding the statutes listed under 10 U.S.C. 101(a)(13)(B)
would be helpful. The Department understands that most employers and
employees will be unfamiliar with the military terminology used by the
NDAA in establishing the new FMLA military family leave entitlements.
For this reason, the final rule does not simply rely on a statutory
cross-reference to establish the definition of the term ``active
duty.'' Rather, the final rule provides in Sec. 825.126(b)(2) a brief
explanation of each of the statutes listed in 10 U.S.C. 101(a)(13)(B)
to provide more detailed guidance on the definition of ``active duty.''
Some commenters asked about situations where a State (e.g., a
governor) calls the National Guard or Reserve to active duty. Spencer
Fane Britt & Browne urged the Department to ``[c]larify that a call to
active duty is a Federal call to active duty as opposed to a State call
to active duty of a State's own National Guard or state militia.'' The
Department agrees that the exclusion of State calls to active duty is
clear in the NDAA. The statutes referred to in 10 U.S.C. 101(a)(13)(B)
refer exclusively to Federal calls to active duty in support of a
contingency operation. The final rule therefore clarifies that a call
to active duty for purposes of leave taken because of a qualifying
exigency refers to a Federal call to active duty. State calls to active
duty are not covered unless under order of the President of the United
States pursuant to one of the provisions of law identified in Sec.
825.126(b)(2).
The NDAA also provides a definition of the term ``contingency
operation.'' The statute defines the term as having the same meaning
given such term in section 10 U.S.C. 101(a)(13). 29 U.S.C. 2611(15). In
the NPRM, the Department considered adding the definition of
``contingency operation'' in proposed Sec. 825.800 as defined in the
NDAA and cross-referencing 10 U.S.C. 101(a)(13). The Department
suggested that the definition did not require additional clarification.
The Department has added the statutory definition of ``contingency
operation'' to Sec. 825.800 in the final rule as proposed. In
addition, in response to public comments requesting greater clarity,
Sec. 825.126(b)(3) of the final rule defines ``contingency operation''
by fully restating the statutory language of 10 U.S.C. 101(a)(13).
Specifically, this statutory reference provides that a military
operation qualifies as a contingency operation if it (1) is designated
by the Secretary of Defense as an operation in which members of the
armed forces are or may become involved in military actions,
operations, or hostilities against an enemy of the United States or
against an opposing
[[Page 67956]]
military force; or (2) results in the call or order to, or retention
on, active duty of members of the uniformed services under section 688,
12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the United
States Code, chapter 15 of Title 10 of the United States Code, or any
other provision of law during a war or during a national emergency
declared by the President or Congress. The provisions listed under (2)
above are the same as those used to define ``active duty'' and
generally refer to members of the National Guard and Reserve. In
addition, this section specifies that the active duty orders of a
covered military member will generally specify if the covered military
member is serving in support of a contingency operation by citation to
the relevant section of Title 10 of the United States Code and/or by
reference to the specific name of the contingency operation.
As with the comments received by the Department with regard to the
definition of ``active duty,'' many of the comments regarding the
definition of ``contingency operation'' urged the Department to be as
specific as possible in the final regulations. In fact, some of the
comments addressed both terms together. See Food Marketing Institute;
Colorado Department of Personnel & Administration; Bank of the
Commonwealth; Society for Human Resource Management.
As with the definition of ``active duty'' in Sec. 825.126(b)(2),
the final rule in Sec. 825.126(b)(3) references the specific statutes
listed in 10 U.S.C. 101(a)(13). Because a covered military member's
active duty orders will generally specify whether he or she is serving
in support of a contingency operation by reference to the appropriate
section of Title 10 of the United States Code and/or by reference to
the specific name of the contingency operation, the Department believes
that it will be fairly easy for employees and employers to determine
whether a particular covered military member's active duty status
qualifies the family member for qualifying exigency leave by examining
the covered military member's active duty orders. As discussed in
relation to Sec. 825.309, which addresses certification requirements
for qualifying exigency leave, a copy of such orders must be provided
to an employer upon the first request when an employee requests leave
because of a qualifying exigency. Furthermore, the certification
section provides that an employer can verify a covered military
member's active duty status in support of a contingency operation with
the Department of Defense.
As the military operations that qualify family members of covered
military members for qualifying exigency leave under FMLA may change
over time, the Department does not believe that it is helpful to
provide further specificity in the final regulations regarding the
operations that currently qualify as contingency operations.
Furthermore, because the Secretary of Defense may designate military
operations as contingency operations, the Department believes that the
Department of Defense, and not the Department of Labor, is in the best
position to determine which operations qualify. Requiring a copy of a
covered military member's active duty orders, or other appropriate
documentation from the military, when qualifying exigency leave is
first requested will permit an employer to verify a covered military
member's duty in support of a contingency operation without requiring
revision to the FMLA regulations each time the list of contingency
operations is revised by the Department of Defense.
In addition, in the NPRM the Department noted that the military
leave provisions of the NDAA did not alter the FMLA's existing
definitions of ``son or daughter.'' Specifically, the Department asked
for comments on the application of the FMLA's current definition of
``son or daughter'' to the new military family leave entitlements.
Under the current FMLA definition, a son or daughter must either be (1)
under 18 years of age; 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 explained that applying this definition for
purposes of leave taken for a qualifying exigency would severely
restrict the availability of the leave and would appear to contradict
the intent of Congress. The Department sought comment on whether it
would be appropriate to define the term ``son or daughter'' differently
for purposes of FMLA leave taken because of a qualifying exigency.
The final rule does not alter the FMLA's definition of ``son or
daughter,'' but rather establishes a separate definition of ``son or
daughter on active duty or call to active duty status'' for the purpose
of leave for a qualifying exigency. Section 825.126(b)(1) defines a
``son or daughter on active duty or call to active duty status'' as an
employee's biological, adopted, or foster child, stepchild, legal ward,
or a child for whom the employee stood in loco parentis, who is on
active duty or call to active duty status, and who is of any age. See
also Sec. Sec. 825.122 and 825.800.
The Department received a large number of comments requesting that
the Department apply a broader definition of ``son or daughter'' for
purposes of leave for a qualifying exigency in order to adhere to the
intent of law. See Senator Dodd and Representative Woolsey et al.;
Catholic Charities, Diocese of Metuchen; National Partnership for Women
& Families; TOC Management Services. The National Association of
Manufacturers did not object to the Department providing a new
definition for ``son or daughter,'' as long as the Department clarified
that the definition applies only to the military provisions. In
contrast, Infinisource, Inc., asserted that the NDAA ``did not
explicitly expand'' the definition of ``son or daughter'' and thus it
should not be altered for purposes of military family leave.
The Department agrees with the overwhelming majority of comments
that the existing FMLA definition of ``son or daughter'' could not have
been intended to apply to the qualifying exigency leave provision.
Using the existing FMLA definition of ``son or daughter'' would
eviscerate the qualifying exigency leave provision because for all
practical purposes a parent would not be able to take leave for a
qualifying exigency if the parent's son or daughter were deployed
overseas as a member of the National Guard or Reserve because the
majority of such sons or daughters would not be under age 18 and those
older would most likely not be incapable of self-care due to a
disability. This is clearly not the result intended by Congress. The
NDAA allows an employee to take leave for circumstances ``arising out
of the fact that the spouse, or a son, daughter, or parent of the
employee is on active duty.'' Therefore, it is more consistent with the
intent of the military leave amendments to define ``son or daughter on
active duty or call to active duty status'' as an employee's
biological, adopted, or foster child, stepchild, legal ward, or a child
for whom the employee stood in loco parentis, who is on active duty or
call to active duty status, and who is of any age. This definition
applies specifically only to qualifying exigency leave and does not
alter the definition of son or daughter for purposes of taking FMLA
leave for other qualifying reasons.
Types of Qualifying Exigencies
In describing qualifying exigency leave, the NDAA simply states
that leave can be taken ``[b]ecause of any qualifying exigency (as the
Secretary shall, by regulation, determine) arising out of the fact that
the spouse, or a son,
[[Page 67957]]
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.'' 29 U.S.C.
2612(a)(1)(E).
In the NPRM, the Department presented a lengthy discussion
regarding the appropriate definition of qualifying exigency and posed a
number of specific questions arising from that discussion. The
Department reproduced in the NPRM the only statements made in Congress
specifically addressing qualifying exigency leave. Three Members of the
U.S. House of Representatives made brief statements on the House floor.
Representative Jason Altmire, who introduced the provision providing
for qualifying exigency leave, stated:
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 * * *.
153 Cong. Rec. H5132 (see daily ed. May 16, 2007) (statement of
Representative Altmire).
[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 * * *.
153 Cong. Rec. H15323 (see daily ed. Dec. 12, 2007) (same).
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. H15341 (see daily ed. Dec. 12, 2007) (same).
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 (see daily ed. May 17, 2007) (statement of
Representative Udall).
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 arrangement
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 (see daily ed. May 17, 2007) (statement of
Representative Miller).
Based on these Congressional statements, the Department expressed
an initial view that, given the statute's inclusion of the word
``qualifying,'' not every exigency would entitle a military family
member to leave. The Department further stated in its proposal that the
NDAA requires a nexus between the eligible employee's need for leave
and the covered military member's active duty status and specifically
solicited comment on the degree of nexus that should be required.
The Department asked for comment on whether the types of qualifying
exigencies should be limited to those items of an urgent or one-time
nature arising from deployment as opposed to routine, everyday life
occurrences. The Department suggested that leave for qualifying
exigencies should be limited to non-medical related exigencies since
the leave entitlement for qualifying exigencies was 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 also sought comment on whether it would be
appropriate to develop a list of pre-deployment, deployment, and post-
deployment qualifying exigencies. The Department asked whether
particular types of exigencies should qualify, such as making
arrangements for child care, making financial and legal arrangements to
address the covered military member's absence, attending counseling
related to the active duty of the covered military member, 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 covered military member, and attending to affairs
caused by the missing status or death of a covered military member.
Finally, the Department sought comment on whether there were any other
exigencies that should qualify and whether any list developed by the
Department should be a per se list of qualifying exigencies.
Section 825.126(a) of the final rule defines qualifying exigency by
providing a specific and exclusive list of reasons for which an
eligible employee can take leave because of a qualifying exigency.
These reasons are divided into seven general categories: (1) Short-
notice deployment, (2) Military events and related activities, (3)
Childcare and school activities, (4) Financial and legal arrangements,
(5) Counseling, (6) Rest and recuperation, (7) Post-deployment
activities, and (8) Additional activities.
For Short-notice deployment, Sec. 825.126(a)(1) allows qualifying
exigency leave to address any issue that arises from the fact that a
covered military member is notified of an impending call or order to
active duty seven or less calendar days prior to the date of
deployment. Leave taken for this purpose can be used for a period of
seven calendar days beginning on the date the covered military member
is notified of an impending call or order to active duty.
For Military events and related activities, Sec. 825.126(a)(2)
allows qualifying exigency leave to attend any official ceremony,
program, or event sponsored by the military and to attend family
support and assistance programs and informational briefings sponsored
or promoted by the military, military service organizations, or the
American Red Cross that are related to the active duty or call to
active duty status of a covered military member.
For Childcare and school activities, Sec. 825.126(a)(3) allows an
eligible employee to take qualifying exigency leave to arrange
childcare or attend certain school activities for a biological,
adopted, or foster child, a stepchild, or a legal ward of the covered
military
[[Page 67958]]
member, or a child for whom the covered military member stands in loco
parentis, who is either under age 18, or age 18 or older and incapable
of self-care because of a mental or physical disability at the time
that FMLA leave is to commence. Qualifying exigency leave may be taken
under this section (1) to arrange for alternative childcare when the
active duty or call to active duty status of a covered military member
necessitates a change in the existing childcare arrangement; (2) to
provide childcare on an urgent, immediate need basis (but not on a
routine, regular, or everyday basis) when the need to provide such care
arises from the active duty or call to active duty status of a covered
military member; (3) to enroll the child in or transfer the child to a
new school or day care facility when enrollment or transfer is
necessitated by the active duty or call to active duty status of a
covered military member; and (4) to attend meetings with staff at a
school or a day care facility, such as meetings with school officials
regarding disciplinary measures, parent-teacher conferences, or
meetings with school counselors, when such meetings are necessary due
to circumstances arising from the active duty or call to active duty
status of a covered military member.
For Financial and legal arrangements, Sec. 825.126(a)(4) allows
qualifying exigency leave to make or update financial or legal
arrangements to address the covered military member's absence while on
active duty or call to active duty status, such as preparing and
executing financial and healthcare powers of attorney, transferring
bank account signature authority, enrolling in the Defense Enrollment
Eligibility Reporting System (``DEERS''), obtaining military
identification cards, or preparing or updating a will or living trust.
It also allows leave to act as the covered military member's
representative before a federal, state, or local agency for purposes of
obtaining, arranging, or appealing military service benefits while the
covered military member is on active duty or call to active duty status
and for a period of 90 days following the termination of the covered
military member's active duty status.
For Counseling, Sec. 825.126(a)(5) allows qualifying exigency
leave to attend counseling provided by someone other than a healthcare
provider for oneself, for the covered military member, or for the
biological, adopted, or foster child, a stepchild, or a legal ward of
the covered military member, or a child for whom the covered military
member stands in loco parentis, who is either under age 18, or age 18
or older and incapable of self-care because of a mental or physical
disability at the time that FMLA leave is to commence, provided that
the need for counseling arises from the active duty or call to active
duty status of a covered military member.
For Rest and recuperation, Sec. 825.126(a)(6) provides qualifying
exigency leave to spend time with a covered military member who is on
short-term, temporary rest and recuperation leave during the period of
deployment. Eligible employees may take up to five days of leave for
each instance of rest and recuperation.
For Post-deployment activities, Sec. 825.126(a)(7) allows
qualifying exigency leave to attend arrival ceremonies, reintegration
briefings and events, and any other official ceremony or program
sponsored by the military for a period of 90 days following the
termination of the covered military member's active duty and to address
issues that arise from the death of a covered military member while on
active duty status, such as meeting and recovering the body of the
covered military member and making funeral arrangements.
Finally, Sec. 825.126(a)(8) provides qualifying exigency leave for
Additional Activities, which allows leave to address other events which
arise out of the covered military member's active duty or call to
active duty status provided that the employer and employee agree that
such leave shall qualify as an exigency, and agree to both the timing
and duration of such leave.
The Department received a wide array of comments regarding how to
define ``qualifying exigency.'' Several commenters requested a per se
list, or at least as exhaustive a list as possible. See National
Business Group on Health; Jackson Lewis; Catholic Charities, Diocese of
Metuchen; Association of Corporate Counsel's Employment and Labor Law
Committee; Equal Employment Advisory Council. Jackson Lewis argued that
without a per se list administering such leave would be extremely
difficult because employers would be forced to ``interrogate employees
regarding the circumstances surrounding their requests for qualifying
exigency leave.'' ORC Worldwide requested a per se list, but suggested
that it be non-exhaustive. In contrast, other commenters stated that a
per se list would not be practicable or provide employers enough
flexibility, but that examples or flexible criteria would be helpful.
See TOC Management Services; the Chamber; National Association of
Manufacturers. Others urged the Department to reject the use of a per
se list, and instead to provide general guidelines or broad categories
and examples or non-exhaustive lists of the types of situations that
would be qualifying exigencies. See National Military Family
Association; National Partnership for Women & Families, in joint
comments with the National Military Family Association; Senator Dodd
and Representative Woolsey et al. Senator Dodd and Representative
Woolsey et al. suggested specific categories:
(1) Military events and meetings; (2) childcare and childcare
arrangements; (3) counseling for self, family and children, (4)
legal, financial and other critical household obligations; and (5)
family needs and obligations related to the servicemember's
departure, return, or period leave * * *.
Others did not specifically suggest or reject the idea of a per se
list, but requested that the Department provide a clear definition. See
Burr & Forman; Colorado Department of Personnel & Administration;
Infinisource.
The comments were equally divided as to whether qualifying
exigencies should be limited to one-time events or should include
recurring or routine events also. The National Partnership for Women &
Families, in joint comments with the National Military Family
Association, urged the Department to include both urgent and routine
events as qualifying exigencies, stating that ``[t]here is nothing in
the statute that limits this leave solely to urgent matters.''
Infinisource, the National Coalition to Protect Family Leave, the
Society for Human Resource Management, Delphi, and Jackson Lewis urged
the Department to limit it to urgent, one-time, non-routine exigencies.
These commenters also suggested that it not include medical exigencies.
Delphi, the National Coalition to Protect Family Leave, and the Society
for Human Resource Management also emphasized that causation should be
an important factor in defining qualifying exigency.
The comments were more consistent as to the timing of the
exigencies that should qualify. Most commenters who addressed this
issue agreed that qualifying exigencies should include events that
occur pre-deployment, during deployment, and post-deployment. See
National Military Family Association; National Partnership for Women &
Families, in joint comments with the National Military Family
Association; Association of Corporate Counsel's Employment and Labor
Law Committee. The exception was the National Business Group on Health,
which
[[Page 67959]]
referred only to exigencies pre- and post-deployment, but not during
deployment.
The Department believes it is critical that employees fully
understand their rights and employers fully understand their
obligations under this new leave entitlement. Accordingly, the final
rule specifically identifies the circumstances under which qualifying
exigency leave may be taken. The Department believes this approach is
preferable because it provides the clearest guidance to both employees
and employers regarding the circumstances under which qualifying
exigency leave may be taken. By organizing the list of qualifying
exigencies into categories covering Short-notice deployment, Military
events and related activities, Childcare and school activities,
Financial and legal arrangements, Counseling, Rest and recuperation,
Post-deployment activities, and Additional activities, the final rule
reflects the broad areas of common exigencies highlighted by many
commenters.
At the same time, the Department also recognizes the need to
provide some flexibility for both employees and employers to address
unforeseen circumstances. The Department understands that there may be
additional circumstances beyond those specified in the Department's
final rule for which the use of qualifying exigency leave might be
appropriate. For this reason, Sec. 825.126(a)(8) of the final rule
allows job-protected leave to address other events which arise out of
the covered military member's active duty or call to active duty status
in support of a contingency operation, provided that the employer and
employee agree that such leave shall qualify as an exigency, and agree
to both the timing and duration of such leave. This provision ensures
that employees have the ability to take job-protected FMLA leave for
unforeseen circumstances, but also requires effective communication
between employees and employers regarding such leave so that it does
not adversely impact or burden the employer's business operations.
While many members of the National Guard and Reserve receive their
orders as far as several months in advance, thereby allowing abundant
time to plan for the covered military member's absence, there may be
some situations where some members of the National Guard and Reserve
receive their notices or orders only a few days in advance. The
Department recognizes that in these circumstances, a number of personal
arrangements must be made by the covered military member and his or her
family member in a very short period of time. Section 825.126(a)(1) of
the final rule therefore allows leave to address any issue that arises
from the fact that a covered military member is notified of an
impending call or order to active duty seven or less calendar days
prior to the date of deployment. Leave taken for this purpose can be
used for a period of seven calendar days beginning on the date the
covered military member is notified of an impending call or order to
active duty. During this seven day period, an employee may take FMLA
leave without demonstrating that the need for leave otherwise qualifies
as an exigency under one of the other provisions of Sec. 825.126(a).
The employee also may take FMLA leave during this seven day period for
any other exigency specifically enumerated in the other provisions of
Sec. 825.126(a). For example, if an employee's spouse receives orders
to active duty in support of a contingency operation on October 5, and
will be deployed on October 9, the employee would be eligible for leave
under this section on October 5, 6, 7, 8, 9, 10, and 11 and may take
such leave in order to make or update financial or legal arrangements,
to spend time with the military member, or for any other reason related
to the call or order to active duty. Leave taken by the employee
outside of these seven days must qualify under one of the other
exigencies listed in Sec. 825.126(a).
Section 825.126(a)(2) of the final rule allows qualifying exigency
leave for military events and related activities to attend any official
ceremony, program, or event sponsored by the military and to attend
family support or assistance programs and informational briefings
sponsored or promoted by the military, military service organizations,
or the American Red Cross that are related to the active duty or call
to active duty status of a covered military member. This provision is
self-explanatory. The Department believes that activities sponsored by
the military, a military service organization, or the American Red
Cross which relate to the active duty or call to active duty status of
the military member are precisely the types of activities Congress
intended to cover when extending job-protected FMLA leave to the family
members of covered military members. Among other things, this provision
is intended to cover leave taken for arrival and departure ceremonies,
pre-deployment briefings, briefings for the family during the period of
deployment, and post-deployment briefings which occur while the covered
military member is on active duty or call to active duty status.
The Department received a large number of comments regarding the
use of exigency leave to arrange for and provide childcare. Several
commenters distinguished between arranging or planning for childcare,
where the need is directly caused by the covered military member's call
to active duty status, and routine situations, such as a babysitter
canceling, or having to arrive late or leave early to drop off or pick
up a child, arguing that the former should qualify as an exigency while
the latter should not. See Equal Employment Advisory Council; National
Association of Manufacturers; National Coalition to Protect Family
Leave. In contrast, the National Partnership for Women & Families, in
joint comments with the National Military Family Association, and
Senator Dodd and Representative Woolsey et al. urged the Department to
permit a broader set of childcare related circumstances to be
qualifying exigencies, such as: Finding child care, enrolling in new
schools, changing a work schedule to pick up or drop off children,
arranging for summer care, attending school functions, attending
counseling for the child, and transporting the child to and from
medical or tutoring appointments and afterschool activities.
Section 825.126(a)(3) of the final rule allows qualifying exigency
leave for a broad array of childcare and school activities in accord
with the floor statements by the Members of the U.S. House of
Representatives who sponsored this provision. In formulating the list
of childcare and school activities that are qualifying exigencies, the
Department identified childcare and school activities that require
attention because the covered military member is on active duty or call
to active duty status, rather than routine events that occur regularly
for all parents. Section 825.126(a)(3)(i) allows qualifying exigency
leave to arrange for alternative childcare when the active duty or call
to active duty status of a covered military member necessitates a
change in the existing childcare arrangement. This could include, for
example, leave to enroll a child in a summer camp or similar kind of
summer day care at the end of the school year if a covered military
member is still on active duty or call to active duty status. It would
also cover circumstances where the absence of a covered military member
because of active duty status disrupts the preexisting childcare
arrangement, such as when the covered military member is no longer
present to transport a child to and/or from childcare and the employee
must take qualifying exigency leave to make new arrangements.
Section 825.126(a)(3)(ii) allows qualifying exigency leave to
provide
[[Page 67960]]
childcare on an urgent, immediate need basis (but not on a routine,
regular, or everyday basis) when the need to provide such care arises
directly or indirectly from the active duty or call to active duty
status of a covered military member. This provision would permit, for
example, an eligible employee to take leave to care for the child of a
covered military member on active duty if the child has become sick and
needs to be immediately picked up from daycare or school. The employee
could provide immediate childcare on a temporary basis, but would be
expected to find alternative childcare if the child's illness
continues.
Section 825.126(a)(3)(iii) allows an employee to enroll in or
transfer a child to a new school or day care facility when enrollment
or transfer is necessitated by the active duty or call to active duty
status of a covered military member. Such leave may be used, for
example, to enroll a child into a new school or day care facility
during the school year when the child has moved or relocated due to the
active duty or call to active duty status of a covered military member.
Lastly, Sec. 825.126(a)(3)(iv) allows qualifying exigency leave to
attend meetings with staff at a school or a daycare facility, such as
meetings with school officials regarding disciplinary measures, parent-
teacher conferences, or meetings with school counselors, when such
meetings are necessary due to circumstances arising from the active
duty or call to active duty status of a covered military member. The
Department has heard firsthand from military family organizations how
children are impacted by the absence of a parent who is on active duty
and believes that it is appropriate to permit family members of these
covered military members to take FMLA leave in order to attend school
meetings when such meetings are necessary due to circumstances arising
from the active duty or call to active duty status of a covered
military member. The Department does not, however, intend for this
leave to be used to meet with staff at a school or daycare facility for
routine academic concerns.
The Department received many comments regarding the ability to take
leave to make financial and legal arrangements. Several commenters
stated that making financial or legal arrangements to address the
covered military member's leave should be included. See U.S. Postal
Service; National Coalition to Protect Family Leave; Association of
Corporate Counsel's Employment and Labor Law Committee; Senator Dodd
and Representative Woolsey et al.. The National Coalition to Protect
Family Leave suggested that the final determination ``should be subject
to an overriding case-by-case determination by the employer,'' and also
suggested that preparation of the following legal documents should be
qualifying exigencies: ``last will and testament, living trust,
financial and health care powers of attorney, safety deposit box,
beneficiary designations on financial accounts and insurance plans/
policies, signatory authorizations on bank accounts, [and] change of
address on mail delivery so that bills and other important
communications are forwarded to the appropriate person.'' TOC
Management Services emphasized that there should be a nexus between the
financial or legal arrangement and the covered military member's
deployment. As an example, it pointed to an employee who needs leave to
go to a bank only open during work hours when the employee's deploying
spouse's signature is necessary to withdraw money, in which case there
is a sufficient nexus, versus an employee who needs leave to shop for a
new car that is needed because of the spouse's deployment, in which
case there is not a sufficient nexus. Senator Dodd and Representative
Woolsey et al. suggested that leave should be allowed to prepare a
will, refinance a mortgage, or designate a power of attorney, as well
as to address legal or financial situations that arise during or after
deployment. In addition, the National Partnership for Women & Families,
in joint comments with the National Military Family Association,
suggested that the Department should include ``[a]cting as
servicemember's representative in front of federal or state agencies or
the military in order to obtain benefits'' as an example of a
qualifying exigency.
As suggested by the floor statements of Representatives Jason
Altmire, Tom Udall, and George Miller, the Department agrees that
Congress intended employees to be able to take qualifying exigency
leave to make certain financial or legal arrangements. Therefore, Sec.
825.126(a)(4)(i) allows qualifying exigency leave to make or update
financial or legal arrangements to address the covered military
member's absence while on active duty or call to active duty status,
such as preparing and executing financial and healthcare powers of
attorney, transferring bank account signature authority, enrolling in
the Defense Enrollment Eligibility Reporting System (``DEERS''),
obtaining military identification cards, or preparing or updating a
will or living trust. While this list of examples is not exclusive, it
does illustrate that leave under this provision is intended to address
issues directly related to the covered military member's absence, and
not routine matters such as paying bills. Section 825.126(a)(4)(ii)
allows such leave to be taken to act as the covered military member's
representative before a federal, state, or local agency for purposes of
obtaining, arranging, or appealing military service benefits while the
covered military member is on active duty or call to active duty
status, and for a period of 90 days following the termination of the
covered military member's active duty status.
Many commenters discussed the inclusion of counseling as a
qualifying exigency. Fisher & Phillips stated that ``attending
counseling related to the service member's active duty is a medical
issue, and * * * this form of leave is not designed for medical
issues.'' Similarly, the Illinois Credit Union League stated that
``counseling should not constitute an example of an exigency, as it is
a recurrent activity and is medically related.'' On the other hand, the
National Partnership for Women & Families, in joint comments with the
National Military Family Association, offered that attending counseling
for children, for oneself, or for the covered military member should be
listed as examples of qualifying exigencies. The U.S. Postal Service
also listed ``attending counseling related to the covered military
member's active duty'' as a non-medical exigency. Senator Dodd and
Representative Woolsey et al. commented that a ``servicemember deploys
to Iraq, leaving behind a wife, children, and parents. This deployment
places a significant mental strain on each of these individuals, and
these family members should be permitted to use leave to attend mental
health counseling, alone or as a group.''
The Department expects that most counseling will fall under the
existing FMLA but recognizes that there may be circumstances wherein
military families may seek counseling that is non-medical in nature.
Section 825.126(a)(5) allows qualifying exigency leave to attend
counseling provided by someone other than a healthcare provider for
oneself, for the covered military member, or for the biological,
adopted, or foster child, a stepchild, or a legal ward of the covered
military member, or a child for whom the covered military member stands
in loco parentis, who is either under age 18, or age 18 or older and
incapable of self-care because of a mental or physical disability at
the time
[[Page 67961]]
that FMLA leave is to commence, provided that the need for counseling
arises from the active duty or call to active duty status of a covered
military member. This provision is intended to cover counseling not
already covered by the FMLA because the provider is not recognized as a
health care provider as defined in Sec. Sec. 825.125 and 825.800. For
example, this could include counseling provided by a military chaplain,
pastor, or minister, or counseling offered by the military or a
military service organization that is not provided by a health care
provider. In any instance where the need for counseling arises from a
serious health condition, the employer has a right to require a WH-380
certification. See Sec. 825.305.
A few comments expressed concern about allowing qualifying exigency
leave for rest and recuperation and similar leave. The Chamber
recommended that ``an employer should not be required to provide an
employee a 45-day non-emergency leave of absence to vacation with a
military service member who is on a Rest and Recuperation (``R&R'')
leave overseas.'' See also ORC Worldwide; HR Policy Association. The
Independent Bakers Association, in contrast, suggested that ``R&R
should be included'' as an exigency ``as it does occur during active
duty.''
Given the importance of fostering strong relationships among
military families, and the limited opportunities available for covered
military members to spend time with their families while on active
duty, the Department believes it is appropriate for qualifying exigency
leave to be used for a limited time while a covered military member is
on leave from active duty. Section 825.126(a)(6) of the final rule
allows qualifying exigency leave for rest and recuperation to spend
time with a covered military member who is on short-term, temporary
leave while on active duty in support of a contingency operation. This
temporary leave covers rest and recuperation leave taken during the
period of deployment. The final rule limits the use of leave under this
provision to a period of up to five days of leave for each instance of
rest and recuperation.
The Department also received comments regarding coverage of certain
post-deployment activity. The National Military Family Association
urged the Department to ``make clear that post-deployment goes beyond
the service member's return home'' and suggested, for example, that
``the spouse of a National Guard member should be able to use FMLA
leave to attend a post-deployment reintegration weekend, sponsored by
the unit, 90 days after the unit returned home.'' Senator Dodd and
Representative Woolsey et al. noted that ``[p]rior to and up to 90 days
following the deployment, the military will likely provide a number of
deployment briefings or screenings aimed at providing servicemembers
and their families with information related to the deployment, as well
as mental and physical health screenings[,]'' and that the
participation of family members in such briefings ``is critical.'' The
Military Family Research Institute at Purdue University expressed
concern that ``there is little acknowledgement that the post-deployment
period also requires completion of a substantial set of logistical
tasks, as well as substantial personal adjustments and extensive
training.'' This commenter stated further that:
Service members in both the active and reserve components are
required to attend reintegration briefings and mandatory assessments
of physical and mental health following return from deployment, and
family members are encouraged to attend many of the reintegration
activities, some of which are held away from home and may require
overnight stays. In the reserve component, service members are
placed on active duty for the purpose of attending these activities
* * * it would be appropriate to consider this active duty related
to a contingency operation * * *. [I]t would be in the best interest
of families for the regulation * * * to acknowledge that post-
deployment reintegration training and assessments are important * *
* [and] have a great deal to do with the well-being of service
members and family members.
The Department recognizes the importance of post-deployment
activities for military families. Section 825.126(a)(7) allows leave to
attend arrival ceremonies, reintegration briefings and events, and any
other official ceremony or program sponsored by the military for a
period of 90 days following the termination of the covered military
member's active duty status. This provision also allows an employee to
take leave to address issues that arise from the death of a covered
military member on active duty, such as meeting and recovering the body
of the covered military member and making funeral arrangements. The
Department is mindful of the statutory language of the NDAA that leave
for a qualifying exigency must arise out of the fact that a covered
military member ``is'' on active duty or has been notified of an
impending call to active duty status in support of a contingency
operation. The present tense used in the statutory language places
certain limitations on the Department's ability to allow for activities
that occur once the covered military member is no longer on active
duty. A reasonable reading of the statute, however, allows for a
limited number of post-deployment activities, the need for which
immediately and foreseeably arise once the servicemember is on active
duty or has been notified of an impending call to active duty status in
support of a contingency operation. Providing an unlimited post-
deployment leave entitlement, however, would strain the statutory
limitation and could impose unreasonable burdens on employers years
after the period of active duty has ended.
Relying on the comments by the National Military Family Association
and Senator Dodd and Representative Woolsey et al., the Department
believes a period of 90 days following the covered military member's
return from active duty status is a sufficient amount of time to cover
relevant post-deployment activities. The Department also notes that as
part of the Yellow Ribbon Reintegration Program, which was established
by the NDAA, the Department of Defense (``DOD'') will provide
reintegration programs for National Guard and Reserve members and their
families at approximately 30-, 60-, and 90-day intervals following
demobilization, release from active duty, or full-time National Guard
Duty. Because the Yellow Ribbon Reintegration Program was also
established by the NDAA, it is appropriate that the reintegration
programs created under the Yellow Ribbon Reintegration Program be
included as events for which employees can take leave under the
military family leave provisions. The 90-day time frame in Sec.
825.126(a)(7) is intended to cover any programs considered to be 90-day
reintegration programs sponsored by the DOD. Programs that are a part
of the DOD's 90-day reintegration event should be considered a
qualifying exigency under Sec. 825.126(a)(7) even when such programs
may fall a few days outside the period of 90 days following the
termination of the covered military member's active duty.
Section 825.127 (Leave To Care for a Covered Servicemember With a
Serious Injury or Illness) (i.e., ``Military Caregiver Leave'')
Section 585(a) of the NDAA amends the FMLA to allow an eligible
employee who is the spouse, son, daughter, parent, or next of kin of a
``covered servicemember'' to take 26 workweeks of leave during a 12-
month period to care for the servicemember. The provisions in the NDAA
providing for military caregiver leave became effective
[[Page 67962]]
January 28, 2008. In order to provide guidance to employees and
employers about this new leave entitlement as soon as possible, the
NPRM sought public comment on a number of issues related to the
development of regulations to implement the military caregiver leave
provisions, and stated that the next step in the rulemaking process
would be to issue final regulations. In the interim, the Department has
required that employers act in good faith in providing military
caregiver leave under the new legislation by using existing FMLA-type
procedures as appropriate. In order to address issues unique to the
taking of this leave, the final rule creates a new Sec. 825.127, which
explains: (1) An employee's entitlement to military caregiver leave;
and (2) the specific circumstances under which military caregiver leave
may be taken.
Entitlement to Military Caregiver Leave
Under the NDAA, an eligible employee who is the spouse, son,
daughter, parent, or next of kin of a covered servicemember shall be
entitled to a total of 26 workweeks of leave during a ``single 12-month
period'' to care for the servicemember. The NPRM requested comment on a
number of issues relating to an eligible employee's entitlement to such
leave. For example, the Department sought public comment on the
definition of a ``covered servicemember,'' as well as on the scope of
injuries or illnesses for which care may be provided under the new
leave entitlement. The Department also sought public comment on the
required family relationship between the employee seeking to take
military caregiver leave and the covered servicemember, including how
the Department should define the terms ``next of kin'' and ``son or
daughter'' for purposes of such leave.
Section 825.127(a) of the final rule explains that an eligible
employee may take FMLA leave to care for a covered servicemember with a
``serious injury or illness'' incurred in the line of duty on active
duty for which the servicemember is (1) undergoing medical treatment,
recuperation, or therapy; or (2) otherwise in outpatient status; or (3)
otherwise on the temporary disability retired list. This section
incorporates the NDAA's statutory definition of a ``covered
servicemember'' and clarifies that the definition of a ``covered
servicemember'' includes current members of the Regular Armed Forces,
current members of the National Guard or Reserves, and members of the
Regular Armed Forces, the National Guard and the Reserves who are on
the temporary disability retired list (``TDRL''). Under the final
regulations, former members of the Regular Armed Forces, former members
of the National Guard and Reserves, and members on the permanent
disability retired list are not considered covered servicemembers.
Section 825.127(b) of the final regulations defines who may take leave
to care for a ``covered servicemember.'' This section sets forth
definitions for ``son or daughter of a covered servicemember,''
``parent of a covered servicemember'' and ``next of kin''--all of which
are new terms applicable only to the taking of military caregiver leave
by an eligible employee.
Who Is a Covered Servicemember
In order for an eligible employee to be entitled to take FMLA leave
to care for a servicemember, the NDAA requires that the servicemember
be a ``covered servicemember'' who is receiving treatment for a
``serious injury or illness'' that ``may render the member medically
unfit to perform the duties of the member's office, grade, rank, or
rating.'' A ``covered servicemember'' is defined by statute as a member
of the Armed Forces, including a member of the National Guard or
Reserves, who is undergoing medical treatment, recuperation, or
therapy, is otherwise in ``outpatient status,'' or is otherwise on the
temporary disability retired list, for a ``serious injury or illness.''
29 U.S.C. 2611(16). A ``serious injury or illness'' is defined by the
NDAA as an injury or illness incurred by the covered servicemember 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. 29 U.S.C. 2611(19).
In light of the NDAA's focus on a servicemember's ability to
perform his or her military duties when determining whether the
servicemember is a ``covered servicemember'' with a ``serious injury or
illness,'' the Department sought comments on whether eligible employees
were entitled to take FMLA leave 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. The Department asked how, in such circumstances, one would
determine whether the injury or illness renders, or may render, the
former servicemember medically unfit to perform the duties of the
member's office, grade, rank, or rating, when the servicemember is no
longer in the military.
The majority of the comments received by the Department on this
issue took the position that the clear statutory language of the NDAA
amendments does not provide for the taking of military caregiver leave
for a servicemember whose injury or illness manifests itself after the
servicemember has left military service. For example, the National
Association of Manufacturers stated that ``by statutory definition, a
`serious injury or illness' is one `that may render the member
medically unfit to perform the duties of the member's office, grade,
rank, or rating'. A person who is discharged from the service is no
longer a `member' of the service and is not included in the
definition.'' Jackson Lewis concurred with this view stating that the
statutory language ``requires that the condition render the
servicemember `medically unfit to perform the duties of the member's
office, grade, rank, or rating.' This language suggests the condition
must present while the servicemember is still active in the military.''
Jackson Lewis presented, as a ``practical matter,'' the additional
complications that would result in the FMLA medical certification
process if such coverage was permitted:
Given the complications that have arisen in the past 15 years
over the certification process for serious health conditions,
imagine the difficulty of requiring physicians and employers to
determine, potentially years later, whether a condition was
triggered in the line of duty and whether its belated presentation
renders the service member unfit to perform his or her office,
grade, or rank from months or years prior.
Id. The U.S. Postal Service stated that the NDAA provisions ``clearly
limit the definition of `covered servicemember' to those who are
current members of the Armed Forces. Accordingly, a servicemember who
resigns or retires from the Armed Services is not a covered
servicemember.'' This commenter recognized, however, that a ``retired
servicemember would nonetheless be covered if he or she were on the
Temporary Disability Retired List.''
A minority of commenters took the position that FMLA leave should
be available to care for a covered servicemember whose injury or
illness manifests itself after the servicemember has left military
service. Senator Dodd and Representative Woolsey et al. stated:
``Congress certainly did not intend to disqualify injuries that
servicemembers incurred in the line of duty, simply because those
injuries did not develop or were not diagnosed until after they left
the service.'' The National Partnership for Women & Families, in joint
comments with the National
[[Page 67963]]
Military Family Association, also asserted that ``nothing'' in the NDAA
indicates that ``retired or discharged servicemembers'' should be
denied coverage.
The Department concludes that the statutory language providing for
military caregiver leave does not extend the right to take FMLA leave
to providing care to retired military servicemembers (unless such
individuals are on the temporary disability retired list) or to
discharged military servicemembers. While Congress expressly provided
that leave could be taken to care for a servicemember on the temporary
disability retired list, Congress did not include language indicating
its desire to include other discharged or retired members of the Armed
Forces, National Guard, or Reserves as ``covered servicemembers.''
Moreover, the standard provided by Congress for determining if a
covered servicemember has a serious injury or illness (i.e., whether
the condition ``may render the member medically unfit to perform the
duties of the member's office, grade, rank, or rating'') cannot be
readily applied to those who are no longer serving in the Regular Armed
Forces, National Guard or Reserves. Accordingly, Sec. 825.127(a) of
the final rule provides that the term ``covered servicemember'' does
not include individuals retired or discharged from service, unless they
are placed on the temporary disability retired list.
In addition to requiring that the member of the military for whom
care is needed has a serious injury or illness, the NDAA also requires
that the member be (1) undergoing medical treatment, recuperation, or
therapy; (2) otherwise in outpatient status; or (3) on the temporary
disability retired list. See 29 U.S.C. 2611(16). In the NPRM, the
Department suggested that, since determining whether a member of the
military is in ``outpatient status'' or on the temporary disability
retired list for a serious illness or injury would likely be relatively
straightforward, no further clarification of those portions of the
definition of covered servicemember would be needed. As to whether a
servicemember was ``undergoing medical treatment, recuperation, or
therapy'' for a serious injury or illness, the Department's initial
view, as stated in the NPRM, was that all treatment, recuperation, or
therapy provided to a servicemember for a serious injury or illness,
and not just that provided by the military, should be covered. However,
the Department sought public comments on this issue. Additionally, the
Department asked whether there should be a temporal proximity
requirement between the covered servicemember's injury or illness and
the treatment, recuperation, or therapy for which care is required. The
Department also asked if it should rely on a determination made by the
Department of Defense (``DOD'') as to whether a servicemember is
undergoing medical treatment, recuperation, or therapy for a serious
injury or illness.
Comments from employers and employer groups regarding the coverage
of servicemembers who receive treatment, recuperation or therapy from a
non-military source were mixed. The U.S. Postal Service believed that
allowing coverage for an illness or injury treated solely by a private
health care provider, wholly outside the system of care provided by the
military, is ``inconsistent'' with the definitions provided in the NDAA
and is also ``contrary to the express language of the [NDAA] and to its
legislative history.'' On the other hand, the Equal Employment Advisory
Council stated that certification provided by the DOD should be
sufficient to certify a ``serious injury or illness'' so long as the
military branches are ``capable'' of providing the certification
regardless of whether the treatment, recuperation, or therapy is being
supplied by an Armed Forces or a ``civilian provider.''
The National Partnership for Women & Families, in joint comments
with the National Military Family Association, believed any treatment,
recuperation, or therapy, and not just that provided by the military,
should qualify. They argued that: (1) The statute makes no distinction
between servicemembers treated by the military and those who are not;
(2) servicemembers are, in fact, treated by both the military and
private facilities; and (3) wounded servicemembers may not be located
near a military treatment facility (which will make it more difficult
for the servicemembers and their family members). The Military Family
Research Institute at Purdue University also argued that care provided
by non-military sources should be covered, noting that ``[m]embers of
the reserve component are expected to receive some or all of their care
from providers in civilian communities.''
Both the DOD and the Department of Veterans Affairs (``VA'') have
informed the Department that individuals who would be deemed ``covered
servicemembers'' under the NDAA do not receive care solely from DOD
health care providers, and that such ``covered servicemembers'' also
may receive care from either VA health care providers or DOD TRICARE
military health system authorized private health care providers.\4\ It
is the Department's understanding based on discussions with the DOD and
the VA that members of the National Guard and Reserves and
servicemembers on the temporary disability retired list are more likely
to receive care from DOD TRICARE authorized private health care
providers than from DOD or VA health care providers, especially if the
servicemember resides in a rural or remote area.
---------------------------------------------------------------------------
\4\ TRICARE is the health care program serving active duty
service members, National Guard and Reserve members, retirees, their
families, survivors and certain former spouses worldwide. As a major
component of the Military Health System, TRICARE brings together the
health care resources of the uniformed services and supplements them
with networks of civilian health care professionals, institutions,
pharmacies and suppliers to provide access to high-quality health
care services while maintaining the capability to support military
operations. To be eligible for TRICARE benefits, one must be
registered in the Defense Enrollment Eligibility Reporting System
(DEERS). See http://tricare.mil/mybenefit/home/overview/
WhatIsTRICARE. The Military Health System is a partnership of
medical educators, medical researchers, and healthcare providers and
their support personnel worldwide. This DOD enterprise consists of
the Office of the Assistant Secretary of Defense for Health Affairs;
the medical departments of the Army, Navy, Marine Corps, Air Force,
Coast Guard, and Joint Chiefs of Staff; the Combatant Command
surgeons; and TRICARE providers (including private sector healthcare
providers, hospitals, and pharmacies). See http://mhs.osd.mil/
aboutMHS.aspx.
---------------------------------------------------------------------------
After due consideration of the comments, and taking into account
the information provided by the DOD and VA regarding the current
provision of medical care to servicemembers intended to be covered by
the NDAA, the Department believes that military caregiver leave should
not be limited to caring for only those servicemembers who receive
medical treatment, recuperation or therapy from a DOD health care
provider. Accordingly, Sec. 825.127 of the final rule does not require
that a servicemember be receiving medical treatment, recuperation, or
therapy from a DOD health care provider in order to be a ``covered
servicemember.'' As discussed more fully under Sec. 825.310 addressing
certification for military caregiver leave, the final rule provides
that a request to take military caregiver leave may be supported by a
certification that is completed by any one of the following health care
providers: (1) A DOD health care provider; (2) a VA health care
provider; (3) a DOD TRICARE network authorized private health care
provider; or (4) a DOD non-network TRICARE authorized private health
care provider. As part of a sufficient certification, these health care
providers may be asked to certify that the servicemember is undergoing
medical treatment,
[[Page 67964]]
recuperation, or therapy for a serious injury or illness.
With respect to whether there should be a temporal proximity
requirement between the covered servicemember's injury or illness and
the treatment, recuperation, or therapy for which care is required,
most employers and employer groups argued that such a requirement
should be imposed. The Equal Employment Advisory Council, the Illinois
Credit Union League, the International Public Management Association
for Human Resources (in joint comments with the International Municipal
Lawyers Association), and the Pennsylvania Governor's Office of
Administration all believed that there should be a ``one year''
temporal proximity requirement. The International Public Management
Association for Human Resources, in joint comments with the
International Municipal Lawyers Association, wrote that providing a
time-frame will ``bring needed certainty to the law,'' and that,
``[f]or long-term recoveries, employees remain entitled to the 12 weeks
of leave provided under the FMLA.'' AT&T argued that the DOD or the VA
``should also determine if there should be a temporal proximity
requirement between the servicemember's injury or illness and the
treatment, recuperation or therapy.''
On the other hand, the College and University Professional
Association for Human Resources wrote that ``[n]othing in the statutory
language appears to support a temporal limitation between injury and
treatment, but the NDAA does require the servicemember be `a member of
the Armed Forces'. This seems to suggest that the individual must have
some continued connection to the military.'' The Association of
Corporate Counsel's Employment and Labor Law Committee also did not
advocate a temporal proximity requirement because it viewed such a time
limitation as ``artificial'' and argued it could deny leave to family
of servicemembers who are undergoing care for an injury caused in the
line of duty. This commenter argued, however, that ``because it is
important to establish a causal connection between the care provided
and the military service, we do believe that the Department should
limit the definition to include only care provided by the Armed Forces,
including Veterans hospitals and those to whom the Armed Forces has
delegated the task of providing health care.'' This commenter viewed
the latter type of limitation ``to be much more fair to employees than
a temporal proximity requirement as it is more closely aligned with the
goals of the statute--to provide leave to family members when their
loved one is seeking treatment for an injury sustained in the line of
duty.''
Employee groups also generally argued against the imposition of any
temporal proximity requirement. The National Partnership for Women &
Families, in joint comments with the National Military Family
Association, stated that ``[a]s long as a health care provider
certifies that the servicemember's injury or illness led to the
treatment, recuperation or therapy, the leave should qualify under the
injured servicemember FMLA provisions.'' Finally, Senator Dodd and
Representative Woolsey et al., also stated that the Department should
not impose a temporal proximity requirement because ``the relevant
question is whether the servicemember, at the time of diagnosis or
treatment, might not be able to perform the duties that he or she had
when he or she was on active duty, in light of the diagnosed injury or
illness.''
Given that the entitlement to military caregiver leave is limited
to providing care to current members of the Regular Armed Forces, the
National Guard, and Reserves or those on the temporary disability
retired list, the Department does not believe that a temporal proximity
requirement is necessary. As long as the servicemember's injury or
illness is a serious one which may render the member medically unfit
and was incurred in the line of duty on active duty, and the
servicemember is a current member of the Armed Forces, the National
Guard, or Reserves undergoing medical treatment, recuperation or
therapy, in outpatient status, or on the temporary disability retired
list because of the injury or illness, an eligible family member may
take FMLA leave to provide care to the servicemember. In most cases,
the Department believes that the need to care for the servicemember and
the date of the onset of injury or illness will be close in time. While
the Department recognizes that the NDAA includes servicemembers who are
on the temporary disability retired list, the Department notes that an
individual may remain on the temporary disability retired list no
longer than five years before he or she is either returned to active
duty service or assigned permanent disability (in which case the
individual would no longer be a ``covered servicemember'' under the
NDAA). See http://www.tricare.mil/mhsophsc/mhs_supportcenter/glossary/
Tg.htm. Moreover, because the NDAA provides that an eligible employee
may only take FMLA leave during a ``single 12-month period'' to care
for a covered servicemember with a particular serious injury or
illness, the Department does not believe that further limiting the time
period between the date of the injury or illness and the need to
provide care is necessary.
The Department also received comments that addressed whether the
military caregiver leave provisions only extend to family members
providing care to members of the National Guard and Reserves, or
whether eligible employees also may take such leave to care for members
of the Regular Armed Forces with a serious injury or illness.
Commenters, including Spencer Fane Britt & Browne, the National
Coalition to Protect Family Leave, and the Society for Human Resource
Management, noted that the NDAA provision defining the term ``serious
injury or illness'' provides that ``[t]he term `serious injury or
illness', in the case of a member of the Armed Forces, including a
member of the National Guard or Reserves, means an injury or illness
incurred by the member in line of duty on active duty in the Armed
Forces * * *'' 29 U.S.C. 2611(19) (emphasis added). These commenters
asked the Department to reconcile the language of this provision which
specifically includes both Regular Armed Forces and members of the
National Guard and Reserves with the requirement that the injury or
illness be incurred while on ``active duty''--a term which is also
defined by the NDAA and, as discussed above with respect to qualifying
exigency leave, is limited to members of the National Guard and
Reserves.
While these commenters noted that the NDAA definition of ``active
duty'' is limited to National Guard and Reserve members, the commenters
argued that, in the context of military caregiver leave, ``Congress
obviously did not intend to limit [such] leave to only those in the
National Guard or Reserve.'' The law firm of Willcox & Savage contended
that Congress' inclusion of the term ``active duty'' in the definition
of ``serious injury or illness'' creates an ``internal and
irreconcilable inconsistency'' because limiting the definition of
``active duty'' to the National Guard and Reserves is not
``consistent'' with the language ``including a member of the National
Guard and Reserves'' in the definition of serious injury or illness.
Like Spencer Fane Britt & Browne and the National Coalition to Protect
Family Leave, Willcox & Savage believed that the Department should
``clarify'' this ``internal irreconcilable inconsistency'' in its final
regulations.
The Department agrees that applying the NDAA's definition of
``active duty''
[[Page 67965]]
to the provisions regarding military caregiver leave renders other
language in those provisions superfluous. Specifically, applying the
narrow definition of ``active duty'' found in section 585(a)(1) of the
NDAA (29 U.S.C. 2611(14)) would undermine the specific statutory
language in the military caregiver leave provisions defining a covered
servicemember as ``a member of the Armed Forces, including a member of
the National Guard and Reserves'' (29 U.S.C. 2611(16)) and defining a
``serious injury or illness'' in the case of a ``a member of the Armed
Forces, including a member of the National Guard and Reserves'' (29
U.S.C. 2611(19)). As the law firm of Willcox & Savage wrote, the
inclusion of the specific language ``including a member of the National
Guard and Reserves'' in the NDAA's definition of ``serious injury or
illness'' suggests that Congress intended broader coverage for military
caregiver leave than for qualifying exigency leave. Unlike qualifying
exigency leave, where the need for FMLA leave to address pre-
deployment, during deployment, and post-deployment situations may be
unique to National Guard and Reserve families who are typically not
accustomed to having their family member deployed, the need for FMLA
leave to care for a seriously injured or ill servicemember is the same
whether the servicemember is a member of the Regular Armed Forces or
the National Guard or Reserves. Accordingly, the Department has
concluded that the better reading of the NDAA provisions providing for
military caregiver leave extends such leave to family members providing
care to members of the Regular Armed Forces, as well as members of the
National Guard and Reserves, with a serious injury or illness. Section
825.127(a) reflects this conclusion.
Several commenters, including Spencer Fane Britt & Browne and the
National Coalition to Protect Family Leave, also argued that the
inclusion of the term ``active duty'' in the definition of ``serious
injury or illness'' indicates that the injury or illness must be
incurred while the servicemember is serving under a call to active duty
under one of the statutory provisions cited in 10 U.S.C. 101(a)(13)(B),
and that this language meant that injuries or illnesses incurred by
National Guard or Reserve members who have not actually been called to
active duty by the federal government should not be considered a
``serious injury or illness'' for the purpose of taking FMLA leave. The
Society for Human Resource Management also asserted its belief that
``caregiver leave apparently was not intended to cover illnesses/
injuries incurred by National Guard or Reserve members who have not
actually been called to active duty by the federal government, e.g.,
where a State has a state-related emergency and the National Guard is
called to duty by the Governor of the State.''
For the reasons discussed immediately above, the Department has
decided not to apply the NDAA definition of ``active duty'' to the
provisions regarding military caregiver leave because to do so renders
other language in those provisions superfluous. Additionally, the
Department believes it is important to remember that the NDAA military
caregiver leave provision amending the FMLA was based upon the
recommendation of the July 2007 Report of the President's Commission on
Care for America's Returning Wounded Warriors, ``Serve, Support,
Simplify: Report of the President's Commission on Care for America's
Returning Wounded Warriors'' (2007) (commonly referred to as either the
Wounded Warriors Report or the Dole-Shalala Report). This report
addressed the need for care of wounded warriors serving in the National
Guard or Reserves as well as those serving in the Regular Armed Forces.
Finally, consultations with the DOD have indicated that the NDAA
statutory definition of ``active duty'' applicable to qualifying
exigency leave is not one commonly used by the military when
determining whether a servicemember has incurred an injury or illness
in the line of duty. In light of this information, and after due
consideration of the comments regarding the definition of ``active
duty'' in the context of military caregiver leave, the Department
believes that the DOD, or its authorized health care representative, is
in the best position to determine whether an injury was ``incurred in
line of duty on active duty in the Armed Forces'' since those terms are
terms of art used by the military in other contexts. Accordingly, as
discussed in greater detail below with respect to the certification
requirements for taking military caregiver leave, the Department has
provided that an employer may request that an employee seeking to take
military caregiver leave obtain appropriate certification that a
servicemember's serious injury or illness was incurred in line of duty
on active duty. This approach allows an employer to verify that a
particular injury qualifies for FMLA leave under the military caregiver
leave provisions while providing appropriate deference to the
military's existing processes for determining whether an injury was
incurred in line of duty on active duty in the Armed Forces.
Who Is Entitled To Take Military Caregiver Leave
With respect to who may take military caregiver leave, the NDAA
provides that such leave is available to an eligible employee who is
the ``spouse, son, daughter, parent, or next of kin of a covered
servicemember.'' The Department sought comments on two specific issues
related to who is entitled to take military caregiver leave. First, the
Department asked whether the existing FMLA definition of ``son or
daughter'' should be applied to military caregiver leave. Second, the
Department asked a series of questions regarding how it should
interpret ``next of kin'' as that term does not apply to other types of
FMLA leave.
Under the existing FMLA definition of son or daughter, a son or
daughter must either be (1) under 18 years of age 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). Applying this definition to the
military caregiver leave entitlement would mean that most, if not all,
adult children would not be entitled to take military caregiver leave
to care for a parent who is a covered servicemember. This is so even
though the same adult child could care for their parent (covered
servicemember) if the parent's serious injury or illness also qualified
as a serious health condition under the FMLA. Recognizing that applying
the current definition of ``son or daughter'' for purposes of military
caregiver leave would severely undermine the clear intent of the NDAA
military caregiver provisions, the Department sought comment on whether
it would be appropriate to define the term ``son or daughter''
differently for purposes of FMLA leave taken to care for a covered
servicemember.
The majority of commenters--whether employer- or employee-focused--
believed it would be appropriate for the Department to apply a
different definition of ``son or daughter'' for leave taken to care for
a covered servicemember. For example, the National Partnership for
Women & Families, in joint comments with the National Military Family
Association, the National Coalition to Protect Family Leave, the
National Retail Federation, the Pennsylvania Governor's Office of
Administration, and the Legal Aid Society-Employment Law Center, all
agree that the term ``son or daughter''
[[Page 67966]]
should be defined to include adult children for purposes of military
family leave.
The comments submitted by Senator Dodd and Representative Woolsey
et al. stressed that it is appropriate and ``in fact crucial'' that the
Department define ``son or daughter'' differently for military
caregiver leave:
As DOL itself commented, it is absurd to extend leave only to
those sons or daughters of injured servicemembers who are under the
age of 18 or ``incapable of self-care.'' Moreover, Congress
demonstrated its intent for the terms ``son'', ``daughter'', and
``parent'' to have unique meanings under the military family
provisions of the FMLA, because it designated the ``employee'' as
the ``son, daughter, [or] parent'' of ``a covered service member'',
whereas the originally enacted FMLA provisions inversely designate
the ``employee'' as a person who takes leave to ``care for [his or
her] * * * son or daughter, or parent''.
The National Association of Manufacturers also commented that applying
the FMLA definition of ``son or daughter'' to the military family leave
provisions would not fulfill the intent of the law. Additionally, TOC
Management Services wrote that limiting the leave for children less
than 18 years of age would ``essentially defeat the spirit of the
law.'' While agreeing that a different definition of son or daughter
should be applied to the military caregiver leave provisions, the
National Coalition to Protect Family Leave recommended ``[t]he
definition of `son or daughter' should be retained `as is' for all
other forms of FMLA leave, including FMLA leave due to the serious
health condition of a son or daughter.''
The Department agrees with these commenters. Applying the existing
FMLA definition of ``son or daughter'' to the military caregiver leave
provision would significantly undermine the NDAA's extension of FMLA
leave to the son or daughter of a covered servicemember. Under nearly
all circumstances, doing so would mean that an adult son or daughter
would not be able to take leave to care for a covered servicemember
parent. The Department does not believe such a result was intended.
Accordingly, Sec. 825.127(b)(1) of the final rule establishes a
separate definition of ``son or daughter of a covered servicemember''
for the purpose of military caregiver leave. Section 825.127(b)(1)
defines a ``son or daughter of a covered servicemember'' as ``the
covered servicemember's biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the covered servicemember
stood in loco parentis, and who is of any age.'' See also Sec. Sec.
825.122 and 825.800. The Department also notes that this definition is
not intended to apply to leave taken for other FMLA-qualifying reasons.
The law firm of Spencer Fane Britt & Browne requested that the
Department also clarify the definition of ``parent'' for purposes of
military caregiver leave. The firm argued that a parent should only be
entitled to take military caregiver leave to care for a covered
servicemember son or daughter when the son or daughter is under the age
of 18, or 18 years or older and incapable of self-care because of a
mental or physical disability, because those restrictions currently
apply to leave taken by a parent to care for a child with a serious
health condition. To allow otherwise would be ``inherently unfair to
employees with adult children who are not serving in the military,''
according to this commenter. The Department does not agree with Spencer
Fane Britt & Browne's proposal to define ``parent'' in such a manner
for purposes of military caregiver leave. However, this commenter's
proposal did raise an issue that the Department believes must be
addressed in the final regulations. Under the existing FMLA definition
of parent, a 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. 29 U.S.C. 2611(7).
However, in the context of military caregiver leave, the parent who
seeks to take leave is the parent of the covered servicemember, not the
parent of the employee. Accordingly, Sec. 825.127(b)(2) establishes a
separate definition of ``parent of a covered servicemember'' for the
purpose of military caregiver leave. Section 825.127(b)(2) defines
``parent of a covered servicemember'' as the ``covered servicemember's
biological, adoptive, step or foster father or mother, or any other
individual who stood in loco parentis to the servicemember.'' See also
Sec. Sec. 825.122 and 825.800. This term does not include parents ``in
law.''
The NDAA also provides that a covered servicemember's ``next of
kin'' is eligible to take FMLA leave to care for the servicemember and
defines the term ``next of kin'' as the ``nearest blood relative'' of a
covered servicemember. 29 U.S.C. 2611(18). In the NPRM, the Department
sought comments on a number of issues relating to who should qualify as
an eligible next of kin, including (1) whether the Department should
adopt for FMLA purposes a list of individuals the DOD generally
considers to be the ``next of kin'' of a servicemember; (2) whether a
servicemember's next of kin should be limited to a single individual or
include relatives of close consanguinity; (3) whether a covered
servicemember could designate his or her next of kin for FMLA purposes,
including whether the Department should deem the servicemember's
Committed and Designated Representative (``CADRE'') as the next of kin
for FMLA purposes; and (4) whether an employer should be able to
confirm an employee's status as the next of kin.
Comments from employees and groups representing employees generally
argued in favor of creating a definition of next of kin that was as
comprehensive as possible. For example, the National Partnership for
Women & Families, in joint comments with the National Military Family
Association, proposed using a combination of the DOD list provided in
the NPRM, state law definitions, and the Department of Veterans Affairs
definition of domestic partners and partners, and also permitting more
than one individual to take leave as a servicemember's next of kin. See
also Legal Aid Society-Employment Law Center. Similarly, comments from
Senator Dodd and Representative Woolsey et al. asked the Department to
define the term next of kin in an ``expansive and flexible'' manner.
Comments from employers largely urged the Department to adopt a
rule that would ``simplify'' the administration of military caregiver
leave and provide ``clarity.'' U.S. Postal Service; see also University
of Texas System; WorldatWork. Many employers and employer
representatives, however, either expressed concern about the
appropriateness of relying on the DOD list for this purpose or argued
that the DOD list should only be adopted to the extent that it complied
with the statutory requirement that a servicemember's next of kin be a
blood relative. See, e.g., National Coalition to Protect Family Leave;
Association of Corporate Counsel's Employment and Labor Law Committee;
Hewitt Associates; Equal Employment Advisory Council; but see
Independent Bakers Association and Public Management Association for
Human Resources in joint comments with the International Municipal
Lawyers Association (supporting use of DOD list). Employers and
employer groups also urged the Department to avoid relying on state law
interpretations to define a servicemember's next of kin because such an
approach would be overly burdensome to employers with multi-state
operations and might be perceived as unfair since an individual's
eligibility
[[Page 67967]]
for FMLA leave would vary state by state. See, e.g., National School
Boards Association; Fisher & Phillips; Association of Corporate
Counsel's Employment and Labor Law Committee; TOC Management Services;
HR Policy Association; Spencer Fane Britt & Browne.
Many commenters representing employers asked the Department to
specify that only one individual is eligible to take military caregiver
leave as a servicemember's next of kin, with several noting the
potential burden of allowing multiple individuals to take 26 weeks of
leave. See, e.g., Association of Corporate Counsel's Employment and
Labor Law Committee; National Association of Manufacturers; Burr &
Forman. On the other hand, the National Coalition to Protect Family
Leave and the Society for Human Resource Management urged the
Department to avoid a ``literal interpretation of `nearest blood
relative' '' and to adopt a ``more practical interpretation'' such as
by defining next of kin as the ``nearest blood relative willing and
able to care for the injured service member.'' The law firm of Spencer
Fane Britt & Browne supported allowing multiple individuals to serve as
next of kin provided that all such individuals were the same level of
relationship to the servicemember.
A majority of commenters were in favor of permitting a
servicemember to designate his or her next of kin in some
circumstances. Senator Dodd and Representative Woolsey et al. stated
that ``most of all, the intent of Congress was for the servicemember,
and not the government'' to choose the family member who is in the
``best position'' to serve as his or her next of kin. These Members
stressed that ``whatever approach'' the Department chooses, a
servicemember ``should not be compelled'' to rely on a next of kin who
lives far away, is estranged from the servicemember, or is not equipped
to tend for the servicemember. See also National School Boards
Association (permit servicemember to designate any one person as next
of kin); Spencer Fane Britt & Browne (make list of next of kin subject
to any CADRE designation). The National Partnership for Women &
Families, in joint comments with the National Military Family
Association, supported recognizing a servicemember's designation of his
or her next of kin, although they argued that any such designation
should ``not mean that other family members cannot take leave.'' The
National Coalition to Protect Family Leave, the Society for Human
Resource Management, and the Chamber were in favor of relying on a
servicemember's CADRE designation as long as the NDAA's ``statutory
restrictions with respect to blood relatives'' were retained. Southwest
Airlines suggested that designation be allowed as an ``alternative''
and ``only'' in the event that the covered servicemember does not have
a nearest blood relative who falls within a specified next of kin list.
Several commenters, including the Equal Employment Advisory
Council, the National Partnership for Women & Families in joint
comments with the National Military Family Association, and the U.S.
Postal Service, stated that employers should be able to seek
confirmation of next of kin status in accordance with the existing FMLA
procedures for documenting other types of familial relationships. Other
commenters requested that the Department establish unique procedures
for confirming an employee's next of kin status. See, e.g., Society for
Human Resource Management and Spencer Fane Britt & Browne (both
suggesting verification by DOD in most cases).
Section 825.127(b)(3) of the final rule defines a servicemember's
``next of kin'' as the servicemember's nearest blood relative, other
than the covered servicemember's spouse, parent, son, or daughter, in
the following order of priority: blood relatives who have been granted
legal custody of the servicemember by court decree or statutory
provisions, brothers and sisters, grandparents, aunts and uncles, and
first cousins, unless the covered servicemember has specifically
designated in writing another blood relative as his or her nearest
blood relative for purposes of military caregiver leave under FMLA, in
which case the designated individual shall be deemed to be the covered
servicemember's next of kin. The final rule permits an employer to
confirm an employee's status as a covered servicemember's next of kin
through the procedures for confirming familial relationships set forth
in Sec. 825.122(j).
The Department believes that the final rule provides the
flexibility intended by Congress when providing that a servicemember's
next of kin may take military caregiver leave while also giving meaning
to the statutory requirement that the next of kin be the
servicemember's ``nearest blood relative.'' In the first instance, this
approach provides employees and employers with a clear rule to apply by
defining a list of familial relationships, in order of priority, which
will qualify an individual as a servicemember's nearest blood relative.
As suggested by a number of commenters, this list incorporates those
portions of the DOD list of next of kin that reflect blood
relationships and does not rely on the interpretation of state law. The
list also adds a servicemember's aunts, uncles and first cousins as
eligible next of kin based on the suggestions of commenters. The
Department has decided against relying on state law interpretations of
next of kin because it believes both employers and employees will be
best served by a consistent definition that does not vary by the
location of the employer, the employee or the covered servicemember.
The final rule also makes clear that the next of kin of a covered
servicemember is a relative other than the spouse, parent, son, or
daughter of the covered servicemember, as those individuals are
separately covered by the express terms of the statute. A number of
commenters suggested that a person who is not the servicemember's
spouse, son, daughter, or parent should only be considered ``next of
kin'' if ``none'' of the foregoing family members are available to
provide care. AT&T; see also Spencer Fane Britt & Browne. Because an
employee is not required to certify that he or she is the ``only''
individual available to provide care for a family member when taking
FMLA leave for other qualifying reasons, the Department declines to
impose such a requirement when an employee requests leave as a
servicemember's next of kin.
The final rule also provides that all family members sharing the
closest level of familial relationship to the servicemember shall be
considered the servicemember's next of kin, unless the servicemember
has specifically designated an individual as his or her next of kin for
military caregiver leave purposes. In the absence of a designation,
where a servicemember has three siblings, all three siblings will be
considered the servicemember's next of kin. The Department notes that
in such a case all siblings are equally close to the covered
servicemember in terms of consanguinity and the Department believes
that it would be inappropriate to force the injured servicemember to
choose a caregiver from among his or her siblings. The Department
believes this approach is preferable to specifically incorporating a
``willing and able component'' into the definition of ``next of kin''
because the Department believes it would be difficult for an employee
to prove--and for an employer to verify--that, in fact, the employee is
the only next of kin ``willing and able'' to provide care to the
covered servicemember. The Department does not anticipate that
[[Page 67968]]
permitting multiple individuals to serve as ``next of kin'' will prove
overly burdensome for employers since it is unlikely that all such
individuals will work for the same employer or request leave at the
same time.
The final rule also recognizes that, in some circumstances, a
servicemember may consider, and so designate, another blood relative to
be his or her ``nearest blood relative'' based on the closeness of
their personal relationship. As suggested by many of the comments, the
Department believes that such individuals should be considered the
servicemember's next of kin for military caregiver leave purposes.
Because the statute defines a servicemember's next of kin as the
``nearest blood relative'' without specifying whether nearness should
be determined by blood or other relationship, the Department believes
that the term ``next of kin'' may appropriately include any one blood
relative designated by the servicemember as the next of kin based on
closeness of relationship. Allowing a servicemember to designate his or
her next of kin for military caregiver leave purposes, but limiting the
availability of such a designation to one individual strikes an
appropriate balance between those comments that suggested that only one
individual should be eligible to take FMLA leave as next of kin and
those that urged the Department to recognize the servicemember's choice
of caregiver.
The final rule provides that an employer who wants proof of an
individual's status as a covered servicemember's ``next of kin''--
either to confirm that the employee and servicemember share one of the
familial relationships specified in Sec. 825.127(b)(3) or to confirm
that the employee has been specifically designated as the
servicemember's next of kin--may seek reasonable documentation of the
familial relationship from the employee under Sec. 825.122(j). Where
an employee is seeking to take leave as a servicemember's designated
next of kin, such documentation may take the form of a simple statement
from the servicemember indicating that the employee has been designated
as the servicemember's next of kin for purposes of military caregiver
leave. In those cases where the servicemember has not specifically
designated a next of kin for military caregiver leave purposes, a
simple statement from the employee or other documentation outlining the
employee's familial relationship to the servicemember will suffice.
The Department has taken this approach because it believes that it
is beneficial to both employees and employers to adopt, wherever
possible, similar procedures for administering military caregiver leave
and leave taken for other FMLA qualifying reasons. Furthermore, the
Department believes that the procedures for confirming family
relationships should be no more burdensome when an employee seeks to
take FMLA leave to care for a covered servicemember than when an
employee seeks to take FMLA leave for some other qualifying reason.
Adopting the same approach for confirming familial relationships for
all types of FMLA leave also adequately addresses employers' concerns
about potential misuse of FMLA leave by employees. Under Sec.
825.216(d) of the final rule, an employee who fraudulently obtains FMLA
leave from an employer is not protected by the FMLA's job restoration
or maintenance of health benefits provisions. This provision is
unchanged from the current regulations and serves as a check on an
employee's ability to seek FMLA leave based on a fraudulent assertion
of familial relationship.
Circumstances Under Which Military Caregiver Leave May Be Taken
The NDAA provides eligible employees with a total of 26 workweeks
of leave during a ``single 12-month period'' to care for a covered
servicemember. 29 U.S.C. 2612(a)(3). In the NPRM, the Department sought
comment on how this new leave entitlement should be administered,
including whether such leave was a one-time entitlement and whether
eligible employees may take more than one period of military caregiver
leave to care for multiple covered servicemembers with a serious injury
or illness, or the same covered servicemember with multiple serious
injuries or illnesses. The Department also sought comment on how the
``single 12-month period'' should be determined. Finally, the
Department sought comment on how military caregiver leave should be
designated, particularly when such leave also might qualify as leave to
care for a family member with a serious health condition.
Section 825.127(c) of the final rule explains that an eligible
employee may take no more than 26 workweeks of military caregiver leave
in any ``single 12-month period.'' This section also provides that the
26-workweek entitlement is to be applied as a per-servicemember, per-
injury entitlement, meaning that an eligible employee may take 26
workweeks of leave to care for one covered servicemember in a ``single
12-month period'' and then take another 26 workweeks of leave in a
different ``single 12-month period'' to care for another covered
servicemember or to care for the same covered servicemember with a
subsequent serious injury or illness. The final rule provides that the
``single 12-month period'' begins on the first day the eligible
employee takes military caregiver leave and ends 12 months after that
date, and explains how to calculate an employee's FMLA leave
entitlement during this ``single 12-month period'' when an employee
requests military caregiver leave and leave for another FMLA-qualifying
reason. Section 825.127(c)(4) provides that an employer should
designate leave that qualifies as both military caregiver leave and
leave taken to care for a family member with a serious health condition
as leave to care for a covered servicemember in the first instance.
Most of the comments received agreed that the 26-workweek
entitlement for military caregiver leave is different than the 12-
workweek entitlement for other FMLA-qualifying reasons in that the 26
weeks is not a yearly entitlement that ``renews'' each year. See, e.g.,
The Southern Company; Catholic Charities, Diocese of Metuchen; Equal
Employment Advisory Council; and Colorado Department of Personnel &
Administration. A majority of the comments relied on the clause in
section 585(a)(2)(B)(3) of the NDAA that military caregiver leave
``shall only be available during a single 12-month period'' (29 U.S.C.
2612(a)(3)) as evidence that Congress intended the 26 weeks to be a
one-time entitlement. See, e.g., Society for Human Resource Management;
Association of Corporate Counsel's Employment and Labor Law Committee;
U.S. Postal Service; Berens & Tate. Commenters varied, however, on
whether this ``one-time entitlement'' would nonetheless allow an
eligible employee to take multiple periods of 26 workweeks of leave in
order to care for different covered servicemembers or to care for a
single servicemember who suffers multiple serious injuries or
illnesses.
In its comments, the Society for Human Resource Management
contended that the military caregiver leave must be a ``one-time
opportunity'' because the sentence restricting leave to ``a single 12-
month period'' would not have been necessary otherwise. Additionally,
this commenter pointed to the immediately preceding sentence in the
statute that states the 26 weeks of leave may be taken ``during a 12-
month period'' and wrote: ``This is different from regular FMLA leave
which may be taken `during any 12-month period'. The use of the word
`a' as opposed to `any'
[[Page 67969]]
strongly suggests that Congress intended to differentiate caregiver
leave from all other types of FMLA leave regarding its availability.''
(Emphasis in original.) The Association of Corporate Counsel's
Employment and Labor Law Committee also argued that Congress intended
the military caregiver leave provisions of the NDAA to be a ``one-time
entitlement'' and stated that ``if this was not the intent, Congress
would not have included the phrase `single twelve-month period' in this
section.'' The law firm of Berens & Tate argued that permitting
eligible employees to take leave in separate 12-month periods for
separate covered servicemembers would have a ``devastating'' impact on
employers and would create an ``enormous problem'' for employers trying
to staff their workforce, especially during times of war.
On the other hand, comments submitted on behalf of Senator Dodd and
Representative Woolsey et al. stated that the extension of FMLA leave
for ``those caring for injured servicemembers has often been referred
to as a `one-time entitlement', but leave would be available once per
servicemember, per injury.'' (Emphasis in original.) The National
Partnership for Women & Families, in joint comments with the National
Military Family Association, and a few employers, also argued that the
Department should permit eligible employees to take more than one
period of military caregiver leave if such leave was needed to care for
more than one covered servicemember with a serious injury or illness,
or to care for the same covered servicemember who sustains a second
serious injury or illness. One such commenter, AT&T, provided the
following example:
For example, if the service member is injured and requires care
while he/she recuperates, the family member would be entitled to 26
weeks within a 12-month period. However, after recovery if the
service member is re-deployed and suffers another injury, assuming
it occurs after the previous 12-month period had expired, the family
member could possibly be entitled to an additional 26 weeks at that
time.
The Department agrees that the military caregiver leave provisions,
while a one-time entitlement, should be applied on a per-covered-
servicemember, per-injury basis. As to the per-servicemember component,
the Department agrees with the law firm of Willcox & Savage that to
apply the statute otherwise would ``negate its central purpose.'' The
Department believes that the entitlement should also extend per-injury
based on the ``reality,'' as noted in the joint comments from the
National Partnership for Women & Families and the National Military
Family Association, that servicemembers are injured and treated and
then re-injured again on active duty. This per injury entitlement is
limited to subsequent serious injuries and illnesses. This means, for
example, if a covered servicemember incurs a serious injury or illness
during his or her first deployment and then incurs another serious
injury or illness during a second deployment, an eligible employee
would be entitled to two separate 26-workweek entitlements during
separate ``single 12-month periods'' to care for the covered
servicemember. Alternatively, if the covered servicemember incurs a
serious injury or illness and subsequently manifests a second serious
injury or illness at a later time, an eligible employee would be
entitled to an additional 26-workweek entitlement to care for the
covered servicemember in a separate ``single 12-month period.'' In each
of these examples, in order for the eligible employee to receive an
additional 26-workweek entitlement for a covered servicemember's
subsequent injury, the covered servicemember must still be a member of
the Armed Forces, or the National Guard or Reserves, including those on
the temporary disability retired list. However, the per-injury
entitlement does not mean that an eligible employee receives multiple
26-workweek entitlements for multiple injuries incurred and
simultaneously manifested by a covered servicemember in a single
incident. For example, if a covered servicemember incurs a serious leg
injury and a serious arm injury in an accident, an eligible employee
would not be entitled to separate 26-workweek entitlements for each
serious injury. Additionally, if a covered servicemember experiences a
later aggravation or complication of his or her earlier serious injury
or illness for which an eligible employee took 26 workweeks of leave,
the employee would not be entitled to an additional 26 workweeks of
leave for the aggravation or complication of the initial serious injury
or illness. Finally, if an eligible employee is caring for a covered
servicemember whose serious injury or illness extends beyond the
employee's 26-workweek leave entitlement, the employee is not eligible
for an additional 26-workweek entitlement to continue to care for the
covered servicemember. The Department notes, however, that in this
situation the covered servicemember's other eligible family members
could take such leave. Additionally, even after an employee has
exhausted his or her military caregiver leave entitlement, the employee
may be entitled to use his or her normal 12-week FMLA leave entitlement
to provide care to the servicemember due to the same injury or illness.
The Department believes, given the reason the military caregiver
provision was enacted we must capture those instances, hopefully rare,
when such circumstances arise to ensure leave to care for these
servicemembers is available despite the burden the per-covered-
servicemember, per-injury interpretation may place on some employers.
The Department notes further that the statute and thereby the final
rule provide that an eligible employee is limited to no more than 26
weeks of FMLA leave in any ``single 12-month period,'' even where such
leave is requested to care for multiple servicemembers.
A number of commenters asked the Department to make clear that an
employee cannot ``carry-over'' unused weeks of military caregiver leave
from one 12-month period to another. The Equal Employment Advisory
Council recommended ``that the regulations clarify that an eligible
employee who takes leave to care for a covered servicemember, but does
not use the entire 26-workweek entitlement, be required to forfeit the
balance of his or her remaining servicemember leave entitlement at the
end of the single 12-month period.'' The Colorado Department of
Personnel & Administration also recommended that the Department make
``clear'' that there is no ``carryover'' of the leave from year to
year. The Department agrees with these comments. Therefore, Sec.
825.127(c)(1) of the final rule provides that once an eligible employee
begins taking leave to care for a covered servicemember with a
particular serious injury or illness, he or she may take up to 26
workweeks of leave during the 12 months following the first date leave
is taken. If the employee does not use his or her entire entitlement
during this ``single 12-month period,'' the remaining workweeks of
leave are forfeited. However, because the final rule also permits an
eligible employee to take 26 workweeks of leave in different ``single
12-month periods'' to care for multiple servicemembers or to care for
the same servicemember with a subsequent serious injury or illness,
this section also makes clear that an employee may be eligible to take
additional periods of 26 workweeks of leave in subsequent ``single 12-
month periods'' if the leave is to care for a different covered
servicemember or to
[[Page 67970]]
care for the same servicemember with a subsequent serious injury or
illness.
In the NPRM, the Department also sought comment on how the ``single
12-month period'' should be measured and whether an employer should be
permitted to choose a method for establishing the ``single 12-month
period,'' as an employer is able to do for other FMLA-qualifying
reasons. The Department also sought comment on how this provision
should be implemented if different methods are used to establish the
12-month period for leave taken to care for a covered servicemember
versus leave for other FMLA-qualifying reasons. Finally, the Department
asked for comment on how an employee's leave entitlement should be
calculated when an employee takes military caregiver leave and FMLA
leave for other qualifying reasons during the ``single 12-month
period'' used for military caregiver leave.
Section 825.127(c)(1) of the Department's final regulations states
that the ``single 12-month period'' for military caregiver leave begins
on the first day the eligible employee takes military caregiver leave
and ends 12 months after that date, regardless of the method used by
the employer to determine the employee's 12 workweeks of leave
entitlement for other FMLA-qualifying reasons. This section further
provides that an eligible employee is entitled to a combined total of
26 workweeks of military caregiver leave and leave for any other FMLA-
qualifying reason in a ``single 12-month period,'' provided that the
employee may not take more than 12 workweeks of leave for any other
FMLA-qualifying reason.
A majority of the commenters agreed that an employee's leave
balance for military caregiver leave should be calculated from the date
on which the eligible employee is first needed to care for the covered
servicemember (i.e., the date when an eligible employee first takes
leave). Senator Dodd and Representative Woolsey et al. stated that the
12-month period should begin when the employee ``first utilizes''
military family leave, ``even if'' the employer establishes the 12-
month period for standard FMLA leave on a different basis. Similarly,
the College and University Professional Association for Human Resources
noted that unlike leave for other FMLA-qualifying reasons in which an
employer may choose the type of leave year, there ``is no such
flexibility'' with respect to military caregiver leave, and that
``[b]ecause such leave is a one-time entitlement, the leave year must
be measured forward from the first day of leave. This is the only way
to ensure the employee may use his or her full 26 weeks.''
However, other commenters stated that an employer should be able to
choose the 12-month period for this type of leave, as is the case with
leave taken for other FMLA qualifying reasons. The City of Medford (OR)
commented that the Department should allow an employer to establish the
12-month period ``in the same manner that it does for employees
currently on FMLA leave.'' Similarly, the International Franchise
Association stated that the Department ``must make it clear'' that an
employer is entitled to apply its normal 12-month period in calculating
military caregiver leave.
The Department has determined that the most appropriate method for
establishing the ``single 12-month period'' for purposes of military
caregiver leave is a period that commences on the date an employee
first takes leave to care for a covered servicemember with a serious
injury or illness. Establishing the ``single 12-month period'' based on
the date of the covered servicemember's injury or illness instead of
from the employee's first leave to care for the servicemember might
limit the employee's ability to utilize the 26-week entitlement because
the employee may not commence caring for the servicemember until a much
later date. Similarly, applying the employer's normal FMLA leave year
to leave to care for a covered servicemember would also result in
employees being unable to utilize their 26-week entitlement if the
employee's first use of leave did not coincide with the commencement of
the employer's FMLA leave year.
In choosing this method, the Department is cognizant of the
concerns expressed by employers and human resource professionals
regarding the complexity and administrative burden of tracking leave
under two different 12-month leave periods. However, the Department
does not believe that the potential administrative burden caused by a
relatively short period of overlapping 12-month periods outweighs the
possibility that other approaches might diminish an eligible employee's
entitlement of up to a full 26 weeks of military caregiver leave. As
the law firm Spencer Fane Britt & Browne noted, an employer ``will only
face such an execution challenge for a period of a year or so (or until
there is no overlap between the two 12-month periods) for each employee
who takes [covered servicemember] leave.'' The Department realizes that
under the per-servicemember, per-injury interpretation, it is possible
that an eligible employee may have more than one entitlement of 26
weeks with a single employer. However, the Department believes these
occurrences will be rare and for most eligible employees the 26 weeks
of military caregiver leave will be a one-time entitlement.
A number of commenters asked that the Department provide examples
of how employers should ``reconcile'' the use of leave to care for a
covered servicemember with other FMLA leave if two different leave
years are used. The following example explains how an employer would
calculate an employee's entitlement to military caregiver leave when it
utilizes a calendar year method for other FMLA qualifying reasons:
The employer uses the calendar year method (January 2009-
December 2009) for determining an employee's leave balance for FMLA
leave taken for all qualifying reasons other than military caregiver
leave. An employee first takes military caregiver leave in June
2009. Between June 2009 and June 2010 (the ``single 12-month
period'' for military caregiver leave), the employee can take a
combined total of 26 workweeks of leave, including up to 12 weeks
for any other qualifying FMLA reason if he has not yet taken any
FMLA leave in 2009.
If, however, the employee had already taken five weeks of FMLA
leave for his own serious health condition when he began taking
military caregiver leave in June 2009, he would then be entitled to
no more than seven weeks of FMLA leave for reasons other than to
care for a covered servicemember during the remainder of the 2009
calendar year (i.e., the 12 weeks yearly entitlement minus the five
weeks already taken). Although his entitlement to FMLA leave for
reasons other than military caregiver leave is limited by his prior
use of FMLA leave during the calendar year, the employee is still
entitled to take up to 26 weeks of FMLA leave to care for a covered
servicemember from June-December 2009.
Beginning in January 2010, the employee is entitled to an
additional 12 weeks of FMLA leave for reasons other than to care for
a covered servicemember. If the employee takes four weeks of FMLA
leave for his own serious health condition in January 2010, this
would reduce both the number of available weeks of FMLA leave
remaining in calendar year 2010 (i.e., the 12 weeks yearly
entitlement minus the four weeks already taken) and the number of
weeks of FMLA leave available for either military caregiver leave or
other FMLA qualifying reasons during the ``single 12-month period''
of June 2009-June 2010.
Once the employee exhausts his or her 26-workweek entitlement,
he or she may not take any additional FMLA leave for any reason
until the ``single 12-month period'' ends. Thus, for example, if the
employee took 20 workweeks of military caregiver leave from June-
December 2009, four workweeks of leave in January 2010 for his or
her own serious health condition, and another two
[[Page 67971]]
workweeks of military caregiver leave in March 2010, the employee
will have exhausted his or her 26-workweek entitlement for the
``single 12-month period'' of June 2009-June 2010. While the
employee would still have eight weeks of FMLA leave available in
calendar year 2010, the employee could not take such leave until
after June 2010, when the ``single 12-month period'' ends.
The Department also sought comment in the NPRM on how to designate
leave that may qualify as both military caregiver leave and leave to
care for a spouse, parent, or child with a serious health condition.
Specifically, the Department asked whether the employer or employee
should be able to determine how such leave is counted and whether such
leave should be subject to retroactive designation in any circumstance.
The Department has decided that the same designation rules should
apply to leave taken to care for a covered servicemember and leave
taken for other FMLA-qualifying reasons. Section 825.300(d)(1) of the
final rule provides that, 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. The final rule
extends this requirement, as well as the rules regarding retroactive
designation, to the designation of military caregiver leave in Sec.
825.127(c)(4). This section of the final rule also provides that, in
the case of leave that qualifies as both military caregiver leave and
leave to care for a family member with a serious health condition, the
employer must designate such leave as military caregiver leave in the
first instance.
The Department received a multitude of comments addressing the
initial designation of leave that may qualify as both military
caregiver leave and leave to care for a family member with a serious
health condition. Comments submitted on behalf of Senator Dodd and
Representative Woolsey et al. stated that an employee should have the
right to choose whether the leave counts as leave taken to care for a
family member with a serious health condition or military caregiver
leave. While the Society for Human Resource Management argued that the
employee should be the individual who determines whether he or she is
applying for military caregiver leave or leave for any other FMLA-
qualifying reason, to ``minimize the potential for disputes,'' this
commenter also asked the Department to require an employee to
specifically apply for military caregiver leave through the use of
``specific language.'' The Association of Corporate Counsel's
Employment and Labor Law Committee argued that when leave may count as
either military caregiver leave or leave taken to care for a spouse,
parent, or child with a serious health condition, the employer should
be able to determine how much leave should be designated, ``including
allowing the two types of leave to run concurrently.'' This commenter
wrote that if this approach is not adopted, the ``default'' should be
to apply the military caregiver leave first. The law firm Jackson Lewis
also believed ``the best practical solution'' is to apply military
caregiver leave first, because ``[o]therwise, there is the potential
for additional administrative uncertain[t]y in what is already a
confusing, two track time-table for calculating the different types of
leave.'' The National Partnership for Women & Families, in joint
comments with the National Military Family Association, argued that
``[l]eave that qualifies under both provisions of the FMLA should count
towards both leave ceilings simultaneously; if retroactive designation
is required in order to accomplish the simultaneous use of leave,
retroactive designation should be allowed.''
The Department believes that in the case of military caregiver
leave, as with other types of FMLA leave, it is the employer's
responsibility to designate the leave, paid or unpaid, as FMLA-
qualifying, and to give notice of the designation to the employee. For
military caregiver leave that also qualifies as leave taken to care for
a family member with a serious health condition, the final rule
provides that an employer must designate such leave as military
caregiver leave first. The Department believes that applying military
caregiver leave first will help to alleviate some of the administrative
issues caused by the running of the separate ``single 12-month period''
for military caregiver leave. The final rule also prohibits an employer
from counting leave that qualifies as both military caregiver leave and
leave to care for a family member with a serious health condition
against both an employee's entitlement to 26 workweeks of military
caregiver leave and 12 workweeks of leave for other qualifying reasons.
The Department has taken this approach because designating and counting
one block of leave against two different leave entitlements would
impose additional, unnecessary burdens on employees. For example, in
order to appropriately designate such leave as both military caregiver
leave and leave taken because of a serious health condition, an
employee might be required to provide two separate certifications when
taking one block of leave.
As to retroactive designation of leave, the majority of employers
and employer groups commented that the Department should allow the
employer to change the initial designation of the leave retroactively.
For example, the Society for Human Resource Management, the National
Coalition to Protect Family Leave, and Spencer Fane Britt & Browne
argued that an employer should be permitted, but not required, with the
consent of an employee, to retroactively change the following: (1) A
military caregiver leave designation to another applicable FMLA leave
designation if doing so would be more favorable to the employee; or (2)
another applicable FMLA leave designation to a military caregiver leave
designation if doing so would be more favorable to the employee. A few
commenters representing employers, however, expressed concern that
permitting retroactive designation could complicate calculation of the
``single 12-month period.'' For example, Jackson Lewis noted that if
leave is retroactively designated as leave for a serious health
condition when it was first approved as military caregiver leave, it is
unclear whether the ``single 12-month period'' would begin on the date
the leave was first designated as military caregiver leave or when the
military caregiver leave is set to begin. Jackson Lewis noted that the
same problem would be present if the leave was first designated as
leave for a serious health condition and then later designated as
military caregiver leave. Finally, comments submitted on behalf of
Senator Dodd and Representative Woolsey et al. stated that an employee
should have the right to change the designation retroactively.
The Department believes that an employer should be permitted to
retroactively designate military caregiver leave pursuant to Sec.
825.301(d) in the same situations under which retroactive designation
is permitted for other types of FMLA leave. Given the circumstances
surrounding the need for military caregiver leave, the Department is
aware that an employer may not have enough information from an employee
to designate leave until after the leave has commenced and/or ascertain
whether the leave qualifies as military caregiver leave or leave for a
family member with a serious health condition under the FMLA. At the
same time, the Department recognizes the comments submitted by Jackson
Lewis and the ``complications'' that could arise by the
[[Page 67972]]
substitution of one type of leave for another given the ``single 12-
month period'' under military caregiver leave and the Department's
requirement that this period be measured from the day the employee
first needs leave--regardless of the employer's normal 12-month period
for other FMLA-qualifying leave. Thus, as is the case for other types
of FMLA leave, an employer may retroactively designate leave as
military caregiver leave in appropriate circumstances, but is not
required to do so.
The Department also requested comments on the NDAA provisions
permitting an employer to limit the aggregate amount of leave to which
eligible spouses employed by the same employer may be entitled in some
circumstances. The NDAA 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.
Because the NDAA did not alter the existing 12-week limitation that
applies to leave taken by spouses employed by the same employer for
leave taken for the birth or placement of a healthy child or to care
for a parent with a serious health condition, the Department sought
comment on how this new limitation on the leave entitlement of spouses
employed by the same employer would interact with the existing
limitation, particularly if different 12-month periods are used to
determine eligibility for leave taken to care for a covered
servicemember and leave for other reasons. The Department received few
comments on these provisions of the NDAA.
Section 825.127(d) of the final rule incorporates the NDAA's
statutory limitation on the amount of leave spouses employed by the
same employer may take during the ``single 12-month period'' by
providing that a husband and wife who are eligible for FMLA leave and
are employed by the same covered employer may be limited to a combined
total of 26 weeks of leave during the ``single 12-month period''
described in Sec. 827.127(c) if the leave is taken for birth of the
employee's son or daughter or to care for the healthy child after
birth, for placement of a healthy son or daughter with the employee for
adoption or foster care, or to care for the child after placement, to
care for the employee's parent with a serious health condition, or to
care for a covered servicemember with a serious injury or illness. This
section also clarifies that this limitation--like the existing 12-week
limitation on leave taken by spouses employed by the same employer for
other FMLA qualifying reasons--applies 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, as is the case for the existing 12-
week limitation, if one spouse is ineligible for FMLA leave, the other
spouse would be entitled to a full 26 weeks of FMLA leave to care for a
covered servicemember.
The Department is aware this approach may result in two different
12-month periods being used to calculate the 26-workweek limitation and
the 12-workweek limitation, and that in some circumstances, spouses
employed by the same employer may be eligible to take more than 26
workweeks of FMLA leave in succession as a result. The Department does
not believe, however, that the potential administrative burden caused
by a relatively short period of overlapping 12-month periods outweighs
the possibility that other approaches might diminish the spouses'
entitlement to up to a combined total of 26 workweeks of military
caregiver leave and their entitlement to a combined total of 12
workweeks of FMLA leave for other qualifying reasons.
Subpart B--Employee Leave Entitlements Under the Family and Medical
Leave Act
Section 825.200 (Amount of Leave)
Section 825.200 explains the basic leave entitlement provided under
the Act, and provides instructions for how to determine the 12-month
period during which the FMLA leave entitlement may be used, and how to
calculate the amount of leave used. Eligible employees are entitled to
a set number of ``workweeks'' of FMLA leave, and an employee's normal
``workweek'' prior to the start of the FMLA leave is the basis for
determining how much leave an employee uses when taking leave on an
intermittent or reduced leave schedule basis.
The only change that the Department proposed in this section was to
clarify how to count holidays in cases where an employee takes leave in
increments of less than a full workweek. Specifically, the Department
proposed to clarify in Sec. 825.200(f) (Sec. 825.200(h) in the final
rule) that, if an employee needs less than a full week of FMLA leave,
and a holiday falls within that 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. The Department did
not propose any change in the treatment of holidays which occur during
a full week of FMLA leave, and which are counted against the employee's
FMLA entitlement. This is a clarification and does not represent a
change in the Department's enforcement position. The Department has
adopted the proposed clarification.
Many commenters, including the National Coalition to Protect Family
Leave and the Chamber of Commerce of the United States of America (the
``Chamber''), supported the proposed clarification of the treatment of
holidays falling during a partial week of FMLA leave as appropriate and
instructive. See also Hewitt Associates; National Business Group on
Health; American Association of Occupational Health Nurses; City of
Medford (OR). The AFL-CIO also supported the proposed clarification as
consistent with the statutory mandate to count ``only the leave
actually taken.'' See 29 U.S.C. 2612(b)(1). However, the AFL-CIO and
other groups, such as the National Partnership for Women & Families,
opposed the continuation of the current rule that holidays are counted
against an employee's FMLA entitlement when they fall within full
workweeks of leave, asserting that it is inconsistent with the method
of counting holidays when less than a full week of leave is used. See
also National Treasury Employees Union. In these commenters' view,
holidays should never be counted because employees are not required to
be at work on those days, and therefore should not have to use FMLA
leave.
Other commenters argued that holidays should count against an
employee's FMLA entitlement even when less than a full week of leave is
used. For example, the Equal Employment Advisory Council opposed the
proposed change as administratively burdensome and vulnerable to
employee abuse, and recommended instead that holidays which fall during
a partial week of leave be charged as FMLA leave when the employee has
taken FMLA leave on the days before and after the holiday. Jackson
Lewis suggested that employees be charged FMLA leave for all holidays,
regardless of when they fall, and that employees should have to provide
medical evidence of health on the holiday if they do not want the day
charged as FMLA
[[Page 67973]]
leave. Burr & Forman argued that the proposed rule makes leave
calculation unnecessarily more complex by excluding such holidays,
especially for employers who have ``holiday shutdowns,'' and could
result in arbitrarily allowing some employees a greater length of time
in which to take intermittent leave. See also Illinois Credit Union
League.
The Department acknowledges employer concerns regarding not
counting holidays against the FMLA entitlement when FMLA leave is taken
in less than a full workweek, but believes that the proposed
clarification is consistent with the statutory intent that leave be
measured in terms of ``a total of 12 workweeks of leave'' but that it
may also be taken ``intermittently or on a reduced leave schedule''
when medically necessary or by agreement. See 29 U.S.C. 2612(a),
(b)(1). Holidays regularly occur during normal workweeks, and should be
counted when they fall within weekly blocks of leave. On the other
hand, the Department believes that where leave is taken in less than a
full workweek, the employee's FMLA leave entitlement should only be
diminished by the amount of leave actually taken. The Department
believes that maintaining the existing rule, together with the proposed
clarification, is the most reasonable and practical approach.
The Department made one additional change to Sec. 825.200(c) of
the final regulation in response to a request by Hewitt Associates to
provide additional examples of how to calculate an employee's leave
entitlement when the employer uses the ``rolling backward leave year,''
as permitted by Sec. 825.200(b)(4). The Department agrees that
additional explanation of this method of calculating the leave year
would be helpful, and has therefore expanded the example currently
found in Sec. 825.200(c). Moreover, an additional example of the
``rolling leave year'' calculation can be found in Wage and Hour
Opinion Letter No. FMLA-2005-3-A (Nov. 17, 2005).
The Department also made a number of changes to Sec. 825.200 in
the final rule to reflect the new military family leave provisions.
Paragraph (a) is amended to make clear that the 12 workweeks of FMLA
leave entitlement does not apply to military caregiver leave, for which
26 workweeks of leave in a ``single 12-month period'' may be taken. A
new Sec. 825.200(a)(5) is added to include qualifying exigency leave
in the list of qualifying reasons for leave limited to a total of 12
workweeks. In addition, a new paragraph (f) is added to explain and
detail the amount of time available under the military caregiver leave
entitlement, specifically that an eligible employee's leave entitlement
is limited to a total of 26 workweeks of leave during a ``single 12-
month period'' to care for a covered servicemember with a serious
injury or illness. Lastly, a new paragraph (g) is added to explain the
limitations on the total amount of leave that can be taken during the
``single 12-month period'' described in paragraph (f).
Section 825.201 (Leave To Care for a Parent)
The Department proposed to reorganize this and other sections in
order to make the regulations more clear and accessible. The text of
current Sec. 825.201, which covers when leave for the birth or
placement for adoption or foster care of a child must conclude, has
been incorporated into new Sec. Sec. 825.120 and 825.121, as discussed
above. Proposed Sec. 825.201 now covers only leave taken to care for a
parent, and highlights the statutory limitations on taking such leave
in situations when both a husband and wife work for the same employer
and seek leave 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, which were previously set forth in Sec.
825.202. The final rule adopts the proposed changes.
The Department received very few comments on this section, and none
opposed the proposed reorganization. Those comments that the Department
did receive concerned issues specifically addressed by the statute. For
example, Hewitt Associates requested that the Department provide
additional explanation regarding the ``same employer'' limitation when
a husband and wife both seek leave to care for a parent. Southwest
Airlines requested that the Department extend the ``same employer''
limitation to unmarried couples, not just to spouses. The Department
notes that the effect of the restrictions on FMLA leave for spouses
employed by the same employer are determined case-by-case and the
restrictions themselves are statutory and beyond the Department's
authority to alter. See 29 U.S.C. 2612(f). The final rule also includes
a cross-reference to Sec. 825.127(d), which addresses the spousal
limitation for military caregiver leave.
Section 825.202 (Intermittent Leave or Reduced Leave Schedule)
The Department proposed to reorganize this and other sections in
order to make the regulations more clear and accessible, but did not
propose significant changes to the substance. We proposed to
consolidate leave provisions relating to intermittent or reduced
schedule leave in cases of medical necessity and for the birth or
placement of a child into a new Sec. 825.202 (from current Sec. Sec.
825.203 and 825.117), and to shift issues of scheduling, counting, and
certification requirements for such leave into other sections, with
appropriate cross-references. See proposed Sec. 825.120 (Leave for
pregnancy or birth), Sec. 825.121 (Leave for adoption or foster care),
Sec. 825.203 (Scheduling of intermittent or reduced schedule leave),
Sec. 825.205 (Increments of leave for intermittent or reduced schedule
leave), and Sec. 825.306 (Content of medical certification). The NPRM
also proposed to move language from current Sec. 825.203(b) governing
the use of intermittent or reduced schedule leave after the birth,
adoption, or placement of a child, to proposed Sec. 815.202(c),
entitled ``Birth or placement,'' together with cross-references to
proposed Sec. Sec. 825.120 and 825.121, which also deal with
pregnancy, birth, adoption, and foster care placement. Finally, we
proposed adding the subheadings ``Definition,'' ``Medical necessity,''
and ``Birth or placement'' to Sec. 825.202(a), (b), and (c),
respectively. The final rule adopts Sec. 825.202 as proposed, with two
minor changes to Sec. 825.202(b). The final rule also incorporates
appropriate references to military caregiver leave and includes a new
paragraph (d) providing for intermittent or reduced schedule leave for
a qualifying exigency.
Proposed Sec. 825.202(b) defines ``medical necessity'' for
intermittent leave, combining existing language from current Sec.
825.117 and illustrations from current Sec. 825.203(c). It also
includes a cross-reference to proposed Sec. 825.306, which explains
what constitutes sufficient information on the medical certification
form. As noted above, most commenters generally supported the
reorganization of the regulations. The Equal Employment Advisory
Council also noted that the reorganization served as a ``clarification
of threshold requirements'' for intermittent leave. The Department has
adopted the proposed changes.
In addition to the changes proposed in the NPRM, the Department has
determined that the parenthetical phrase in the first sentence of
proposed Sec. 825.202(b) ``(as distinguished from voluntary treatments
and procedures)'' is confusing and unnecessary, and therefore has
deleted it from the final rule. Under the FMLA, it is a threshold
requirement that there be a medical need for leave due to a serious
health
[[Page 67974]]
condition, regardless of whether the underlying medical procedure was
viewed as ``voluntary'' or ``required.'' Other language regarding
``voluntariness'' was initially included in the definition of ``serious
health condition'' in the Interim Final Rule published in 1993, 58 FR
31794, 31817 (June 4, 1993), but was deleted from the Final Regulations
issued in 1995. As the Department explained at that time, ``[t]he term
`voluntary' was considered inappropriate because all treatments and
surgery are voluntary.'' 60 FR 2180, 2195 (Jan. 6, 1995).
The Department has also adopted the suggestion of two commenters,
the Society for Human Resource Management and the National Coalition to
Protect Family Leave, to modify the third sentence of Sec. 825.202(b).
Specifically, both groups suggested that the Department delete the word
``related'' from the phrase ``treatment of a related serious health
condition,'' which they viewed as unnecessary and potentially
problematic. The Department agrees and has made the proposed change.
Both groups also suggested that the Department delete the ``recovery''
clause at the end of the same sentence, since ``recovery'' is already
included elsewhere as part of the definition of ``incapacity'' in
proposed Sec. 825.113(b). The Department declines to make this change,
since the language simply carries forward existing rights and criteria
for using intermittent or reduced schedule leave (from current
regulatory text at Sec. 825.203(c)) and appears to be clear and well-
understood by all parties.
Lastly, a new paragraph (d) is added to the final rule to address
intermittent or reduced schedule leave for qualifying exigency leave.
Section 825.203 (Scheduling of Intermittent or Reduced Schedule Leave)
In addition to reorganizing this section as noted above, the
Department proposed in the NPRM to clarify that employees who take
intermittent leave for planned medical treatment when medically
necessary have a statutory obligation to make a ``reasonable effort''
to schedule such treatment so as not to disrupt unduly the employer's
operations. Section 825.117 of the current regulations requires merely
that ``[e]mployees needing intermittent FMLA leave or leave on a
reduced leave schedule must attempt to schedule their leave so as not
to disrupt the employer's operations,'' which the Department believes
does not fully describe the employee's obligation under the law. See 29
U.S.C. 2612(e)(2) (requiring that employees who need foreseeable leave
for planned medical treatment must ``make a reasonable effort to
schedule the treatment so as not to disrupt unduly the operations of
the employer''). The Department has adopted the proposed change. See
also Sec. 825.302(e).
Most commenters welcomed this clarification. See National Coalition
to Protect Family Leave; TOC Management Services; American Foundry
Society; National Association of Wholesaler-Distributors. The National
Association of Wholesaler-Distributors commented that the proposal
``accurately implements the language of the FMLA and clarifies that an
employee who needs intermittent or reduced schedule leave for planned
medical treatment must make a `reasonable effort' to schedule the leave
so that the leave does not unduly disrupt the employer's business.''
Some commenters, such as the Equal Employment Advisory Council and
Hewitt Associates, asked the Department to provide a definition of
``reasonable effort.'' The Equal Employment Advisory Council suggested,
for example, that an employee be required to prove that a doctor's
office is not open on Saturday in order to justify a weekday doctor
visit. Jackson Lewis asked for ``a vehicle to hold employees
accountable'' for meeting their obligations in this regard.
The Department believes that the statutory standard ``reasonable
effort'' does not require further definition. In general, employees
must try to arrange treatment on a schedule that accommodates the
employer's needs, but such treatment schedules may not always be
possible, depending on the nature of the employee's medical condition,
the urgency, nature, and extent of the planned treatment, and the
length of the recovery time needed. The scheduling of planned medical
treatment is ultimately a medical determination within the purview of
the health care provider. While the employee must make a reasonable
effort in scheduling the leave, if the health care provider determines
that there is a medical necessity for a particular treatment time, the
medical determination prevails. If it is just a matter of scheduling
convenience for the employee, the employee must make a reasonable
effort not to disrupt unduly the employer's business operations.
Section 825.204 (Transfer of an Employee to an Alternative Position
During Intermittent Leave or Reduced Schedule Leave)
Section 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 NPRM proposed no substantive changes
in this section, but added subheadings of (a) ``Transfer,'' (b)
``Compliance,'' (c) ``Equivalent pay and benefits,'' (d) ``Employer
limitations,'' and (e) ``Reinstatement of employee'' for clarity. The
Department also solicited comments on whether this regulatory provision
should be changed and, if so, how, noting that many commenters who
responded to the December 2006 RFI wanted the option to transfer or
otherwise alter the duties of employees using unscheduled or
unforeseeable intermittent leave, in addition to those who request
foreseeable leave for planned medical treatment. See 72 FR 35608 (June
28, 2007).
A significant number of commenters representing employers,
including the Equal Employment Advisory Council, the National Coalition
to Protect Family Leave, and the Society for Human Resource Management,
supported allowing employers to transfer employees who take any
intermittent leave, regardless of the purpose or foreseeability of the
need for leave. See also TOC Management Services; Food Marketing
Institute; National Retail Federation; Metropolitan Transportation
Authority (NY); Spencer Fane Britt & Browne. These commenters argued
that some employees are frequently absent on short notice, which the
commenters claimed can be disruptive and can make scheduling extremely
difficult, and contended that their ability to manage these absences
would be enhanced if they could transfer such employees. The
Association of American Railroads argued that ``unforeseeable use of
intermittent leave is, if anything, a more appropriate circumstance for
transfer or reassignment because unforeseeable absences may undermine
the employer's ability to carry out its business.'' The U.S. Postal
Service contended that Congress did not intend to permit unforeseeable
intermittent leave for chronic conditions, and that employers should be
free to transfer employees who frequently use unscheduled, intermittent
leave, in addition to those who seek foreseeable leave for planned
medical treatment as provided in the statute.
Commenters representing employees and employee groups were
uniformly opposed to any expansion of the employer's right to transfer
employees who take intermittent FMLA leave for reasons other than
planned medical treatment. See, e.g., Communications Workers of
America; National Federation of Federal Employees; and
[[Page 67975]]
National Partnership for Women & Families. The AFL-CIO contended that
such a change would run contrary to the plain language of the statute,
which expressly permits transfers in cases of intermittent or reduced
schedule leave ``that is foreseeable based on planned medical
treatment.'' 29 U.S.C. 2612(b)(2). The AFL-CIO asserted that this
implies a prohibition on transfers in any other situation. The National
Treasury Employees Union agreed, contending that the Department is
without authority to expand this provision since Congress itself
determined the scope of the transfer option and chose to limit it to
cases involving ``planned medical treatment.''
The AFL-CIO and the National Partnership for Women & Families both
argued that the distinction also makes sense from a policy standpoint,
since an employer would be able to plan for an employee's absences due
to planned medical treatment, but would be unable to do so where an
employee needs unforeseeable intermittent leave. Both the AFL-CIO and
the Communications Workers of America also expressed concern that
allowing employers to transfer employees in such situations might
increase the possibility of retaliation by employers.
The Department believes that by expressly permitting transfers in
cases of intermittent or reduced schedule leave ``that is foreseeable
based on planned medical treatment,'' 29 U.S.C. 2612(b)(2), the
statutory language strongly suggests that this is the only situation
where such transfers are allowed. Additionally, the statute clearly
requires that such transfers be temporary in nature, and that the
employee be reinstated to the original position upon completion of the
recurring leave period. See 29 U.S.C. 2612(b)(2), 2614(a)(1). The
Department acknowledges that this standard may seem to discount the
fact that some employees may take intermittent leave regularly,
frequently, and predictably--even if unforeseeably--and do so on the
advice or recommendation from their physician, which some would argue
is akin to planned medical treatment. See Report on the Department of
Labor's Request for Information, Chapters IV, VIII, and XI, 72 FR at
35571, 35608, and 35619 (June 28, 2007). While this may be the case,
the Department finds no statutory basis to permit transfers to an
alternative position for those taking unscheduled or unforeseeable
intermittent leave. Accordingly, the Department declines to expand the
situations in which an employer may temporarily transfer an employee to
an alternative position.
Section 825.205 (Increments of FMLA Leave for Intermittent or Reduced
Schedule Leave)
Section 825.205 explains how to count increments of leave in cases
of intermittent or reduced schedule leave. The Department did not
propose any substantive changes to this section, but did propose to
move language from current Sec. 825.203(d) to paragraph (a) of this
section, and to add the title ``Minimum increment.'' It also proposed
to renumber current paragraphs (b) through (d) as Sec. 825.205(b)(1),
(2), and (3) for purposes of clarity, and to add the title
``Calculation of leave'' to paragraph (b), but did not propose any
changes to the text of those sections. The preamble to the NPRM
discussed the extensive comments the Department had received in
response to the Request for Information ``expressing concerns about the
size of the increments of intermittent leave that may be taken;'' the
impacts of the use of unscheduled intermittent leave, particularly on
time-sensitive business models; the many suggestions to the record to
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) and conversely, the commenters who defended the current rule on
minimum increments of leave. The preamble to the NPRM also requested
comment on whether to create an exception to the minimum increment rule
in situations where physical impossibility prevents an employee from
commencing work mid-way through a shift, and asked for comment on
whether and how to clarify the application of FMLA leave to overtime
hours. The final rule incorporates the proposed changes with additional
clarifications, as well as new language addressing physical
impossibility, calculation of leave, overtime, and a cross-reference to
the special rules for intermittent or reduced schedule leave taken by
employees of schools, as described in more detail below.
Paragraph (a) of proposed Sec. 825.205 set forth the general rule
from current Sec. 825.203(d) that employers may account for
intermittent or reduced schedule leave in the smallest increments used
by their payroll systems to account for absences or use of leave, so
long as it is one hour or less. The Department again received many
comments from employers expressing their concerns about the size of
increments of intermittent leave that may be taken, especially when
such leave is unforeseeable. At the same time, we also received many
comments from employees stressing the importance of their ability to
take such leave in small amounts of time when suffering from serious
health conditions, or when caring for family members with serious
health conditions.
Employers and their representatives argued that it was difficult to
manage their workforce needs adequately when employees were permitted
to take very small amounts of leave (e.g., in minutes), when they may
have policies for the use of other forms of leave in larger increments,
especially when other employees were required to fill in for those who
were absent, and that larger increments of leave would reduce the
current administrative and staffing burdens placed on employers. See,
e.g., National Association of Manufacturers; Domtar Paper Company;
Society for Human Resource Management; National Newspaper Association;
and Food Marketing Institute. Both the Equal Employment Advisory
Council and the Chamber cited members who track leave in increments as
small as six minutes, which they contend is especially difficult for
FMLA administration. The National Coalition to Protect Family Leave
asserted that the current regulation penalizes employers with
sophisticated payroll systems capable of tracking the increments of
leave down to one minute. The Chamber argued that increasing the
minimum increment would greatly ease recordkeeping burdens on
employers, reduce the opportunity for abuse of FMLA leave, and improve
predictability for employers. The National Association of Manufacturers
stated that a larger increment would lower the incidence of what it
believes to be employees improperly using FMLA leave to cover late
arrivals. These employers argued strongly that the minimum increment
should be enlarged, and suggested various minimums ranging from two
hours to four hours or a half day. See, e.g., the Chamber (half day or
1 hour); Equal Employment Advisory Council (half day); National
Association of Manufacturers (four-hour or two-hour increments); Domtar
Paper Company (four hours); Society for Human Resource Management (half
day or two hours); National Coalition to Protect Family Leave (same).
Indeed, the Delphi Corporation pointed out that an employee could use
FMLA leave to cover late arrivals of almost two hours per day, every
day, without ever exhausting the employee's annual leave entitlement.
The Equal Employment Advisory Council similarly noted that ``[a]n
employee in fact could take one day off a week as intermittent leave
and still have plenty of FMLA leave left at
[[Page 67976]]
the end of the year.'' Finally, some commenters sought clarification of
the ``one hour or less'' language in both the current and proposed
regulation. The National Coalition to Protect Family Leave requested
that the Department clarify that ``in all cases, regardless of an
employer's payroll system'' an employer may track leave in increments
of ``at least an hour.'' The National Coalition believed it is
``arbitrary'' to require employers to track leave in the smallest
increments that its payroll system tracks when that system may not be
used to track FMLA or other leave usage. They noted that the current
requirement by the Department penalizes employers who have more
sophisticated payroll systems that can track payroll in increments as
small as one minute, as compared to employers who do not use such
systems.
By contrast, employee organizations opposed any increase in the
increment of intermittent leave, arguing that it would harm employees
by forcing them to take more leave than is medically necessary and
would unfairly diminish their FMLA entitlement. See, e.g., National
Partnership for Women & Families; American Association of University
Women; AFL-CIO; American Association of Occupational Health Nurses.
9to5 cited the example of an employee using intermittent FMLA leave in
two-hour increments to take her daughter to cancer treatments, and
contended that requiring such an employee to use leave in half-day or
larger increments would unnecessarily diminish her FMLA entitlement.
They also asserted that the longer absences might be even more
disruptive to the workplace than shorter ones. The Communications
Workers of America argued that employers are not burdened by being
required to account for FMLA leave in the same increment used for other
absences, but that employees would be burdened by increasing the
increment of intermittent leave.
The Department has carefully considered all comments on this issue,
and has decided to adopt Sec. 825.205 as proposed with additional
clarifying language. Both the current and proposed standard permit
employers to limit the increment of leave for FMLA purposes to the
shortest period of time the employer uses to account for other types of
use of leave, provided it is one hour or less. The current regulation
at Sec. 825.203(d) provides: ``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.'' As explained above, the Department moved essentially this same
language to proposed Sec. 825.205(a) which provided: ``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.'' As the
Department stated in the preamble to the current regulations in 1995:
``In providing guidance on this issue in the Interim Final Rule, it
seemed appropriate to relate the increments of leave to the employer's
own recordkeeping system in accounting for other forms of leave or
absences * * * however, this section will be clarified to provide
explicitly that the phrase `one hour or less' is dispositive.'' 60 FR
2202 (Jan. 6, 1995). The preamble to the current regulation further
stated that the ``employer's own recordkeeping system in accounting for
other forms of leave or absences * * * controls with regard to
increments of FMLA leave of less than one hour.'' Id.
Because the comments indicate some confusion in practice between
the current Sec. 825.203(d) regulatory language, as carried over to
proposed Sec. 825.205(a), and the preamble discussion of current Sec.
825.203(d), the Department adopts the final rule with the following
modifications. The Department restates its original view that ``one
hour or less is dispositive.'' Employers are not required to account
for FMLA leave in increments of six minutes or even fifteen minutes
simply because their payroll systems are capable of doing so, and the
regulatory language in the final Sec. 825.205(a) does not so require.
What matters is how the employer actually accounts for the leave. The
final regulation eliminates the confusing and inconsistent references
to either payroll systems or recordkeeping systems and eliminates the
term ``absences'' to further lessen any confusion and focuses on ``use
of leave.'' The final regulation adjusts the proposed language to make
clear the employer must account for the intermittent or reduced
schedule leave under FMLA ``using an increment no greater than the
shortest period of time that the employer uses to account for use of
other forms of leave provided it is not greater than one hour.''
Accordingly, while employers may choose to use a smaller increment to
account for FMLA leave than they use to account for other forms of
leave, they may not use a larger increment for FMLA leave. Thus, if an
employer uses different increments to account for different types of
leave (e.g., accounting for sick leave in 30-minute increments and
vacation leave in one-hour increments), the employer could not account
for FMLA leave in an increment larger than the smallest increment used
to account for any other type of leave (i.e., 30 minutes).
Additionally, under no circumstances can an employer account for FMLA
leave in increments of greater than one hour, even if such increments
are used to account for non-FMLA leave. Employers may choose to account
for FMLA leave taken in any increment not to exceed one hour as long as
they account for leave taken for other reasons in the same or larger
increment. The Department has also modified the final rule to recognize
policies which account for use of leave in different increments at
different points in time, thus, permitting employers to maintain a
policy that leave of any type may only be taken in a one-hour increment
during the first hour of a shift (i.e., a policy intended to discourage
tardy arrivals). As a further point of clarity, the final rule changes
the current and proposed rules' language of ``provided it is one hour
or less'' to ``provided it is not greater than one hour.'' The
Department emphasizes that in all cases employees may not be charged
FMLA leave for periods during which they are working. For example, if
an employee needs FMLA leave due to the flare-up of a condition 30
minutes before the end of the employee's shift, the employee may not be
charged with more than 30 minutes of FMLA leave, even if the employer
otherwise uses one hour as its shortest increment of leave, because the
employee has already worked the first 30 minutes of the last hour of
his or her shift. If such a flare up occurred at the beginning of a
shift, however, the employee could be required to take up to one hour
of FMLA leave in accordance with the employer's leave policy, provided
the employee does not work during that hour.
The final rule also makes explicit that employers may use a smaller
increment to account for FMLA leave, a flexibility that was implicit in
the permissive wording of the current regulation. Finally, the final
rule provides additional flexibility in accounting for FMLA leave by
allowing for leave systems that utilize different increments at
different points of time while adhering to the principle in the current
regulation that FMLA leave users may not be charged leave in a larger
increment than users of non-FMLA leave. The Department remains
committed, however, to the one hour outer limit on use of FMLA leave
and
[[Page 67977]]
therefore declines to adopt any of the comments recommending
intermittent leave be accounted for in larger increments such as two-
hour, four-hour, or half or full-day increments.
The Department has made one other revision in the final rule to
reorganize the text in proposed Sec. 825.205 by moving the final three
sentences from proposed paragraph (a) into paragraph (b) in the final
rule, where related concepts for the calculation of the amount of FMLA
leave used are addressed. The final rule also restores a cross-
reference in paragraph (b) to the special rules for intermittent or
reduced schedule leave taken by employees of schools, Sec. Sec.
825.601 and 825.602.
In the NPRM, the Department also sought 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. In an opinion letter, the Department had
previously taken the position that where a flight attendant's need for
three hours of intermittent FMLA leave caused her to miss her normal
flight assignment, only the three hours needed could be charged against
her FMLA entitlement, with the remainder of the absence being charged
to another form of paid or unpaid leave. Wage and Hour Opinion Letter
FMLA-42 (Aug. 23, 1994). In the preamble, the Department questioned
whether this interpretation was appropriate, because it may expose
employees to disciplinary action based on the additional hours of non-
FMLA unprotected leave that they must take.
Employers and employer groups strongly supported the creation of
such an exception. See, e.g., the Chamber; Equal Employment Advisory
Council; National Coalition to Protect Family Leave; Society for Human
Resource Management; Southwest Airlines; Hewitt Associates. Commenters
representing transportation employers in particular supported a
physical impossibility exception to the minimum increment of leave
rule. The Association of American Railroads supported the creation of
an exception but suggested that it should apply not just where it is
impossible for the employee to return to the workplace but also where
it is ``unreasonable,'' ``impracticable,'' or barred by a collective
bargaining agreement; it also argued that the exception should include
workers in fixed locations such as train dispatchers who work in a
station or office. The Chicago Transit Authority argued that the
exception should apply to all ``fixed time work assignments, such as
scheduled public transit runs,'' and that the minimum time increment
should be the length of the employee's scheduled run. This, it argued,
would protect the employee's entire absence, and also allow employers
to better plan for and arrange assignments for entire blocks of work.
Spencer Fane Britt & Browne suggested that the exception should be
expanded to apply in three situations: (1) Where it is physically
impossible for the employee to complete the assigned shift; (2) where
another employee was called in to cover the absence; and (3) ``where an
employee is chronically late to work allegedly because of an FMLA
chronic condition.'' In all three cases, Spencer Fane contended that it
is ``inherently unfair'' and ``disruptive'' to permit the FMLA leave-
taker to return to work mid-shift. The New York City (NY) Law
Department suggested that the exception should apply to positions
requiring 24/7 coverage where there must always be someone working, and
that the employee should be charged FMLA leave for the entire shift
even if only a few minutes of leave are needed.
Most commenters on behalf of employees, on the other hand, opposed
creating any exception to the minimum increment rule, and argued that
the 1994 opinion letter was correct. See, e.g., National Partnership
for Women & Families; Center for WorkLife Law. The American Train
Dispatchers Association argued that such a change would ``allow the
carriers to charge [transportation] employees for time that they do not
use for FMLA-related purposes, in contravention of the statute's
language and intent,'' and cited the example of an engineer who needed
four hours of intermittent FMLA leave to accompany his wife to
chemotherapy, but would be charged instead for the entire length of the
engine's trip--up to eight or ten hours. In its view, this result would
violate 29 U.S.C. 2652, which provides that FMLA rights ``shall not be
diminished'' by collective bargaining agreements or employment benefit
plans or programs. The AFL-CIO and the Communications Workers of
America questioned whether employees were being subject to discipline
in such situations and argued that the statutory prohibition against
interference would prohibit employers from imposing discipline on
employees who return from intermittent leave and are ready to work,
regardless of whether the rest of the shift is counted as FMLA leave or
some other form of leave. The Communications Workers of America also
argued that air carriers already routinely handle such situations in
cases of non-FMLA leave by reassigning workers, allowing them to cover
for each other, or assigning them to alternative work schedules or
alternative administrative work. The Center for WorkLife Law argued
that the term ``physical impossibility is vague and overbroad,'' and
the creation of such an exception ``will have a significant and
unnecessary negative effect on caregivers.'' In its view, foreseeable
leave can almost always be handled in advance by assigning the employee
to an alternative route or shift; and employees should always be
allowed to resume work mid-shift if they can reach the worksite.
After reviewing the comments, the Department has decided to include
an exception for physical impossibility, which is set forth in Sec.
825.205(a)(2) of the final rule. The Department believes that the
existing policy exposes employees to the risk of discipline in
situations in which an employee's need for a short FMLA-protected
absence from work actually results in a much longer absence because of
the unique nature of the worksite. Whether it is a train that is 300
miles away, or a plane over the Atlantic Ocean, or a ``clean room'' in
a laboratory that must remain sealed for the entire workshift, some
workplaces exist that prevent employees from joining (or leaving) the
work mid-way through the ``shift.'' Thus, a three-hour FMLA absence may
result in an employee's inability to work for eight hours, or until the
end of the shift or route. Where this occurs, the Department believes
that the entire period of absence should be considered FMLA leave and
should be protected under the Act. The Department does not believe that
a physical impossibility exception contravenes 29 U.S.C. 2612(b) or any
other provision of the Act because only the amount of leave used will
be counted against the employee's FMLA leave entitlement and the FMLA
does not require employers to provide alternative work to employees
when the employee is unable to return to his or her same or equivalent
position due to physical impossibility.
The Department intends the exception to be applied narrowly. The
exception is limited to situations in which an employee is physically
unable to access the worksite after the start of the shift, or depart
from the workplace prior to the end of the shift. Moreover, within
those situations, the exception is limited to the period of time in
which the physical impossibility remains. Thus, although the exception
may apply to a flight attendant, train conductor, ferry
[[Page 67978]]
operator, bus driver, or truck driver whose worksite is on board an
airplane, train, boat, bus, or truck or a laboratory technician whose
workplace is inside a ``clean room'' that must remain sealed for a
certain period of time, the exception will only apply until the vehicle
has returned to the departure site or while the clean room remains
sealed. For example, the physical impossibility exception will apply to
a flight attendant until such time as he or she is able to rejoin his
or her crew at the departure point, which likely is a longer period of
time for a flight attendant who is scheduled to fly cross-country than
it is for one who is scheduled to fly a shuttle between Washington and
New York. Similarly, a physical impossibility will generally exist for
a longer period of time when a driver works for an inter-city bus
company than it would when a driver works for a metropolitan transit
system. In both cases, the physical impossibility remains until the bus
returns to the terminal; such a return, however, may take place much
more frequently in the latter example.
Employers may not use this new exception to prevent employees
taking intermittent FMLA leave from commencing work late or leaving
work early when there is no physical impossibility preventing the
employee from accessing or leaving the workplace during the ``shift.''
Additionally, even where physical impossibility prevents the employee
from accessing the workplace, if the employee is assigned alternative
work (e.g., pursuant to a collective bargaining agreement or employer
policy) only the amount of leave actually taken may be counted against
the employee's FMLA leave entitlement. The Department recognizes that
employers may provide alternative work, particularly where there is
advance notice of the need for leave, and nothing about this exception
prevents employers from providing such work. Employers also have an
obligation not to discriminate between employees who take FMLA leave
and other forms of leave; for example, if they routinely offer
alternative work to employees returning from short periods of non-FMLA
leave, such as sick leave or jury duty, then they must also offer such
work to employees returning from short periods of FMLA leave.
The Department did not propose any changes to Sec. 825.205(b),
which deals with calculation of leave. However, a number of commenters
reported that they or their clients have difficulty calculating leave
entitlement and leave usage, especially for employees who use
intermittent leave, work overtime, or work part-time, seasonal or
irregular schedules. See, e.g., Burr & Forman; TOC Management Services;
Equal Employment Advisory Council; Food Marketing Institute; the
Chamber; National Coalition to Protect Family Leave; National Newspaper
Association. The American Postal Workers Union, Clerk Division, Chicago
Region, complained that seasonal fluctuations in work hours can lead to
employees receiving different amounts of FMLA-protected leave depending
on the time of year in which the leave is taken.
The Department has made several revisions to the section entitled
``Calculation of leave'' to address issues that arise when an
employee's schedule varies. The first clarifies that the method for
determining the amount of FMLA leave taken by an employee is to compare
the number of hours actually worked by the employee in a FMLA workweek
to the number of hours the employee would have worked in that workweek,
but for the FMLA leave taken. The difference is the amount of FMLA
leave taken. That amount is divided by the number of hours the employee
would have worked had the employee not taken leave of any kind,
including FMLA leave. The result represents the proportion (percentage)
of a FMLA workweek that the employee has taken. The resulting
percentage may be converted to hours for tracking purposes; any such
conversion must equitably reflect the employee's leave allotment. An
employee does not ``accrue'' FMLA-protected leave at any particular
hourly rate; an eligible employee is entitled to 12 workweeks of leave
(or 26 workweeks in the case of military caregiver leave) and the total
number of hours contained in those workweeks is necessarily dependent
on the specific hours that would have been worked by the employee. The
Department has also changed the rule for calculating an employee's
leave entitlement when an employee works a schedule that varies so much
from week-to-week that no ``normal'' schedule or pattern can be
discerned, and the employer cannot determine with any certainty how
many hours the employee would have worked, but for the taking of the
FMLA leave. In such circumstances, the Department believes that
calculating a weekly average over the 12 months prior to the leave
period (rather than just the prior 12 weeks as required under the
current rule) should give a truer picture of the employee's actual
average workweek.
In the preamble to the proposed rule, the Department clarified its
position on when overtime hours not worked due to a serious health
condition could be counted against an employee's FMLA leave
entitlement. 73 FR 7894 (Feb. 11, 2008). The issue of overtime is not
addressed in the current regulations, but was discussed in the 1995
preamble to the current rule. See 60 FR 2202 (Jan. 5, 1995) (preamble
accompanying current Sec. 825.203). Many commenters requested both
that the Department's position be clarified and that it be included in
the regulatory text, rather than just addressed in the preamble. See,
e.g., Society for Human Resource Management; National Coalition to
Protect Family Leave; TOC Management Services. The Department agrees,
and has added a new Sec. 825.205(c), which addresses when overtime
hours not worked due to FMLA leave can be counted against an employee's
FMLA entitlement. Consistent with the discussion in the preamble to the
proposal, the final rule states that where an employee would normally
be required to work overtime, but cannot do so because of a FMLA-
qualifying condition, the employee may be charged FMLA leave for the
hours not worked. This new regulatory section is not a change in policy
but is simply intended to clarify in the regulations the Department's
existing policy.
Employer commenters generally supported the proposed clarification.
See, e.g., Pennsylvania Governor's Office of Administration; Domtar
Paper Company; Society for Human Resource Management; National
Coalition to Protect Family Leave; TOC Management Services. For
example, the U.S. Postal Service claimed that ``the ambiguity in the
current regulatory language regarding overtime has hindered efforts to
bring uniformity'' in this area; it embraced the clarification as
``eminently sensible,'' and ``not only fair, but also necessary.''
Some commenters argued that employers should not be restricted to
only counting mandatory or required overtime hours not worked against
an employee's FMLA entitlement. For example, the Society for Human
Resource Management and the National Coalition to Protect Family Leave
argued that employees should be charged FMLA leave in circumstances in
which an employer rotates overtime on a volunteer basis among its
employees but employees are subject to possible disciplinary action for
failing to ``volunteer.'' Spencer Fane Britt & Browne argued that
employers should be able to charge employees FMLA leave for all
overtime hours not worked even where the overtime at issue is
voluntary, and that failing to do so will hurt employee morale.
[[Page 67979]]
Groups representing employees also generally agreed with the
Department's desire to clarify the treatment of overtime, but felt that
the preamble discussion was not as clear as it might have been. The
AFL-CIO simplified the proposed test to ``whether the employee is
required to work the overtime,'' and noted that the key distinction is
between voluntary and mandatory overtime, notwithstanding the
Department's ``apparent rejection of that distinction.'' It also asked
for more examples, as did the National Partnership for Women & Families
and National Federation of Federal Employees. The Department agrees
that the appropriate focus is whether the employee would have been
required to work the overtime hours but for the taking of FMLA leave,
and has added an example to the proposed rule to illustrate this
principle. The American Postal Workers Union commented that the
proposed clarification will compound rather than moderate the
administrative complexity of the rule. Rather than focusing on whether
the employee was required to work, it suggested that employees only be
charged FMLA leave for overtime hours which ``were part of the
employee's regular schedule,'' as opposed to voluntary, ad hoc or ``as
needed'' hours.
Many Postal Service employees also opposed being charged any FMLA
leave for overtime hours not worked. For example, the American Postal
Workers Union Clerk Division, Chicago Region expressed a concern that
being charged for overtime hours could diminish an employee's
entitlement below 12 workweeks, and could be arbitrary and unfair if
the amount of leave charged was to vary according to seasonal overtime
requirements. The Department points out that overtime is factored into
the FMLA entitlement because both the entitlement and the leave usage
rate are based on the employee's required (i.e., scheduled) hours of
work. The Department believes it is fair, therefore, that overtime not
worked be counted against the FMLA entitlement when the employee would
have been required to work the overtime hours but for the use of FMLA
leave.
Finally, employers may not discriminate in the assignment of
mandatory overtime between employees who take FMLA leave and others.
For example, an employer cannot schedule only FMLA leave takers for
required overtime in order to deplete their FMLA leave entitlement,
while allowing other employees to volunteer for overtime.
Section 825.206 (Interaction With the FLSA)
No changes were proposed to this section beyond updating the cross-
references to the FLSA regulations revised in 2004 for salaried
executive, administrative, professional, or computer employees under 29
CFR Part 541, and no comments were received on it. The final rule
adopts Sec. 825.206 as proposed with revisions to address the new
types of leave available under the NDAA amendments.
Section 825.207 (Substitution of Paid Leave)
Section 825.207 addresses the interaction between unpaid FMLA leave
and employer-provided paid leave and echoes the statutory language that
paid leave may be substituted for unpaid FMLA leave. In the NPRM the
Department proposed to change its position on the substitution of paid
vacation and personal leave and to allow employers to apply their
normal leave policies to the substitution of all types of paid leave
for unpaid FMLA leave. The Department thus proposed to delete current
paragraphs (b), (c), (e), and (h) of this section. The proposal
redesignated current paragraphs (f) and (g) as proposed paragraphs (b)
and (c). The Department proposed to modify its discussion of FMLA-
qualifying leave that is covered by an employer's disability benefit
plan in paragraph (d), and to move its discussion of FMLA-qualifying
leave that is covered by workers' compensation to a new paragraph (e).
Finally, the Department proposed to redesignate current Sec.
825.207(i), which addresses the interaction between public employees'
use of compensatory time off and FMLA leave, as paragraph (f) and to
remove the prohibition against substitution of accrued compensatory
time for unpaid FMLA leave. The final rule includes all of the proposed
changes and makes additional modifications in paragraphs (a), (d), and
(e), as discussed below.
Proposed Sec. 825.207(a) clarified that ``substitution'' of paid
leave for FMLA purposes means that the unpaid FMLA leave and the paid
leave provided by an employer run concurrently. The Department also
proposed in this section to allow employers to apply their normal
policies for taking paid leave when an employee substitutes paid leave
for unpaid FMLA leave regardless of the type of paid leave substituted.
The proposal differed from current Sec. 825.207, which prohibits
employers from imposing any limits on the substitution of paid vacation
or personal leave. Under the current regulation, employers may restrict
the substitution of paid sick or medical leave under the FMLA to
situations in which they would otherwise provide such paid leave, but
are not permitted to restrict the substitution of paid vacation or
personal leave in any manner. Employers are also permitted under the
current rule to restrict the substitution of paid family leave to
circumstances for which they would normally provide family leave. The
proposal required that employees who seek to substitute accrued paid
leave of any kind for unpaid FMLA leave must comply with the terms and
conditions of the employer's normal leave policy. It also proposed new
language clarifying that employers are required to notify employees of
any additional requirements for the use of paid leave (e.g., paid leave
only being available in full day increments or upon completion of a
specific leave request form), and stated that if employees do not or
cannot meet those requirements, they remain entitled to unpaid FMLA
leave as guaranteed by the statute. The Department also proposed new
language intended to ensure that employers do not discriminate between
FMLA leave users and others in the provision of paid leave.
Employee representatives generally opposed the proposed revision of
this section on two grounds--first, they claimed that it would hurt
employees, who often cannot afford to take unpaid leave, and second,
they believed that it conflicted with Congressional intent regarding
the substitution of paid leave. See, e.g., National Partnership for
Women & Families; AFL-CIO; American Association of University Women;
Family Caregiver Alliance; Sargent Shriver National Center on Poverty
Law; Women Employed; American Postal Workers Union; and Communications
Workers of America. A Better Balance: The Work and Family Legal Center
claimed that as many as three out of four eligible workers cannot
afford to take leave without pay, and that it can be very difficult for
employees to understand and navigate employer paid leave policies.
Community Legal Services/AIDS Law Project of Pennsylvania argued that
the ability to utilize paid leave for FMLA reasons is critical to low
wage employees, who often live paycheck to paycheck and cannot afford
any delay in pay, whereas it makes little difference to employers,
since they will have to make the accrued leave payments eventually.
The National Partnership for Women & Families and the AFL-CIO,
among others, also argued that the proposed change is contrary to
Congress's intent
[[Page 67980]]
and to the Department's own prior interpretation of the FMLA. They
argued that the plain language of 29 U.S.C. 2612(d)(2)(A) permits
employees to substitute (or employers to require substitution of) ``any
of the accrued paid vacation leave, personal leave, or family leave of
the employee * * * for any part'' of their unpaid FMLA leave. They
further argued that this language supersedes any employer policies
restricting the use of such leave when substituted for FMLA leave, and
that the Department properly construed the law in its current
regulations to override such limitations. See AFL-CIO; National
Partnership for Women & Families. By contrast, they argued, Congress
expressly permitted employers to set their own rules governing sick and
medical leave, and to require employees to comply with such rules, by
providing in subsection (B) that ``nothing in this title shall require
an employer to provide paid sick or paid medical leave in any situation
in which such employer would not normally provide any such paid
leave.'' 29 U.S.C. 2612(d)(2)(B). In their view, ``the text and
structure of the FMLA make abundantly clear that Congress intended that
no limitations be placed on employees' ability to substitute paid
vacation or personal leave while on FMLA leave.''
Other groups representing unionized employees, such as the
International Association of Machinists & Aerospace Workers et al.,\5\
the American Train Dispatchers Association, and the Communications
Workers of America, argued that any change in this provision could
cause a real hardship to workers, especially in transportation and
other industries. They asserted that collective bargaining agreements
frequently require employees to select or ``bid'' for their vacation up
to a year in advance, that winning bids are usually determined by
seniority, and that time off may be restricted or completely foreclosed
during peak summer and holiday travel periods. They argued that the
proposed regulation would have the effect of disallowing the
substitution of paid vacation leave for unpaid FMLA leave if an
employee happens to need FMLA leave before or after his or her pre-
selected vacation period, or on an emergency basis. They also noted
that many agreements require substantial advance notice for using
personal leave. In such settings, they argued, it would be almost
impossible to substitute paid leave for unforeseeable medical
emergencies, premature childbirth, or for unforeseeable intermittent
leave needed as a result of a chronic condition.
---------------------------------------------------------------------------
\5\ Comments submitted by the law firm of Guerrieri, Edmond,
Clayman & Bartos on behalf of the International Association of
Machinists & Aerospace Workers, the Transportation Communications
International Union, the Transport Workers Union, and the United
Transportation Union.
---------------------------------------------------------------------------
Many commenters agreed with the Department's statement in the NPRM
that the differing treatment of ``medical leave,'' ``family leave,''
``sick leave,'' and ``vacation leave'' in current Sec. 825.207 was
confusing and made it difficult for both employers and employees to
know when paid leave may or may not be substituted for unpaid FMLA
leave. See, e.g., TOC Management Services; Equal Employment Advisory
Council; the Chamber; Hewitt Associates. Additionally, employers and
employer representatives strongly supported the Department's proposal
that they be allowed to apply their normal leave rules when paid leave
of any type is substituted for unpaid leave under FMLA. See, e.g.,
Hewitt Associates; American Foundry Society; College and University
Professional Association for Human Resources; Domtar Paper Company. The
National Coalition to Protect Family Leave commented that the
Department's current regulation treats FMLA leave takers more favorably
than employees using non-FMLA leave, and that all employees seeking to
use paid leave voluntarily provided by employers should be required to
comply with the terms and conditions of the paid leave policy. The
National Coalition to Protect Family Leave asserted that this is
consistent with the main statutory goal of the FMLA, that nothing in
the FMLA be construed so that it would ``discourage'' employers from
``adopting or retaining'' more generous leave policies. It further
noted that employers may choose to waive restrictions on leave use in
order to facilitate the substitution of paid leave, but should not be
required to do so.
The National Association of Manufacturers supported the change,
noting that ``[t]here is perhaps no other single proposal that would
permit employers to streamline the leave process while, at the same
time, controlling abuses of the system.'' However, this commenter asked
what would happen if an employer's paid leave policy required the use
of a full day of leave and an employee wished to substitute paid leave
for a two-hour FMLA absence--could the employer require the employee to
use a full day of paid leave or would the employer be required to
provide the employee with two hours of paid leave? See also Retail
Industry Leaders Association. The Equal Employment Advisory Council
also supported the proposal and agreed that it is a ``more accurate
interpretation of the statutory language'' and ``correctly implements
Congressional intent'' regarding the substitution of paid leave.
However, they opposed any additional notice requirements, urging that a
simple cross-reference to an employee handbook or Intranet site should
be adequate notice of the employer's paid leave policy. Finally, they
also specifically supported the Department's proposed clarification of
the term ``substitution'' as meaning that paid leave and unpaid FMLA
leave run concurrently.
The Department has carefully considered all the comments regarding
the proposed change to its position on the substitution of paid leave
and has decided to adopt the regulation as proposed. The language in
both paragraphs of 29 U.S.C. 2612(d)(2), as well as its legislative
history, makes clear that 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 29 U.S.C. 2612(d)(2)(A) & (B); H.R. Rep.
No. 103-8, Pt. 1, at 38 (1993); S. Rep. No. 103-3, at 27-28 (1993).
Accrued paid leave is often subject to limits on its use. As explained
in the NPRM, and for the reasons discussed below, the Department
believes that the better interpretation of section 102(d)(2)(B) is that
it was intended to emphasize the limits on the situations in which an
employer must allow the substitution of paid sick or medical leave, but
does not preclude requiring compliance with the normal procedural rules
pursuant to which the leave was accrued for paid personal or vacation
leave. For example, it clarifies that an employer is not obligated to
allow an employee to substitute paid sick leave for unpaid FMLA leave
in order to care for a child with a serious health condition if the
employer's normal sick leave rules allow such leave only for the
employee's own illness. See current Sec. 825.207(c) (explaining that
employers are not required to allow substitution of paid medical or
sick leave to care for a family member if the employer does not
normally allow the use of medical or sick leave for that purpose;
employers are also not required to provide paid sick or medical leave
for serious health conditions that are not normally covered by their
medical or sick leave plans).
The Department has never read the substitution provision as
literally as the employee commenters urge. Indeed, the current
regulations recognize that employers may place restrictions on the use
of ``family leave,'' a type of leave referenced in section 102(d)(2)(A)
of the
[[Page 67981]]
Act, without any explicit limitation on an employer's ability to
restrict its substitution. See current Sec. 825.207(b) (noting that
employers may enforce restrictions in family leave plans that limit the
use of such leave to particular family members). This restriction is
supported by the legislative history, which states that ``[t]he term
`family leave' is used [in the section] to refer to paid leave provided
by the employer covering the particular circumstances for which the
employee is seeking leave * * *.'' H.R. Rep. No. 103-8, Pt. 1, at 38
(1993); see also S. Rep. No. 103-3, at 27 (1993). Under the current
regulations, the Department has also always permitted substitution of
paid time off (``PTO''), a type of leave not referenced in the statute.
See current Sec. 825.207(e).
The legislative history of the substitution provision indicates
that Congress understood that employers commonly restrict the
situations in which employees may take paid sick, medical, and family
leave. As explained in the Senate Committee Report, ``nothing in the
act requires an employer to provide paid sick leave or medical leave in
any situation in which the employer does not normally provide such
leave.'' S. Rep. No. 103-3, at 27-28 (1993); see also H.R. Rep. No.
103-8, Pt. 1, at 38 (1993). As the comments make clear, employers also
often place procedural requirements (as opposed to limiting the
reasons) on an employee's ability to take personal or vacation leave.
The legislative history does not indicate that Congress intended to
prohibit employers from applying their normal procedural requirements
for the use of paid leave to requests to substitute any type of paid
leave (including personal or vacation leave) for FMLA leave. As noted
in the NPRM, this interpretation is consistent with the Department's
recognition in opinion letters that both an employee's right to use
paid leave and an employer's right to require substitution are subject
to the terms 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 the employee has
both earned the leave and is able to use that leave during the FMLA
period * * *. [An] employer could not require [an] employee to
substitute [vacation] leave that is not yet available to the employee
to use under the terms of the employer's leave plan.''); 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.'').
Therefore, an employee's right to substitute accrued paid leave is
limited by the terms and conditions pursuant to which the applicable
leave is accrued, as long as those terms are non-discriminatory. An
employer may limit substitution of paid sick, medical or family leave
to those situations for which the employer would normally provide such
paid leave (e.g., such policies may restrict the use of paid leave only
to the employee's own health condition or to specific family members).
Employers must allow substitution of paid vacation, personal leave, or
``paid time off'' for any situation covered by the FMLA. In all cases,
however, the normal procedural rules subject to which the leave was
accrued apply--unless waived by the employer--regardless of the type of
paid leave substituted. For example, if an employer's paid sick leave
policy prohibits the use of sick leave in less than full day
increments, employees would have no right to use less than a full day
of paid sick leave regardless of whether the sick 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 paid personal leave for unpaid
FMLA leave would need to provide two days' notice. Employers, of
course, may choose to waive such procedural rules and allow an
employee's request to substitute paid leave in these situations, but
they are not required to do so. Additionally, employers may choose to
waive procedural requirements even in the absence of an employee
request to do so.
Where an employer's paid leave policy requires the use of such
leave in an increment of time larger than the amount of FMLA leave
requested by an employee, if the employee wishes to substitute paid
leave for unpaid FMLA leave, the employee must take the larger
increment of leave required under the paid leave policy unless the
employer chooses to waive that requirement. The employer is not
required to permit the employee to substitute paid leave for the
smaller increment of unpaid FMLA leave. Thus, in the previously cited
example by the National Association of Manufacturers, where the
employee takes two hours of FMLA leave and requests to substitute paid
leave which must normally be used in full-day increments, the employer
must grant the two hours of unpaid FMLA leave, but may choose to deny
the substitution of paid leave, or to waive its normal minimum
increment and allow the employee to substitute paid leave for the two-
hour FMLA absence. The employee has the right to take two hours of
unpaid FMLA leave, but under the terms of the employer's paid leave
policy does not have a right to substitute paid leave unless he or she
chooses to take the full day of leave (thus fulfilling the requirements
of the employer's paid leave policy). The FMLA guarantees only unpaid
leave, not payment for that leave. Paid leave is offered by employers
as a matter of employer policy and may be limited by an employer's
nondiscriminatory policies.
Where an employee chooses to take a larger increment of leave in
order to be able to substitute paid leave for unpaid FMLA leave, the
entire amount of leave taken shall count against the employee's FMLA
entitlement. This is consistent with the rule in cases where it is
physically impossible for an employee to commence work late or leave
work early, as set forth in final Sec. 825.205(a)(2) above. In both
situations, the entire amount of leave actually taken is protected
under the FMLA and may be counted against the employee's FMLA
entitlement.
In order to assist employees in understanding and complying with
this interpretation, Sec. 825.207(a) requires that employers notify
employees of any additional requirements for the use of paid leave. In
response to comments, the Department has clarified in the final rule
that this information must be included with the rights and
responsibilities notice required under Sec. 825.300(c). At the
employer's option, this information may be included in the text of the
rights and responsibilities notice itself, or the employer may attach a
copy of the paid leave policy to the notice, or provide a cross-
reference to a leave policy in an employee handbook or other source
available to employees, where paid leave policies are customarily set
forth.
The Department proposed to delete current Sec. 825.207(b) and (c),
which provide different rules for substitution of different kinds of
paid leave, and which have been superseded by proposed paragraph (a).
Current Sec. 825.207(f) and (g) were redesignated as proposed Sec.
825.207(b) and (c). Proposed paragraph (b) confirmed that if paid leave
is not substituted for unpaid FMLA leave, the employee remains entitled
to all accrued paid leave, while
[[Page 67982]]
proposed paragraph (c) explained that paid leave used for purposes not
covered by the FMLA could not count against the employee's FMLA leave
entitlement. The final rule adopts these changes.
The Department proposed several revisions to current Sec.
825.207(d), which addresses the interaction between paid disability
benefits and unpaid FMLA leave. Specifically, the Department proposed
to move language from current Sec. 825.207(d)(1), providing that
employers may apply more stringent requirements for receipt of
disability payments, to new Sec. 825.306(c). We proposed to retain 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. In addition, the Department proposed
to add a new provision stating that although neither the employer nor
the employee may require the substitution of paid leave in such
circumstances, they may voluntarily agree, where state law permits, to
supplement the disability plan benefits with paid leave. The Department
also proposed to move paragraph (d)(2) of this section, which deals
with the interaction of unpaid FMLA leave with a workers' compensation
absence, to a new paragraph (e).
Commenters generally supported the proposed revisions to Sec.
825.207(d), but some requested that the Department modify it further.
Several commenters including TOC Management Services and Bracewell &
Giuliani suggested that this section be broadened to apply to
disability leave for any serious health condition, not just for
childbirth. The Department notes that it has always read the provision
as applying to paid disability leave due to any serious health
condition. See also Repa v. Roadway Express, Inc., 477 F.3d 938, 941
(7th Cir. 2007) (holding that the restriction in Sec. 825.207(d)(1) on
substitution of paid leave for FMLA leave covered under a disability
leave plan is not limited to leave for childbirth). Accordingly, the
final regulation removes the reference to childbirth and refers simply
to disability leave to make clear that the provision applies to any
disability leave that is FMLA-qualifying, whether the disability is
caused by childbirth or another serious health condition.
The National Association of Manufacturers was generally supportive
of the proposal permitting an employer to supplement disability
benefits with paid leave, but asked for clarification on how to
calculate use of FMLA leave in a case where the employee is receiving
disability benefits equivalent to two-thirds of his or her pay, and the
employer and employee agree to use paid leave to supplement those
benefits so that the employee receives his or her full pay. This
commenter asked whether the employee's FMLA leave usage is determined
by the amount of leave taken, or the amount of paid leave used (i.e.,
is 100 percent of the disability leave counted against the employee's
FMLA entitlement, or only one third of the time). In response, the
Department wishes to clarify that paid disability leave due to a FMLA-
qualifying serious health condition is counted against an employee's
FMLA leave entitlement, regardless of whether the employee is using
accrued paid leave to supplement the disability benefits. Any
supplemental payments are the result of a voluntary agreement between
employer and employee. The amount of leave protected under the FMLA,
and thus counted against the employee's FMLA leave entitlement, is
determined by the amount of leave taken due to the serious health
condition, not the amount of paid leave (if any) used to supplement the
disability payments. For example, if an employee needs six weeks of
leave for surgery and recovery due to a FMLA-qualifying serious health
condition and the leave is covered by the employer's disability benefit
plan, which replaces two-thirds of the employee's income during the
leave, and assuming that the employee has not otherwise exhausted his
or her FMLA entitlement, the full six weeks of leave would be FMLA-
protected and would count against the employee's FMLA entitlement.
Neither party can require substitution of accrued paid leave because
the disability leave is not unpaid. The employer and the employee may,
however, agree to use accrued paid leave to supplement the amount paid
under the disability plan, if permitted by state law and by the plan
itself.
The Department has also clarified the final regulatory text in
Sec. 825.207(d) to delete the term ``running concurrently.'' The
Department has deleted this term in order to avoid causing confusion
with the new language in Sec. 825.207(a) specifying that the
``substitution'' of paid leave means paid leave running concurrently
with FMLA leave. Employees on paid disability leave due to a FMLA-
protected condition are not on unpaid FMLA leave and therefore the
statutory provision for the substitution of paid leave does not apply.
The Department proposed to delete current Sec. 825.207(e), which
provides that employers cannot place any limitations on substitution of
paid vacation or personal leave for FMLA purposes, for the reasons
discussed above. The NPRM proposed to redesignate current paragraph
(d)(2), which addresses serious health conditions that are caused by
on-the-job illnesses or injuries covered under workers' compensation,
as a new Sec. 825.207(e).
Several commenters including TOC Management Services, Vercruysse
Murray & Calzone, and Bracewell & Giuliani requested that the
Department add language to proposed Sec. 825.207(e) that would permit
employers to supplement workers' compensation benefits with additional
pay, by agreement and where allowed by state law, as the Department
proposed to do with disability benefits. As these commenters explained,
many states limit workers' compensation benefits to two-thirds of the
employee's salary, and many employees would welcome the opportunity to
supplement their income in this way. In these commenters' view, such an
agreement would allow the employee to recoup the equivalent of 100
percent of his or her regular salary, and to be treated the same as
someone who is receiving disability benefits. The Department agrees
that it is appropriate to allow employers and employees to voluntarily
agree to supplement workers' compensation benefits with accrued paid
leave and has therefore added language to Sec. 825.207(e) providing
for such agreements, where state law permits. As with the disability
benefit supplementation discussed above, any such payment must be by
agreement and is neither required or affected by the FMLA. The
Department wishes to emphasize to employers and employees that the
utilization of paid leave in this context is by agreement and is not
considered a ``substitution'' of paid leave. As discussed above in
connection with the supplementation of disability benefits, the full
amount of workers' compensation leave taken due to a FMLA-protected
serious health condition would be counted against the employee's FMLA
leave entitlement regardless of whether any paid leave is used to
supplement such benefits.
For the reasons noted above, the Department has also eliminated the
term ``running concurrently'' in Sec. 825.207(e) and replaced it with
a statement that workers' compensation leave may be counted against the
employee's FMLA entitlement. As discussed previously, the concept of
``substitution'' of paid leave under the FMLA is not applicable in this
context because the employee's leave is not unpaid. However, if the
workers' compensation benefits cease for any reason and the employee is
still
[[Continued on page 67983]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 67983-68032]] The Family and Medical Leave Act of 1993
[[Continued from page 67982]]
[[Page 67983]]
on leave, the substitution provision may become applicable at that
time.
The NPRM proposed to delete current Sec. 825.207(h), which states
that where paid leave is substituted for unpaid FMLA leave and the
employer's procedural requirements for taking paid leave are less
stringent than the requirements of the FMLA, employees cannot be
required to comply with the higher FMLA standards. As explained in the
NPRM, this section conflicts with section 102(e) of the FMLA, 29 U.S.C.
2612(e), which requires employees to provide 30 days' notice for
foreseeable leave whenever possible, and with section 103 of the FMLA,
29 U.S.C. 2613, which permits employers to require certification of the
need for any FMLA leave for a serious health condition.
Finally, in proposed Sec. 825.207(f) the Department proposed to
revise current Sec. 825.207(i) to allow the substitution of
compensatory time accrued by public agency employees under the Fair
Labor Standards Act (FLSA) for unpaid FMLA leave. Comments on this
issue were mixed. The National Federation of Federal Employees
commented that the proposal would benefit employees by providing them
with another option in lieu of using unpaid leave. However, it
questioned whether the Department has the statutory authority to permit
such substitution, because compensatory time is not one of the forms of
leave referenced in the statute's substitution of paid leave provision.
See 29 U.S.C. 2612(d)(2). The AFL-CIO opposed the change for the same
reason, citing the Department's initial position and Christensen v.
Harris County, 529 U.S. 576 (2000), for its conclusion that
compensatory time is a form of overtime pay rather than a form of
accrued paid leave which may be substituted under the FMLA. It argued
that the proposed change is not authorized by Christensen, and that the
Department should retain the current rule. Public employers, on the
other hand, supported the change as an example of improved consistency
and equity. See, e.g., Colorado Department of Personnel &
Administration; City of Medford (OR); Alaska Department of
Administration; City of American Canyon (CA); Pennsylvania Governor's
Office of Administration.
The Department believes that the proposed revision is not
prohibited by the Act and is consistent with the United States Supreme
Court's decision in Christensen, 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. In addition,
the Department agrees with the commenters that substitution of
compensatory time for otherwise unpaid FMLA leave 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.
Section 825.208 (Reserved)
Current Sec. 825.208 has been renumbered as proposed Sec.
825.301, and is discussed below. The section was therefore reserved to
avoid extensive renumbering of other sections.
Section 825.209 (Maintenance of Employee Benefits)
No changes were proposed to this section. The Department received
no comments on this section and the final rule adopts this section as
proposed.
Section 825.210 (Employee Payment of Group Health Benefit Premiums)
Section 825.210 addresses an employee's obligation to pay his or
her share of group health plan premiums while on FMLA leave. The
Department proposed to revise paragraph (f) of this section by deleting
the word ``unpaid,'' because an individual who is simultaneously taking
FMLA leave and receiving payments as a result of a workers'
compensation injury is not on unpaid leave. See Sec. 825.207(e). In
addition, the Department proposed to make several technical corrections
by changing the cross-references at the end of Sec. 825.210(d) and (f)
to reflect the renumbering of other sections dealing with employer
notice and workers' compensation. The internal cross-reference at the
end of Sec. 825.210(f) was deleted as unnecessary.
The Department received no comments on this section and the final
rule adopts the section as proposed.
Section 825.211 (Maintenance of Benefits Under Multi-Employer Health
Plans)
No changes were proposed to this section. The Department received
no comments on this section and the final rule adopts this section as
proposed.
Section 825.212 (Employee Failure To Make Health Premium Payments)
Section 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 and timely notice to the employee. The Department proposed
to add language to 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 the
employer may be liable for harm suffered by the employee as a result of
the violation if it fails to do so. This proposal is a clarification
and does not represent a change in the Department's enforcement
position.
Few comments were received on this section. The American
Association of University Women supported the clarification, which they
termed ``common sense.'' The Chamber requested that language be added
to clarify that employers will not be held liable for medical costs
incurred during a lapse in coverage prior to the employee's return to
work, while the National Retail Federation expressed concern regarding
the employer's ability to recoup the cost of maintaining the employee's
insurance coverage. The Department believes that the proposed addition
is clear in stating that employers may only be held liable for their
failure to restore an employee's health insurance upon the employee's
return from FMLA leave. As explained in the NPRM, employers have a
variety of alternatives to terminating an employee's health insurance
when the employee fails to make premium payments, such as payroll
deductions or other deductions after the employee returns to work, to
the extent recovery is allowed under applicable laws, or as set forth
in revised Sec. 825.213 below. Accordingly, the final rule adopts
Sec. 825.212 as proposed.
Section 825.213 (Employer Recovery of Benefit Costs)
This section explains what process an employer may follow to recoup
insurance premiums from an employee when the employee does not return
from leave in certain circumstances. The Department proposed to move
language from current Sec. 825.310(h) to this section, in order to
combine it with other issues involving repayment of health premiums.
This language provides that where an employer requires medical
certification that an employee's failure to return to work was due to
the continuation, recurrence, or onset of a serious health condition,
so that the employee does not have to repay the employer for health
insurance premiums paid during FMLA leave, the employee must bear the
cost of any such certification, and associated travel costs. The
Department received no comments
[[Page 67984]]
on this section and adopts Sec. 825.213 as proposed.
Section 825.214 (Employee Right To Reinstatement)
The Department proposed organizational changes and minor
clarifications to Sec. 825.214. We proposed to add a heading titled
``[g]eneral rule'' to emphasize that the section sets forth the general
rule on reinstatement obligations under the FMLA, to move language from
current Sec. 825.214(b) on limitations on reinstatement to Sec.
825.216(c), and to combine such language with language from Sec.
825.216(d) on concurrent workers' compensation absences during FMLA
leave. The Department did not receive any significant comments on these
proposed changes and adopts the proposed changes without modification.
Section 825.215 (Equivalent Position)
The Department proposed only minor organizational changes to
paragraphs (a), (b), (e), and (f) of this section, as outlined below.
We did not propose any changes to paragraphs (c)(1) and (d). The only
substantive proposed change was in paragraph (c)(2), to allow an
employer to disqualify an employee from a bonus or other payment based
on the achievement of a specified goal such as hours worked, products
sold, or perfect attendance, where the employee has not met the goal
due to FMLA leave, unless the bonus or payment is otherwise paid to
employees on an equivalent non-FMLA leave status. The proposal included
as an example an employee who used paid vacation leave for a non-FMLA
purpose and received the payment and stated that in such a situation,
an employee who substituted paid vacation leave for FMLA leave also
must receive the payment.
The Department adopts the organizational changes to paragraphs (a),
(b), (e), and (f) without modification. Proposed paragraph (c)(2) is
adopted with a slight modification to the language for clarification
purposes. An employer may disqualify an employee from a bonus or other
payment based on the achievement of a specified goal, such as hours
worked, products sold, or perfect attendance, where the employee has
not met the goal due to FMLA leave unless otherwise paid to employees
on an equivalent leave status for a reason that does not qualify as
FMLA leave. Thus, the Department has changed the phrase ``unless
otherwise paid to employees on an equivalent non-FMLA leave status'' to
``unless otherwise paid to employees on an equivalent leave status for
a reason that does not qualify as FMLA leave.'' The final rule uses the
same example as in the proposal. The final rule also modifies paragraph
(c)(1) to include the same limitation on the employer's ability to deny
a pay increase.
The Department proposed to title paragraph (a) ``[e]quivalent
position'' and paragraph (b) ``[c]onditions to qualify.'' The
Department did not receive any significant comments on these proposed
minor changes. Paragraph (a) establishes that 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. The regulation further states that the
equivalent position must involve the same or substantially similar
duties and responsibilities, which must entail substantially equivalent
skill, effort, responsibility, and authority. The Equal Employment
Advisory Council maintained that ``virtually identical'' as used in the
regulation means the ``same,'' which renders the use of the term
``equivalent'' in the statute meaningless. It suggested that the
Department replace the term ``virtually identical'' with
``equivalent,'' ``comparable,'' or ``substantially similar.'' The
National Retail Federation suggested that the term ``substantially
similar'' be used rather than ``virtually identical.'' According to
this commenter, retail employers often have only one or two of any
particular position in a store and finding an equivalent position can
be difficult. The Department declines to change the term ``virtually
identical'' in paragraph (a). The Department believes that the
standards articulated in paragraph (a) give effect to the statute's
requirement that an employer restore the employee to the same or
equivalent position. The Department wishes to note that ``virtually
identical'' speaks to pay, benefits and working conditions including
privileges, perquisites and status while ``substantially similar''
speaks to an employee's duties and responsibilities. See current and
proposed Sec. 825.215(a).
Employers, employer organizations, and law firms representing
employers generally supported the proposal in paragraph (c)(2) to allow
employers to deny bonuses based on the achievement of a specified goal
to employees who failed to meet the goal because of FMLA leave. Many
commenters, including the Chamber, Southwest Airlines, College and
University Professors Association, National Business Group on Health,
and AT&T, stated that the current regulation is unfair and has caused
many employers to curtail or eliminate incentive bonuses and awards
programs, particularly those based on attendance. They welcomed the
proposed change as remedying an inequitable situation and suggested
that the change would likely result in increased employee morale. One
commenter, Schreiber Foods, stated that this change would help employee
morale because employees on FMLA leave would not be treated more
favorably than other employees. Several commenters stated that they
believed that the current regulation is unfair to employees who do not
miss any days of work because it gives the same perfect attendance
bonus to employees who have been absent for up to 12 weeks on FMLA
leave. See, e.g., Schreiber Foods, Principle Business Enterprises,
Manufacturers Alliance, and National Business Group on Health.
Similarly, the National Association of Manufacturers and AT&T
emphasized that the current regulation unfairly allows employees on
FMLA leave to receive more favorable treatment than employees who take
non-FMLA leave and are disqualified from attendance and similar
bonuses.
Several employer commenters requested further clarification on how
the proposed regulation would apply. La-Z-Boy Midwest requested that
the Department clarify that it can continue to award perfect attendance
bonuses to employees who have used vacation leave. The law firm
Vercruysse Murray & Calzone took issue with the regulatory requirement
that employers may not disqualify employees on FMLA leave from bonuses
or awards for achievement of a specified goal where such bonuses or
awards are paid to employees on an equivalent non-FMLA leave status.
According to this commenter, this exception ``virtually swallows the
proposed rule'' because employees may choose to take FMLA leave
concurrently with paid vacation or personal time-off leave, which most
employers do not count against perfect attendance bonuses. Id. Further,
according to this commenter, it is not clear under the proposed
regulation what happens when an employee takes FMLA leave and a portion
of the leave is covered by a paid leave program but the other portion
is not covered by any paid leave program.
Employee organizations and unions generally opposed the proposed
change. Working America/Working America Education Fund stated that the
proposed change would discourage employees from taking FMLA leave or
penalize employees if they do take FMLA leave, which it contended would
violate the statute. The AFL-CIO and the National Partnership for Women
&
[[Page 67985]]
Families both referenced Wage and Hour Opinion Letter FMLA-31 (Mar. 21,
1994), which stated that denying a perfect attendance award to an
employee who took FMLA leave when the employee would otherwise qualify
for the award is tantamount to interfering with the employee's exercise
of FMLA rights. A Better Balance: The Work and Family Legal Center
commented that the proposed change runs counter to the principle in
Sec. 825.220(c) which prohibits employers from using FMLA leave as a
negative factor in employment actions and counting such leave against
employees under ``no fault'' attendance policies. The National
Partnership for Women & Families noted that the majority of employees
take FMLA leave because they have to address their own or a family
member's serious health condition, and that employees in such time of
need should not be penalized with loss of income for taking leave that
federal law entitles them to take. The Hastings College of Law's Center
for WorkLife Law suggested that the term ``equivalent non-FMLA leave
status'' in the proposed regulation is open to different
interpretations, but that, whichever interpretation is followed, it
will likely result in a small number of employees who would fall within
this exception and thus only a small number of employees will not be
disqualified from bonuses or awards for taking FMLA leave. This
commenter suggested that a more equitable alternative compliant with
the basic principles of the FMLA would be to pro-rate the bonuses or
awards.
The Department believes that proposed paragraph (c)(2) provides a
fairer result for all employees than the current regulation and
therefore adopts the proposed change. Allowing an employer to
disqualify employees taking FMLA leave from bonuses or awards for the
achievement of a specified goal unless the bonus is awarded to
employees on an equivalent leave status for a reason that does not
qualify as FMLA leave puts employees who take FMLA leave on equal
footing with employees who take leave for non-FMLA reasons. The
Department does not view this as interference because employees taking
FMLA leave are not being treated differently than employees taking
equivalent non-FMLA leave. Accordingly, employees taking FMLA leave
neither lose any benefit accrued prior to taking leave, nor accrue any
additional benefit to which they would not otherwise be entitled. See
29 U.S.C. 2614(a)(2) and (3). The revised regulation does not
contradict the principle in Sec. 825.220(c) that prohibits employers
from using the taking of FMLA leave as a negative factor in employment
actions or counting FMLA leave under ``no fault'' attendance policies.
Penalizing an employee for taking FMLA leave under a ``no fault''
attendance policy is distinct from disqualifying an employee from a
bonus or award for attendance because the former faults an employee for
taking leave itself whereas the latter denies a reward for achieving
the job-related performance goal of perfect attendance. The Department
notes that employers are free to prorate such bonuses or awards in a
non-discriminatory manner; nothing in these regulations prohibits
employers from doing so.
The Department clarifies that safety awards, like attendance
awards, are predicated on the achievement of a specified job-related
performance goal, and therefore safety awards are to be treated
similarly as attendance awards under the revised regulation. Having
concluded that both attendance and safety awards are more appropriately
characterized as being based on the achievement of a work goal, the
Department has concluded that its prior distinction between bonuses or
awards based on performance and those premised on the absence of an
occurrence is no longer useful. Bonuses that are not premised on the
achievement of a goal, such as a holiday bonus awarded to all
employees, may not be denied to employees because they took FMLA leave.
In response to the commenters' concerns, the Department reiterates
that bonus or awards programs based on the achievement of a specified
goal must be administered without discriminating against employees who
exercise their FMLA leave rights. For this reason, the proposal
specifically prohibits an employer from disqualifying an employee from
a bonus or other payment if such bonus or payment is given to employees
on an ``equivalent non-FMLA leave status.'' However, as the comments
illustrate, the term ``equivalent non-FMLA leave status'' is ambiguous
and therefore the Department has modified this language to use the term
``equivalent leave status for a reason that does not qualify as FMLA
leave'' instead. Equivalent leave status refers, for example, to
vacation leave, paid time-off, or sick leave. Leave for a reason that
does not qualify as FMLA leave refers, for example, to vacation or sick
leave that is not for an FMLA purpose (i.e., the vacation or sick leave
is not also FMLA leave). Thus, for example, if an employer policy does
not disallow an attendance bonus to an employee who takes vacation
leave, the employer cannot deny the bonus to an employee who takes
vacation leave for an FMLA purpose (i.e., substitutes paid vacation
leave for FMLA leave). However, if an employer's policy is to
disqualify all employees who take leave without pay from such bonuses
or awards, the employer may deny the bonus to an employee who takes
unpaid FMLA leave. If an employer does not count vacation leave against
an attendance bonus but does count unpaid leave against the attendance
bonus, the employer may deny the bonus to an employee who takes 12
weeks of FMLA leave, two weeks of which the employee substitutes paid
vacation leave, but ten of which the employee takes as unpaid FMLA
leave. The Department believes that this is the fairest result in
keeping with the FMLA's requirements. Because this non-discrimination
principle is equally applicable to pay increases, the final rule
changes Sec. 825.215(c)(1) to state that pay increases based upon
seniority, length of service or performance need not be granted to
employees on FMLA leave unless otherwise granted to employees on an
equivalent leave status for a reason that does not qualify as FMLA
leave.
The Department proposed no substantive changes to paragraphs (e)
and (f) of this section. The NPRM proposed changing the heading of
paragraph (e) to ``[o]ther issues related to equivalent terms and
conditions of employment,'' and adding a heading titled ``[d]e minimis
exception'' to paragraph (f). The NPRM also proposed moving the final
sentence of current paragraph (f), which reminded 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, to Sec. 825.216(a)(1) where related issues
are discussed, for organization and clarification purposes. The
Department did not receive any significant comments on these proposed
minor changes and adopts the proposed changes to paragraphs (e) and (f)
without modification.
Section 825.216 (Limitations on an Employee's Right to Reinstatement)
The Department proposed minor changes to Sec. 825.216. The NPRM
proposed incorporating into paragraph (a)(1) the last sentence from
current Sec. 825.215(f), which states that restoration to a job slated
for lay-off would not meet the requirements of an equivalent position.
This was proposed for organizational and clarification purposes, but no
substantive change
[[Page 67986]]
was intended. Similarly, the Department proposed to re-order current
paragraph (b) as paragraph (a)(3) for purposes of organizational
structure and clarity. The Department proposed re-lettering current
paragraph (c) as paragraph (b). The Department proposed 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. No substantive changes were intended. The Department
proposed moving language from current Sec. 825.312(g) and (h) that
address the fraudulent use of FMLA leave and outside employment during
FMLA leave, respectively, and therefore address limitations on
reinstatement, to Sec. 825.216 to proposed paragraphs (d) and (e),
respectively. The Department did not receive any significant comments
on these proposed changes and adopts the proposed changes without
modification.
Sections 825.217-825.219 (Explanation of Key Employees and Their
Rights)
The Department proposed minor changes to Sec. 825.217(b) to update
the reference to the definition of ``salary basis'' 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 adopts the proposed changes to Sec. 825.217 without
modification.
The Department received very few comments on this proposed change.
The National Retail Federation suggested that the Department use the
term ``information technology employee'' rather than ``computer
employee.'' The Department declines to change the term used because the
FLSA regulations use the term ``computer employees'' and the Department
specifically references the FLSA regulations in this section. The
Department intends that the term ``computer employee'' as used in this
section shall have the same meaning it has in the FLSA regulations.
Although no change was proposed to the definition of ``key
employee,'' both the National Retail Federation and the Illinois Credit
Union League urged the Department not to rely exclusively on the salary
test to determine whether an employee is a ``key employee.'' However,
the regulation simply reflects the statutory definition of a ``key
employee'' as a salaried eligible employee who is among the highest
paid 10 percent of the employees employed within 75 miles. See 29
U.S.C. 2614(b)(2). Therefore, the requested change would require a
statutory amendment.
The Department did not propose any changes to Sec. Sec. 825.218 or
825.219 and the final rule adopts them without modification.
Section 825.220 (Protection for Employees Who Request Leave or
Otherwise Assert FMLA Rights)
The Department did not propose any changes to paragraph (a). The
Department proposed to modify paragraph (b) in Sec. 825.220 by adding
new language setting forth the remedies for interfering with an
employee's rights under the FMLA. The Department proposed to
specifically reference retaliation in paragraph (c) in order to clarify
that the prohibition against interference includes a prohibition
against retaliation as well as a prohibition against discrimination.
The Department also proposed to clarify in paragraph (c) that the
statutory prohibition against interference applies to employees or
prospective employees who have exercised or attempted to exercise FMLA
rights. The Department proposed to clarify that the waiver provision in
paragraph (d) that states ``[e]mployees cannot waive, nor may employers
induce employees to waive, their rights under FMLA'' applies only to
prospective FMLA rights; it does not prevent employees from settling
past FMLA claims without Department or court approval. The Department
also proposed to modify the language in paragraph (d) regarding light
duty by deleting the final sentence of current paragraph (d) that
states ``[i]n such a circumstance, 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 adopts the proposed changes to paragraphs (b) and
(c) without modifications. The Department adopts proposed paragraph (d)
regarding waiver with a modification to the language to make clear that
the waiver prohibition does not prevent the settlement or release of
FMLA claims by employees based on past employer conduct without the
approval of the Department or a court. The Department also adopts
proposed paragraph (d) regarding light duty with modification to the
language for clarification. The final rule clarifies that the waiver
prohibition does not prevent an employee's voluntary and uncoerced
acceptance of a light duty assignment while recovering from a serious
health condition and the employee's acceptance of the light duty
assignment does not constitute a waiver of the employee's prospective
rights, including the right to be restored to the same position the
employee held when the FMLA leave commenced or an equivalent position.
Thus, an employee who voluntarily returns to a light duty position
retains the right to job restoration to the same or equivalent position
until the end of the 12-month period that the employer uses to
calculate FMLA leave.
The Department did not receive a significant number of comments on
the proposal in paragraph (b) to add new language setting forth the
remedies for interfering with an employee's rights under the FMLA. The
AFL-CIO supported the Department's proposal. The Department adopts the
proposal without modification.
In regards to proposed Sec. 825.220(c), the Department indicated
in the proposed rule that it had received several comments requesting
that the Department strengthen or clarify the regulatory provisions
implementing the Act's prohibitions on interference and discrimination.
73 FR 7900 (Feb. 11, 2008). In accordance with such comments, the
Department proposed in paragraph (c) to state explicitly that the Act's
prohibition on interference in 29 U.S.C. 2615(a)(1) includes claims
that an employer has discriminated or retaliated against an employee
for having exercised his or her FMLA rights. Section 2615(a)(1) makes
it unlawful for an employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise any right provided for under the
Act. Although section 2615(a)(2) of the Act also may be read to bar
retaliation (see Bryant v. Dollar General Corp., 538 F.3d 394 (6th Cir.
2008)), the Department believes that section 2615(a)(1) provides a
clearer statutory basis for Sec. 825.220(c)'s prohibition of
discrimination and retaliation. See Colburn v. Parker Hannifin Corp.
429 F.3d 325, 331 (1st Cir. 2005) (recognizing retaliation as a form of
interference prohibited by Sec. 2615(a)(1) of the Act and 29 CFR
825.220(c)). The Department did not receive any comments on this
proposed clarification and adopts the proposal without modification.
The Department proposed to clarify that the waiver provision in
paragraph
[[Page 67987]]
(d) that states ``[e]mployees cannot waive, nor may employers induce
employees to waive, their rights under FMLA'' applies only to
prospective FMLA rights. Courts have disagreed as to whether this
language prohibits only the prospective waiver of FMLA rights, or also
prohibits the retrospective settlement or release of FMLA claims based
on past employer conduct, such as through a settlement or severance
agreement, without Department or court approval. Compare Taylor v.
Progress Energy, 493 F.3d 454 (4th Cir. 2007), cert. denied, -- U.S. --
, 2008 WL 2404107 (June 16, 2008) (interpreting Department's regulation
to prevent employees from 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 prohibits prospective waiver of rights only
and not retrospective settlement of claims). The Department disagrees
with the Fourth Circuit's interpretation of the regulation. Therefore,
in the interest of clarity, the Department proposed to make explicit in
paragraph (d) of this section that employees and employers are
permitted to agree voluntarily to the settlement of past claims without
having first to obtain the permission or approval of the Department or
a court.
Nearly all the employers, employer organizations, and law firms
representing employers who commented on this issue supported the
Department's proposed clarification. The Equal Employment Advisory
Council stated that, while the current regulation ``clearly allows''
waivers in settling past claims, they supported the Department's
proposal to make it more explicit. See also Association of Corporate
Counsel's Employment and Labor Law Committee. Several commenters,
including the Chamber, Domtar Paper Company, the National Federation of
Independent Business, Hewitt Associates, and HR Policy Association,
emphasized the economic and efficiency benefits to all parties of
allowing settlements without Department or court approval. Several
commenters such as the National Restaurant Association, the
Manufacturers Alliance, and HR Policy Association, emphasized the
importance of this regulation for severance agreements. The law firm
Burr & Forman requested additional clarification of the term ``past''
in the proposal and specifically requested that severance agreements,
including those where the employee may or may not know of any FMLA
claims, be permitted without Department or court approval.
Employee organizations opposed the proposed clarification. Several
commenters, including A Better Balance: The Work and Family Legal
Center, Human Rights Campaign, Sargent Shriver National Center on
Poverty Law, and Family Caregiver Alliance, emphasized the unequal
position of employees and employers in settling cases or signing
severance agreements, with employees' immediate financial needs forcing
employees to forego their FMLA rights and thereby allowing employers to
escape FMLA liability. According to these commenters, requiring
Department or court approval is an important means of addressing this
inequality. They argued that allowing settlements or severance
agreements without Department or court approval would hamper
enforcement of the FMLA. In addition, many of the commenters, including
the AFL-CIO, the National Partnership for Women & Families, the ACLU,
and Women Employed, reiterated many of the reasons relied on by the
Fourth Circuit in Taylor to support their recommendation that the
Department not allow unsupervised waivers of past FMLA claims.
Specifically, they argued that the Department's proposal contradicts
the Department's position in the 1995 regulation, based on statements
in the 1995 preamble. These commenters urged the Department to reject
the proposal because private settlement of prospective or retrospective
claims undermines Congressional intent in imposing minimum labor
standards. They maintained that the FMLA should be interpreted
consistently with the FLSA, which prohibits employees from waiving
their rights without Department or court approval, instead of with
Title VII and other anti-discrimination laws which allow unsupervised
settlements. They also contended that employers have an incentive to
deny FMLA benefits if they can settle violation claims for less than
the cost of complying with the statute.
The Department's interpretation of the waiver provision is well
known from its participation in Taylor. The Department has never
interpreted current Sec. 825.220(d) as prohibiting the unsupervised
settlement or release of claims based on past employer conduct and has
never enforced it as such. This interpretation is consistent with the
statute. Nothing in the text of the FMLA requires Department or court
approval of a settlement or release of FMLA claims based on past
employer conduct or prohibits waiver of FMLA claims based on past
employer conduct. The statute is silent on this issue. The enforcement
provision in FMLA does not reference the supervised settlement
provision in section 16(c) of the FLSA, 29 U.S.C. 216(c). Instead,
FMLA's enforcement provision directs the Secretary to receive,
investigate, and attempt to resolve FMLA complaints in the same manner
that the Secretary receives, investigates, and attempts to resolve
complaints under sections 6 and 7 of the FLSA (29 U.S.C. 206 and 207).
29 U.S.C. 2617(b)(1). Consistent with this statutory authorization, the
Secretary has established an administrative process pursuant to which
the Wage and Hour Division investigates and attempts to resolve FMLA
complaints in the same way that it handles FLSA complaints. The
supervised settlement practice, however, is unique to the FLSA. See
Barrentine v. Arkansas Best Freight Sys., 450 U.S. 728, 740 (1981);
Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706-07 (1945). The judicial
prohibition against private settlements under the FLSA is based on
policy considerations unique to the FLSA. The FLSA is a remedial
statute setting the floor for minimum wage and overtime pay. It was
intended to protect the most vulnerable workers, who lacked the
bargaining power to negotiate a fair wage or reasonable work hours with
their employers. The judicially-imposed restrictions on private
settlements under the FLSA have not been read into other employment
statutes that reference the FLSA and should not be read into the FMLA.
Even the Age Discrimination in Employment Act (``ADEA''), which
explicitly references section 16(c) of the FLSA (29 U.S.C. 216(c)), see
29 U.S.C. 626(b), has not been interpreted as requiring supervised
settlements. Like the ADEA, the FMLA is not primarily focused on pay,
and protects all segments of the workforce, from low wage workers to
highly paid professionals.
Because of the perceived ambiguity in the 1995 regulation, the
Department now clarifies that it intends, as it has always intended,
for the waiver prohibition to apply only to prospective FMLA rights.
The Department notes that it intended under the proposal to allow
employees to enter severance agreements releasing FMLA claims based on
past employer conduct, in addition to allowing settlement of FMLA
claims in situations where the employee has filed a claim against the
employer. The Department has never interpreted the waiver provision as
applying to the settlement of claims or
[[Page 67988]]
to the release of FMLA claims in severance agreements based on past
employer conduct, whether known or unknown to the employee at the time
of entering the severance agreement. In the interest of further
clarity, the Department has modified the language in the final rule. By
changing the language from settling past FMLA claims to settling or
releasing FMLA claims based on past conduct by the employer, the
Department intends to make clear that an employee may waive his or her
FMLA claims based on past conduct by the employer, whether such claims
are filed or not filed, or known or unknown to the employee as of the
date of signing the settlement or the severance agreement. Thus, an
employee may sign a severance agreement with his or her employer
releasing the employer from all FMLA claims based on past conduct by
the employer. An employee may also settle an FMLA claim against his or
her employer without Department or court approval. The Department
believes this promotes the efficient resolution of FMLA claims and
recognizes the common practice of including a release of a broad array
of employment claims in severance agreements.
The Department also proposed to modify the language in Sec.
825.220(d) regarding light duty. The current regulation states that the
waiver prohibition does not prevent an employee's voluntary and
uncoerced acceptance of a light duty assignment while recovering from a
serious health condition. The regulation further states that ``[i]n
such a circumstance, 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 opinion letter issued by the Department that 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).
Given the apparent confusion over this provision, the Department
proposed to delete this sentence. In support of the proposal, the
Department stated that the current regulation does not serve the
statute's purpose to provide job protection when FMLA leave is taken.
73 FR 7901 (Feb. 11, 2008). Deleting this language would ``ensure that
employees retain their right to reinstatement for a full 12 weeks of
leave instead of having that right diminished by time spent in a light
duty position.'' Id. The Department stated that it wished 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.'' Id. The Department invited comments on
whether the deletion of this language would negatively impact an
employee's ability to return to his or her original position from a
voluntary light duty position. Id. The Department adopts the proposal
with clarifying modifications.
It is clear from the comments that the proposal was interpreted in
different ways by different groups. Employee organizations and unions,
as well as several employer organizations, interpreted the proposal to
protect an employee's right to reinstatement while in a light duty
position, regardless of the amount of time the employee works in the
light duty position. In other words, these commenters read the proposal
as preserving the employee's right to reinstatement to the employee's
original position or an equivalent position while in a voluntary light
duty position, regardless of how long that period may be. Based on this
interpretation, employee organizations and unions were supportive. See
AARP, National Partnership for Women & Families, the National
Federation of Federal Employees, MomsRising.org. The AFL-CIO cited the
Department's statement in the preamble to the proposed rule--``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''--and concluded that the proposed change would not
negatively impact an employee's ability to return to his or her
original position. See also A Better Balance: The Work and Family Legal
Center. The AFL-CIO recommended, however, that the Department include
the language cited above in the text of the regulation.
Several employer commenters interpreted the proposal similarly and
expressed disapproval. The Southern Company, American Health Care
Association/National Center for Assisted Living, and Hewitt Associates,
stated that the proposed modification of this regulation would
discourage employers from offering light duty positions because the
reinstatement right is not exhausted during a period of light duty,
which creates an open-ended right to reinstatement. These commenters
argued that holding the position open for an indeterminate amount of
time would be too burdensome to employers and therefore employers would
be less likely to offer light duty positions. Under the current version
of the regulation, the employer has certainty that the employee is
entitled to the original (or an equivalent) position for only 12 weeks.
Under the proposal as they interpreted it, the employer will no longer
have this certainty.
In contrast, several employers and employer organizations and law
firms interpreted the Department's proposal as not protecting an
employee's right to reinstatement while in a light duty position. The
National Coalition to Protect Family Leave and the Society for Human
Resource Management commented that, in most instances, employers would
like to return employees to their original position as soon as the
employee is able to do so and therefore the Department's proposed
change should have no impact on an employee's reinstatement rights.
They noted, however, that this may not be the case where an employee
has been unable to perform his or her original position for an extended
period of time and the employer has filled that original position with
another employee. These comments appear to interpret the proposal as
providing no right to reinstatement to the employee's original position
from a light duty position. The National Retail Federation interpreted
the proposal in the same manner and suggested that the proposal will
discourage employees from accepting light duty positions when returning
from FMLA leave because the employee is no longer on FMLA leave when he
or she returns to a light duty position, and therefore is no longer
entitled to a right to reinstatement to the same or equivalent
position.
Other commenters simply expressed uncertainty as to the correct
interpretation of the proposal and the Department's intention. See
Spencer Fane Britt & Browne, Tennessee Valley
[[Page 67989]]
Chapter of the Society for Human Resource Management, and the National
Association of School Boards. The law firm Spencer Fane Britt & Browne
and Tennessee Valley Chapter of the Society for Human Resource
Management questioned how the Department would interpret the employee's
reinstatement rights under the proposal: Would an employee have
reinstatement rights the entire time the employee works in a light duty
position or would an employee have no reinstatement rights? These
commenters urged the Department to adopt the interpretation that an
employee who accepts a light duty position has no reinstatement rights.
The law firm Spencer Fane Britt & Browne argued that an employee waives
his or her right to reinstatement each day that the employee works in
the light duty position. According to this commenter, interpreting the
proposed regulation otherwise would permit an employee to be guaranteed
reinstatement for an indefinite period of time, including a longer
period than the FMLA otherwise allows.
The Department intended its proposal to protect an employee's right
to restoration to the position the employee held when the FMLA leave
commenced or to an equivalent position while in a light duty
assignment. An employee who takes FMLA leave has a right to be restored
to the same position the employee held when the FMLA leave commenced or
an equivalent position. 29 U.S.C. 2614(a)(1). An employee may not
prospectively waive this right. Therefore, when an employee voluntarily
accepts a light duty assignment, the employee does not waive his or her
restoration right while working in the light duty assignment. Likewise,
the time the employee works in the light duty assignment does not count
as FMLA leave. Thus, the employee's right to restoration is essentially
held in abeyance during the period of time an employee performs a light
duty assignment pursuant to a voluntary agreement between the employee
and the employer. At the conclusion of the voluntary light duty
assignment, the employee has the right to be restored to the position
the employee held at the time the employee's FMLA leave commenced or to
an equivalent position, provided that the employee is able to perform
the essential functions of such a position. If the voluntary light duty
assignment ends before the employee is able to perform the essential
functions of such a position, the employee may use the remainder of his
or her FMLA leave entitlement and would be eligible to return to the
same position the employee held when the FMLA leave first commenced or
to an equivalent position, provided that the employee is able to
perform the essential functions of such a position at the end of his or
her FMLA leave. For example, if an employee takes four weeks of FMLA
leave and voluntarily accepts a light duty assignment that the employer
has offered for ten weeks, at the conclusion of that ten week period,
the employee either returns to the same position the employee held when
the FMLA leave commenced or to an equivalent position, or, if the
employee is unable to return to that position the employee may use the
remainder of his or her FMLA leave. At the conclusion of the employee's
FMLA leave, the employee would have a right to be restored to the same
position the employee held when the original FMLA leave commenced or to
an equivalent position as long as the employee is able to perform the
essential functions of the position. The Department notes that whenever
an employee performs his or her own job for less than a full schedule,
the employee is using intermittent or reduced schedule leave and is not
performing light duty for purposes of FMLA.
However, when an employee has already used his or her full 12 weeks
of FMLA leave entitlement in a 12-month period and then voluntarily
accepts a light duty position because the employee is unable to resume
working in his or her original position, that employee no longer has a
right under the FMLA to restoration. If an employee exhausts his or her
FMLA leave entitlement and is still unable to perform the essential
functions of his or her original or equivalent position, the employee
no longer has an FMLA right to restoration.
The Department recognizes that in the case of open-ended light duty
assignments, this could potentially lead to an employee's right to
restoration to his or her original position extending for an indefinite
period. In order to address the administrative difficulties such an
open-ended restoration right would present, the final rule provides
that an employee's right to restoration while in a light duty
assignment expires at the end of the 12-month leave year period that
the employer uses to calculate FMLA leave. The Department believes that
this is a reasonable limitation that is consistent with the statute's
reference to a 12-month period for leave purposes. For example, where
an employer uses a calendar year to calculate FMLA leave, and an
employee takes four weeks of FMLA leave and returns in September to a
light duty assignment that is not limited in duration and which neither
the employer nor the employee chooses to end, the employee has a right
to restoration that extends through the end of that calendar year, but
would not extend beyond that calendar leave year.
While this new provision in the final rule could potentially create
a disincentive for employers to offer light duty positions because it
provides a more open-ended right to reinstatement than the current
regulation allows, nothing prevents employers from offering light duty
positions for a finite period of time. Because the employer provides
the light duty position on a voluntary basis, just as the employee
accepts it on a voluntary basis, an employer may impose time limits as
part of the offer of a light duty assignment. In addition, because the
light duty assignment is voluntary, the employer or the employee may
end the assignment at any time. If the employer offers the light duty
assignment for a limited period of time or decides to end the
assignment at any point, and the employee is not able to return to the
same or equivalent position at the conclusion of that period of time,
the employee may use the remainder of his or her FMLA leave, after
which the employee has a right to restoration to the same position the
employee held when the FMLA leave first commenced or an equivalent
position. If, however, the employee is unable to resume work after
exhausting his or her 12 weeks of leave in a 12-month period, the
employer's FMLA obligation to restore the employee to the original
position ceases. At that point, the employer may, for example,
permanently assign the employee to a different position or terminate
the employee.
Several of the employer commenters reiterated the request made in
response to the Request for Information, 72 FR 35605 (June 28, 2007),
that employers be allowed to require employees to accept a light duty
position that is consistent with the employee's medical restrictions in
lieu of the employee taking FMLA leave. See American Foundry Society,
Schreiber Foods, the Chamber, College and University Professional
Association for Human Resources, Berens & Tate, and Spencer Fane Britt
& Browne. As explained in the preamble to the proposed rule, 73 FR 7900
(Feb. 11, 2008), the Department does not believe that such a
requirement comports with the statutory right to take 12 weeks of FMLA
leave for a serious health condition. The FMLA guarantees employees 12
weeks of unpaid leave for the reasons enumerated in the statute; it
does not permit employers to require
[[Page 67990]]
employees to work a light duty position rather than taking FMLA leave.
Other employer commenters requested that the time an employee works
in a light duty assignment count against the employee's 12-week FMLA
leave entitlement. See National Business Group on Health and Equal
Employment Advisory Council. The National Business Group on Health
pointed to the hardship that an employee working a light duty position
imposes both on the employer and on other employees who are forced to
take on the responsibilities of the employee who is not performing the
functions of his or her original position as justification for counting
the light duty time as FMLA leave. The Equal Employment Advisory
Council distinguished a light duty position that the employer creates
for a particular employee recovering from a serious health condition
from a light duty position that already exists and that the employer
allows the employee to fill. The Equal Employment Advisory Council
recommended that, where the employer created a light duty position for
a particular employee, the time spent working in this light duty
position should count against the employee's FMLA entitlement because
the employee is functionally still on leave; time spent in a light duty
position that already exists should not count against the employee's
FMLA entitlement. Employee commenters, including Community Legal
Services, Inc./AIDS Law Project of Pennsylvania, the Coalition of Labor
Union Women, and Catherine Scott, emphasized the importance of not
counting the time an employee works in a light duty position against an
employee's 12-week leave entitlement.
The Department continues to reject the employers' suggestion on
this issue. The time an employee works in a voluntary light duty
position does not count against the employee's FMLA entitlement. The
Department acknowledges that allowing an employee to work a light duty
position may cause certain burdens to the employer. However, the FMLA
does not require an employer to offer a light duty position; the
employer does so voluntarily. The distinction between a light duty
position created for a particular employee and a light duty position
that already exists is irrelevant for FMLA purposes because, under the
FMLA, the employer offers a light duty position on a voluntary basis.
Subpart C--Employee and Employer Rights and Obligations Under the Act
Section 825.300 (Employer Notice Requirements)
The NPRM proposed to consolidate the employer notice requirements,
which appear in current Sec. Sec. 825.300, 825.301, 825.110 and
825.208, into one comprehensive section addressing an employer's notice
obligations. Current Sec. 825.300 addresses the requirement that
employers post a notice on employee rights and responsibilities under
the law and, where a significant portion of the employer's workers are
not literate in English, provide the notice in a language in which the
employees are literate. This section also addresses the civil money
penalty provision in the law for employers who willfully violate the
posting requirement. Current Sec. 825.301 requires an employer to
include information about the FMLA in any written guidance such as an
employee handbook or other document that the employer provides to its
employees. In the case of an employee's request for FMLA leave, current
Sec. 825.301 also requires the employer to provide the employee with a
written notice that details the specific expectations and obligations
of the employee and the consequences of a failure to meet these
obligations. Additional notice requirements, such as notifying
employees of their FMLA eligibility and designation of their FMLA
leave, appear elsewhere in current Sec. Sec. 825.110 and 825.208.
Proposed Sec. 825.300 consolidated these employer notice
requirements under the major topics of ``general,'' ``eligibility,''
and ``designation'' notices, and ``consequences of failing to provide
notice.'' The final rule adopts the consolidated format, but makes
additional changes to further clarify employer obligations to provide
notice to employees as outlined below. The Department continues to
believe that a key component of making the FMLA a success is effective
communication between employees and employers. Enhanced communication
increases employee awareness of rights and responsibilities and
facilitates the smooth administration of the FMLA. The Department
anticipates that this consolidated format and the notice requirements
contained herein will further this goal.
Several commenters strongly supported consolidating the employer
notice requirements into one general area of the regulations. The Equal
Employment Advisory Council (``EEAC'') noted that, ``[b]y identifying
specifically the `general', `eligibility' and `designation' notice
requirements, the proposal clarifies for both employers and employees
their respective obligations under the FMLA.'' The City of Portland
(OR) agreed that ``[p]lacing all of the notice requirements in
consecutive sections is an improvement'' but felt employee notice
requirements should precede the employer notice sections. See also
WorldatWork; the Chamber. While not agreeing with all the proposed rule
changes, Jackson Lewis agreed with ``the `theme' of shared
responsibility that permeates the Proposed Regulations. By increasing
the emphasis on employers' `general notice' obligations and employees'
obligations to give adequate and timely notice * * * the DOL's proposal
prepares the groundwork for a more reasonable exercise of FMLA rights
and obligations.''
General Notice Requirements
Proposed Sec. 825.300(a) addresses the general notice requirements
that appear in current Sec. Sec. 825.300 and 825.301(a). Proposed
Sec. 825.300(a)(1) retained the requirement from the current rule that
every covered employer post and keep posted in conspicuous places on
its premises where notices to employees and applicants are usually
posted a notice providing information about the FMLA. The Department
proposed to allow electronic posting of the general notice so long as
it otherwise met all of the requirements of the section, and sought
comment on whether the electronic posting alternative would be workable
and would ensure that employees and applicants obtain the required FMLA
information. Additionally, the Department proposed in paragraph (a)(1)
to increase from $100 to $110 the civil money penalty assessment for an
employer's willful failure to post the required notice, consistent with
the requirements of the Debt Collection Improvement Act of 1996
amendment of the Federal Civil Penalties Inflation Adjustment Act of
1990. For purposes of clarity, the Department proposed to separate out
into paragraph (a)(2) the requirement in the current rule that a
covered employer post the general notice even if no employees are
eligible for FMLA leave. Proposed Sec. 825.300(a)(3) required covered
employers with eligible employees to distribute the general notice 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.
Proposed Sec. 825.300(a)(4) permitted employers to meet their
obligation to both post and distribute the general
[[Page 67991]]
notice by duplicating the text of the prototype notice contained in
Appendix C. The proposal required that, when the employer employs a
significant portion of employees who are not literate in English, the
employer provide the poster and general notice to employees in a
language in which they are literate, and it also retained language in
the current rule requiring notice to sensory-impaired individuals as
required under applicable federal and state law. Additionally, the
Department proposed revisions to its prototype general notice to
provide employees more useful information on their FMLA rights and
responsibilities.
The final rule adopts Sec. 825.300(a) with the following
modifications. Language similar to current Sec. 825.301(a)(1) has been
added to Sec. 825.300(a)(3) of the final rule to clarify that if
employers have employee handbooks or other written materials concerning
benefits and leave, such written materials must include the general
notice information. Where such materials do not exist, the final rule
requires an employer to provide the general notice to new employees
upon being hired, rather than requiring that it be distributed to all
employees annually. Additionally, the final rule in Sec. 825.300(a)(4)
clarifies that employers may meet the general notice requirements by
either duplicating the prototype general notice in Appendix C or by
using another format so long as the information provided, at a minimum,
includes all of the information contained in the prototype general
notice.
Several commenters were concerned that electronic posting of the
general notice as permitted in proposed Sec. 825.300(a)(1) would be
insufficient to alert individuals to their rights and responsibilities
under the law. The National Partnership for Women & Families commented
that, while electronic posting could be beneficial to some employees
and applicants who might work at locations other than the employer's
worksite or who might be applying for a position online, it ``should be
required as an addition, rather than a substitution, to employers
actually posting the FMLA poster.'' See also American Association of
University Women; AFL-CIO; Communications Workers of America. Other
commenters, however, specifically approved of the Department's proposal
to allow electronic posting of the general notice. Verizon commented
that ``[p]ermitting electronic forms of communication recognizes the
reality of the times, encourages efficiency and provides employees with
access to information at the time of their choice.'' See also AT&T;
Willcox and Savage; National School Boards Association; College and
University Professional Association for Human Resources; National
Association of Manufacturers.
Some employers also questioned whether the statute allowed the
Department to require a notice to applicants for employment in proposed
Sec. 825.300(a)(1). Spencer Fane Britt & Browne stated ``we find no
basis in the Act for requiring that employers make applicants aware of
the FMLA and the rights they may have a year down the road'' if the
applicant is hired and remains employed. See also Society for Human
Resource Management; National Coalition to Protect Family Leave;
Willcox and Savage. Other employers felt electronic notification of
applicants would be confusing and burdensome and suggested the
Department eliminate or scale back the requirement. The Northern
California Human Resources Association specifically questioned the
definition of ``applicant'' and noted that ``the number of unqualified
applicants for an open position is significantly high.'' The commenter
asked when the ``disclosure'' should occur and also questioned ``what
FMLA regulations would need to be provided? '' See also Judi Moran;
Hewitt Associates; Southern Company.
The final rule adopts Sec. 825.300(a)(1) as proposed, including
the provision that the posting requirement may be satisfied through an
electronic posting of the general notice as long as it otherwise meets
the requirements of this section. The Department believes that
electronic posting of the notice can facilitate increased employee
awareness while limiting cost burdens on employers. For the posting
requirement to be met, however, all employees and applicants for
employment must have access to the information. Thus, for example, if
an employer has some employees who do not have employer-provided
computer access or who are not otherwise able to access the information
electronically, the employer must post on its premises where it can be
readily seen a paper copy of the information contained in the general
notice, such as a copy of the prototype general notice in Appendix C.
Additionally, electronic posting does not excuse the employer from the
statutory requirement to post in a location viewable by applicants for
employment. 29 U.S.C. 2619(a). Therefore, if the employer posts such
information on an intranet that is not accessible to applicants,
additional posting would be necessary in a conspicuous place where
notices for applicants for employment are customarily posted.
Numerous commenters responded to the proposed annual notification
requirement in Sec. 825.300(a)(3). Employee groups suggested that all
employers, including those who have handbooks, should be required to
distribute the general notice annually to all employees. See National
Partnership for Women & Families; American Association of University
Women; A Better Balance: The Work and Family Legal Center. Several
employers opposed the annual notification requirement, arguing that it
goes beyond the statutory requirement to post a general notice. See
City of Colorado Springs (CO); City of Independence (MO); Catholic
Charities, Diocese of Metuchen; Fisher & Phillips; National Coalition
to Protect Family Leave; National Franchise Association. Spencer Fane
Britt & Browne stated:
We are not even convinced that any required distribution of the
General Notice should be required if it is posted in conspicuous
places for employees to read. The Act's only notice requirement is a
poster. The DOL drafted the poster as required notice to employees
of his/her FMLA rights and obligations. In the Ragsdale decision,
even the Supreme Court questioned, although did not rule on, whether
the DOL's other notice requirements for employers went beyond the
Act.
The Association of Corporate Counsel's Employment and Labor Law
Committee commented that because employers must post the policy in a
conspicuous place, ``it seems unnecessary to require an annual
distribution of the policy, especially given the administrative costs
this will impose on the employer.'' The American Health Care
Association also objected to the annual notice requirement, stating
that employers that do not have handbooks typically will be smaller
employers with limited budgets and no human resources department.
Fisher & Phillips commented that only an employee with a current need
for leave will read the available information and thus the annual
distribution requirement ``simply creates an additional administrative
burden that will not improve the quality of employee's knowledge of
their rights.'' The Metropolitan Transportation Authority (NY)
suggested that ``it should be sufficient for the employer to distribute
such notices [once upon hiring the employee] and to post the notice in
conspicuous locations throughout the workplace.'' Vercruysse Murray &
Calzone objected to the handbook or annual notice requirement beyond
the posting requirement, calling it a ``level of overkill [that] is
virtually
[[Page 67992]]
unprecedented and can result in significant expense to employers who
must reprint handbooks or handbook inserts or distribute hard copies of
the notice to large numbers of employees in workplaces where not all
employees are connected electronically.'' Some employers specifically
addressed electronic distribution of the annual general notice to all
employees under proposed Sec. 825.300(a)(3). AT&T commented that
``expansion of the posting requirements to include annual
[notification] would be workable if done electronically.'' The Southern
Company requested that this section be clarified to provide that the
annual notice requirement can be satisfied by including the notice in
an employee handbook that is maintained electronically as long as all
employees have access to the electronic handbook, stating that this
would be a cost-effective solution that still meets the Department's
goals. Harrill & Sutter, on the other hand, objected to any
distribution that was limited to an electronic posting, stating that
employees forget about such postings.
In light of the numerous comments regarding the administrative
burden and expense of the proposed annual distribution requirement,
particularly for employers with large numbers of employees who do not
have access to a company-provided computer, the final rule modifies
this provision. The final rule requires employers that do not have
employee handbooks or other written materials concerning benefits and
leave that are distributed to all employees to provide the general
notice to each employee when the employee is hired. Under the current
rule, employers that do not have a handbook or similar written material
are only required to advise employees of their FMLA rights and
responsibilities after they request FMLA leave. The additional notice
provided in the final rule, given to employees when they are hired,
will alert employees to their FMLA rights and responsibilities before
they are 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. Thus, the new general notice requirement will provide
important information to employees at a time when they are not in a
crisis situation and when it is likely that they are receiving other
important information that they will retain for future reference
regarding their new employment. A covered employer with no eligible
employees would not be required to distribute the general notice,
although the employer would have to comply with this requirement even
if it only has one eligible employee. The Department adopts the
provision permitting distribution of the handbook or general notice to
new employees through electronic means for the same reasons that it
adopts the proposal to permit electronic posting of the general notice
discussed above. With regard to the use of an electronic employee
handbook, the Department believes that having the FMLA notice
incorporated into an employee handbook that is maintained
electronically can satisfy this general notice requirement, so long as
all of the requirements of this section are met, i.e., that the
information is accessible to all employees of the employer, that it is
made available to employees not literate in English (if required), and
that the information provided includes, at a minimum, all of the
information contained in the prototype general notice.
A few commenters addressed the provision in proposed Sec.
825.300(a)(4) permitting employers to meet the general notice
requirements by duplicating the text of the prototype general notice
contained in Appendix C. Vercruysse Murray & Calzone commented that
``some employers will simply use the FMLA notice/poster as their FMLA
policy and do away with more specific policies that are currently in
place'' leaving out important information, such as the employer's 12-
month leave period, because it is not contained in the notice/poster.
TOC Management Services also objected to the use of the prototype
notice in employee handbooks, stating that ``handbook policies are more
informative than a generic general notice'' and that to require
employers to use the general notice in their handbook will inevitably
lead to confusion. The final rule in Sec. 825.300(a)(4) clarifies that
employers may use a copy of the prototype general notice in Appendix C
or may use employer-drafted FMLA policy information (including
information specific to the employer's policies) for inclusion in an
employee handbook or for distribution to new employees, so long as it
contains, at a minimum, all of the information included in the
prototype general notice and is consistent with that notice.
A few commenters noted that the Department's proposed general
notice did not include information advising employees of the type of
information the employee will need to provide to the employer when
requesting leave to meet the employee notice standards in Sec. Sec.
825.302 and 825.303. One commenter, Robert Schwartz, who objected to
the employee notice obligations, also objected that the draft general
notice ``simply warns employees that they must furnish `sufficient'
information for the employer to determine if the leave may qualify for
FMLA protection and the expected start date and duration of the leave''
without alerting employees to additional information they will need to
provide. See also Society for Human Resource Management; National
Coalition to Protect Family Leave. In the final rule, the Department
has updated the prototype general notice to indicate more clearly the
type of information an employee may need to provide to his or her
employer for the notice to be ``sufficient.'' See Sec. Sec. 825.302
and 825.303.
Several commenters sought clarification of the requirement in
proposed Sec. 825.300(a)(4) that employers with a ``significant
portion'' of employees not literate in English provide the poster and
general notice in a language in which they are literate. Jackson Lewis
questioned whether the ``employment of more than a few non-English
literate employees'' would trigger the obligation or if ``a workforce
of 25% non-English literate employees'' would trigger it. Catholic
Charities, Diocese of Metuchen commented ``[t]he regulation should
define what constitutes a significant portion. * * * [and] provide
clarification of the measures, if any, that employers are required to
take so as to ensure that workers are informed of the contents of the
poster and general notice when only a small number of employe[es] are
not literate in English.'' The Equal Employment Advisory Council
recommended the Department clarify that the ``alternative notice is
required only where the workforce in a particular location is literate
in a language other than English'' to more readily accommodate those
employers with multiple locations. Finally, the Communications Workers
of America stated that ``the agency should more closely monitor all of
the FMLA notices that employers are providing to employees, including
ensuring that this information is provided in many languages other than
English in appropriate work locations.'' The final rule in Sec.
825.300(a)(4) adopts the proposal on this topic without change.
Nonetheless, the Department notes that employers with multiple
locations may post notices in different languages at different
locations, if the posted notices are provided in languages in which the
employees are literate at each location. Additionally, the final rule
applies the same ``significant portion of workers not
[[Page 67993]]
literate in English'' standard for translation of the notification of
eligibility and rights and responsibilities in Sec. 825.300(b)(2) and
(c)(1).
Finally, two commenters addressed the proposed increase (from $100
to $110) in the Civil Money Penalty (CMP) required under Sec.
825.300(a)(1). One commenter, Tracy Hutchinson, suggested that
penalties for employers who ``ignore the law'' should be much harsher
including jail time. The Coalition of Labor Union Women commented that
the proposed increase was ``inadequate to discourage employers from
ignoring their clear statutory obligation to provide sufficient FMLA
notice to their workers.''
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 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 Department proposed
to increase the CMP to $110 to meet requirements of the Debt Collection
Improvement Act of 1996, which amended the Federal Civil Penalties
Inflation Adjustment Act of 1990 to require that federal agencies
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
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. Therefore, although the amount of inflation since June
of 1993 has exceeded 10 percent, the Department's proposal to amend
Sec. 825.300(a) to provide for assessment of a penalty of $110 for
willful violations of the posting requirement is limited by these
statutory constraints and is adopted as proposed.
Eligibility Notice
The Department proposed to consolidate the existing eligibility
notice requirements in current Sec. Sec. 825.110 and 825.301 into one
section in Sec. 825.300(b) and to strengthen and clarify them.
Consistent with the requirement in current Sec. 825.110(d), proposed
Sec. 825.300(b)(1) required an employer to advise an employee of his
or her eligibility status when the employee requests leave under the
FMLA. The Department proposed in Sec. 825.300(b)(1) to extend the time
frame for an employer to respond to an employee's request for FMLA
leave from two business days to five business days of the employee's
request for leave or of the employer acquiring knowledge that the leave
may be for a FMLA-qualifying reason. The Department sought comment on
whether this increased time frame would both impart sufficient
information to employees in a timely manner and be workable for
employers. Proposed Sec. 825.300(b)(2) specified what information an
employer must convey to an employee as to eligibility status, including
whether the employee still has FMLA leave available in the current 12-
month FMLA leave period. It also required, if the employee was
determined not to be eligible or to have no FMLA leave available, that
the employer state the reasons why the employee was not eligible. If
the employee was determined to be eligible, proposed Sec.
825.300(b)(3) required the employer to provide the employee with
specific notice of his or her rights and obligations under the law and
the consequences of failing to meet those obligations, consistent with
current Sec. 825.301(b)(1). The Department proposed to add language at
Sec. 825.300(b)(3)(iii) requiring that, when an employer notifies an
eligible employee of the right to substitute employer-provided paid
leave and the conditions related to any such substitution, the employer
also must inform the employee that he or 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).
Proposed Sec. 825.300(b)(3)(v) provided that employers should include
a list 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 when the employee returns to work.
Proposed Sec. 825.300(b)(4) retained the language from current Sec.
825.301(b)(2) which provides that the eligibility notice may, but is
not required to, include other information, such as whether the
employer will require periodic reports of the employee's status and
intent to return to work. Proposed Sec. 825.300(b)(5) provided that
the eligibility notice should be accompanied by any required medical
certification forms. Consistent with current Sec. 825.301(c), proposed
Sec. 825.300(b)(6) required that the eligibility notice to be provided
no less often than the first time in each six-month period that the
employee gives notice of the need for leave (if the employee takes
leave in that six-month period) and, if leave has already begun, that
the notice be mailed to the employee's address of record. It also
required that the notice be given within a reasonable time after notice
of the need for leave is given by the employee, and should be within
five business days if feasible. Proposed Sec. 825.300(b)(7) provided
that if the information changed with respect to a subsequent period of
FMLA leave during the six-month period, the employer should, within
five business days, provide notice to the employee of any information
that has changed from a previous eligibility notice. Consistent with
the current Sec. 825.301(c)(2), proposed Sec. 825.300(b)(8) provided
that if an employer requires a medical certification or fitness-for-
duty certification, written notice of the requirement must be given for
each 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 absences and then oral notice must still be
given. Proposed Sec. 825.300(b)(9) retained the requirement from
current Sec. 825.300(d) that employers are expected to responsively
answer employees' questions about their rights and responsibilities
under the FMLA. Finally, proposed Sec. 825.300(b)(10) referenced an
optional prototype eligibility notice, included as Appendix D, which
reflected the changes in the proposed regulation and the Department's
attempt to simplify the form for easier use and adaptability.
The final rule adopts proposed Sec. 825.300(b) with several
modifications. Final Sec. 825.300(b)(1) reinserts the qualifying
phrase ``absent extenuating circumstances'' that appears in current
Sec. 825.110(d) and clarifies the frequency that the eligibility
notice must be provided, codifying in the regulations Wage and Hour
Opinion Letter FMLA-112 (Sept. 11, 2000). Final Sec. 825.300(b)(2)
requires that, if an employee is not eligible for FMLA leave, the
employer's notice to the employee need only state at least one reason
why the employee is not eligible. A new Sec. 825.300(b)(3) has been
added to the final rule clarifying when subsequent eligibility notice
must be provided in the same leave year. Proposed Sec. 825.300(b)(3)
has been redesignated as final Sec. 825.300(c) setting forth the
employer's obligation to provide notice of the employee's rights and
responsibilities. The final rule clarifies that this Rights and
Responsibilities notice must be provided at the same time the
eligibility notice is provided. The final rule deletes the requirement
in proposed Sec. 825.300(b)(3)(v) that the employer provide a list of
the essential job functions with the eligibility notice. The final rule
requires that this list of
[[Page 67994]]
essential job functions be provided with the designation notice if the
employer will require that the fitness-for-duty certification address
the employee's ability to perform the essential functions of the
position. The final rule renumbers proposed Sec. 825.300(b)(4) and
(b)(5) as final Sec. 825.300(c)(2) and (c)(3). The final rule deletes
proposed Sec. 825.300(b)(6) and (b)(8). Proposed Sec. 825.300(b)(7)
is renumbered as final Sec. 825.300(c)(4) and modified to require the
employer to notify the employee of any change in the information
contained in the notice of rights and responsibilities within five
business days of the first notice of the need for leave following any
such change.
Many commenters addressed the requirement in proposed Sec.
825.300(b)(1) 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. Many employers and employer representatives
supported increasing the time to provide the eligibility notice from
two to five business days. Infinisource, Inc. and Cummins Inc. noted
that the increased time frame will allow employers to gather the
information necessary to determine eligibility and respond to a leave
request. See also Hinshaw & Culbertson; U.S. Small Business
Administration's Office of Advocacy; Community Health and Counseling
Services. Hewitt Associates commented that the increased time was ``a
significant improvement'' as ``[e]mployers have consistently been
challenged by completing the eligibility * * * notice within two days
given the confirmations to be made and calculations to be performed.''
Hewitt Associates also noted, however, that the increased time frame
was a ``trade-off'' as the proposed regulations ``would require
employers to provide even more information than they do currently.''
Southwest Airlines commented that the new time frame was ``a welcome
addition, particularly in light of the additional extensive information
to be included'' and also noted it was ``particularly appropriate when
considering * * * employers with multiple work locations.'' Other
commenters felt the increased time was still insufficient. Verycruysse
Murray & Calzone commented that, ``the relaxation of the response
period from two business days to five days will not be sufficient for
many employers to ensure that all of the information to be gathered and
communicated is correct and accurately reflected on the form.'' Willcox
and Savage stated the process of verifying the employee's eligibility
and availability of leave ``can be extremely time-consuming, especially
if intermittent leave has been used'' and suggested providing a ten-day
time frame. New York City (NY) Law Department stated that five business
days may not be adequate for employees who use unscheduled intermittent
leave and suggested that it should be sufficient for an employer to
provide such employees eligibility notification once upon completion of
a medical certification rather than each time the employee uses
intermittent leave.
On the other hand, some commenters objected that five days was too
long for the employee to have to wait for a determination of
eligibility. The Legal Aid Society, Employment Law Center asked, ``What
is an employee expected to do while waiting for her employer to
determine her eligibility? Take the time off work and risk being
terminated * * * ?'' See also Tracy Hutchinson. Another commenter,
Frank Sample, pointed out that ``[a]n employee denied information for a
week may make improper decisions regarding their care and treatment
which is wholly unfair to an ill employee or their family.'' Other
commenters stated that the two-day time frame was reasonable and the
increase to five days unnecessary. See, Linda Gore; Cindy Whitmore;
Richard Mielke. The National Partnership for Women & Families also
opposed the increased time frame, objecting that ``throughout the NPRM,
there are proposed changes that shorten employees' time frames for
meeting requirements for FMLA leave while employers would be given more
time to respond to requests for FMLA leave.'' See also AFL-CIO.
The final rule in Sec. 825.300(b)(1) adopts the Department's
proposal to increase the time frame for providing the eligibility
notice from two to five business days and also reinstates the ``absent
extenuating circumstances'' language from current Sec. 825.110(d). The
numerous comments that the two-day turnaround time is, in practice,
very difficult to meet illustrate the necessity of this change. The
Department also believes that extending this time frame to five
business days affords the employer with the opportunity to calculate
more accurately whether the employee is, in fact, eligible without
compromising the employee's FMLA rights.
Addressing proposed Sec. 825.300(b)(1) more generally, the
Metropolitan Transportation Authority (NY) commented that the ``trigger
[for determining eligibility] also needs to be revisited'' and
indicated that it was unreasonable to require a large employer to
``discern from thousands of sick leave requests the ones that may
indicate a pattern of leave usage that may be consistent'' with the
FMLA. The Department acknowledges that the timing and frequency of the
eligibility notice was unclear in the NPRM and could be read to require
the employer to provide the notice every time an employee gave notice
of an absence that might be FMLA-protected. Proposed Sec. 825.300
contained elements drawn from current Sec. Sec. 825.110(d), 825.208
and 825.301, each of which had different timing requirements for the
provision of information related to eligibility, designation, and
notice of rights and responsibilities, respectively. While the
consolidation of the employer notice requirements into a single section
in the proposal made it easier for employers to identify and comply
with their notice obligations, the proposal did not resolve the
differing timing requirements for the various notices employers must
provide. For example, proposed Sec. 825.300(b)(1) was based on current
Sec. 825.110(d) and required the eligibility notice to be provided
within five business days of the employer learning that an employee's
absence might be FMLA-protected. In contrast, Sec. 825.300(b)(6) was
based on current Sec. 825.301(b) and required the eligibility notice
to be provided no less often than every six months (assuming the
employee used FMLA leave during the six-month period).
In order to clarify the employer's notice obligations, the final
rule re-establishes the distinction in current Sec. Sec. 825.110(d)
and 825.301(b) between notice of the employee's eligibility (i.e.,
whether the employee meets the requirements of Sec. 825.110(a)) and
notice of the employee's rights and responsibilities, and separates the
latter into final Sec. 825.300(c). As discussed below, the final rule
also clarifies the timing of these two notices and moves the obligation
to notify the employee whether he or she has FMLA leave available to
the designation notice because the employer is already required to make
that determination at the designation stage. The Department believes
that these revisions will clarify the rule and result in information
being provided to employees in the most logical and timely fashion
without resulting in redundant notices or undue burden on employers.
Final Sec. 825.300(b)(1) clarifies the eligibility determination
process and codifies in the regulations Wage and Hour Opinion Letter
FMLA-112 (Sept. 11, 2000). The eligibility notice
[[Page 67995]]
addresses only whether the employee meets the statutory eligibility
criteria as discussed in Sec. 825.110(a): Employment by the employer
for 12 months; 1,250 hours of service in the 12-month period
immediately preceding the request for leave; and employment at a
worksite where 50 or more employees are employed within 75 miles. The
determination of employee eligibility to take FMLA leave is addressed
separately from the determination of whether the employee has FMLA
leave to take (or has exhausted all available FMLA leave entitlement)
and whether the reason for which the employee needs leave is covered
under the FMLA. As clarified in Wage and Hour Opinion Letter FMLA-112,
once an employee has been determined to be eligible to take FMLA leave
for a particular FMLA-qualifying serious health condition, the employee
remains eligible to take FMLA leave for that serious health condition
for the remainder of the leave year (although the employee may exhaust
his or her FMLA leave entitlement). Wage and Hour Opinion Letter FMLA-
112 (stating that ``an employee's eligibility, once satisfied, for
intermittent FMLA leave for a particular condition would last through
the entire current 12-month period as designated by the employer for
FMLA leave purposes''). The final rule applies this same standard to
leave taken for a qualifying exigency and for military caregiver leave.
If an employee needs leave for a different FMLA-qualifying reason
during the same leave year, the employee's eligibility to take FMLA
leave (i.e., whether the employee has worked 1,250 hours of service in
the immediately preceding 12 months and whether 50 or more employees
are employed at the worksite) is determined separately as to leave for
that reason. Accordingly, final Sec. 825.300(b)(1) clarifies that the
eligibility notice must be provided ``at the commencement of the first
instance of leave in the 12-month FMLA leave year for each FMLA-
qualifying reason'' and that eligibility to take FMLA leave ``as to
that reason for leave does not change during the leave year.'' If an
employee needs FMLA leave due to a different FMLA-qualifying reason in
the same leave year and is determined not to be eligible as to that
second qualifying reason, Sec. 825.300(b)(3) of the final rule
requires the employer to notify the employee of the change in
eligibility status within five business days, absent extenuating
circumstances, of the employee's request for leave due to the second
reason. The final rule sets out in similar fashion the frequency with
which eligibility must be determined for leave to care for a covered
servicemember with a serious injury or illness.
To further clarify the eligibility determination procedure under
the final rule, the employer's obligation to notify the employee of the
specific expectations and obligations related to the employee's FMLA
leave is moved from proposed Sec. 825.300(b)(3) to final Sec.
825.300(c) titled ``Rights and responsibilities notice.'' The
Department notes that this is not a new notice obligation; the same
obligation exists under current Sec. 825.301(b) and was included in
proposed Sec. 825.300(b)(3). Moving this requirement into a separate
paragraph more closely resembles the structure of the current
regulations, which address the employer's obligation to notify the
employee of his or her eligibility and the obligation to notify the
employee of the expectations and obligations associated with the leave
in different sections of the rule. Lastly, the final rule also modifies
some of the data elements in both the eligibility and rights and
responsibilities notices; those changes are discussed below in
connection with the comments regarding the corresponding provisions in
the NPRM.
Several commenters addressed proposed Sec. 825.300(b)(2) that
required employers to provide employees with specific information
regarding eligibility and whether the employee still has any FMLA leave
available in the current 12-month FMLA leave period. Willcox and Savage
objected that the proposed accounting and reporting requirements are
unwarranted and burdensome, especially absent ``any assurance that the
employee will take the contemplated leave,'' and that the employer may
not have recorded the hours uniformly or consistently with ``specific
twelve-month periods.'' Other commenters objected to the content of the
eligibility notice. AT&T commented that the eligibility notice
``invites employees to request information about eligibility and
entitlement without imminent need for leave'' and expressed concern
that employees will inundate their managers with such requests. Spencer
Fane Britt & Browne commented that it would be burdensome (both in the
amount of time needed for the calculations and in the potential for
error) for the employer and questioned the usefulness of explaining
exactly why the employee is not eligible if an ineligible employee does
not have FMLA rights. See also Vercruysse Murray & Calzone.
The final rule in Sec. 825.300(b)(2) adopts the proposal with
modifications. The Department notes that the requirement to inform
employees if they are eligible to take FMLA leave is not a new one, and
the obligation has always been triggered by the employee providing
notice of the need for leave that may be covered under the FMLA. See
current Sec. Sec. 825.110(d), 825.302, 825.303. Proposed Sec.
825.300(b)(2), which is retained in the final rule, added a new
requirement that when an employer determines that an employee is not,
in fact, eligible to take FMLA leave, the employer must so inform the
employee and indicate the reasons the employee is not eligible. The
final rule modifies this obligation, however, by limiting the
notification that an employee is ineligible to any one of the potential
reasons why an employee fails to meet the eligibility requirements.
Thus, for example, if an employee has worked for the employer for fewer
than 12 months, the employer would be able to so indicate to the
employee and would not, then, still be required to calculate (and
notify the employee of the results of those calculations) whether the
employee had worked 1,250 hours in the 12 months prior to the requested
leave. The final rule also removes from the eligibility notice the
requirement that the employer notify the employee whether the employee
still has FMLA leave available. The determination of whether the
employee has FMLA leave available or has exhausted the FMLA leave
entitlement is part of the designation of FMLA leave process under both
current Sec. 825.208 and proposed Sec. 825.300(c). Accordingly, the
final rule moves the requirement to inform the employee of whether he
or she has FMLA leave available to new Sec. 825.300(d), which
addresses the designation notice.
Rights and Responsibilities Notice
As discussed above, the final rule moved proposed Sec.
825.300(b)(3) to final Sec. 825.300(c), separating the notice of
rights and responsibilities from the notice of eligibility. To simplify
the timing of the notice of rights and responsibilities and to avoid
unnecessary administrative burden on employers, Sec. 825.300(c)(1) of
the final rule requires employers to provide this notice to employees
at the same time they provide the eligibility notice. Additionally, if
the information in the notice of rights and responsibilities changes,
Sec. 825.300(c)(4) also requires the employer to notify the employee
of any changes within five business days of the first notice of the
need for FMLA leave subsequent to any change. This timing requirement
will ensure that employees receive timely notice of the expectations
and obligations associated with their FMLA leave each leave year
[[Page 67996]]
and also receive prompt notice of any change in those rights or
responsibilities when leave is needed during the leave year. The final
rule also makes several changes in the information included in the
notice of rights and responsibilities, which are addressed below.
Several commenters addressed proposed Sec. 825.300(b)(3), which is
moved to paragraph (c) of this section in the final rule, specifying
the information that must be included in the eligibility notice. The
final rule modifies proposed Sec. 825.300(b)(3)(i), which is moved to
final Sec. 825.300(c)(1)(i), to require employers to notify employees
of the method used for establishing the 12-month period for FMLA
entitlement, or, in the case of military caregiver leave, the start
date of the ``single 12-month period.'' The Department believes that
this change will provide employees with information that is crucial to
their understanding of their FMLA leave rights. The final rule
redesignates proposed Sec. 825.300(b)(3)(ii) and (iii) as Sec.
825.300(c)(1)(ii) and (iii), but otherwise makes no changes in these
paragraphs (other than incorporating references to the military family
leave provisions where applicable). In commenting on proposed Sec.
825.300(b)(3)(iii), Vercruysse Murray & Calzone objected to the level
of detail required regarding the conditions applicable to any paid
leave that is substituted for FMLA leave, because this information is
typically contained in employee handbooks or paid leave plans. The
Department redesignates proposed Sec. 825.300(b)(3)(iii) as Sec.
825.300(c)(1)(iii) and adopts it as proposed, requiring that employers
include in the eligibility notice an explanation of conditions
applicable to the use of paid leave that runs concurrently with unpaid
FMLA. The Department notes that this requirement is in current Sec.
825.301(b)(1)(iii). The NPRM only proposed to expand this section to
require that employers also notify employees of their continuing
entitlement to take unpaid FMLA leave if they do not comply with
employer-required conditions for use of paid leave. To clarify,
however, the Department notes that an employer may meet the
requirements of providing information about the conditions related to
the substitution of paid leave by reference to existing, employee-
accessible copies of such policies. See Appendix D.
A number of commenters addressed the requirement in proposed Sec.
825.300(b)(3)(v) that an employer provide a list of the essential
functions of the employee's position with the eligibility notice if the
employer will require a fitness-for-duty certification that addresses
those functions. Domtar Paper Company supported the proposed change,
stating that while it will require additional administrative burden for
employers, it ``is a valid requirement if the employer wants the option
to be able to determine fitness for duty at some point in the future.''
See also National Business Group on Health; Community Health and
Counseling Services. Other commenters opposed this proposal, arguing
that it would be administratively burdensome to provide a list of the
employee's essential job functions at the eligibility notice stage.
Hewitt Associates commented that ``many [employers] struggle with
maintaining usable job descriptions.'' Vercruysse Murray & Calzone
commented that five days would not be sufficient for large employers to
find the applicable job description, verify its accuracy, and revise it
as necessary to reflect the actual essential functions of the
employee's position, or in other cases, to create new job descriptions.
ORC Worldwide commented that the proposal would be burdensome because
``large employers would feel compelled to require Fitness-for-Duty
certifications in all instances to preserve their rights. Allowing
employers additional time to properly evaluate the employee's condition
and determine whether there are any job-related concerns will also
minimize the burden on employees, who would otherwise not be required
to submit medical documentation for brief absences.'' The Equal
Employment Advisory Council commented the proposal would be burdensome
``by requiring employers to assess and list the essential functions of
the job that are unique to each employee requesting leave when it may
not ever be necessary to do so'' and specifically recommended that
``the employer be permitted to state in the Eligibility Notice merely
that a fitness-for-duty certification may be required.'' (Emphasis in
original.) The HR Policy Association also questioned the utility of
providing a list of essential functions of the employee's job with the
eligibility notice, noting that ``at the Eligibility Notice stage, an
employer has not yet received the medical certification form from the
employee's health care provider, which details the employee's medical
condition and allows an employer to determine whether a Fitness-for-
Duty certification is even permissible under the law.'' (See also
discussion of Sec. 825.310, which discusses additional comments on
this subject.)
After careful consideration of these comments, the Department has
modified the timing requirement for providing the list of essential
functions of the employee's position if the employer will require that
the fitness-for-duty certification address the employee's ability to
perform those functions. For the reasons discussed in Sec. 825.310,
employers will not be required to provide the list of essential
functions with the eligibility notice. Instead, as noted in the
designation notice discussion below, if the employer will require that
the fitness-for-duty certification specifically address the employee's
ability to perform the essential functions of the employee's job, the
employer must provide the employee with a list of the essential
functions no later than with the designation notice required by final
Sec. 825.300(d), and the employer must also indicate in the
designation notice that the fitness-for-duty certification must address
the employee's ability to perform those essential functions. As a
consequence of these modifications, the final rule deletes proposed
Sec. 825.300(b)(3)(v) and renumbers the remaining paragraphs in Sec.
825.300(c)(1) accordingly.
The Department did not receive significant comments on proposed
Sec. 825.300(b)(4). The final rule redesignates paragraph (b)(4) as
(c)(2) and changes the reference from ``eligibility notice'' to
``notice of rights and responsibilities,'' but otherwise makes no
change.
A few comments addressed proposed Sec. 825.300(b)(5), which states
that the eligibility notice should be accompanied by any required
medical certification form. Verizon requested clarification of the
requirement that any required medical certification form accompany the
eligibility notice:
In Verizon, over 6,000 eligibility notices are sent out each
week. Approximately 2,800 medical certification forms are received
each week for processing. The paper that is wasted with respect to
those that do not submit a certification form is, at Verizon alone,
over half a million sheets of paper per year * * *. While it is the
employer's obligation to make required certification forms available
in a manner that is reasonable (i.e., included with eligibility
letter, electronically, or upon request), we are sure that the
Department will clarify that it is not requiring that employers
engage in the wasteful extravagance of mailing literally tons of
paper for no purpose.
See also National Restaurant Association. The Department did not intend
that proposed Sec. 825.300(b)(5) be read to require the employer to
provide the employee with the medical certification form in instances
when one would not be submitted and has altered the wording of this
provision in final
[[Page 67997]]
Sec. 825.300(c)(3) to indicate that the medical certification may be
included with the notice of rights and responsibilities. The Department
notes that both the employer and employee have an interest in the
prompt determination of whether leave is covered by the FMLA and the
early provision of any required medical certification form facilitates
this determination; employers are not, however, required to provide the
certification form with the notice of rights and responsibilities.
Although proposed Sec. 825.300(b)(6) sets forth a timing
requirement that was inconsistent with the timing requirement contained
in proposed Sec. 825.300(b)(1), the Department did not receive any
significant comment regarding this provision. As explained above, Sec.
825.300(b) of the final rule clarifies the timing of the eligibility
notice and final Sec. 825.300(c) clarifies the timing of the notice of
rights and responsibilities. The requirement to provide both of these
notices is timed to the employee's need for this information, which, in
many cases, is much less frequent than either with each FMLA-protected
absence or every six months. Accordingly, the final rule deletes
proposed Sec. 825.300(b)(6).
The Department did not receive significant comments on proposed
paragraphs (b)(7), (b)(8), (b)(9), or (b)(10) of this section. The
final rule redesignates paragraph (b)(7) as (c)(4) and clarifies that
notice of any changes in the rights and responsibilities notice must be
provided within five business days of the first notice of an employee's
need for leave subsequent to any change. The final rule deletes
proposed paragraph (b)(8), which addressed notification of the
requirement for medical certification or fitness-for-duty
certification, because final paragraph (c)(1)(ii) addresses information
regarding the requirement for medical certification, and the
requirement for information regarding fitness-for-duty certification is
addressed in the designation notice in final Sec. 825.300(d). Proposed
paragraph (b)(9) is redesignated as final paragraph (c)(5) and adopted
without change. Finally, proposed paragraph (b)(10) has been adopted as
final paragraph (c)(6), and the prototype notice is redesignated as the
``Notice of Eligibility and Rights and Responsibilities.'' Final Sec.
825.300(c)(6) has also been modified to permit electronic distribution
of the notice of rights and responsibilities, so long as the employer
can demonstrate that the employee (who may already be on leave and who
may not have access to employer-provided computers) has access to the
information electronically.
Designation Notice
Under the current and proposed regulations, the employer must
notify the employee when leave is designated as FMLA leave. Proposed
Sec. 825.300(c) outlined the requirements of the designation notice an
employer must provide to an employee. (Additional requirements
concerning employer designation of FMLA leave are found at proposed and
final Sec. 825.301.) The Department's proposal sought to clarify and
strengthen the existing designation notice requirements contained in
current Sec. 825.208(b) in a number of ways.
Proposed Sec. 825.300(c)(1) required that, once the employer has
enough information to determine whether the leave qualifies as FMLA
leave, the employer must notify the employee within five business days
of making the determination whether the leave has or has not been
designated as FMLA leave. This was an increase from the two-day time
frame in current Sec. 825.208(b)(1). Proposed Sec. 825.300(c)(1) also
required the employer to inform the employee of the number of hours,
days or weeks that would be designated as FMLA leave. To the extent it
is not possible to provide such information (such as in the case of
unforeseeable intermittent leave), the Department proposed that the
employer be required to provide such information to the employee every
30 days if the employee took leave during the 30-day period. In
addition, proposed Sec. 825.300(c)(1) provided that if the employer
requires that paid leave be substituted for unpaid leave, or that paid
leave taken under an existing leave plan be counted as FMLA leave, the
employer must inform the employee of this designation at the time the
leave is designated as FMLA leave. Proposed Sec. 825.300(c)(2)
required the designation notice to be in writing, but indicated that it
may be in any form, including a notation on the employee's pay stub,
and that if the leave is not designated as FMLA leave, the notice to
the employee may be in the form of a simple written statement. Proposed
Sec. 825.300(c)(3) permitted an employer to provide an employee with
both the eligibility and designation notice at the same time in cases
where the employer had adequate information to designate leave as FMLA
leave when an employee requested the leave. Proposed Sec.
825.300(c)(4) referred to a new optional prototype designation notice
in Appendix E that an employer could use to satisfy its obligation to
notify an employee that leave taken for a qualifying reason is or is
not designated as FMLA leave.
The final rule redesignates proposed paragraph (c) as final
paragraph (d) of this section and makes several changes to clarify the
timing and content of the designation notice, as well as the shift of
notice of the requirement for a fitness-for-duty certification from the
eligibility notice in the NPRM to the designation notice in the final
rule. The final rule moves the statement of the employer's obligation
to provide the designation notice from proposed Sec. 825.301(a) to
final Sec. 825.300(d)(1) so that the structure of the designation
notice in paragraph (d) of this section more closely parallels the
structure of the eligibility notice in paragraph (b) of this section
and the rights and responsibilities notice in paragraph (c) of this
section. The final rule in paragraph (d)(1) also includes reference to
the military family leave provisions. The Department moved proposed
Sec. 825.300(c)(3) to Sec. 825.300(d)(2) in the final rule, and made
minor wording changes. Final Sec. 825.300(d)(3) requires employers to
notify employees of the requirement to provide a fitness-for-duty
certification no later than the designation notice. Proposed paragraphs
(c)(2) and (c)(4) of this section have been combined and redesignated
as final Sec. 825.300(d)(4). A new paragraph (d)(5) has been added to
this section of the final rule requiring the employer to notify the
employee if the information provided in the designation notice changes
(e.g., if the employee exhausts the FMLA leave entitlement). Lastly,
the final rule distinguishes between designation of leave for a
specific qualifying reason as FMLA-covered and notification of the
particular hours of leave that have been counted against the FMLA
entitlement, a distinction that is implicit in current Sec. 825.208
and in proposed Sec. 825.300(c), and moves the obligation to notify
the employee of the amount of leave counted as FMLA to final Sec.
825.300(d)(6).
The Department received many comments on designation. Several
commenters supported the proposal at Sec. 825.300(c)(1) to increase
the time frame for providing the designation notice from two to five
business days. See Retail Industry Leaders Association. Cummins Inc.
commented that the increased time frame ``coupled with the strengthened
medical certification process, will provide the necessary time for
employers to appropriately respond to an FMLA leave request.'' The
Illinois Credit Union League supported the extended time frame but
requested additional time ``if the individual with FMLA
responsibilities is out of the
[[Page 67998]]
office on vacation, for example.'' Verizon acknowledged that five days
is ``certainly reasonable'' but objected that the time frame was
``inflexible'' because it did not provide for ``exceptional or unusual
circumstances.'' Some employers, on the other hand, objected that the
five business days proposed was still inadequate. Southwest Airlines
noted that the requirement was ``particularly unreasonable for
employers * * * with multiple worksites and/or local, decentralized
recordkeeping.'' See also Metropolitan Transportation Authority (NY);
Regence. Spencer Fane Britt & Browne stated, ``[a]lthough we believe
the five-day rule is an improvement over the existing two-day rule and
certainly more realistic, we question whether such a rule is even
necessary in light of the Ragsdale decision'' and interpreted the
proposed rule to allow notification outside the five-day rule ``if the
employee suffers no harm.'' Others viewed the increase less favorably.
See Cindy Whitmore. The National Partnership for Women & Families
commented that the change ``provides another example of the pattern in
the NPRM of employees requesting leave having less time to meet new
requirements and time frames and employers having more time to respond
to requests.'' The Communications Workers of America also opposed
``giving employers additional time to process FMLA paperwork without
giving employees an equal extension of time to provide responsive
documentation requests'' and further expressed a concern that the
failure to timely designate leave may result in related absences also
being denied, ultimately leading employees ``to abandon their FMLA
rights.''
A significant number of comments from employers, employer
representatives, and employer associations objected to proposed Sec.
825.300(c)(1)'s requirement that, in situations involving unscheduled
intermittent leave, employers provide employees notice every 30 days of
the amount of leave that has been designated as FMLA-qualifying if the
employee took leave during the 30-day period. Community Health and
Counseling Services called the notification requirement ``an
administrative nightmare--especially with the time records always in
arrears upwards of two weeks.'' The New York City (NY) Law Department
commented that this proposal placed ``an undue burden on employers who
may have many employees frequently using intermittent leave.'' This
commenter and the Chamber suggested that employers be required to
provide employees with such information upon request, but not more
often than every 30 days. The Catholic Charities, Diocese of Metuchen
recommended the designation notice ``only be provided to the employee
more frequently than every six months if the employee's leave will not
be considered FMLA leave.'' The Unified Government of Wyandotte County/
Kansas City (KS) agreed, stating its concern about the increased
workload that will be caused by the reporting of leave used to
employees taking leave each month. Willcox and Savage commented that
the proposal was unnecessary since many employees using unscheduled
intermittent leave do not begin to exhaust their twelve-week
entitlement. See also Ohio Department of Administrative Services;
Columbus (OH) City Attorney's Office; Illinois Credit Union League; and
Vercruysse Murray & Calzone. The AFL-CIO, however, supported the
requirement and stated the information required to be provided in a 30-
day notice ``will also facilitate leave-related decisions by employees
who take unforeseen, intermittent leave.'' Community Legal Services,
Inc./AIDS Law Project of Pennsylvania also supported the Department's
proposal but urged the Department ``to go further and require that
employers inform employees who are on leave when they are within a week
of exhausting their FMLA leave.''
The Department considers communication between the employer and the
employee to be critical to the smooth administration of the FMLA and
has significantly modified the process for designating FMLA leave to
ensure that employees receive timely notification both that leave for a
particular condition will be FMLA-protected and the number of hours
that will be counted against their FMLA leave entitlement in a manner
that is not unduly burdensome for employers. The Department is
cognizant of the various factors that employers must consider before
determining whether an employee's leave should be designated as FMLA
leave and the administrative burden imposed by having to make this
determination in a short time frame. Accordingly, final Sec.
825.300(d)(1) modifies the timing of the designation notice, requiring
the employer to notify the employee whether a leave of absence will be
designated as FMLA leave within five business days absent extenuating
circumstances of when the employer has sufficient information to
determine whether the leave is being taken for a FMLA-qualifying
reason. Final Sec. 825.300(d)(1) further clarifies that only one
designation notice is required for each FMLA-qualifying reason per
leave year, regardless of whether the leave is taken as a continuous
block of leave or on an intermittent or reduced leave schedule basis.
In order to clarify the distinction between designating leave taken for
a qualifying reason as FMLA-protected and notifying the employee of the
number of hours counted against the FMLA leave entitlement, the final
rule moves the latter requirement to a new paragraph (d)(6) of this
section; this requirement applies also to the military family leave
provisions. This distinction is implicit in both current Sec. 825.208
and proposed Sec. Sec. 825.300(c) and 825.301(a). Under Sec.
825.300(d)(6) of the final rule, if the amount of leave needed is known
at the time of the employer's designation of the leave as FMLA leave,
the employer must notify the employee of the amount of leave that will
be counted against the employee's FMLA leave entitlement in the
designation notice. The Department finds persuasive the comments that
the automatic 30-day tracking, recording, and reporting to intermittent
FMLA leave-takers of the amount of leave counted as FMLA required by
proposed Sec. 825.300(c)(1) would be unduly burdensome. Accordingly,
in situations in which the amount of leave to be taken is not known at
the designation stage (e.g., when unforeseeable intermittent leave will
be needed), the final rule modifies the employer's obligation,
requiring employers to inform the employee of the number of hours
counted against the FMLA leave entitlement only upon employee request,
and no more often than every 30 days if FMLA leave was taken during
that period. In order to lessen the burden of this notification, and
consistent with current Sec. 825.208(b)(2), the final rule also
permits the employer to notify the employee of the hours counted
against the FMLA leave entitlement orally and follow up with written
notification on a pay stub at the next payday (unless the next payday
is in less than one week, in which case the notice must be no later
than the subsequent payday). By clarifying that this requirement can be
met with simple notation of FMLA leave on a pay stub, the Department
believes that employers will be able to provide the necessary
information to employees in a timely fashion with minimal additional
burden. To further encourage employers to provide notice to the
employee at the earliest possible stage, the Department has also moved
proposed Sec. 825.300(c)(3) to final
[[Page 67999]]
Sec. 825.300(d)(2), to emphasize that the employer is expressly
permitted to provide the designation and eligibility notices
simultaneously upon an employee's request for FMLA leave, if the
employer has sufficient information to do so at that time.
The Department has included a new Sec. 825.300(d)(3), consistent
with the changes in the final rule in Sec. 825.300(c) and the
discussion above, to require that the employer provide written notice
of any requirement for a fitness-for-duty certification, including
indicating whether the fitness-for-duty certification must address the
employee's ability to perform the essential functions of the employee's
position and, if so, to provide a list of the essential functions of
the employee's position, with the designation notice. If the employee
handbook or other written documents clearly provide that a fitness-for-
duty certificate will be required, written notice is not required, but
oral notice must be provided.
The final rule combines proposed Sec. 825.300(c)(2) and (c)(4),
both of which addressed the form of the designation notice, and
redesignates them as Sec. 825.300(d)(4). Because pay stub designation
is more appropriate for notifying employees of the amount of leave
counted against the FMLA leave entitlement, reference to designation by
pay stub notation has been deleted from this paragraph of the final
rule and moved to final Sec. 825.300(d)(6). As noted above, final
Sec. 825.300(d)(6) reinstates oral notification of the amount of leave
counted as FMLA leave with written follow-up notification; such
designation is permitted under current Sec. 825.208(b)(2), but had
been removed from proposed Sec. 825.300(c). The prototype designation
notice referenced in final Sec. 825.300(d)(4) has been modified
consistent with the final rule.
Finally, the final rule adds a new Sec. 825.300(d)(5) that
requires employers to notify employees if the information in the
designation notice changes. For example, if an employee exhausts his or
her FMLA leave entitlement and the leave will no longer be designated
as FMLA leave, the employer must provide the employee with written
notice of this change consistent with this section.
Consequences of Failing To Provide Notice
The Department proposed a new paragraph at Sec. 825.300(d) to
address concerns arising out of the U.S. Supreme Court's decision in
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). This
paragraph provided a remedy provision that is dependent on an employee
having suffered individualized harm as a result of any violation of the
general, eligibility, or designation notice requirements. The
Department's proposal clarified that failure to comply with the notice
requirements set forth in this section could constitute interference
with, restraint of, or denial of the use of FMLA leave. The proposal
further provided that, if the employee is able to demonstrate harm as a
result of the employer's failure to provide a required notice, the
employer could 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. See also Sec. 825.301(e).
Few commenters addressed this provision and most agreed with the
proposed changes. The National Partnership for Women & Families, for
example, agreed that proposed Sec. 825.300(d) is necessary given the
Ragsdale decision, and suggested the final rule make clear that ``one
of the equitable remedies an employee may obtain is additional leave.''
As in any action arising under the FMLA, any remedy is specific to the
facts of the individual's circumstance, and a court may order any
appropriate relief. Therefore, no change to the proposal is necessary,
and the final rule adopts proposed paragraph (d) as final paragraph (e)
without modification. See also the preamble discussion of Sec. 825.301
for additional discussion of the designation and remedy provisions.
Section 825.301 (Employer Designation of FMLA Leave)
The Department proposed to delete current Sec. 825.301, which
addressed employer notices to employees, because its requirements were
incorporated into proposed Sec. 825.300 as discussed above. Provisions
in current Sec. 825.208 addressing designation of FMLA leave, to the
extent not incorporated into proposed Sec. 825.300(c), were moved to
proposed Sec. 825.301.
Proposed Sec. 825.301(a) stated an employer's obligations
regarding timely designation of leave as FMLA-qualifying and reiterated
the requirement to notify the employee of the designation within five
business days as proposed in Sec. 825.300. This section required that
the employer's designation decision be based only on information
received from the employee or the employee's representative and also
provided that, if the employer does not have sufficient information
about the employee's reason for leave, the employer should inquire
further of the employee or of the employee's spokesperson. The section
further provided that, in the case of intermittent leave or leave on a
reduced schedule, only one such notice is required unless the
circumstances regarding leave have changed. Proposed Sec. 825.301(b)
outlined employee responsibilities, with cross-references to proposed
Sec. Sec. 825.302 and 825.303, which addressed what constitutes
sufficient information an employee must communicate to an employer when
needing FMLA leave. Among other things, proposed Sec. 825.301(b)
required that an employee (or his or her spokesperson) provide
sufficient information to allow the employer to determine that the
leave qualifies under the FMLA, but the employee need not expressly
assert rights under the Act or even mention the FMLA. Proposed Sec.
825.301(b) also explained that the consequences for an employee's
failure to satisfy these responsibilities could include delay or denial
of FMLA leave. Proposed Sec. 825.301(b), as a matter of clarification,
deleted the word ``unpaid'' found in current Sec. 825.208(a)(2), as
these employee responsibilities apply whether the leave is paid or
unpaid. Proposed Sec. 825.301(c) provided that if there is a dispute
between an employee and employer about whether leave qualifies as FMLA
leave, it should be resolved through discussion and the dispute
resolution documented. Proposed Sec. 825.301(d) permitted retroactive
designation under certain circumstances. Additionally, the Department
proposed in Sec. 825.301(d) that in all cases where leave is FMLA-
qualifying, an employer and an employee can mutually agree that the
leave be retroactively designated as FMLA leave. Proposed Sec.
825.301(e) clarified that, if an employer failed to timely designate
leave 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.
Proposed Sec. 825.301(e) provided that failure to timely designate may
constitute an interference with, restraint of, or denial of, the
exercise of an employee's FMLA rights. This section clarified that, if
the employee is able to establish prejudice as a result of the
employer's failure to designate leave properly, an employer could 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. The Department provided examples to illustrate the type of
circumstance where an employee may
[[Page 68000]]
or may not be able to show that harm has occurred as a result of the
employer's actions. Lastly, the Department's proposal eliminated the
``provisional designation'' concept that appears in current Sec.
825.208(e)(2).
Southwest Airlines noted that the provision in proposed Sec.
825.301(a) allowing only one designation notice in the case of
intermittent or reduced schedule leave, unless the circumstances of the
leave have changed, coupled with the new requirement to provide
designation notice as often as every 30 days created ``confusion as to
whether an employer is obligated to provide the designation notice
every 30 days, or only once.'' The Department agrees that the proposal
did not clearly distinguish between the employer's obligation to
designate a leave of absence as FMLA-qualifying, which generally
applies only once per leave year for each FMLA-qualifying reason, and
the employer's obligation to notify the employee of how much leave is
to be counted against the employee's FMLA leave entitlement, which must
be determined for each absence. As discussed above, the final rule
clarified these two obligations in final Sec. 825.300(d)(1) and
(d)(6). As part of this clarification, both the general statement of
the employer's obligation to designate leave as FMLA-protected and the
statement regarding the need to designate intermittent and reduced
schedule leave only once were moved from proposed Sec. 825.301(a) to
final Sec. 825.300(d)(1), with modifications.
The Department did not receive significant comments regarding
proposed Sec. 825.301(b) and (c). Therefore, the final rule adopts
these provisions as proposed with minor editorial changes, including
the deletion of some references to ``paid leave'' that were
unnecessary.
Several commenters agreed that proposed Sec. 825.301(d) and (e)
accurately reflected the Supreme Court's decision in Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81 (2002). See Equal Employment
Advisory Council; the Association of Corporate Counsel's Employment and
Labor Law Committee; TOC Management Services; the Chamber; Community
Health and Counseling Services; National Association of Wholesaler-
Distribution. The American Foundry Society concurred but requested
clarification regarding at ``what point an employer's obligations are
triggered to make follow-up inquiries.'' The AFL-CIO agreed
specifically with the proposed revisions to Sec. 825.301(e) concerning
remedies. Hewitt Associates commented that ``employers will find [the
example provided in that section] highly instructive'' and suggested
adding other examples. The National Retail Federation however, objected
that the ``equitable relief language for harm caused by interference
with FMLA rights is problematic'' and ``too vague about how the loss of
FMLA rights directly results in monetary harm.'' The Illinois Credit
Union League commented that the remedy provision (specifically citing
to the provision as it appears at proposed Sec. 825.300(d)) was
``particularly troubling'' and objected that ``interference with a
`right' suggests something more than failure to provide notice.'' The
National Association of Convenience Stores stated the Ragsdale decision
rendered the designation requirements of no effect and recommended that
any designation requirement be eliminated from the regulations.
The Department does not believe that the Ragsdale decision limited
the Department's ability to require employer notices beyond a posted
general notice. The Ragsdale decision invalidated the categorical
penalty imposed by Sec. 825.700(a) of the current regulations. The
Court stated ``in so holding we do not decide whether the notice and
designation requirements are themselves valid or whether other means of
enforcing them might be consistent with the statute.'' 535 U.S. at 96.
In fact, the Court also stated, ``[t]o be sure, 12 more weeks might be
an appropriate make-whole remedy for an employee who would not have
taken any leave at all if the [designation] notice had been given,''
lending further support to the validity of the regulatory notice
requirements. Id. at 93. Therefore, the final rule adopts proposed
Sec. 825.301(d) and (e) without modification. The Department notes
that retroactive designation consistent with this provision must be
accompanied by appropriate notice to the employee as required under
Sec. 825.300 and can only be undertaken where it does not cause harm
or injury to the individual or where the employee and employer mutually
agree to the retroactive designation.
Finally, several commenters addressed the elimination of the
``provisional designation'' concept. The Metropolitan Transportation
Authority (NY) supported the elimination, noting that it was a
confusing concept for both employers and employees. The National
Partnership for Women & Families on the other hand, stated that the
Department ``does not explain how this change could affect workers and
whether the lack of a provisional designation accompanied by DOL's
proposal to grant employers more time to respond to employee's requests
for FMLA leave will make employees less likely to take FMLA leave as
they will not know quickly whether the leave will be covered.'' The
American Association of University Women stated that the elimination of
the ``provisional'' designation status was ``particularly troubling''
in light of the increased time frame afforded employers and questioned
whether workers might ``be less likely to take leave because it will
take that much longer to know whether they are covered, and the leave
is not provisionally designated in the meantime.'' The AFL-CIO
commented that the ``[p]reliminary designation of FMLA leave gives
employees the comfort of knowing that their requests for leave will be
approved provided they give their employer requisite information `which
confirms the leave is for an FMLA reason.' ''
The final rule eliminates the ``provisional designation'' concept
as proposed. The process for ``provisional designation'' of leave may
have caused confusion over whether leave is protected prior to the
actual designation, especially in cases where the leave does not
eventually qualify for the Act's protections. The Department continues
to believe that the deletion of a ``provisional'' designation concept
will result in less confusion for employees. If employees take leave
that ultimately is determined not to be FMLA-qualifying, it is not
protected. A preliminary FMLA designation may have given false comfort
to leave takers that their leave would be protected when, in fact, it
was not. However, whether the leave is provisionally designated as FMLA
leave or not, the leave is only protected by the statute if it is
determined to be FMLA-qualifying, such as by timely completion of the
medical certification process. Therefore, the proposed rule deleting
this provision is adopted.
Section 825.302 (Employee Notice Requirements for Foreseeable FMLA
Leave)
Section 825.302 addresses an employee's obligation to provide
notice of the need for foreseeable FMLA leave. Proposed Sec.
825.302(a) retained 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 proposed section further
added the requirement that when an employee gives less than 30
[[Page 68001]]
days advance notice, the employee must respond to a request from the
employer to explain why it was not practicable to give 30 days notice.
Proposed Sec. 825.302(b) deleted the second sentence of current Sec.
825.302(b), which defined ``as soon as practicable'' as ``ordinarily *
* * within one or two business days of when the need for leave becomes
known to the employee.'' The NPRM further provided examples of when
notice of the need for leave that is foreseeable less than 30 days in
advance could practicably be provided. Proposed Sec. 825.302(c)
retained the standard from the current regulation 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. The NPRM
clarified, however, the information the employee must provide in order
to provide sufficient notice to the employer of the need for FMLA leave
and added that the employee has an obligation to respond to an
employer's questions designed to determine whether leave is FMLA-
qualifying. The Department sought comment as to whether a different
notice standard requiring that employees expressly assert their FMLA
rights should apply in situations in which an employee had previously
provided sufficient notice of a serious health condition necessitating
leave and was subsequently providing notice of dates of leave due to
that same condition. Proposed Sec. 825.302(d) retained the current
requirement that an employee comply with the employer's usual notice
and procedural requirements for calling in absences and requesting
leave, but deleted current language stating that an employer cannot
delay or deny FMLA leave if an employee fails to follow such
procedures. The proposal qualified the employee's obligation to comply
with the employer's customary notice and procedural requirements by
noting that the obligation applied ``absent unusual circumstances'' and
provided examples of what might constitute unusual circumstances. No
changes were proposed to Sec. Sec. 825.302(e) and 825.302(f). Proposed
Sec. 825.302(g) retained language stating that employers may waive
employees' FMLA notice requirements but deleted language stating that
employers could not enforce FMLA notice requirements if those
requirements were stricter than the terms of a collective bargaining
agreement, state law or employer leave policy.
Section 825.302(a) of the final rule retains the requirement that
employees respond to requests from employers to explain why it was not
possible to give 30 days notice of their need for FMLA leave. It also
makes clear that the 30-day notice requirement applies to FMLA leave
taken for an expected birth, placement for adoption or foster care,
planned medical treatment for a serious health condition of the
employee or of a family member, or the planned medical treatment for a
serious injury or illness of a covered servicemember. For FMLA leave
taken for a qualifying exigency, notice must be provided as is
practicable. The final rule also retains in Sec. 825.302(b) the
statutory standard that notice of the need for leave that is
foreseeable less than 30 days in advance must be provided ``as soon as
practicable'' and provides guidance as to what notice the Department
expects will be practicable in such circumstances. Section 825.302(c)
of the final rule continues to provide guidance as to what information
an employee may need to provide to constitute sufficient notice, but
clarifies that the types of information listed are merely examples and
may not be required in all situations. The general notice poster has
been revised to include this information as well. The final rule also
maintains the employee's obligation to respond to employer inquiries
designed to determine if leave is FMLA-qualifying. It adds a
requirement that, for FMLA leave taken because of a qualifying
exigency, the employee shall provide sufficient information that
indicates that a family member is on active duty or call to active duty
status, that the requested leave is for one of the reasons listed in
Sec. 825.126(a), and the anticipated duration of the absence.
Additionally, the final rule requires employees seeking leave for a
previously certified FMLA condition, covered servicemember's serious
injury or illness, or qualifying exigency to inform the employer that
the leave is for a condition, covered servicemember's serious injury or
illness, or qualifying exigency that was previously certified or for
which the employee has previously taken FMLA leave. The final rule
maintains the standard in proposed Sec. 825.302(d) that ``absent
unusual circumstances'' employees may be required to comply with
employer policies for requesting leave so long as those policies do not
require notice to be provided sooner than is practicable. The final
rule makes a minor change to Sec. 825.302(e) to clarify that the
reference to the scheduling of intermittent leave is merely an example
and that the employee's obligation to make reasonable efforts to
schedule planned medical treatment so as not to unduly disrupt the
employer's operations applies to all FMLA leave whether it is taken as
a continuous block of leave or as intermittent or reduced schedule
leave. The final rule modified proposed Sec. 825.302(f) to include
appropriate references to the military family leave provisions,
including the requirement that, for intermittent or reduced schedule
leave taken to care for a covered servicemember with a serious injury
or illness, the employee shall attempt to schedule such leave to not
unduly disrupt the employer's operations. The final rule makes no
changes to proposed Sec. 825.302(f) and (g).
Several commenters representing employees took issue with the
requirement in the proposed rule that employees who fail to provide 30
days notice of the need for foreseeable leave must explain the reasons
for their failure to do so upon request from their employer for such
information. See, e.g., National Treasury Employees Union; National
Partnership for Women & Families; Legal Aid Society-Employment Law
Center; Community Legal Services, Inc./AIDS Law Project of
Pennsylvania; American Postal Workers Union. These commenters viewed
the requirement as unnecessary and potentially invasive of employee
privacy. The AFL-CIO asserted that the requirement ``unduly intrudes
upon employee privacy'' and argued that ``[t]here is no reason to give
employers unfettered discretion to demand that employees explain why
they did not give 30 days notice of leave, particularly where the
explanation may require the disclosure of sensitive medical or other
personal information.''
The few employer representatives that specifically addressed this
notice requirement argued that it would facilitate employers' ability
to plan for employee absences. Jackson Lewis noted, ``[w]hen the need
for leave is foreseeable (as is often the case when an employee seeks
leave for childbirth, surgery and recovery), employees should provide
advance notification to their employer so that the employer has the
time necessary to redistribute work to other employees.'' See also
National Roofing Contractors Association; Equal Employment Advisory
Council. The Equal Employment Advisory Council requested that the
regulation go further and require that employees provide documentation
to support their inability to provide additional notice.
The Department believes that an employee's obligation to explain
the reason he or she was unable to provide 30 days advance notice of
the need for
[[Page 68002]]
foreseeable leave is implicit in the current regulation, which allows
for the provision of less than 30 days notice only in those
circumstances in which 30 days notice was not practicable. See Sec.
825.302(a); see also 29 U.S.C. 2612(e)(1) and (2) (employee shall
provide 30 days notice of the need for foreseeable leave due to
applicable FMLA-qualifying reasons, unless circumstances require that
the leave begin in less than 30 days, in which case the employee shall
provide such notice as is practicable). Because employees already may
be required to provide such an explanation, the Department does not
view the explicit acknowledgement of this obligation in proposed Sec.
825.302(a) as imposing any additional burden on employees.
Additionally, the Department believes that early notice of the need for
FMLA-protected leave is essential to the smooth functioning of FMLA
leave in the workplace and that making clear that employees may be
required to explain why they provided less than 30 days notice of the
need for foreseeable leave emphasizes the importance of the notice
requirement under the FMLA. Accordingly, the final regulation retains
the requirement from the proposal that in applicable situations
employees must provide an explanation upon request from their employer
of the reason why they were unable to provide 30 days notice of the
need for foreseeable FMLA leave.
The NPRM raised a number of issues regarding the notice
requirements for the military family leave provisions. While the NDAA
applies the existing FMLA notice requirements to military caregiver
leave, it establishes a different notice requirement for qualifying
exigency leave. Under the NDAA, in such circumstances where leave taken
for a qualifying exigency is foreseeable, eligible employees must
provide notice to the employer that is ``reasonable and practicable.''
29 U.S.C. 2612(e)(3). The Department stated an initial view that
proposed Sec. Sec. 825.302 and 825.303 should be extended to military
caregiver leave. An employee using military caregiver leave would then
be generally 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. The Department asked whether military caregiver leave
should be incorporated into this and all of the appropriate provisions
in proposed Sec. Sec. 825.302 and 825.303. In addition, the Department
stated its initial view that Sec. Sec. 825.302 and 825.303 should also
be applied to qualifying exigency leave. The Department asked, if
Sec. Sec. 825.302 and 825.303 were not applied to qualifying exigency
leave, what other notice requirements should be used.
The Department received many comments on employee notice
requirements and the military family leave provisions. The Delphi
Corporation offered that the ``new provisions should, to the greatest
possible extent, track the current regulatory scheme. Any regulations
concerning the administration of these leaves--including notice
provisions and certification requirements--should track the non-
military FMLA requirements. This will help minimize disruption and
confusion caused by the new provisions.'' The Manufacturers Alliance/
MAPI stated that ``[j]ust as the proposed FMLA regulations require the
employee to give the employer notice of the need for foreseeable and
unforeseeable leave, the same notice requirements should extend to
leave taken to care for a covered service member and to leave taken for
a qualifying exigency.'' Others addressed their comments specifically
to notice for qualifying exigency leave. The National Coalition to
Protect Family Leave expressed concern that the NDAA only requires
notice for qualifying exigency leave ``if the need for leave is
foreseeable. The language almost implies that no notice at all is
required if exigency leave is unforeseeable. We believe the Department
should apply the same principles of foreseeability as described in the
proposed regulations * * * in sections 825.302 and 825.303.'' This
commenter also stated that employees should ``notify their employers as
soon as reasonable and practical when the employee learns that the
servicemember has been called to active duty * * *. However, such
notice of a call to active duty * * * should not be considered notice
of a need for [qualifying exigency] leave. The employee should still be
required to provide notice when the actual need for leave becomes
known.'' Id. The Independent Bakers Association suggested that
``[m]eetings and appointments should be scheduled in advance. Notice to
employers should be provided as soon as the employee is aware of the
need to take off.'' The National Association of Manufacturers
commented:
The statute requires that when the need for leave because of a
family member's active duty is ``foreseeable,'' the employee should
provide notice ``as is reasonable and practicable.'' The statute is
silent with regard to notice when the need for leave is not
foreseeable. The [National Association of Manufacturers] recognizes
that even in the instance of when the need is foreseeable, there may
be very limited notice; but the [National Association of
Manufacturers] believes that the Department should clarify that an
employee should provide notice as soon as practicable in either
circumstance.
Allowing no notice would present production issues and foreclose
planning to accommodate the absence. This becomes more evident since
the leave is based on exigent circumstances. In such circumstances,
we believe the Department should require the employee to provide the
employer with notice when the employee learns of the need for leave.
The [National Association of Manufacturers] proposes that the
Department consider incorporating the Department of Defense
regulations interpreting the notice provisions under the Uniformed
Services Employment and Reemployment Rights Act (``USERRA'') for
these regulations. There, DoD recommends that a servicemember
provide 30 days notice of the upcoming absence when feasible. In
addition, notice can be provided for the employee by others, such as
an appropriate military officer. Another approach could be to
conform all notice requirements under FMLA with those in USERRA,
which would lead to a similar result. Either alternative would be a
meaningful improvement.
In the final rule, the same requirements for providing notice for
foreseeable leave that apply to existing FMLA leave are extended to
military caregiver leave. Because Congress specifically amended the
FMLA to include military caregiver leave under the existing statutory
provisions regarding notice for foreseeable leave, it makes sense for
the Department to do the same for the regulatory notice provisions for
foreseeable leave. The statutory amendments regarding qualifying
exigency leave created a free-standing notice provision for such leave
that requires employees to provide such notice as is ``reasonable and
practicable.'' The Department agrees with those commenters who argued
that ``reasonable and practicable'' should be interpreted the same as
``practicable'' and that the same standard of ``practicable'' should
thus apply to leave for any FMLA-qualifying reason. Accordingly, in all
cases of foreseeable leave due to a qualifying exigency, an employee is
required to provide notice ``as soon as practicable'' and Sec. 825.302
has been modified to apply to such leave. Thus, Sec. 825.302(a) in the
final rule is changed to incorporate references to military caregiver
leave and also makes clear that the 30-day advanced notice requirement
for foreseeable leave does not apply to qualifying exigency leave.
Employees are not obligated to provide notice to an employer when they
first become aware of a covered family member's active duty or call to
[[Page 68003]]
active duty status. The Department believes this is an unnecessary
requirement because many employees with a covered military member may
never need to use qualifying exigency leave. Notice for qualifying
exigency leave should be provided when the employee first seeks to take
leave for a qualifying exigency.
When the need for FMLA leave is foreseeable less than 30 days in
advance, an employee must ``provide such notice as is practicable.'' 29
U.S.C. 2612(e)(1), (2)(B). Proposed Sec. 825.302(b) deleted language
from current Sec. 825.302(b) defining ``as soon as practicable'' as
``ordinarily * * * mean[ing] at least verbal notification to the
employer within one or two business days of when the need for leave
becomes known to the employee.'' As discussed in the preamble to the
proposed rule, the ``one or two business days'' timeframe was intended
as an illustrative outer limit, but had come to be read 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. 73 FR 7907 (Feb. 11,
2008). See Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999).
Several employee representatives specifically opposed the deletion
of the ``one or two business days'' language in proposed Sec.
825.302(b). See, e.g., National Partnership for Women & Families;
Community Legal Services, Inc./AIDS Law Project of Pennsylvania;
PathWaysPA; Human Rights Campaign. The National Partnership for Women &
Families noted that the Department was proposing to shorten the amount
of time that employees had to provide notice of the need for FMLA leave
at the same time that it was proposing to give employers more time to
respond to the employee's notice. Many commenters viewed the proposed
requirement that employees provide notice of the need for leave that is
foreseeable less than 30 days in advance either on the same day or the
next business day to be unduly restrictive and to impose an unnecessary
hurdle to employees seeking to utilize FMLA leave. See, e.g., Community
Legal Services, Inc./AIDS Law Project of Pennsylvania; Human Rights
Campaign; Denise Evans; PathWaysPA; Maine Department of Labor. The
United Food and Commercial Workers International Union argued that the
current regulation does not permit employees to wait two days if it is
practicable for them to provide notice sooner and that therefore no
regulatory change is needed as to the timing of notice for FMLA leave
foreseeable less than 30 days in advance.
Employee representatives also took issue with the statement in the
preamble that:
Absent emergency situations, where an employee becomes aware of
the 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).
73 FR 7908 (Feb. 11, 2008). The Legal Aid Society--Employment Law
Center questioned whether under the proposed regulation an employee
diagnosed with early stage breast cancer would be required to tell her
employer about her diagnosis before telling her family. Similarly, the
National Partnership for Women & Families noted that under the proposed
rule an employee learning that the date for her cesarean section has
been moved up may be required to inform her employer before her family.
See also American Postal Workers Union (``The examples provided by the
proposed regulation in Sec. 825.302(b) make no allowance for employees
who, although they may be aware of a medical appointment, are not aware
of the FMLA or of its employee notice requirements.'').
Conversely, employer representatives overwhelmingly supported the
deletion of the ``two-day rule.'' See, e.g., Equal Employment Advisory
Council; the Chamber; National Newspaper Association; National Small
Business Association. Commenters including the Equal Employment
Advisory Council and the Chamber argued that prompt notice of an
employee's need for FMLA leave is essential to the employer's ability
to manage the workplace. See also HR Policy Association; AT&T. The
Chamber stated that the lack of advance notice of absences was one of
the biggest problems employers faced under the current regulations.
They argued that deleting the ``two-day rule'' would reduce what they
perceived to be the abuse of FMLA leave. AT&T noted that advance notice
of absences is essential to its ability to comply with federal- and
state-mandated service levels in some call centers.
HR Policy Association and the National Association of Manufacturers
agreed with the statement in the preamble that the Department expected
that it would be practicable for employees to provide notice the same
day or the next business day. The National Coalition to Protect Family
Leave and the National Restaurant Association however, argued that
employees should be required to comply with the timing requirements of
employers' normal policies for reporting absences.
The Department notes that prompt notice of an employee's need for
FMLA leave not only allows an employer to manage its staffing needs but
also facilitates the prompt determination of FMLA coverage. When an
employee's need for FMLA leave is foreseeable, it is in the employee's
interest that the determination of whether the leave is FMLA-protected
be made prior to the commencement of the leave. Prompt notice of the
need for leave to the employer allows the employer to determine whether
or not certification will be required. Wherever possible, it is
preferable that the employer receive all information necessary to
determine whether the leave will be designated as FMLA-protected prior
to the date of the leave.
The Department wishes to stress that both current and proposed
Sec. 825.302(b) defined ``as soon as practicable'' as ``as soon as
both possible and practical, taking into account all the facts and
circumstances of the individual case.'' The deletion of the ``two-day
rule'' does not change the fact that whether notice is given as soon as
practicable will be determined based upon the particular facts and
circumstances of the employee's situation. For example, if an employee
receives a call during the workday from her health care provider
telling her that she had been diagnosed with breast cancer and will
have a need for FMLA leave, the employee would not be expected to
inform her employer of the need for leave the same day. Given the facts
and circumstances related to the gravity of the condition and when the
employee became aware of the diagnosis, it would not be practicable for
the employee to provide notice to her employer of her impending need
for leave to treat her cancer prior to having the opportunity to
discuss the diagnosis with her family. In contrast, if an employee
receives a call during the workday from her health care provider
telling her that an appointment previously scheduled for Friday is
being moved to Thursday, the employee would be expected to inform her
employer of the change in her need for leave the same day. The examples
provided in the proposed rule have been replaced with the statement
that:
Where an employee becomes aware of a need for FMLA leave less
than 30 days in advance, it should be practicable for the employee
to provide notice of the need for leave either the same day or the
next business day. In all cases, however, the
[[Page 68004]]
determination of when an employee could practicably provide notice
must take into account the individual facts and circumstances.
Thus, the employee's obligation is always to provide notice as soon as
practicable. In the normal course, the Department expects that
employees will be able to provide notice of the need for leave that is
foreseeable less than 30 days in advance either the same day or the
next business day. In cases involving unusual facts and circumstances,
such as the diagnosis of a serious disease, additional time may be
necessary before the employee can practicably provide notice to the
employer of the need for leave.
Proposed Sec. 825.302(c) retained the standard from current Sec.
825.302(c) that an employee need not expressly assert his or her rights
under the FMLA or even mention the FMLA, but instead must provide
sufficient information to make his or her employer aware that FMLA
rights may be at issue. To clarify the employee's notice obligation,
proposed Sec. 825.302(c) added language clarifying what information
the employee must provide to make the employer aware of the employee's
need for FMLA-protected leave.
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.
73 FR 7981 (Feb. 11, 2008). The proposed rule also added language
explaining an employee is obligated to respond to an employer's
questions designed to determine whether or not the absence is FMLA-
qualifying, and that failure to respond to reasonable inquiries may
result in the denial of FMLA protection if the employer is unable to
determine whether the leave is FMLA-qualifying. Additionally, the
preamble to the proposed rule sought comments ``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.'' Id. at 7908.
Employee representatives including the AFL-CIO and the National
Employment Lawyers Association expressed concern that the proposed
language was unduly proscriptive and would be difficult for employees
to comply with. The National Partnership for Women & Families and the
Sargent Shriver National Center on Poverty Law pointed out that not all
of the listed elements would be applicable in some situations covered
by the FMLA. Some commenters viewed the increased specificity in the
proposed regulation as serving no purpose other than providing
employers with another opportunity to deny FMLA protection to
qualifying leave. See United Food and Commercial Workers International
Union; Communications Workers of America. Community Legal Services,
Inc./AIDS Law Project of Pennsylvania analyzed the proposal as follows:
``The true effect of this change would simply be to give the employers
additional grounds for denying FMLA leave, by claiming that leave
requests which lacked one or more of the new requirements did not put
them on notice of a possible FMLA-eligible leave request, and that
therefore they did not need to inquire further.'' The National
Partnership for Women & Families and the AFL-CIO expressed a concern
that employees would lose FMLA protection because they would be unaware
of the specific types of information required and noted that the
proposed rule did not establish any mechanism for informing employees
of the additional information they would be required to provide. See
also Sargent Shriver National Center on Poverty Law; Community Legal
Services, Inc./AIDS Law Project of Pennsylvania. A labor union
attorney, Robert M. Schwartz, noted that the new notice requirements
were not included in the proposed general notice and poster.
Employer commenters indicated that requiring employees to provide
additional information regarding their need for leave would facilitate
the process of identifying, and protecting, FMLA leave. See the
Chamber; Catholic Charities, Diocese of Metuchen. The Equal Employment
Advisory Council stated that ``[i]nformation such as the inability to
perform work, the anticipated duration of the absence, and the need to
see a health care provider is critical to trigger for the employer the
possibility that the employee may be requesting FMLA-qualifying
leave.'' Jackson Lewis, however, commented that the additional
information required under the proposed rule may still not be
sufficient to put employers on notice that an employee's leave should
be FMLA-protected. Several employer representatives also requested that
the Department go further and require employees to expressly assert
their FMLA rights in all instances. See, e.g., National Restaurant
Association; National Coalition to Protect Family Leave; National
Newspaper Association; Spencer Fane Britt & Browne; Society for Human
Resource Management; National Association of Convenience Stores;
American Foundry Society. Jackson Lewis suggested that employees be
required ``to specifically request FMLA leave for all absences less
than one week/five business days in duration.'' The Equal Employment
Advisory Council expressed its support for requiring employees to
respond to employer requests for follow-up information regarding their
need for leave, noting that ``the employee's cooperation is necessary
to substantiate a request for legally protected leave.''
Most employee commenters who addressed the Department's inquiry
regarding requiring employees to expressly assert their FMLA rights
when they were requesting leave based on a condition for which they had
previously provided sufficient notice, opposed the idea. See, e.g.,
National Partnership for Women & Families; United Food and Commercial
Workers International Union; Community Legal Services, Inc./AIDS Law
Project of Pennsylvania. Community Legal Services, Inc./AIDS Law
Project of Pennsylvania argued that ``[e]mployees who have already
established a right to FMLA leave should not be vulnerable to losing
their jobs simply because they neglect to use the magic words in giving
notice to an employer that was already aware of why they have been out
on leave.'' The Communications Workers of America, however, asserted
that the use of a separate notice standard in such instances would be
beneficial.
Many employer representatives, including a number of employers with
large workforces such as the U.S. Postal Service and AT&T supported
requiring employees to specifically reference the FMLA when requesting
leave due to a previously-certified FMLA-protected condition. See also
Southern Company; New York City (NY) Law Department; Vercruysse Murray
& Calzone; National Association of Manufacturers; Society for Human
Resource Management; Spencer Fane Britt & Browne; National School
Boards Association. The U.S. Postal Service noted that requiring
employees to specifically reference a previously-certified FMLA
condition would be particularly helpful in situations in which
employees have multiple FMLA conditions and
[[Page 68005]]
employers need to identify the condition for which the leave is being
taken. The Equal Employment Advisory Council and Jackson Lewis,
however, opposed having a separate notice standard in these
circumstances because they perceived it as a lessening of the
employee's notice obligation. Manufacturers Alliance/MAPI suggested
that the uncertainty surrounding employee notice of the need for FMLA
leave could be resolved if the Department created a form which
employees could be required to use to request FMLA leave.
Finally, several commenters including the National Partnership for
Women & Families and the National Employment Lawyers Association
expressed concern that proposed Sec. 825.302(c) fundamentally altered
the employer's obligation to inquire if additional information was
necessary to determine whether an employee's need for leave is FMLA-
protected. See also Sargent Shriver National Center on Poverty Law;
Community Legal Services, Inc./AIDS Law Project of Pennsylvania. The
AFL-CIO asserted that the proposed rule affirmatively ``shifts the
burden to employees to provide information that is currently the
employer's obligation to obtain if the initial notice is
insufficient.''
By setting forth the types of information that an employee may have
to provide in order to put an employer on notice of the employee's need
for FMLA-protected leave, the Department did not intend to establish a
list of information that must be provided in all cases. Instead, the
Department intended to provide additional guidance to employees so that
they would know what information to provide to their employers. The
Department agrees with those commenters who noted that the nature of
the information necessary to put the employer on notice of the need for
FMLA leave will vary depending on the circumstances. For example, an
employee who informs her supervisor that she is pregnant and needs to
attend a doctor's appointment related to her pregnancy has provided
sufficient notice of her need for FMLA-protected leave. Likewise, where
an employee is seriously injured at work and the employer sends the
employee to the hospital by ambulance, the employer has sufficient
information to be on notice that the employee's leave may be FMLA-
protected. Accordingly, the final rule has been changed to read:
``Depending on the situation, such information may include 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; that the employee
is pregnant or has been hospitalized overnight; the anticipated
duration of the absence, if known; and whether the employee or the
employee's family member is under the continuing care of a health care
provider.'' The Department wishes to emphasize that the employer's
obligation to inquire if it needs additional information to determine
whether the leave is FMLA-qualifying remains the same as it is under
the current regulations. No change in this obligation was proposed in
the NPRM and none is intended in the final rule.
Section 825.302(c) of the final rule has been changed to include a
different notice standard when the employee requests leave for a
previously-certified FMLA-qualifying reason. The Department believes
that in such situations, because employees are already aware that leave
for such reason is FMLA-protected, it is not overly burdensome to
require them to specifically reference either the particular reason or
their need for FMLA leave. Where an employee has previously taken FMLA
leave for more than one qualifying reason, the employer may need to
inquire further to determine for which reason the leave is being taken
and employees will be required to respond to such inquiries. The
Department believes that this requirement will facilitate employers'
ability to appropriately designate and protect FMLA leave. Because
incidents of unforeseeable leave are often related to previously-
certified FMLA-qualifying reasons, a similar notice standard has also
been included in Sec. 825.303 of the final rule.
Finally, Sec. 825.302(c) in the final rule has been modified to
incorporate appropriate references to military caregiver leave and
provides that for qualifying exigency leave the employee must provide
notice with sufficient information that indicates that a family member
is on active duty or call to active duty status, that the requested
leave is for one of the reasons listed in Sec. 825.126(a), and the
anticipated duration of the absence. It also states that an employer
may request certification in the case of both military caregiver leave
and qualifying exigency leave.
Section 825.302(d) of the proposed rule retained the requirement
that an employee comply with the employer's usual notice and procedural
requirements for calling in absences and requesting leave, but deleted
language stating that the employer could not delay or deny FMLA leave
if the employee failed to follow such procedures. The proposed rule
qualified the employee's obligation to comply with the employer's usual
reporting requirements, however, by noting that it applies ``absent
unusual circumstances'' and providing examples of what might constitute
such circumstances. The proposed rule also clarified that where the
employer's usual reporting procedure allowed less time for reporting
absences than Sec. 825.302(a), the employer could not enforce its
policy as to timing.
Employee representatives strongly opposed allowing employers to
delay or deny FMLA protection because of an employee's failure to
comply with the employer's usual requirements for requesting leave.
See, e.g., AFL-CIO; Community Legal Services, Inc./AIDS Law Project of
Pennsylvania; American Postal Workers Union; National Partnership for
Women & Families; Coalition of Labor Union Women. The AFL-CIO noted
that the ``unusual circumstances'' exception would not provide
employees with sufficient protection to prevent them from being denied
FMLA leave due to the rigid application of employer policies. The
American Postal Workers Union and the American Association of
University Women argued that employers should not be able to enforce
their usual policies unless they could show that they were harmed by
the employee's failure to comply with the policy.
Employer commenters, however, argued that employees should be
required to follow the same procedures for requesting leave regardless
of whether their need for leave was covered by the FMLA. See, e.g.,
National Coalition to Protect Family Leave; Equal Employment Advisory
Council; TOC Management Services; Retail Industry Leaders Association;
Society for Human Resource Management; Association of Corporate
Counsel's Employment and Labor Law Committee. The Chamber argued that
allowing employers to apply their normal procedures for requesting
leave to FMLA leave requests would help reduce confusion and
duplicative policies. The Equal Employment Advisory Council and the
Association of Corporate Counsel's Employment and Labor Law Committee
specifically supported the deletion of language from the current
regulation stating that employers could not delay or deny FMLA
protection where an employee fails to provide timely FMLA notice. The
Equal Employment Advisory Council and others commented in favor of the
clarification in the preamble to the proposed rule that where FMLA-
[[Page 68006]]
protected leave is delayed or denied because the employee failed to
provide timely notice, and the employee is absent during the period in
which he or she is not entitled to FMLA protection, the employer may
treat the absence in the same manner it would treat any other unexcused
absence. See also U.S. Postal Service; Retail Industry Leaders
Association.
The Department recognizes that call-in procedures are routinely
enforced in the workplace and are critical to an employer's ability to
ensure appropriate staffing levels. Such procedures frequently specify
both when and to whom an employee is required to report an absence. The
Department believes that employers should be able to enforce non-
discriminatory call-in procedures, except where an employer's call-in
procedures are more stringent than the timing for FMLA notice as set
forth in Sec. 825.302(a). In that situation, the employer may not
enforce the more stringent timing requirement of its internal policy.
Additionally, where unusual circumstances prevent an employee seeking
FMLA-protected leave from complying with the procedures, the employee
will be entitled to FMLA-protected leave so long as the employee
complies with the policy as soon as he or she can practicably do so.
Unusual circumstances would include where the employer's procedure
requires employees to report absences to a specific individual, and
that individual was absent on a particular day, or the individual's
voice mail box was full. Because the example of an employee unable to
report an absence due to his or her medical condition is more
appropriately viewed as unforeseeable leave, the example has been
replaced with an employee unable to comply with the employer's
requirement for the reasons discussed above. In such an instance, the
employee would satisfy his or her FMLA notice obligation by providing
notice in accordance with the employer's policy as soon as the employee
can practicably do so.
Although the proposed rule made no changes in Sec. 825.302(e), one
change has been made in the final rule. The phrase ``for example'' has
been added to the third sentence to emphasize that the reference to the
use of intermittent leave for planned medical treatment is only one
example of when an employee is obligated to make a reasonable effort to
schedule leave so as not to disrupt unduly the employer's operations.
The employee's obligation applies to all foreseeable FMLA leave for
planned medical treatment, whether that leave is taken in a single
continuous block of leave or intermittently. 29 U.S.C. 2612(e)(2)(A).
No changes were proposed to Sec. 825.302(f). The final rule
modifies paragraph (f) to incorporate references to the military family
leave provisions. The rule makes clear that the requirement that an
employee and employer attempt to work out a schedule without unduly
disrupting the employer's operations applies only to military caregiver
leave. It does not apply to qualifying exigency leave.
Proposed Sec. 825.302(g) retained only the first sentence of
current Sec. 825.302(g) stating that employers may waive employees'
FMLA notice requirements. The proposal deleted the remainder of current
Sec. 825.302(g), which addressed whether employers could require
compliance with FMLA notice requirements where the provisions of a
collective bargaining agreement, state law, or applicable leave plan
allow for less advance notice to the employer. This proposal did not
draw a significant number of comments.
Three unions, however, objected to the deletion of the language
referencing less restrictive procedures in collective bargaining
agreements. See National Association of Letter Carriers; National
Treasury Employees Union; AFL-CIO. While the AFL-CIO agreed that the
vacation leave example in current Sec. 825.302(g) was confusing and
should be deleted, it argued that it was important to retain the second
and fourth sentences of the current regulation to provide guidance on
less strict notice provisions in collective bargaining agreements. The
National Treasury Employees Union argued that the deletion was
inconsistent with 29 U.S.C. 2652, which states that nothing in FMLA
``shall be construed to diminish the obligation of an employer to
comply with any collective bargaining agreement or any employment
benefit program or plan that provides greater family or medical leave
rights to employees than the rights established under this Act.'' See
also National Partnership for Women & Families. Finally, the National
Partnership for Women & Families objected to the deletion generally,
not just as it applied to collective bargaining agreements. Only two
employer representatives directly addressed proposed Sec. 825.302(g)
and both supported the proposed changes. See Equal Employment Advisory
Council; TOC Management Services. The Equal Employment Advisory Council
argued that current Sec. 825.302(g) was confusing and inconsistent
with the employer's right to notice under the FMLA.
The final rule makes no substantive changes to proposed Sec.
825.302(g). The FMLA does not relieve employers of their obligation to
comply with state and local laws, collective bargaining agreements, or
employment benefit programs that provide ``greater family or medical
leave rights.'' 29 U.S.C. 2651(b), 2652(a). These statutory obligations
are not diminished by the revisions made to Sec. 825.302(g). The
Department does not believe that these obligations should be addressed
in Sec. 825.302(g) as they are fully discussed in Sec. Sec. 825.700
and 825.701 of both the current and final rules. A cross-reference has
been added in Sec. 825.302(g) of the final rule, however, to Sec.
825.304, which also addresses waiver of an employee's notice
obligations.
Section 825.303 (Employee Notice Requirements for Unforeseeable FMLA
Leave)
Section 825.303 addresses an employee's obligation to provide
notice when the need for FMLA leave is unforeseeable. Proposed Sec.
825.303(a) retained the current standard that employees must provide
notice of their need for unforeseeable leave ``as soon as practicable
under the facts and circumstances of the particular case.'' The
proposed rule replaced language stating that, except in extraordinary
circumstances, employees would be expected to give notice ``within no
more than one or two working days of learning of the need for leave,''
with the requirement that employees provide notice ``promptly'' and
provided examples of appropriate notice. Proposed Sec. 825.303(b)
retained the current 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 unforeseeable FMLA leave. The proposal added
the same clarifying language used in proposed Sec. 825.302(c)
explaining the information the employee must provide in order to
provide sufficient notice to the employer of the need for FMLA leave
and added that the employee has an obligation to respond to an
employer's questions designed to determine whether leave is FMLA-
qualifying. The proposal also added a specific statement that calling
in ``sick,'' without providing additional information, will not be
sufficient notice under the Act. The preamble to the proposed rule also
sought comment on whether employees needing unforeseen leave for a
previously-certified FMLA condition (e.g., a flare-up of a chronic
condition) should be required to expressly assert their FMLA rights.
Finally, proposed
[[Page 68007]]
Sec. 825.302(c) added the requirement that, except when extraordinary
circumstances exist, employees must comply with employers' usual and
customary notice and procedural requirements for requesting leave and
provided examples.
Section 825.303(a) of the final rule retains the standard from the
current regulation that employees must provide notice of the need for
unforeseeable FMLA leave ``as soon as practicable.'' The final rule
replaces the statement that employees will be expected to give notice
to their employer ``promptly'' with the statement that it generally
should be practicable for the employee to provide notice of leave that
is unforeseeable within the time prescribed by the employer's usual and
customary notice requirements applicable to such leave. Section
825.303(b) of the final rule continues to provide guidance as to what
information an employee may need to provide to constitute sufficient
notice, but clarifies that the types of information listed are merely
examples and may not be required in all situations. It adds a
requirement that, for FMLA leave taken because of a qualifying
exigency, the employee shall provide sufficient information that
indicates that a family member is on active duty or call to active duty
status, that the requested leave is for one of the reasons listed in
Sec. 825.126(a), and the anticipated duration of the absence.
Additionally, the final rule requires employees seeking leave for a
previously certified FMLA condition, covered servicemember's serious
injury or illness, or qualifying exigency to inform the employer that
the leave is for a condition, covered servicemember's serious injury or
illness, or qualifying exigency that was previously certified or for
which the employee has previously taken FMLA leave. The final rule also
retains the statement that calling in ``sick'' is not sufficient notice
of the need for FMLA leave and the requirement that employees respond
to employer questions designed to determine if leave is FMLA-
qualifying. The final rule in Sec. 825.303(c) provides that, absent
unusual circumstances, employees must comply with employers' usual
notice and procedural requirements for requesting leave. This section
makes clear that in the case of an emergency requiring leave because of
an employee's own serious health condition, because of a qualifying
exigency, or to care for a family member with a serious health
condition or a covered servicemember with a serious injury or illness,
written advance notice pursuant to an employer's internal rules and
procedures may not be required. This section also makes clear that
FMLA-protected leave may be delayed or denied when an employee does not
comply with the employer's usual notice and procedural requirements and
no unusual circumstances justify the failure to comply.
Employee representatives objected to the proposed regulation's
shortening of the time for employees to provide notice of the need for
unforeseeable leave. See, e.g., National Partnership for Women &
Families; United Food and Commercial Workers International Union;
Community Legal Services, Inc./AIDS Law Project of Pennsylvania;
National Employment Lawyers Association; Human Rights Campaign. The
AFL-CIO and the United Food and Commercial Workers International Union
took issue with the statement in the preamble to proposed Sec.
825.303(a) that ``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.'' 73 FR 7910 (Feb. 11, 2008). The United Food and
Commercial Workers International Union objected to the examples
provided in the proposed rule of an employee caring for a child with
asthma and providing notice of the unforeseen need for leave
``promptly,'' arguing that the example ``fails to consider the timing
of the child's asthma in relationship to the start of the employee's
shift, whether following the attack the employee believes further
treatment may be advisable, or whether, at the time of the asthma
attack, the employee had to interrupt other responsibilities which have
to be completed such as getting other children to school.'' The United
Food and Commercial Workers International Union also noted that the
term ``promptly'' was undefined and argued that it could be read to
conflict with the statutory standard that notice must be provided ``as
soon as practicable.'' The National Partnership for Women & Families
questioned how the proposed regulation would work, noting that ``[i]t
is unclear how employers will ascertain whether the employee could have
called in earlier or not and who will determine if `extraordinary
circumstances' actually existed.'' See also PathWaysPA; Sargent Shriver
National Center on Poverty Law.
Employer representatives overwhelmingly supported replacing the
``one or two working days'' standard with the requirement that
employees provide notice of the unforeseen need for FMLA leave
``promptly.'' See, e.g., Equal Employment Advisory Council; National
Newspaper Association; Jackson Lewis. Several commenters emphasized
that timely notice of absences is even more critical to an employer's
operations when the need for leave is unforeseen. See Equal Employment
Advisory Council; American Health Care Association; National
Association of Manufacturers; AT&T; National Small Business
Association. The Equal Employment Advisory Council and other commenters
supported the statement in the preamble to the proposed rule that,
absent extraordinary circumstances, employees would be expected to
notify their employers of the need for unforeseen FMLA leave prior to
the start of their shifts. See also American Health Care Association.
Several law firms suggested that the final rule would be improved if
this language from the preamble were incorporated into the regulatory
text. See Spencer Fane Britt & Browne; Willcox & Savage; Vercruysse
Murray & Calzone; see also TOC Management Services. The National
Coalition to Protect Family Leave and others, however, objected to
setting the standard at prior to the start of the shift and instead
suggested that employer call-in policies should determine the timing of
notice for unforeseen leave. See Spencer Fane Britt & Browne; Society
for Human Resource Management; National Restaurant Association;
National Newspaper Association. Spencer Fane Britt & Browne, for
example, commented:
Under the Proposed Rule, an employee can literally call in
absent one minute before the start of the shift with impunity. In
some industries, however, employers require as much as two hours
advance notice because of scheduling issues and the need to find a
replacement. It is literally impossible to have a replacement on
site when an employee merely calls in right before the start of his/
her shift. This is a particular problem in time-sensitive, critical
services, and interdependent jobs (e.g., health care,
transportation, utilities, assembly line, work group operations, law
enforcement and fire protection, etc.).
The Department has concluded that the statement in the proposed
regulatory text that ``[w]here the need for leave is unforeseeable, it
is expected that an employee will give notice to the employer
promptly'' does not provide useful guidance for applying the ``as soon
as practicable'' standard. As noted in the discussion of Sec.
825.303(c) below, ``as soon as practicable'' is the governing standard.
The Department believes that the employer's usual and customary notice
requirements for taking such leave are a useful guide for providing
notice of the need for unforeseeable
[[Page 68008]]
FMLA leave because the Department anticipates that providing notice
``as soon as practicable'' will generally be consistent with an
employer's reasonable notice requirements for taking such leave.
Accordingly, Sec. 825.303(a) of the final rule replaces the statement
that employees will be expected to give notice to their employers
``promptly'' with the statement that it generally should be practicable
for the employee to provide notice of leave that is unforeseeable
within the time prescribed by the employer's usual and customary notice
requirements applicable to such leave, with a cross-reference to Sec.
825.303(c). Where unusual circumstances prevent the employee from
complying with the employer's normal reporting policy, the employee
will satisfy the FMLA notice obligation if he or she provides notice to
the employer ``as soon as practicable'' under the circumstances. The
final rule retains the examples from proposed Sec. 825.303(a) because
the Department believes that they provide useful guidance on how the
``as soon as practicable'' standard should be applied.
Employee representatives commenting on proposed Sec. 825.303(b)
objected, as they did in responding to proposed Sec. 825.302(c), that
the listing in the regulation of the information necessary to notify an
employer of the need for unforeseeable FMLA leave was overly
prescriptive and presented an unnecessary hurdle for employees seeking
to use FMLA leave. See, e.g., National Partnership for Women &
Families; AFL-CIO; United Food and Commercial Workers International
Union; Communications Workers of America. The United Food and
Commercial Workers International Union argued that under the proposed
rule employees would be required to provide information which they may
well not know at the time they initially provide notice of the need for
unforeseeable leave. Other commenters expressed concern that employees
would not be aware of their increased notice obligation and would
therefore lose FMLA protection because they did not include all of the
necessary information in providing notice of the need for leave. See
National Partnership for Women & Families; National Employment Lawyers
Association; Sargent Shriver National Center on Poverty Law. The
National Partnership for Women & Families argued that the problems that
employers allegedly face with unforeseen intermittent leave could be
addressed without altering the employee's notice obligation:
To the extent that employers feel that employees are abusing
unforeseeable leave, especially intermittent unforeseeable leave,
employers should address those problems as an issue of management of
their employees. There is no need to change the regulations for a
federal statute for the entire country especially without sufficient
evidence that such change is necessary.
The National Employment Lawyers Association questioned whether the
proposed regulation inappropriately shifted the burden from the
employer to inquire if additional information was needed to determine
if leave was FMLA-qualifying to the employee to provide all necessary
information in the initial notice. See also National Partnership for
Women & Families; United Food and Commercial Workers International
Union; Community Legal Services, Inc./AIDS Law Project of Pennsylvania;
Sargent Shriver National Center on Poverty Law.
Employer representatives also reiterated their comments on proposed
Sec. 825.302(c) when commenting on Sec. 825.303(b), arguing that
requiring employees to provide the enumerated information would
facilitate the identification and protection of FMLA-qualifying leave.
See the Chamber; Association of Corporate Counsel's Employment and
Labor Law Committee. The National Coalition to Protect Family Leave and
Society for Human Resource Management suggested that if employees were
required to provide the information listed in proposed Sec.
825.303(b), it would be equally appropriate and more effective to
require them to specifically assert their FMLA rights when requesting
unforeseen leave. See also National Newspaper Association; National
Restaurant Association; Spencer Fane Britt & Browne. TOC Management
Services and other commenters specifically supported the inclusion in
the proposed regulation of the statement that simply calling in
``sick'' was insufficient to put an employer on notice of the need for
unforeseen FMLA leave. See also American Health Care Association;
Association of Corporate Counsel's Employment and Labor Law Committee;
the Chamber. The Association of Corporate Counsel's Employment and
Labor Law Committee and the National Newspaper Association specifically
supported the requirement that employees respond to follow-up inquiries
from employers to determine whether leave is FMLA-qualifying. One law
firm, Vercruysse Murray & Calzone, commented that language in the
proposed preamble stating that employees would be expected to provide
additional information to their employers if a condition that initially
did not appear to be a serious health condition developed into one
should be included in the text of the final regulation.
Employers and their representatives generally supported requiring
employees to expressly assert their FMLA rights when taking leave for a
previously certified FMLA-qualifying reason, with several commenters
noting that the need for such a requirement was even more imperative
when the need for leave was unforeseen. See, e.g., American Health Care
Association; Association of Corporate Counsel's Employment and Labor
Law Committee; Southern Company. In particular, the U.S. Postal Service
highlighted the problems faced by employers when employees with
multiple FMLA-certified conditions notify their employers of an
unscheduled absence. Vercruysse Murray & Calzone asserted that
employees with approved FMLA certifications for chronic conditions
frequently do not specify the reason for their absence, and argued that
since such employees have ``already been approved for FMLA leave and
have been notified of their rights and responsibilities under the FMLA,
they should be required to specify, when reporting an absence, that the
absence relates to their previously approved FMLA leave.'' Employee
representatives generally opposed requiring employees to specifically
assert their FMLA rights when requesting unforeseen leave due to a
serious health condition for which they have previously been certified.
See National Partnership for Women & Families; Community Legal
Services, Inc./AIDS Law Project of Pennsylvania; United Food and
Commercial Workers International Union. The Communications Workers of
America, however, supported the application of the different notice
standard in these circumstances, but expressed concern as to how
employees would learn of such a new requirement.
As discussed above in Sec. 825.302(c), the Department did not
intend in proposed Sec. 825.303(b) to establish a list of information
that must be provided in all cases. Accordingly, for the reasons
discussed above in the preamble to Sec. 825.302(c), the final rule has
been changed to read: ``Depending on the situation, such information
may include that a condition renders the employee unable to perform the
functions of the job; that the employee is pregnant or has been
hospitalized overnight; whether the employee or the employee's family
member is under the continuing care of a health care provider; if the
leave is due to a qualifying exigency, that a
[[Page 68009]]
covered military member is on active duty or call to active duty
status, that the requested leave is for one of the reasons listed in
Sec. 826.126(a), and the anticipated duration of the absence; or if
the leave is for a family member that the condition renders the family
member unable to perform daily activities or that the family member is
a covered servicemember with a serious injury or illness; the
anticipated duration of the absence, if known.'' The Department also
wishes to emphasize that the employer's obligation to inquire if
additional information is needed to determine whether the leave is
FMLA-qualifying remains the same as it is under the current
regulations. No change in this obligation was proposed in the NPRM and
none is intended in the final rule. Final Sec. 825.303(b) retains the
obligation that employees respond to employer inquiries designed to
determine whether leave is FMLA-qualifying. In addition, references to
both military caregiver leave and qualifying exigency leave are added
to Sec. 825.303(b). This paragraph is altered to provide that for
qualifying exigency leave, the employee must provide notice with
sufficient information that indicates that a family member is on active
duty or call to active duty status, that the requested leave is for one
of the reasons listed in Sec. 825.126(a), and the anticipated duration
of the absence. Section 825.303(b) has also been changed to include a
different notice standard when the employee requests unforeseen leave
due to a previously certified FMLA-qualifying reason. As explained in
connection with the revisions to final Sec. 825.302(c), the Department
believes that in such circumstances, because employees are already
aware that leave for the reason is FMLA-protected, it is not overly
burdensome to require them to specifically reference their FMLA-
qualifying reason or their need for FMLA leave. When an employee has
more than one previously certified FMLA-qualifying reason, the employer
may need to inquire further to determine for which FMLA-qualifying
reason the leave is being taken, and employees will be required to
respond to such inquires. The Department believes this requirement will
facilitate an employer's ability to appropriately designate and protect
FMLA leave.
Employee representatives objected to the requirement in proposed
Sec. 825.303(c) that employees comply with the employer's usual and
customary notice and procedural requirements for requesting leave,
except when extraordinary circumstances exist. See National Partnership
for Women & Families; United Food and Commercial Workers International
Union; Community Legal Services, Inc./AIDS Law Project of Pennsylvania.
Community Legal Services, Inc./AIDS Law Project of Pennsylvania
emphasized that in low-wage settings employees may not be familiar with
their employers' procedures for requesting leave. Employer
representatives, however, argued that employees should follow the same
procedures for absence reporting regardless of whether the leave was
for a FMLA condition. See, e.g., National Coalition to Protect Family
Leave; Retail Industry Leaders Association; National Restaurant
Association; Ohio Department of Administrative Services; College and
University Professional Association for Human Resources. Jackson Lewis
objected to allowing an exception from the requirement for
extraordinary circumstances.
As discussed above in connection with the revisions to Sec.
825.302(d), the Department recognizes that call-in procedures are a
routine part of many workplaces and are critical to an employer's
ability to manage its work force. Adherence to such policies is even
more critical when the need for leave is unforeseen. Accordingly, the
final rule in Sec. 825.303(c) provides that, absent unusual
circumstances, employees must comply with their employer's usual and
customary notice and procedural requirements for requesting leave. The
Department modified the standard from ``extraordinary circumstances''
in the proposal to ``unusual circumstances'' in the final rule to make
the standard consistent with that used in Sec. 825.302(d). In the
final rule, the Department deleted the sentence that FMLA leave may not
be delayed or denied where the employer's policy requires notice to be
given sooner than set forth in Sec. 825.303(a) and the employee
provides timely notice as required in that section. Because final Sec.
825.303(a) makes the employer's usual and customary notice requirements
the benchmark for providing timely notice for unforeseeable leave in
most cases, this sentence no longer makes sense. Nonetheless, it is
important to note that ``as soon as practicable'' is the governing
standard; the Department anticipates that an employer's reasonable
notice requirements for taking unforeseeable leave will be consistent
with this standard in most circumstances. The final rule in Sec.
825.303(d) includes the provision that FMLA-protected leave may be
delayed or denied when an employee does not comply with the employer's
usual notice and procedural requirements and no unusual circumstances
justify the failure to comply. The Department included this provision
to make it consistent with Sec. 825.302(d).
Section 825.304 (Employee Failure To Provide Notice)
Proposed Sec. 825.304 clarified what an employer may do if an
employee fails to provide the required notice for FMLA leave.
Specifically, the proposed section separated into different paragraphs
the rules applicable to leave foreseeable at least 30 days in advance,
leave foreseeable less than 30 days in advance, and unforeseeable
leave. The proposed section provided examples of what it means to delay
FMLA leave in cases of both foreseeable and unforeseeable leave. The
proposed rule retained language from current Sec. 825.304(c) stating
that FMLA leave cannot be delayed due to lack of required employee
notice if the employer has not complied with its notice requirements,
as set forth in proposed Sec. 825.300. The final rule reorganizes
Sec. 825.304 by moving paragraph (e) to paragraph (a) (and vice versa)
as set forth in the proposed rule and by deleting the reference to
annual distribution of employee notices to conform to changes made in
final Sec. 825.300.
The Department received few comments specifically addressing
proposed Sec. 825.304. The Equal Employment Advisory Council, Jackson
Lewis, and the Pennsylvania Governor's Office of Administration noted
that the clarification of employers' rights when employees fail to meet
their FMLA notice obligations provided needed guidance to employers.
The United Food and Commercial Workers International Union, however,
strongly opposed permitting employers to discipline employees or delay
the start of FMLA leave when employees needing unforeseeable leave fail
to comply with employer call-in procedures.
The Department believes that proposed Sec. 825.304 provides
helpful guidance clarifying the consequences of an employee's failure
to provide timely notice of the need for FMLA leave. While current
Sec. 825.304 addresses the delay of FMLA protection where an employee
fails to provide 30 days notice of the need for FMLA leave, the
regulation does not explain the consequences for failure to provide
timely notice when the need for leave was either foreseeable less than
30 days
[[Page 68010]]
in advance or unforeseeable. Moreover, the current regulation does not
explain the effect of delaying FMLA protection if the employee was
absent during the period in which the protection was appropriately
delayed. The Department believes that Sec. 825.304 as proposed more
clearly explains the consequences of an employee's failure to provide
timely FMLA notice. Accordingly, except for the organizational changes
in re-ordering paragraphs (a) and (e) noted above, the final rule
adopts proposed Sec. 825.304 without change.
Section 825.305 (Certification, General Rule)
The FMLA permits employers to require employees to provide a
certification from their health care provider (or their family member's
health care provider, as appropriate) to support the need for leave due
to a serious health condition. 29 U.S.C. 2613. Section 825.305 of the
regulations sets forth the general rules governing employer requests
for medical certification to substantiate an employee's need for FMLA
leave due to a serious health condition. The new military family leave
provisions also permit employers to require employees to provide a
certification in the case of leave taken for a qualifying exigency or
to care for a covered servicemember with a serious injury or illness.
Accordingly, Sec. 825.305 in the final rule has been retitled and
edited to apply generally to all types of certification. In most cases,
for example, references to ``medical certification'' have been changed
to simply ``certification.''
In the NPRM, no changes were proposed to current Sec. 825.305(a),
which states the general rule that employers may require certification
from a health care provider where the employee's need for leave is due
to a serious health condition of the employee or a covered family
member. Current Sec. 825.305(b) sets forth the timing requirement for
providing the certification. Proposed Sec. 825.305(b) increased the
time frame in which an employer should request medical certification
from two to five business days after notice of the need for FMLA leave
and applied the general 15-day time period for providing a requested
certification to all cases, including where the employee provides
notice of the need for leave 30 days in advance. The Department also
requested comment as to whether it should add a requirement under this
section that employers must notify employees when a requested
certification is not received within the 15-day time frame. Proposed
Sec. 825.305(c) added definitions of incomplete and insufficient
certifications and set forth a procedure for curing an incomplete or
insufficient certification that requires an employer to notify the
employee in writing as to what additional information is necessary for
the medical certification and provide seven calendar days to provide
the additional information. Proposed Sec. 825.305(d) clarified that if
an employee fails to submit a complete and sufficient certification,
despite the opportunity to cure the deficiency as set forth in Sec.
825.305(c), the employer may deny the taking of FMLA leave. This
proposed section also clarified that, when certification is required by
the employer, it is the employee's obligation to either provide a
complete and sufficient certification or provide any necessary
authorization for the health care provider to release a complete and
sufficient certification directly to the employer; this obligation
applies regardless of whether the certification requested is an initial
certification, a recertification, a second or third opinion, or a
fitness for duty certification. Current Sec. 825.305(e) states that if
a less stringent medical certification standard applies under the
employer's sick leave plan, only that lesser standard may be required
when the employee substitutes any form of paid leave for FMLA leave.
The proposed rule deleted this provision because it conflicted with the
employer's right under 29 U.S.C. 2613 to require as a prerequisite to
FMLA leave for a serious health condition that the employee provide a
medical certification to substantiate the serious health condition. The
proposed rule added a new Sec. 825.305(e) allowing for annual medical
certifications in those cases in which a serious health condition
extends beyond a single leave year; this addition codified the
Department's interpretation of the certification requirement in Wage
and Hour Opinion Letter FMLA-2005-2-A (Sept. 14, 2005). The final rule
adopts Sec. 825.305 as proposed with one clarification to Sec.
825.305(e) and with appropriate edits to reflect the military family
leave provisions.
Proposed Sec. 825.305(b) increased the time frame during which an
employer should request medical certification from two to five business
days after receiving notice of the employee's need for FMLA leave. The
Department did not receive substantial comment on this proposal. For
the most part, those commenters that addressed this proposal
specifically supported the increase in the time frame to allow
employers to process the employee's initial request for FMLA leave and
determine if medical certification will be required. See, e.g., the
Chamber; TOC Management Services; National Retail Federation; College
and University Professional Association for Human Resources. The
National Small Business Association noted that the increased time frame
would be particularly helpful for small businesses, which must divert
resources from other functions to administer FMLA requests.
Current Sec. 825.305(b) states that where the need for leave is
foreseeable and notice is provided 30 days in advance, the employee
must provide any requested medical certification prior to the
commencement of the leave; in all other cases, the employee must
provide medical certification within 15 days after the leave is
requested ``unless it is not practicable under the particular
circumstances to do so despite the employee's diligent, good faith
efforts.'' Proposed Sec. 825.305(b) applied the 15-day time frame,
subject to the employee's diligent, good faith efforts, to all cases of
FMLA leave in order to make it consistent with the timing requirements
set forth in Sec. 825.311 of the regulations. The Department did not
receive extensive comments regarding this proposed change. The Chamber
and the Association of Corporate Counsel's Employment and Labor Law
Committee supported the application of the 15-day time frame to all
requests for certification because it establishes a clear deadline that
would facilitate FMLA administration. The AFL-CIO, however, objected to
the proposed change arguing that the shorter time frame would burden
employees.
Both proposed Sec. 825.305(b) and (c) provide employees additional
time in which to either initially submit the medical certification or
cure a deficiency in the certification if the employee is unable to
comply with the initial time frame ``despite the employee's diligent,
good faith efforts.'' Several commenters requested that the Department
provide additional guidance on what constitutes ``diligent, good faith
efforts'' sufficient to justify allowing the employee additional time
to provide or cure a medical certification. See, e.g., Hewitt
Associates; UMC of Southern Nevada; Dalton Corp. The AFL-CIO suggested
that ``an employee who has requested a medical certification and has
followed up at least once with his or her healthcare provider'' should
be considered to have met the ``diligent, good-faith efforts'' standard
justifying additional time within which to submit the certification.
The Society for Human Resource Management and the National Coalition to
Protect Family Leave suggested that where employees are
[[Page 68011]]
unable to submit a certification within 15 days despite diligent, good
faith efforts, final Sec. 825.305(b) should provide a single seven day
extension to submit the certification so that the process would be
clear and would mirror the cure process in proposed Sec. 825.305(c).
The preamble discussion of proposed Sec. 825.305(b) also sought
comment on whether employers should be required to notify employees if
a requested certification was not submitted within the 15-day time
frame and allow the employee another seven days to provide the
certification. Several employee representatives, including the National
Partnership for Women & Families and the AFL-CIO supported requiring
employers to provide notice to employees when a certification was not
received within the initial time frame and provide additional time for
the employee to submit the certification. See also National Treasury
Employees Union; PathWaysPA. The National Treasury Employees Union
noted that employees frequently request that their health care
providers submit the certification directly to their employer and
assume that the health care provider has done so. The AFL-CIO agreed
that employers should be required to notify employees when a
certification is not received, but suggested that the additional grace
period for submitting the certification should be 15 days instead of
seven. Catholic Charities, Diocese of Metuchen also supported allowing
employees additional time to submit a certification. Employer
representatives, however, almost uniformly opposed requiring employers
to provide such notification because of the administrative burden doing
so would impose. See, e.g., Burr and Forman; Equal Employment Advisory
Council; AT&T; National Association of Manufacturers; Willcox & Savage;
Manufacturers Alliance/MAPI; Southwest Airlines; Berens & Tate;
National School Boards Association. The Southern Company argued that
such a requirement would inappropriately shift the employee's statutory
responsibility to provide a medical certification to the employer and
would, in effect, convert the intended 15-day period for providing
certification into a 22-day period in all cases. Jackson Lewis and the
Ohio Department of Administrative Services objected that requiring
employers to inform employees that a certification has not been
received would be overly paternalistic.
The final rule adopts proposed Sec. 825.305(b) without change.
First, as to this section's time frames for employers, the Department
believes that the increase in the general time frame for the employer
to request the employee to furnish a certification from a health care
provider from two to five business days is reasonable and consistent
with other similar changes. See final Sec. Sec. 825.300(b) and (c);
825.301(a). Second, as to this section's time frames governing
employees' follow-up with employers, the Department believes that
applying the 15-day time period as the outer limit of the time period
by which the employee must respond to all requests for certification
will facilitate the prompt determination of whether leave qualifies for
FMLA protection. By requiring employees seeking leave that is
foreseeable 30 days in advance to provide any requested certification
within the time frame requested by the employer--which must allow at
least 15 calendar days after the certification is requested by the
employer--employers should have sufficient time to review the
certification, request additional information or clarification in
accordance with Sec. 825.305(c) if necessary, and determine whether
the leave is FMLA-protected prior to employees commencing their leave.
In all cases, employees who are unable to meet the 15-day time frame
despite their diligent, good faith efforts must be allowed additional
time to supply the certification. In all cases, it is imperative that
employees communicate to their employers the efforts they are making to
secure the completed medical certification. In assessing whether
employees have made diligent, good faith efforts to submit a timely
certification, employers should consider all the circumstances,
including the employee's efforts to schedule appointments and follow-up
with the health care provider's office, or other appropriate offices in
the case of qualifying exigency leave or military caregiver leave, to
ensure that the certification is completed; employers should be mindful
that employees must rely on the cooperation of their health care
providers and other third parties in submitting the certification and
that employees should not be penalized for delays over which they have
no control. The Department has decided not to require employers to
provide notice to employees when a certification is not received
because of the administrative burden this would impose. The Department
is aware that many employers, in an effort to ensure that employees are
aware of their FMLA rights, routinely send FMLA notifications and
requests for certification for a wide range of absences, even when
employees have not indicated that the absences are FMLA-qualifying. In
such cases, there may be many reasons why an employee does not return
the certification and requiring the employer to track every employee's
time from the certification request and follow-up when a certification
is not returned would create a significant burden on the employer and
would be of questionable value to employees whose need for leave may be
completely unrelated to the FMLA. Employees who request that their
health care providers submit the certification directly to their
employer can check with their employer to ensure that the certification
has been received and follow-up with their health care provider if it
has not. Such employee follow-up would be evidence of the employee's
diligent, good faith efforts to provide timely certification. The
Department deleted the phrase ``from a health care provider'' from the
first sentence in the final rule. As noted above, this provision
applies to all certifications for FMLA leave, including certification
for qualifying exigency leave, which does not depend on a health care
provider completing the certification.
Proposed Sec. 825.305(c) defined the process by which an employee
could cure an incomplete or insufficient certification, requiring
employers to state in writing what additional information was necessary
and establishing a seven-day period for the employee to provide the
additional information. The Department proposed to define the cure
procedure to address employee concerns that some employers made
repeated requests for additional information without specifying why the
certification was deficient, and employer concerns that without a
defined process, it was unclear how many opportunities an employee must
be given to cure a deficient certification. Overall, the Department
received very positive feedback regarding the cure procedure in
proposed Sec. 825.305(c).
Several unions and other employee representatives supported the
process in proposed Sec. 825.305(c) for curing an incomplete or
insufficient certification. See, e.g., National Partnership for Women &
Families; American Civil Liberties Union; AFL-CIO; Association of
Professional Flight Attendants; National Postal Mail Handlers Union.
The AFL-CIO commented that requiring employers to state in writing what
additional information was required when they determine that a
certification is incomplete or insufficient was justified based on
employee complaints of employers making repeated requests for
additional information. The
[[Page 68012]]
Association of Professional Flight Attendants, however, asserted that
the proposal could be improved by requiring that employers ``provide
sufficient detail for the health care provider to cure the
deficiency.'' See also National Postal Mail Handlers Union. The
National Association of Letter Carriers argued that limiting the cure
period to seven days set an artificial deadline that would increase the
likelihood that FMLA protection would be denied; the American Postal
Workers Union suggested that an additional 15 days would be
appropriate.
Employer representatives were also supportive of the proposed cure
procedure. See, e.g., the Chamber; Society for Human Resource
Management; Equal Employment Advisory Council; TOC Management Services;
National Coalition to Protect Family Leave; College and University
Professional Association for Human Resources; Domtar Paper Company;
American Foundry Society. The National Association of Manufacturers
found the cure process to be ``appropriate;'' the National Newspaper
Association described it as ``both explicit and fair;'' Spencer Fane
Britt & Browne noted the process was ``workable and fair;'' and Hewitt
Associates asserted that the proposed regulation ``provid[ed] a needed
structure to the employer's obligation for incomplete or insufficient
forms.'' Some commenters, however, opposed the additional seven-day
period to cure a deficient certification, arguing that the 15-day
period for submitting a complete and sufficient certification should
not be extended. See, e.g., Independent Bakers Association; Burr and
Forman; Vercruysse Murray & Calzone. Jackson Lewis argued that the
seven-day period to cure the certification should not be subject to
extension even when the employee is unable to meet the deadline despite
diligent, good faith efforts. The Metropolitan Transportation Authority
(NY) opposed the cure procedure, noting that the requirement that
employers inform employees in writing of the reasons the certification
is deficient imposes an additional administrative burden on employers.
See also Independent Bakers Association. AT&T and the U.S. Postal
Service, however, supported requiring employers to inform employees of
the additional information necessary for the medical certification,
noting that they have already been providing this information to their
employees in writing and do not find it unduly burdensome. The U.S.
Postal Service noted the benefit of this procedure, stating that
``keeping lines of communication open between the employee and FMLA
coordinator is crucial to help employees navigate their way through
sometimes complex regulatory requirements during times of individual
and family crisis.'' The Food Marketing Institute argued that employers
should be required to inform employees of technical deficiencies in a
certification but, where the employer finds the certification to be
vague, should not be required to provide specific instructions as to
how the deficiency could be corrected.
Several commenters also found the definitions of incomplete and
insufficient certifications in proposed Sec. 825.305(c) to be useful
additions to the regulations. See, e.g., National Coalition to Protect
Family Leave; Society for Human Resource Management; Equal Employment
Advisory Council; American Foundry Society; Spencer Fane Britt &
Browne; Retail Industry Leaders Association; Dalton Corp.; Scott D.
Macdonald Esq. The Chamber stated that the clarification of these
standards would ``immediately and drastically improve FMLA
communications.'' The AFL-CIO disagreed, however, stating it was
``greatly troubled'' by the definition of an ``insufficient
certification'' as one containing ``vague, ambiguous or nonresponsive''
information. The AFL-CIO noted that in some cases, particularly those
involving chronic conditions, medical providers may not be able to
provide the level of certainty that employers desire in providing the
frequency and duration of anticipated absences due to the condition.
See also National Partnership for Women & Families (``DOL must make
clear that a medical certificate may not be considered insufficient
simply because the health care provider cannot supply a definite date
by which the serious health condition will end or cannot predict when
intermittent leave may be necessary.''). The National Postal Mail
Handlers Union and the Association of Professional Flight Attendants
requested that the Department state that a range of occurrences or a
duration of ``indefinite,'' ``unknown,'' or ``lifetime'' should not be
considered vague, ambiguous or non-responsive.
The final rule adopts Sec. 825.305(c) as proposed without any
substantive changes. The Department believes that the procedure for
curing a deficient certification set forth in this section will go a
long way toward lessening the friction between employers and employees
during the certification process by increasing communication and
providing a clear and manageable process for resolving questions
regarding certifications. The Department believes the seven-calendar-
day time frame to cure a deficient certification is appropriate because
the employee need only follow-up with the health care provider's
office, or other appropriate office in the case of leave for a
qualifying exigency or military caregiver leave to ensure that the
complete certification is sent. In the case of a serious health
condition, an employee should not need to schedule any additional
medical treatment during this period. The Department also believes that
it is appropriate that this time frame be extended when employees are
unable to meet it despite diligent, good faith efforts. As discussed
above regarding Sec. 825.305(b), while employees have an obligation to
provide a complete and sufficient certification in a timely manner,
employers must be cognizant of the fact that employees must rely on
health care providers and other third parties to complete the
certification and in some circumstances employees will not be able to
comply with the time frame specified in this section despite their best
efforts to do so. The Department has also retained the proposed
definitions of incomplete and insufficient certifications because it
believes that they provide useful guidance for employers in assessing
whether a certification is sufficient to support a request for FMLA
leave. While a medical certification should include the clearest
information that is practicable for the health care provider to provide
regarding the employee's need for leave, the Department is aware that
precise responses are not always possible, particularly regarding the
frequency and duration of incapacity due to chronic conditions. The
Department does expect, however, that over time health care providers
should be able to provide more detailed responses to these questions
based on their knowledge of the employee's (or family member's)
condition. For example, while an initial certification for a newly
diagnosed chronic serious health condition may provide a relatively
large range of expected incapacity, subsequent certifications in new
leave years should be able to provide more specific information
regarding the anticipated frequency and duration of incapacity based on
the employee's actual experience during the intervening period.
Proposed Sec. 825.305(d) explained the consequences of an
employee's failure to provide a complete and sufficient certification.
Employers welcomed the clarification that employees bear the
[[Page 68013]]
burden of ensuring that a complete and sufficient FMLA certification is
submitted to the employer upon request in order to substantiate their
right to FMLA-protected leave. See, e.g., U.S. Postal Service;
Association of Corporate Counsel's Employment and Labor Law Committee;
the Chamber.
Finally, the proposed regulation deleted current Sec. 825.305(e),
which addresses the employee's certification obligation when the
employer's sick leave plan requires less stringent medical
certification than the FMLA and the employee substituted paid leave.
Proposed Sec. 825.305(e) replaced this requirement with a new
provision allowing employers to require a new certification on an
annual basis for conditions lasting beyond a single leave year. This
addition codified the Department's interpretation of the certification
requirement set forth in Wage and Hour Opinion Letter FMLA2005-2-A
(Sept. 14, 2005).
The AFL-CIO and the National Association of Letter Carriers opposed
the deletion of current Sec. 825.305(e), which states that if the
employer's sick leave plan has less stringent certification
requirements, an employer can only require that lesser certification
when an employee substitutes paid leave for FMLA leave. The National
Association of Letter Carriers argued that the deletion would
needlessly create a double standard in workplaces, with the
documentation required for paid leave varying depending on whether the
leave was FMLA-protected. TOC Management Services, however, argued that
the deletion of current Sec. 825.305(e) resolved confusion as to
whether employers could require FMLA medical certification in all
cases. See also Association of Corporate Counsel's Employment and Labor
Law Committee; Equal Employment Advisory Council.
The AFL-CIO, American Postal Workers Union, and the National Postal
Mail Handlers Union also opposed the provision in proposed Sec.
825.305(e) allowing for a new medical certification each year for
conditions lasting longer than a single leave year, arguing that there
was no statutory basis for this new requirement. These commenters
argued that annual medical certifications imposed an unnecessary and
meaningless burden on employees with stable, long-term chronic health
conditions. Employer commenters, however, argued that allowing
employers to require annual medical certification would provide
employers with a much needed tool for managing intermittent FMLA leave.
See, e.g., the Chamber; U.S. Postal Service; American Foundry Society;
National Association of Manufacturers; Retail Industry Leaders
Association; National Small Business Association; Hewitt Associates;
WorldatWork. TOC Management Services requested that the Department
clarify that annual certifications would be considered ``new''
certifications, on which employers would be entitled to request second
opinions, as opposed to ``recertifications,'' on which the regulations
do not permit second opinions. See also Equal Employment Advisory
Council (``In particular, because the statute does not allow for second
or third opinions on recertification, the recognition that a new leave
year should trigger an employer's right to require a new certification
is important.''). The National Retail Federation asked that the
Department allow employers to request a new certification every six
months.
The Department believes that current Sec. 825.305(e) created
needless confusion and conflicted with the statutory right of employers
to require certification of a serious health condition from a health
care provider to substantiate the employee's right to FMLA-protected
leave. See 29 U.S.C. 2613. Additionally, for the reasons explained in
Wage and Hour Opinion Letter FMLA2005-2-A (Sept. 14, 2005), the
Department believes that allowing employers to require annual medical
certifications of conditions lasting longer than a single leave year is
an appropriate interpretation of the employer's statutory right to
certification and provides a useful tool for administering the FMLA in
the workplace. The Department does not believe that the requirement
will be burdensome, particularly in light of the requirement that
employees with chronic serious health conditions receive treatment by a
health care provider at least twice per year. See Sec. 825.115(c)(1).
Finally, as the Department stated in the 2005 opinion letter, such new
annual medical certifications are subject to clarification, including
second and third opinions, as provided in Sec. 825.307. Accordingly,
the final rule adopts Sec. 825.305(e) as proposed with the additional
clarification that the clarification and authentication provisions of
Sec. 825.307 apply to new annual certifications.
Section 825.306 (Content of Medical Certification for Leave Taken
Because of an Employee's Own Serious Health Condition or the Serious
Health Condition of a Family Member)
Current Sec. 825.306 addresses how much information an employer
can obtain in the medical certification to substantiate the existence
of a serious health condition (of the employee or a family member) and
the employee's need for leave due to the condition. This section also
explains that the Department provides an optional form (Form WH-380)
for use in the medical certification process; other forms may be used,
but they may only seek information related to the condition for which
leave is sought, and no additional information beyond that contained in
the WH-380 may be required. As discussed in the preamble to the
proposed rule, the Department has received significant feedback from
stakeholders, including health care providers, that the current WH-380
is confusing and could be improved. In addition to proposing a revised
WH-380, the Department sought comment as to whether multiple forms
would be clearer. The preamble to proposed Sec. 825.306 also contained
an extensive discussion of the interaction between the FMLA
certification process and the Department of Health and Human Services'
Health Insurance Portability and Accountability Act (HIPAA) Privacy
Rule, which governs the privacy of individually identifiable health
information created or held by HIPAA-covered entities. Proposed Sec.
825.306(a) contained the information necessary for a complete
certification set forth in current Sec. 825.306(b) with a number of
changes, including the addition of the health care provider's
specialization; guidance as to what may constitute appropriate medical
facts, including that a health care provider may provide a diagnosis;
and whether intermittent or reduced schedule leave is medically
necessary. Proposed Sec. 825.306(b) retained language from current
Sec. 825.306(a) and (b) regarding the Department's optional Form WH-
380. The proposed rule deleted current Sec. 825.306(c), which contains
language similar to current Sec. 825.305(e) regarding lesser
certification requirements in employer sick leave plans. Proposed Sec.
825.306(c) incorporated language from current Sec. 825.307(a)(1)
explaining the interaction between workers' compensation and the FMLA
with regard to the clarification of medical information. The proposed
section also clarified 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
[[Page 68014]]
connection with qualifying for the paid leave benefit and does not
affect the employee's right to unpaid FMLA leave. The proposed rule
contained a new Sec. 825.306(d), which clarified that where a serious
health condition may also be a disability, employers are not prevented
from following the procedures under the Americans with Disabilities Act
(ADA) for requesting medical information. The proposed rule also
contained a new Sec. 825.306(e), which codified in the regulations the
Department's long-standing position that employers may not require
employees to sign a release of their medical information as a condition
of taking FMLA leave. The final rule adopts Sec. 825.306 as proposed
with mostly minor changes, which are discussed below. The title of
Sec. 825.306 is modified in the final rule to clarify that this
section does not apply to the military family leave provisions.
Additionally, the Department has revised the current optional
certification form WH-380 into two separate optional forms, one for the
employee's own serious health condition and one for the serious health
condition of a covered family member.
The Department received few comments on the inclusion in proposed
Sec. 825.306(a)(1) of the health care provider's specialization in the
information that may be required on a certification. See, e.g., Equal
Employment Advisory Council (``Particularly considering the broad
definition of `healthcare provider,' the scope of the provider's
expertise is important information that the employer needs to determine
whether the certification is sufficient.''); Spencer Fane Britt &
Browne (specialization is irrelevant unless employers are allowed to
require that the certification be provided by an appropriate
specialist); National Partnership for Women & Families (``the
identification of the specialty could lead to the employer gaining
information regarding the medical condition of the employee that is
unnecessary to the determination of whether the employee qualifies for
FMLA leave''). The Department notes it has always included the ``Type
of Practice'' as part of the medical certification form. The Department
believes that the health care provider's medical specialty/type of
practice is useful and appropriate to the medical certification form
and has retained this requirement in the final rule.
Many comments were received on proposed Sec. 825.306(a)(3), which
stated that the statement of appropriate medical facts ``may include
information on symptoms, diagnosis, hospitalization, doctors visits,
whether medication has been prescribed, any referrals for evaluation or
treatment (physical therapy, for example), or any other regimen of
continuing treatment.'' 73 FR 7983 (Feb. 11, 2008). Employees and their
representatives objected to the proposal because they felt that a
diagnosis should not be provided. See, e.g., Family Caregiver Alliance;
National Treasury Employees Union; National Partnership for Women &
Families; American Postal Workers Union; National Association of Letter
Carriers; Texas Classroom Teachers Association; Darcy Bowles; Craig
Stiver; Jon Arnold. The AFL-CIO expressed concern that specifying
medical facts, including diagnosis, ``may'' be provided on the
certification would result in employers rejecting as insufficient
certifications that do not contain this information. Employer
representatives, on the other hand, considered the proposal to provide
useful clarification for the health care provider. See, e.g.,
Manufacturers Alliance/MAPI; Equal Employment Advisory Council;
American Foundry Society; Dalton Corp. A number of employer
representatives requested that the list of appropriate medical facts be
made mandatory so that employers could require a diagnosis to support a
request for FMLA leave. See, e.g., the Chamber; Society for Human
Resource Management; National Association of Manufacturers; National
Association of Wholesaler-Distributors; National Business Group on
Health; National Coalition to Protect Family Leave; Food Marketing
Institute. The Department notes that the determination of what medical
facts are appropriate for inclusion on the certification form will vary
depending on the nature of the serious health condition at issue, and
is appropriately left to the health care provider. Accordingly, the
Department declines to set forth a mandatory list of medical facts that
must be included in the FMLA certification. Similarly, the Department
continues to believe that it would not be appropriate to require a
diagnosis as part of a complete and sufficient FMLA certification.
Whether a diagnosis is included in the certification form is left to
the discretion of the health care provider and an employer may not
reject a complete and sufficient certification because it lacks a
diagnosis.
Several employer representatives praised the inclusion in proposed
Sec. 825.306(a)(6), (7), and (8) of the statutory requirement that
there must be a medical necessity for leave taken on an intermittent or
reduced leave schedule basis due to a serious health condition. See,
e.g., Equal Employment Advisory Council; International Public
Management Association for Human Resources; City of Medford (OR);
American Foundry Society; Dalton Corp. The National Association of
Letter Carriers, however, objected to the inclusion of this language
arguing that it ``would impose unnecessary requirements on employees
and their health providers to disclose confidential medical
information.'' Because leave may only be taken intermittently or on a
reduced leave schedule due to the employee's or a family member's
serious health condition when medically necessary, the final rule
retains the requirement that a certification supporting the need for
such leave must include information sufficient to establish the medical
necessity for intermittent or reduced schedule leave. See 29 U.S.C.
2612(b)(1).
The Equal Employment Advisory Council and the Chamber specifically
supported the proposed clarification in Sec. 825.306(c) that where an
employee's serious health condition is covered by workers' compensation
and the workers' compensation procedures permit the employer to request
additional information beyond that included in a FMLA certification,
the employer may follow the workers' compensation procedure. Both of
these commenters also agreed with the proposal in this section to allow
employers to request additional information in accordance with a paid
disability leave policy or disability plan that requires greater
information to qualify for payment or benefits. The AFL-CIO, however,
opposed this proposal and argued that it was inconsistent with the
Department's proposal to delete current Sec. 825.305(e), which
prevented employers from requiring FMLA certification where the
employers' sick leave plan had less stringent certification
requirements and paid leave was substituted for unpaid FMLA leave. See
also American Postal Workers Union. The Department disagrees with the
AFL-CIO comment. The proposed clarifications in current Sec.
825.306(c) and the deletion of current Sec. 825.305(e) are wholly
consistent with each other. Taken together, these changes reflect both
an employer's statutory right to require a minimally sufficient
certification to substantiate the employee's right to FMLA-protected
leave in all cases, and an employer's right to additional information
when another benefit plan or program requires greater information in
order to qualify the employee for payment or benefits beyond those
provided by the FMLA.
[[Page 68015]]
The Equal Employment Advisory Council, the Chamber, and TOC
Management Services supported the Department's clarification in Sec.
825.306(d) that employers may follow the procedures for requesting
medical information under the ADA where the employee's serious health
condition may also be a disability within the meaning of that Act. The
Equal Employment Opportunity Commission, which enforces Title I of the
ADA, was also supportive of this clarification, noting in its comments
that it often receives ``questions from employers who are worried that
they will violate the FMLA if they follow the ADA's procedures for
requesting medical information in these circumstances.'' The Texas
Classroom Teachers Association, however, suggested that the regulation
be modified so that an employer could only follow ADA procedures where
an employee requests an accommodation ``not otherwise provided by the
FMLA.'' Hewitt Associates asked for clarification as to whether
additional medical information received pursuant to Sec. 825.306(c)
and (d) may be used to determine employees' eligibility for FMLA leave.
See also Metropolitan Transportation Authority (NY). The final rule
revises Sec. 825.306(c) and (d) to further clarify that additional
information received pursuant to workers' compensation, paid leave, or
ADA procedures may be considered in determining an employee's
entitlement to FMLA-protected leave.
Lastly, employee representatives supported the clarification in
Sec. 825.306(e) that while employees may choose to comply with an
authorization, release, or waiver allowing the employer to communicate
directly with the employee's health care provider, they may not be
required to provide such an authorization, release, or waiver
permitting their employer to contact their health care provider
directly as part of the FMLA certification process. See, e.g., National
Partnership for Women & Families; AFL-CIO; American Association of
University Women; National Postal Mail Handlers Union; Coalition of
Labor Union Women. See also Equal Employment Advisory Council. The
Metropolitan Transportation Authority (NY), however, argued that
employees should be required to execute a release of their medical
information as part of the FMLA certification process. The Equal
Employment Advisory Council and the Association of Corporate Counsel's
Employment and Labor Law Committee supported the statement in this
section that employees are responsible for providing complete and
sufficient certification and that their failure to do so may result in
the denial of FMLA leave. The Department continues to believe that
employees should not be required to execute any type of release or
authorization permitting their employers to receive medical information
directly from their health care providers as part of the FMLA
certification process. Of course, an employee remains free to choose to
comply with the certification requirement in this manner by executing
an authorization providing for the release of information required for
a complete and sufficient certification. Accordingly, the final rule
adopts Sec. 825.306(e) as proposed, with only minor editorial changes.
As stated in the regulation, however, in all cases where certification
is requested, it is the employee's obligation to provide a complete and
sufficient certification and the failure to do so may result in the
denial of FMLA leave.
The Department received generally favorable comments regarding the
proposed revision to the WH-380 optional medical certification form.
See Equal Employment Advisory Council; Domtar Paper Company; Spencer
Fane Britt & Browne; National Treasury Employees Union. But see
Vercruysse Murray & Calzone; Illinois Credit Union League. Most
commenters who addressed the issue supported the creation of multiple
certification forms, most often suggesting separate forms for leave due
to the serious health condition of the employee and the employee's
family member. See, e.g., Equal Employment Advisory Council; Hewitt
Associates; American Health Care Association; National Partnership for
Women & Families; Communications Workers of America; Southern Company.
See also Spencer Fane Britt & Browne (suggesting separate forms for
block and intermittent or reduced schedule leave); American Health Care
Association/National Center for Assisted Living (suggesting a separate
certification form for chronic serious health conditions). A few
commenters, however, opposed the creation of multiple forms. See
Jackson Lewis; National Treasury Employees Union; Scott D. Macdonald
Esq.; Pennsylvania Governor's Office of Administration (noting that the
Commonwealth of Pennsylvania switched from using two forms to using a
single form because employees frequently filled out the wrong form).
The Communications Workers of America, the Coalition of Labor Union
Women, and the Academic Pediatric Association et al., encouraged the
Department to make use of the WH-380 mandatory. Based on the comments
received, the Department has decided to include two optional
certification forms in the final rule, one form to be used when the
need for leave is due to the employee's own serious health condition
and a second form to be used when the need for leave is to care for a
family member with a serious health condition. Section 825.306(b) of
the final rule has been modified accordingly to reflect that there are
two optional certification forms. The Department also altered several
of the questions from the single optional certification form proposed
in the NPRM to better explain the information needed to support a
request for each type of leave. The Department believes that using
separate forms will make the forms shorter, clearer, and easier for
health care providers to complete. The Department further believes that
the purpose behind the two forms is sufficiently clear that it will not
cause confusion. Because many serious health conditions require a
combination of both a continuous block of leave and intermittent leave,
the Department is not promulgating separate certification forms for
block and intermittent leave. The Department also declines to mandate
the use of either of the optional Department of Labor certification
forms; where certification is requested, the employee's obligation is
to provide a complete and sufficient certification, regardless of the
form used.
Several commenters offered specific comments on the proposed
revision to the Department's optional medical certification form. A
number of commenters praised the Department's deletion of checkboxes on
the current form for health care providers to indicate the type of
serious health condition at issue. See, e.g., Society for Human
Resource Management; National Coalition to Protect Family Leave;
American Foundry Society; College and University Professional
Association for Human Resources; National Business Group on Health;
Bridgestone Firestone North American Tire. These commenters noted that
whether the medical facts satisfy one of the definitions of a serious
health condition under the regulations is a legal determination, not a
medical one; they also reported significant confusion resulting from
health care providers checking a type of serious health condition that
was inconsistent with the medical information contained in the rest of
the form. See Society for Human Resource Management; National
[[Page 68016]]
Coalition to Protect Family Leave; College and University Professional
Association for Human Resources; see also Equal Employment Advisory
Council. Other commenters, however, objected that the proposed changes
would impermissibly result in employers making medical judgments that
should be made by health care providers. See National Partnership for
Women & Families; Association of Professional Flight Attendants; Mary
Lundquist. The National Partnership for Women & Families objected to
the removal from the proposed form of the definitions of serious health
condition, asserting that ``employees will be unable to determine
themselves if they qualify for FMLA leave and will be unable to
challenge the employer's determination that they do not qualify without
legal or medical assistance.'' Because the Department has added a
definition of serious health condition to the notice of Employee Rights
under FMLA that must be posted, and provided to all employees at
hiring, the Department disagrees with the National Partnership's
assertion that removing this same information from the certification
form will impact an employee's ability to determine for themselves if
they qualify for FMLA leave. Moreover, the Department believes that
requiring a health care provider to determine which definition of
serious health condition is applicable has caused considerable
confusion, with employers frequently receiving certifications with
multiple and contradictory boxes checked, or with medical facts
contained in the certification that are inconsistent with the serious
health condition that has been checked. Accordingly, the optional
certification forms contained in the final rule do not include boxes to
indicate which definition of serious health condition is applicable. As
the Department stated in the NPRM, the health care provider should
determine the appropriate relevant medical facts to include on the
certification and the employer should determine whether the
certification is complete and sufficient to meet the regulatory
definition of serious health condition. 73 FR 7915 (Feb. 11, 2008).
The Illinois Credit Union League and Cummins Inc. objected to being
required to include on the certification form a statement of the
essential functions of the position, arguing that it was unduly
burdensome to require employers to set forth the essential functions of
the employee's position or to provide a job description. The Equal
Employment Advisory Council, however, supported the requirement that
the health care provider provide information sufficient to establish
the employee is unable to perform one or more of the essential
functions of the employee's job, noting that the inability to perform
the essential functions of the job due to a serious health condition is
a ``threshold requirement'' that is ``the foundation for this type of
FMLA leave.'' See also Association of Corporate Counsel's Employment
and Labor Law Committee. The Illinois Credit Union League requested
that the references to employees' job duties or functions in questions
6 and 7 be standardized to refer to ``essential functions.'' See also
Scott R. Macdonald Esq.
In response to the concern of some commenters, the final rule makes
clear in Sec. 825.123(b) that an employer may, but is not required to,
provide a list of essential functions when it requires a medical
certification. The Department believes it is in the best interests of
both employers and employees when such information is provided by the
employer at the time it requests medical certification, so that the
health care provider may assess the employee's ability to perform his
or her job based on the most complete description of the employee's
duties. The Department recognizes, however, that the FMLA imposes no
legal obligation on employers to create or maintain written job
descriptions or a list of essential functions for each position.
Accordingly, the final form WH-380E has been revised to make clear
that, in those cases in which the employer chooses not to include
information on the certification form identifying the employee's
essential functions, the health care provider may assess the employee's
ability to perform his or her job based on the employee's own
description of his or her job functions. For this same reason, and
because the determination of whether a particular job duty is an
``essential function'' as that term is used for purposes of the FMLA is
a legal, not a medical, conclusion, the final form WH-380E also retains
the references to an employee's ``functions'' in questions 6 and 7.
The Department notes that an employer may use the procedures set
forth in Sec. 825.307 to clarify a certification that does not clearly
specify that an employee is unable to perform one or more essential
functions of the position. For example, if a certification specifies
only that an employee is unable to lift heavy items, an employer may
clarify with the health care provider whether the employee can perform
the essential function of his or her job of lifting 20 pounds. In order
to minimize the need for such clarifications, the Department strongly
encourages employers to provide a list of essential functions when it
requests medical certification.
Several commenters objected to the wording of question 3, which
asks the health care provider to describe the relevant medical facts,
arguing that as worded in the proposed form health care providers would
not be aware that the medical facts listed, including diagnosis, were
not mandatory. See, e.g., National Partnership for Women & Families;
Communications Workers of America; Coalition of Labor Union Women;
Texas Classroom Teachers Association; Academic Pediatric Association,
et al. Other commenters requested, as they had in response to proposed
Sec. 825.306(a), that the provision of a diagnosis and the other
listed medical facts be made mandatory on the medical certification
form. See, e.g., Society for Human Resource Management; National
Coalition to Protect Family Leave; American Foundry Society;
Independent Bakers Association; National Newspaper Association;
Illinois Credit Union League. The National Business Group on Health and
Hewitt Associates suggested that including the list of conditions set
forth in current Sec. 825.114(c), which are ordinarily not serious
health conditions, would provide useful guidance to health care
practitioners in completing the medical certification form. As
discussed above regarding proposed Sec. 825.306(a)(3), the
determination of what medical facts are appropriate for inclusion on
the certification form is within the discretion of the health care
provider and will vary depending on the nature of the condition for
which leave is sought. The Department has revised the certification
form to clearly indicate that the medical facts listed are merely
examples and are not required in all cases. The Department does not
believe that it is necessary to include the list of conditions set
forth in final Sec. 825.113(d) (current Sec. 825.114(c)) on the
certification forms; the health care provider will determine the
medical facts relating to the employee's or family member's health
condition, and where those medical facts meet one of the definitions of
serious health condition the employee's need for leave will be FMLA-
protected regardless of whether the condition is one of those listed.
Vercruysse Murray & Calzone objected to the statement in the form's
instructions to the employee that failure to provide the requested
information ``may result in a denial'' of FMLA leave,
[[Page 68017]]
arguing that failure to provide such information will always result in
such a denial and the instructions should so indicate. See also Hewitt
Associates. The Department believes that this instruction is correct.
Employers are not required to request medical certification and in
appropriate circumstances may protect leave under the FMLA despite the
employee's failure to return the certification form.
Several commenters also objected to the instructions to the health
care provider in section III of the proposed form, arguing that instead
of indicating that the terms ``lifetime,'' ``unknown,'' or
``indeterminate'' ``may not be sufficient to determine FMLA coverage,''
the instructions should state clearly that such terms are not
sufficient to support a request for FMLA-protected leave. See, e.g.,
Society for Human Resource Management; National Coalition to Protect
Family Leave; American Foundry Society; Hewitt Associates; National
Newspaper Association; Spencer Fane Britt & Browne. But see National
Partnership for Women & Families (``We are concerned that this
instruction, coupled with the proposed direct contact between the
employer and employee's health care provider could lead to employer
representatives demanding that health care providers give more definite
answers when they cannot.''); Communications Workers of America. The
Academic Pediatric Association et al. argued that ``lifetime,''
``unknown,'' and ``indeterminate'' may be medically appropriate answers
for some conditions and that the ``lack of medical certainty should not
supply a de facto reason for denying FMLA leave.'' The Department
believes that the instructions are correct as proposed. While terms
such as ``lifetime,'' ``unknown,'' or ``indeterminate'' will not be
sufficient where more specific estimates are possible, there will be
situations in which such terms are an appropriate response reflecting
the health care provider's best medical judgment and will therefore be
sufficient.
Finally, several commenters addressed the Department's discussion
of the Health Insurance Portability and Accountability Act (HIPAA) and
the HIPAA Privacy Rule. The National Coalition to Protect Family Leave
and the Equal Employment Advisory Council agreed with the Department's
observation that the HIPAA Privacy Rule sets the standard for the
protection of employee medical information. See also U.S. Postal
Service; American Health Care Association; Society for Human Resource
Management; Retail Industry Leaders Association. Infinisource, Inc.,
concurred, stating that ``DOL correctly recognized with the advent of
HIPAA since the FMLA regulations were last finalized, a framework
already exists for ensuring privacy.'' Commenters representing
employees, however, objected that the HIPAA Privacy Rule does not
provide sufficient protection for employee medical privacy. See, e.g.,
AFL-CIO; National Treasury Employees Union; National Association of
Letter Carriers; National Postal Mail Handlers Union. As the Department
explained in the NPRM, the HIPAA Privacy Rule governs disclosures of
medical information to employers or their representatives by employees'
health care providers that are HIPAA-covered entities and sets a far
higher standard for protection of employee medical information than the
current FMLA regulations. The impact of HIPAA is discussed further in
Sec. 825.307 as it relates to the process of clarification and
authentication of medical certifications.
Section 825.307 (Authentication and Clarification of Medical
Certification for Leave Taken Because of an Employee's Own Serious
Health Condition or the Serious Health Condition of a Family Member)
Current Sec. 825.307 addresses the employer's ability to clarify
or authenticate a complete and sufficient FMLA certification. Current
Sec. 825.307(a) permits an employer, with the employee's permission,
to have its own health care provider contact the employee's health care
provider in order to clarify or authenticate a FMLA certification.
Proposed Sec. 825.307(a) defined ``authentication'' and
``clarification,'' clarifying that ``authentication'' involves
providing the health care provider with a copy of the certification and
requesting verification that the information on the form was completed
and/or authorized by the provider; no additional medical information
may be requested and the employee's permission is not required. In
contrast, ``clarification'' involves contacting the employee's health
care provider in order to understand the handwriting on the medical
certification or to understand the meaning of a response; no additional
information beyond that included in the certification form may be
requested and any contact with the employee's health care provider must
comply with the requirements of the HIPAA Privacy Rule. The NPRM
removed the requirement that the employer utilize a health care
provider to make the contact with the employee's health care provider,
and the requirement that the employee consent to the contact. Proposed
Sec. 825.307(a) required that prior to any contact with the employee's
health care provider for purposes of clarification or authentication of
the FMLA certification, the employee must first be given an opportunity
to cure any deficiencies in the certification pursuant to the
procedures set forth in Sec. 825.305(c). The proposed rule also made
clear that the employee is not obligated to permit his or her health
care provider to communicate with the employer, but that if such
contact is not permitted and the employee does not otherwise clarify
the certification, the employer may deny the taking of FMLA leave.
Proposed Sec. 825.307(b) consolidated language from current Sec.
825.307(a)(2) and (b) setting forth the requirements for an employer to
obtain a second opinion, and added language requiring the employee or
the employee's family member to authorize his or her health care
provider to release relevant medical information pertaining to the
serious health condition at issue if such information is requested by
the second opinion health care provider. Proposed Sec. 825.307(c)
added the same requirement to provide relevant medical information if
requested by the third opinion health care provider. Proposed Sec.
825.307(d) increased the number of days the employer has to provide an
employee with a requested copy of a second or third opinion from two to
five business days. The NPRM proposed no changes to current Sec.
825.307(e) and (f), involving travel expenses for second and third
opinions and certifications by foreign health care providers,
respectively. The Department did note in the preamble, however, that it
was aware of significant concerns regarding foreign medical
certifications and asked for comment as to what changes would allow for
better authentication of such certifications.
The final rule makes three changes to proposed Sec. 825.307.
First, in response to many comments from employee groups and individual
employees expressing concern for employee medical privacy, Sec.
825.307(a) of the final rule modifies the process by which an employer
may contact an employee's health care provider to clarify who may
contact the employee's health care provider and to ensure that the
employee's direct supervisor is not the point of contact. The final
rule also revises the reference to the HIPAA Privacy Rule in this
section to make clear that its requirements must be satisfied whenever
individually-identifiable health information of an employee is
[[Page 68018]]
shared with an employer by a HIPAA-covered health care provider.
Second, Sec. 825.307(f) has been modified to require employees to
provide, upon request by the employer, a translation of FMLA
certifications that are completed by foreign medical providers in
languages other than English. In addition, the title of Sec. 825.307
is modified in the final rule to clarify that this section does not
apply to the military family leave provisions.
The Department's proposal to allow direct contact (i.e., without
the use of a health care provider) between employers and employees'
health care providers resulted in a significant number of comments to
the NPRM. Employees and their representatives expressed both
generalized concerns arising from the removal of the requirement of
employee consent, and specific concerns regarding the possibility of
direct supervisors being made aware of sensitive medical information.
Employers and their representatives expressed overwhelming support for
the proposal, arguing that it would streamline the certification
process and decrease administrative costs.
While most of the comments focused on the clarification process,
several commenters representing employers specifically supported the
Department's proposal regarding authentication of FMLA certifications.
These commenters noted that the current regulation's requirement of
employee consent for authentication of a FMLA certification is
problematic because the purpose of authenticating a certification is to
ensure that fraud has not been committed. Consent is unlikely in such
situations and defeats the purpose. See, e.g., AT&T; International
Public Management Association for Human Resources; HR Policy
Association; National Small Business Association; National Association
of Manufacturers; the Chamber; Equal Employment Advisory Council. The
National Association of Letter Carriers, however, argued that if such
direct contact between the employer and the employee's health care
provider is necessary to ensure the authenticity of a certification,
the employer should be required to make such contact only in writing in
order to ensure that additional medical information is not disclosed.
The American Civil Liberties Union specifically objected to removing
the requirement of employee consent in order for an employer to
authenticate a FMLA certification. See also National Treasury Employees
Union; AFL-CIO. The Department declines to require that the
authentication process be limited to a written process. The Department
has modified the final rule to make clear that, to the extent that
authentication requires a HIPAA-covered health care provider to share
individually-identifiable health information with an employer, the
HIPAA Privacy Rule will require a valid HIPAA authorization.
Regarding the clarification process, the Department received a
significant number of comments, many coming from individual employees,
opposing the Department's proposal to allow employers to contact an
employee's health care provider for purposes of clarifying a
certification without the employee's permission and without using a
health care provider to make the contact. See, e.g., Richard
Baerlocher; Theodore Rabinowitz; Kenneth Kelble; Robin Arnold; Donna
Long; Bob Gunter; Sarah Blackman; Susan Fuchs. Many commenters
representing employees were particularly concerned that the proposed
rule would allow an employee's direct supervisor to contact the
employee's health care provider. See, e.g., National Postal Mail
Handler's Union; Legal Aid Society--Employment Law Center; National
Association of Letter Carriers. The Service Employees International
Union argued that the prospect of a direct supervisor contacting a
health care provider ``would deter valid requests for leave from
employees who resent this invasion of their own and their family
member's privacy.'' See also National Employment Lawyers Association;
Women Employed. The National Partnership for Women & Families noted
that under the proposed regulation there was nothing to prevent an
employer from utilizing the employee's supervisor, or even a coworker,
to clarify a FMLA certification. See also Women Employed; Family
Caregiver Alliance; American Association of University Women.
Commenters also objected to allowing individuals without medical
training to contact an employee's health care provider. See, e.g.,
National Postal Mail Handlers Union; Association of Professional Flight
Attendants; Women Employed; National Association of Letter Carriers;
PathWaysPA. The AFL-CIO argued that the employee protections afforded
by requiring provider-to-provider contact far outweigh any expense or
delay incurred as a result of such requirement. The Communications
Workers of America argued that allowing employer representatives who
lack medical training to contact employee health care providers would
significantly increase the burden on the healthcare system.
Several commenters representing employees expressed concern that
once employers were allowed to make contact with an employee's health
care provider without having to use the employer's own health care
provider, there would be no way to ensure that employers limited
themselves to requesting clarification of the certification and did not
request additional medical information. See, e.g., National Association
of Letter Carriers; Family Caregiver Alliance; American Civil Liberties
Union; American Association of University Women. The National Postal
Mail Handlers Union argued that the appropriate mechanism for an
employer to gather additional information regarding an employee's
medical condition is the second opinion process, not direct contact
with the employee's health care provider. See also Service Employees
International Union; Communications Workers of America.
Finally, commenters representing employees also argued that the
requirement in current Sec. 825.307(a) that the employee consent to
any contact with his or her health care provider provides greater
protection for employee medical privacy than does requiring employers
to comply with the HIPAA Privacy Rule. The AFL-CIO, for example, argued
that the HIPAA Privacy Rule's protections are insufficient because they
do not provide a remedy against employers for the unauthorized
disclosure of protected health information. See also Air Line Pilots
Association. The National Treasury Employees Union and the National
Association of Letter Carriers both argued that the current FMLA
regulations provide greater protection for employee medical information
than does HIPAA. The National Postal Mail Handlers Union argued that if
the Department included proposed Sec. 825.307(a) in the final rule
despite employee objections, it should make clear that a HIPAA-
compliant authorization for employer contact could be narrowly limited
to cover only the information included in the FMLA certification form.
See also Association of Professional Flight Attendants.
Commenters representing employers overwhelmingly supported the
proposed changes to the clarification process. See, e.g., Infinisource,
Inc.; AT&T; Society for Human Resource Management; Association of
Corporate Counsel's Employment and Labor Law Committee; National
Coalition to Protect Family Leave; National Association of
Manufacturers. The Chamber described the proposal to permit contact
between the employer without the use of a health
[[Page 68019]]
care provider representing the employer and the employee's health care
provider as ``among the most impactful changes proposed'' in the NPRM
and assured that ``employers are mindful of the sensitive nature of the
information involved and consider this additional privilege extremely
limited * * * [they] do not view this as permission to go on a `fishing
expedition' and delve further into an employee's private affairs than
necessary to evaluate the request for leave.'' The Equal Employment
Advisory Council asserted that allowing human resources professionals
to contact the employee's health care provider would allow the
necessary information to be obtained more efficiently because the
individual making the contact would be familiar with both the FMLA's
requirements and the employee's job functions. The National Newspapers
Association noted that allowing direct employer contact with the
employee's health care provider was a ``significant improvement'' for
small businesses that do not have health care providers on staff. See
also National Federation of Independent Business. The Society for Human
Resource Management and the National Coalition to Protect Family Leave
urged the Department to clarify in the final rule that employees may
choose to authorize their employers to contact their health care
providers at the outset of the clarification process, and are not
required to first seek to cure the certification themselves pursuant to
Sec. 825.305(c). Finally, numerous employers and employer
representatives commented that the HIPAA Privacy Rule has supplanted
the consent requirement of the current regulation and sets the
appropriate standard for guaranteeing employee medical privacy. See,
e.g., National Coalition to Protect Family Leave; Equal Employment
Advisory Council; American Health Care Association; Society for Human
Resource Management; Retail Industry Leaders Association. For example,
the U.S. Postal Service stated that ``HIPAA restrictions will continue
to protect unwarranted disclosures but at the same time, employers will
be able to process FMLA requests more expeditiously when allowed direct
access to a provider.''
The Department understands the concerns expressed by employees and
their representatives that the proposed regulation did not prohibit an
employee's direct supervisor from contacting the employee's health care
provider. The Department agrees that employers should not be able to
use the employee's direct supervisor to contact an employee's health
care provider. Accordingly, Sec. 825.307(a) of the final rule
specifies that the employer representative contacting the employee's
health care provider must be either a health care practitioner, a human
resources professional, a leave administrator, or a management
official, but in no case may the employer representative be the
employee's direct supervisor. The Department recognizes that many
employers utilize third party providers to manage all or part of their
leave administration; such third party providers may be used for the
purposes of authenticating or clarifying FMLA certifications. The
Department declines, however, to restrict employers to utilizing only
health care providers for purposes of authenticating or clarifying an
employee's FMLA certification. As is the case under the existing
process set forth in current Sec. 825.307(a), the final rule restricts
the employer to contacting the health care provider for the purpose of
understanding the handwriting on the medical certification or the
meaning of a response. In light of the fact that an employer may make
similar, or even more detailed, inquiries without utilizing a health
care provider when determining an employee's eligibility for other
related benefits, the Department does not believe that employers should
be so constrained under the FMLA. For example, the Department notes
that employers are not constrained by any such restriction under the
Americans with Disabilities Act, as amended, and, in fact, commonly
utilize human resources professionals or other management officials to
communicate with employees' health care providers when appropriate
under that Act. The Department encourages employers to continue to
utilize health care practitioners when contacting an employee's health
care provider to clarify FMLA certifications wherever possible, but
Sec. 825.307(a) of the final rule permits employers to use other
appropriate representatives in order to streamline the authentication
and clarification process, speed the determination of whether an
employee's leave is FMLA-protected and reduce the associated
administrative costs.
The final rule also maintains the requirement from the proposal
that communication between employers and employees' HIPAA-covered
health care providers for purposes of clarification of FMLA
certifications comply with the requirements of the HIPAA Privacy Rule
and clarifies that the requirements of the HIPAA Privacy Rule must be
satisfied whenever individually-identifiable health information of an
employee is shared with an employer by a HIPAA-covered health care
provider. As the Department noted in the NPRM, the HIPAA Privacy Rule
provides far more protection for employee medical information than
current Sec. 825.307(a). For example, although the current regulation
requires an employee's permission for an employer to contact the
employee's HIPAA-covered health care provider, it does not dictate the
form such permission may take. Under the current regulation, employees
could verbally consent to such contact. In contrast, in order for a
health care provider that is a HIPAA-covered entity to share employee
health information with an employer, the authorization must be valid
under the HIPAA Privacy Rule, which requires that the authorization
must be a written document containing the name of the health care
provider, a description of the information to be disclosed, the name or
specific identification of the person to whom the disclosure may be
made, a description of the purpose of the requested disclosure, an
expiration date or event for the authorization, and a signature of the
individual making the authorization. 45 CFR 164.508(c)(1). In addition,
three required statements regarding the revocation of the
authorization, the conditioning of treatment or payment, and the
potential for redisclosure must also be included as provided at 45 CFR
164.508(c)(2). Finally, the HIPAA Privacy Rule at 45 CFR 164.508(b)(3),
prohibits a HIPAA authorization from being combined with certain other
documents.
Hence, the HIPAA authorization supplants and serves the same
purpose as the ``with the employee's permission'' standard under the
current FMLA rule. In such cases employees will be made aware that
their employers may need to contact the employees' HIPAA-covered health
care provider because the employee will have to complete a HIPAA
authorization form with his or her health care provider, at which point
in time employees can choose to allow the authorization or not. If the
employee chooses not to authorize such contact under the HIPAA Privacy
Rule, he or she has the same responsibilities as under the current FMLA
rule to provide a complete and sufficient medical certification form.
Finally, the Department notes that because employers are not covered
entities under HIPAA, the HIPAA Privacy Rule does not provide a remedy
to employees for employers' dissemination of confidential medical
information. However, Sec. 825.500(g) of
[[Page 68020]]
both the current and final rules requires employers to maintain medical
certifications created for purposes of the FMLA as confidential medical
records in separate files from the usual personnel files.
Finally, the Department agrees that employees may choose to forego
the opportunity to utilize the cure procedure in Sec. 825.305(c) if
they wish their employer to proceed immediately with curing any
deficiencies in the certification through direct contact with their
health care provider. The Department does not believe that any change
is necessary in the proposed regulatory language in this regard,
however, as the regulation requires only that the employee be given the
opportunity to cure any deficiencies in this manner; it does not
require that the employee avail himself or herself of that opportunity.
The Department also does not believe that any change is necessary to
clarify the scope of information involved in the clarification process.
The final rule maintains the standard set forth in current Sec.
825.307(a) limiting the scope of clarification to the information set
forth in the certification. The Department's addition of a definition
of the term ``clarification'' is not intended to broaden the type or
amount of information an employer may obtain as part of the existing
clarification process.
The Department received comments from several employers and their
representatives regarding the proposal in Sec. 825.307(b) and (c) to
require employees or their family members to authorize their health
care providers to release all relevant medical information pertaining
to the serious health condition at issue if requested by the provider
of the second or third opinion in order to render a sufficient and
complete medical opinion. These commenters universally agreed that this
proposal would enhance the second and third opinion process. See, e.g.,
the Chamber; Society for Human Resource Management; Equal Employment
Advisory Council; American Foundry Society; Domtar Paper Company;
National Business Group on Health; National Association of
Manufacturers; AT&T. The U.S. Postal Service argued that both the
employer and the employee will benefit from this proposal because the
second or third opinion provider will be better able to assess the
employee's medical condition and may also be able to rely on prior test
results in some cases, thus sparing employees unnecessary additional
medical testing. See also National Coalition to Protect Family Leave.
The Department believes that it is appropriate to require employees or
their family members to make such authorizations in this context
because the information will be conveyed directly to the second or
third opinion health care provider, as opposed to being provided to the
employer as is the case with clarification. While the Department
received very few comments on the proposal in Sec. 825.307(d) to
increase from two to five business days unless extenuating
circumstances prevent such action the amount of time employers have to
provide a copy of a second or third opinion to an employee who requests
one, TOC Management Services and Infinisource, Inc. specifically
supported this proposal. But see Richard Baerlocher (urging the
Department to retain the current two-day time frame). The final rule
adopts Sec. 825.307(b), (c), and (d) as proposed without any changes.
Finally, the Department received comments from several employer
representatives regarding FMLA certifications filled out by foreign
medical care providers. The Equal Employment Advisory Council and
others suggested that employees should be expected to provide an
English translation of a medical certification provided in another
language. See also National School Boards Association; Vercruysse
Murray & Calzone. The National Coalition to Protect Family Leave, the
Society for Human Resource Management, and the American Foundry Society
argued that employers should be automatically entitled to get a second
opinion on any certification provided by a foreign health care
provider. Spencer Fane Britt & Browne argued an employee should be
required to have his or her own health care provider in the United
States authenticate and verify any FMLA certification completed by a
foreign health care provider.
The final rule modifies Sec. 825.307(f) to require that employees
provide a written translation of any certification by a foreign health
or provider that is completed in a language other than English. The
Department believes that in most situations either the employee or the
employee's family member will be able to provide the written
translation and such a translation will satisfy the rule. Therefore,
the Department does not anticipate that this requirement will impose a
significant burden on employees. The provision of an English
translation of the certification will facilitate the employer's ability
to determine whether or not the leave is FMLA protected, and whether
additional clarification or authentication is required. The Department
recognizes that providing for translation of certifications by foreign
health care providers does not fully address all of the concerns
employers have regarding such certifications. The Department believes,
however, that this approach, while limited, recognizes the legitimate
need of employees to take FMLA leave to care for family members in
foreign countries and the need of employers to be able to verify that
such leave is being appropriately used.
Section 825.308 (Recertifications for Leave Taken Because of an
Employee's Own Serious Health Condition or the Serious Health Condition
of a Family Member)
Current Sec. 825.308 of the regulations addresses the employer's
ability to seek recertification of an employee's medical condition.
Section 825.308(a) of the current regulations sets forth the rule for
recertification for pregnancy, chronic, or permanent/long-term
conditions and generally permits recertification no more often than
every 30 days in connection with an absence. Current Sec. 825.308(b)
states that where a certification specifies a minimum duration of
incapacity of more than 30 days, or specifies a minimum period of
intermittent or reduced schedule leave, recertification generally may
not be required until the specified minimum duration has passed.
Section 825.308(c) of the current regulations provides that in all
situations not covered by Sec. 825.308(a) and (b), employers may
generally request recertification every 30 days. Current Sec.
825.308(d) requires employees to provide recertification within at
least 15 calendar days of the employer's request, unless it is not
practicable to do so despite the employee's diligent, good faith
efforts. Current Sec. 825.308(e) provides that recertification is at
the employee's expense and that no second or third opinions may be
required on recertification. In the NPRM, the Department proposed to
reorganize Sec. 825.308 for purposes of clarity. Proposed Sec.
825.308(a), titled ``30-day rule,'' permitted recertification every 30
days in connection with an absence. Proposed Sec. 825.308(b), titled
``More than 30 days,'' stated the rule from current Sec. 825.308(b)
that where the certification indicates a minimum period of incapacity
in excess of 30 days, recertification generally may not be required
until the minimum duration has passed and added an example to clarify
the application of this rule. The proposal also permitted an employer
to request recertification every six months in connection with an
absence in all
[[Page 68021]]
cases. Proposed Sec. 825.308(c), titled ``Less than 30 days,''
explained under what circumstances an employer could require
recertification more frequently than every 30 days and provided
examples of circumstances that might justify requesting more frequent
recertification. Proposed Sec. 825.308(d) was unchanged from the
current regulations other than the addition of the title ``Timing.''
The proposal contained a new Sec. 825.308(e), titled ``Content,''
which clarified that an employer may request the same information on
recertification as required for the initial certification as set forth
in Sec. 825.306, and the employee has the same obligation to cooperate
in providing recertification as he or she does in providing the initial
certification. Proposed Sec. 825.308(e) also clarified that employers
may provide the employee's health care provider with a record of the
employee's absence pattern and ask whether the leave pattern is
consistent with the employee's serious health condition. Current Sec.
825.308(e) was redesignated as proposed Sec. 825.308(f) without any
changes. The Department requested comment, however, regarding its
decision to retain the current regulation's prohibition against second
and third opinions on recertification. The final rule adopts Sec.
825.308 as proposed, with minor clarifications in Sec. 825.308(b) as
discussed below. The title is also modified in the final rule to
clarify that this section does not apply to the military family leave
provisions.
The NPRM proposed to resolve uncertainty under current Sec.
825.308 as to how often employers could seek recertification of chronic
conditions where the certification indicates that the duration of the
condition is ``lifetime.'' Under the current regulation, it is unclear
whether such certifications would be subject to recertification every
30 days under Sec. 825.308(a) because the conditions are chronic, or
whether they would never be subject to recertification under Sec.
825.308(b)(2) because the certification indicated a need for
intermittent leave for the employee's lifetime. The NPRM clarified that
conditions that will last an extended period of time, including
conditions for which the duration is indicated as ``lifetime,''
``indefinite,'' or ``unknown,'' would fall under proposed Sec.
825.308(b). Under that section, employers would not be able to seek
recertification until the minimum duration specified in the
certification had passed, but would always be entitled to seek
recertification every six months in connection with an absence. In
other words, if the certification specified a duration of greater than
six months, the employer would still be able to seek recertification at
six-month intervals. (Where the requirements of proposed Sec.
825.308(c) were met, recertification would also be permitted pursuant
to that section.) The proposal represented a change in the Department's
position, which had previously been that certifications indicating an
``indefinite'' or ``unknown'' duration were subject to recertification
every 30 days. See Wage and Hour Opinion Letter FMLA2004-2-A (May 25,
2004). The Department received significant comments from both employers
and employees regarding this proposal. By and large, the comments
confirmed the confusion that exists in this area. Despite the
Department's explanation in the NPRM that permitting six-month
recertification of long-term or permanent health conditions would
result in fewer recertifications for many employees with chronic
serious health conditions than currently permitted, most employees and
their representatives interpreted the proposal as an increase in their
recertification burden. Employers and their representatives were
divided as to whether the Department's proposal represented an increase
or a diminution in their recertification right.
Most employees and their representatives opposed the proposal in
Sec. 825.308(b) to permit recertification every six months for long-
term or permanent conditions, viewing it as unnecessary in the absence
of some change in the condition and as imposing an increased burden on
employees. See, e.g., National Postal Mail Handlers Union; National
Federation of Federal Employees; Academic Pediatric Association et al.;
Association of Professional Flight Attendants; Diane North; Mary
Freeman; Gregory Sheffield, Jr. The Communications Workers of America
suggested that employees with chronic serious health conditions should
not be required to recertify more than once per year. See also National
Partnership for Women & Families. The American Postal Workers Union
suggested that recertification of chronic conditions should only be
permitted where circumstances change or new information justifies the
request. The Academic Pediatric Association et al. argued that
requiring recertification of chronic or lifelong conditions ``does not
serve any useful purpose.'' The AFL-CIO, however, supported the
proposed change as it applies to conditions of indefinite, unknown, or
lifetime duration, but opposed six-month recertification for conditions
with a defined duration in excess of six months (e.g., for a condition
that will last nine months). In support of six-month recertification
for chronic serious health conditions, the AFL-CIO argued that
``[r]ecertifications on a 30-day basis for long-term conditions are not
only burdensome to employees and their health care providers, but are
highly unlikely to elicit useful information for making leave decisions
under the FMLA.''
Many commenters representing employees also noted that
recertification imposes a financial burden on employees because health
care providers charge for the additional medical examination and/or
paperwork associated with recertification. See, e.g., Communications
Workers of America; Sargent Shriver National Center on Poverty Law;
Association of Professional Flight Attendants; National Partnership for
Women & Families; National Postal Mail Handlers Union. The National
Partnership for Women & Families requested that, if the Department
finalized Sec. 825.308 as proposed, it make clear that the two visits
required under the proposed definition of a chronic serious health
condition in Sec. 825.115(c)(1) could be satisfied by the six-month
visits for recertification.
Employers and their representatives were split as to whether the
six-month recertification rule was an improvement on the current
recertification provision. Several large employers and employer
associations supported permitting recertification on a six-month basis
for long-term or permanent conditions. See, e.g., AT&T; the Chamber;
Equal Employment Advisory Council; National Association of
Manufacturers; HR Policy Association; WorldatWork; Manufacturers
Alliance; TOC Management Services. The U.S. Postal Service stated that
the six-month recertification proposal for conditions of unknown or
permanent duration ``eliminates the ambiguity that had been a hallmark
of the recertification provisions and is sorely needed.'' The National
Business Group on Health asserted that the Department's proposal ``will
help to alleviate situations where, under current rules, doctors can
provide multi-year medical certifications for serious health conditions
that may no longer be present after some months or longer.'' The
Chamber argued that ``requiring more frequent certifications will not
present any additional hardship to employees, as employees with chronic
conditions are likely to be visiting their health care providers at
lease twice a year already.''
[[Page 68022]]
Other commenters, however, argued that 30-day recertification for
chronic serious health conditions would be more appropriate. See, e.g.,
Metropolitan Transportation Authority (NY); International Public
Management Association for Human Resources; Ohio Department of
Administrative Services; City of Medford (OR); National Association of
Wholesaler-Distributors; American Foundry Society. The Society for
Human Resource Management objected that the proposal would require
employers to permit potential misuse of leave to continue for months
before being able to obtain a recertification. Jackson Lewis suggested
that recertification every 60 days would be more appropriate. The
Association of Corporate Counsel's Employment and Labor Law Committee
suggested that recertification be should be permitted every three
months. See also National School Boards Association. The law firm of
Willcox & Savage argued that ``[s]ix-month recertifications would be
entirely inadequate to ensure that intermittent leave is used for
qualified reasons and to limit misuse of intermittent leave.''
The law firms of Spencer Fane Britt & Browne and Vercruysse Murray
& Calzone expressed confusion as to the interaction of the ``[m]ore
than 30 days'' rule and the ``30-day rule.'' Both of these commenters
asked whether the 30-day recertification rule would apply to long-term
conditions requiring short periods of intermittent leave. They
questioned what serious health conditions would be covered by Sec.
825.308(a) if these long-term or permanent conditions were instead
covered under Sec. 825.308(b). These commenters attributed their
confusion to the use of the phrase ``minimum period of incapacity'' in
proposed Sec. 825.308(b), and questioned whether the Department meant
the duration of ``incapacity'' or the duration of the ``condition.''
See also Equal Employment Advisory Council.
The Department views the conflicting comments it received regarding
proposed Sec. 825.308(b) as indication of the need to further clarify
the recertification regulation. The Department agrees that, as proposed
in the NPRM, it was unclear whether Sec. 825.308(b) applied to
permanent or long-term conditions requiring short periods of
intermittent leave (i.e., chronic conditions). Accordingly, final Sec.
825.308(b) is modified to clarify that the rule applies to conditions
where the minimum duration of the condition, as opposed to the duration
of the period of incapacity, exceeds 30 days. This is a clarification,
not a change in the Department's enforcement position. Current Sec.
825.308(b) has two subsections, the first of which addresses
certifications specifying a minimum period of incapacity in excess of
30 days, and the second of which addresses certifications specifying a
minimum period during which intermittent or reduced schedule leave will
be needed; in both situations an employer may not request
recertification until the minimum period specified has passed.
Accordingly, the Department has always interpreted the current
regulation as applying to those situations in which the certification
states that an employee will need leave due to a serious health
condition for a specified period in excess of 30 days, regardless of
whether that leave is taken as a single continuous block or on an
intermittent basis. The final rule also provides an example of how the
six-month recertification provision would apply. Not all situations
will fit within final Sec. 825.308(b), and, as the final rule makes
clear, employers are entitled to recertification on a 30-day basis,
unless the requirements of paragraphs (b) or (c) are met. In all cases,
where the criteria of Sec. 825.308(c) are met, employers may seek
recertification in less than 30 days.
The Department declines in the final rule to permit recertification
of long-term or permanent conditions more frequently than every six
months unless the conditions set forth in Sec. 825.308(c) are met. As
explained in the NPRM, the Department is concerned about the burden
frequent recertifications place on employees suffering from permanent
or long-term serious health conditions. The Department believes that
permitting recertification on a six-month basis represents the
appropriate balance between the employer's right to receive updated
medical information to support the need for FMLA leave, and the
employee's right to take such leave. As noted in the NPRM, the six-
month period for recertification generally coincides with the
requirement of periodic visits of twice per year for treatment in the
definition of a chronic serious health condition in Sec.
825.115(c)(1). To the extent that an employee visits his or her health
care provider for treatment in connection with obtaining a
recertification, that visit could count towards satisfying the periodic
treatment criteria for a chronic serious health condition if it occurs
every six months.
The Department also received several comments from employer
representatives supporting the Department's proposal in Sec.
825.308(e) to expressly permit employers to provide an employee's
health care provider with information regarding the employee's absences
due to the serious health condition, with many commenters indicating
that this change would significantly improve their ability to
administer FMLA leave. See, e.g., HR Policy Association; Pennsylvania
Governor's Office of Administration; Southwest Airlines; American
Foundry Society; Equal Employment Advisory Council. The AFL-CIO,
however, argued that proposed Sec. 825.308(e) was an unnecessary
addition to the regulations as the Department had already taken this
position in Wage and Hour Opinion Letter FMLA2004-2-A (May 25, 2004).
The Department believes it is appropriate to include this language in
the regulatory text and therefore the final rule adopts Sec.
825.308(e) as proposed.
Finally, the National Association of Manufacturers and the National
Association of Wholesaler-Distributors, as well as many other
commenters, objected to the Department's continued prohibition in
proposed Sec. 825.308(f) on second and third opinions on
recertification. See also Vercruysse Murray & Calzone; TOC Management
Services; Jackson Lewis; Metropolitan Transportation Authority (NY);
Independent Bakers Association; Pennsylvania Governor's Office of
Administration; International Public Management Association for Human
Resources; City of Medford (OR); American Foundry Society. The National
Association to Protect Family Leave and the Society for Human Resource
Management argued that the statute does not prohibit second and third
opinions on recertification and that permitting them would reduce the
number of second and third opinions on initial certifications, which
would benefit both employers and employees. The Southern Company argued
that the Department's proposal to permit employers to require new
certifications of ongoing conditions on an annual basis, which would be
subject to second and third opinions, was not sufficient to allow
employers to effectively manage employee leave and that employers
should therefore be permitted to seek second and third opinions on
recertifications as well. See also Berens & Tate; National Coalition to
Protect Family Leave. Spencer Fane Britt & Browne argued that employers
should be entitled to get a second opinion whenever they are permitted
to seek recertification in less than 30 days under Sec. 825.308(c),
and in other situations every three months.
The Department declines in the final rule to permit second or third
opinions on recertification. As discussed above,
[[Page 68023]]
Sec. 825.305(e) of the final rule will permit employers to require a
new certification on an annual basis for conditions lasting longer than
a single leave year, and such new certifications will be subject to
second and third opinions. The Department believes that allowing
employers the option of a second and third opinion once per leave year
is sufficient and that permitting second and third opinions on
recertifications would impose an additional burden on employees that
would be disproportionate to any benefit to employers.
Section 825.309 (Certification for Leave Taken Because of a Qualifying
Exigency)
Under the military family leave provisions of the NDAA, 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.'' 29 U.S.C. 2613(f).
Because the NDAA gives the Secretary of Labor the authority to
prescribe a new certification requirement for FMLA leave taken because
of a qualifying exigency, the Department's NPRM included a discussion
of a number of issues related to the Department's implementation of a
certification requirement for qualifying exigency leave. The Department
specifically sought comment on the type of information that should be
provided in a certification related to qualifying exigency leave in
order for it to be considered complete and sufficient. The Department
expressed an initial view that, in addition to providing confirmation
of the covered military member's active duty or call to active duty
status, an employee could be asked to provide certification that an
absence is due to a qualifying exigency. The Department sought comment
on whether an employee should provide certification of the qualifying
exigency by statement or affidavit or by another means. The Department
also sought comment on whether the certification requirements should
vary depending on the nature of the qualifying exigency for which leave
is being taken.
In addition, the Department asked for comments regarding who should
bear the cost, if any, of obtaining certifications related to leave
taken because of a qualifying exigency and what timing requirements
should be applied to such certifications. The Department also asked
whether an employer should be permitted to clarify, authenticate, or
validate an active duty or call to active duty certification or a
certification that a particular event is a qualifying exigency, and
what limitations, if any, should be imposed on an employer's ability to
seek such clarification, authentication, or validation. Lastly, the
Department sought comment on whether a recertification process should
be established for certifications related to leave taken because of a
qualifying exigency and, if so, how that process should compare to the
recertification process used for existing FMLA leave entitlements.
While the Department has attempted to mirror the existing FMLA
certification process wherever possible for qualifying exigency leave,
the unique nature of this leave necessitates that an employee provide
different information in order to confirm the need for leave. In the
final rule, the certification requirements for leave taken because of a
qualifying exigency are set forth in Sec. 825.309. Section 825.309(a)
of the final rule establishes that an employer may require that the
employee provide a copy of the covered military member's active duty
orders or other documentation issued by the military which indicates
that the covered military member is on active duty (or has been
notified of an impending call or order to active duty) in support of a
contingency operation, and the dates of the covered military member's
active duty service. Section 825.309(b) establishes that each time
leave is first taken for one of the qualifying exigencies specified in
Sec. 825.126, an employer may require an employee to provide a
certification that sets forth certain information. Section 825.309(c)
of the final rule describes the optional form (Form WH-384) developed
by the Department for employees' use in obtaining certification that
meets the FMLA's certification requirements. The form is optional for
employers and reflects the certification requirements established in
Sec. 825.309(b) so that it is easier for an employee to furnish
appropriate information to support his or her request for leave because
of a qualifying exigency. Form WH-384, or another form containing the
same basic information, may be used by the employer; however, no
information may be required beyond that specified in this section.
Section 825.309(d) of the final rule establishes the verification
process for certifications.
The Department received many comments that agreed that it is
appropriate to require a copy of the covered military member's active
duty orders or some other form of documentation issued by the military
which indicates that the covered military member is on active duty (or
has been notified of an impending call or order to active duty) in
support of a contingency operation for certification purposes. See
National Partnership for Women & Families, in joint comments with the
National Military Family Association; U.S. Postal Service; National
Coalition to Protect Family Leave; Society for Human Resource
Management; Equal Employment Advisory Council; Hewitt Associates; AT&T;
South Carolina, Office of Human Resources; Pennsylvania Governor's
Office of Administration. Hewitt Associates also suggested that ``[i]f
military orders are not readily available, employers should permit
employees to provide secondary documentation confirming that the family
member is on active military duty.'' TOC Management Services went
further to suggest that the Department ``develop a `qualifying exigency
certification,' to be completed by the military servicemember's
commanding officer (or other authorized military personnel).'' Senator
Dodd and Representative Woolsey et al. suggested that certification
should ``consist of activation orders or letters from a commanding
officer.''
The Department agrees with the majority of commenters that a
complete and sufficient certification for purposes of qualifying
exigency leave should include a copy of the covered military member's
active duty orders. The orders will confirm that the covered military
member is on active duty (or has been notified of an impending call to
active duty) in support of a contingency operation. The Department also
believes that it is appropriate to allow an employee to provide other
documentation issued by the military in order to establish that the
covered military member is on active duty or has been notified of an
impending call or order to active duty for purposes of qualifying
exigency leave. Accordingly, Sec. 825.309(a) provides that an employer
may request, as part of a complete and sufficient certification to
support a request for qualifying exigency leave, a copy of the covered
military member's active duty orders or other documentation issued by
the military which indicates that the covered military member is on
active duty or call to active duty status in support of a contingency
operation, and the dates of the covered military member's active duty
service. In addition, to alleviate as much of the burden as possible on
employees using this new leave entitlement, this provision provides
that this information need only be provided to the employer the first
time an employee requests leave because of a
[[Page 68024]]
qualifying exigency arising out of a particular active duty or call to
active duty of a covered military member. While additional information
is required to provide certification for subsequent requests for
exigency leave, an employee is only required to give a copy of the
active duty orders to the employer once. A copy of new active duty
orders or other documentation issued by the military only needs to be
provided to the employer if the need for leave because of a qualifying
exigency arises out of a different active duty or call to active duty
order of the same or a different covered military member.
A number of commenters addressed whether an employer should be able
to request documentation beyond the covered military member's active
duty orders, and provided suggestions on the types information an
employee could be required to provide. Senator Dodd and Representative
Woolsey et al. commented that ``a simple personal statement * * *
stating the reason for the leave and that the leave arises from the
deployment or return of the servicemember'' is sufficient. The National
Partnership for Women & Families, in joint comments with the National
Military Family Association, suggested that notes from the service
provider or the military association should be sufficient, such as a
note from a counselor when the leave is needed to attend counseling.
The National Coalition to Protect Family Leave recommended that an
employee provide written documentation unless there are extraordinary
or extenuating circumstances, or documentation does not exist, and that
such documentation be from an independent source if available; a
statement or affidavit should be sufficient only if there is no other
alternative method of certification available. The Equal Employment
Advisory Council requested that an employee provide proof of the need
for leave and sign an affidavit declaring the reason for taking leave.
The Chamber stated that an employee ``should provide the employer with
detailed information about the reasons for leave.'' TOC Management
Services suggested that an employee be required to submit a statement
or affidavit. Hewitt Associates noted that:
The list of qualifying exigencies may be too broad and
indefinite to create a form that speaks to the leave reasons
themselves. In addition, in many cases, there may not be a clear
third party like a physician, teacher, or department able to certify
the leave. Employers that are concerned with abuse could rely upon
company rules prohibiting dishonesty, misrepresentation, and/or the
falsification of company documents and a reminder of such rules and
policies could be included on the form itself.
In the final rule, the Department seeks to provide an appropriate
balance between providing employers with a reasonable amount of
information to demonstrate the validity of the qualifying exigency and
ensuring that employees are not overburdened with unnecessary steps
that do not enhance the utility of the certification. For example, the
Department does not believe that it is necessary for an employee to
sign an affidavit to provide a meaningful certification. Such a
requirement would place a burden on employees that would potentially
delay or frustrate their ability to utilize qualifying exigency leave.
Most employers have policies in place that prohibit employees from
providing false information and enforcing such policies would have
substantially the same effect as an affidavit in deterring abuse.
Section 825.309(b)(1)-(5) of the final rule allows an employer to
require an employee to provide a reasonable amount of information for
certification. Where applicable, this information should be readily
available to the employee and should not impose a significant obstacle.
Section 825.309(b)(1) requires the employee to provide a signed
statement or description of the facts regarding each qualifying
exigency for which FMLA leave is requested and stipulates that such
facts must be sufficient to support the need for leave. Where an
employee needs intermittent leave for a particular qualifying exigency,
only one certification is required for that qualifying exigency. For
example, there are many types of qualifying exigencies within the
category of childcare and school activities. Thus, an employee would
need to provide one certification for enrolling a child in school, and
a separate certification for arranging for alternative childcare; the
employee, however, would only need one certification for a series of
related parent-teacher conferences. The final rule also provides a
number of examples of written documents that could support a request of
leave, such as a copy of a meeting announcement for informational
briefings sponsored by the military, a document confirming an
appointment with a counselor or school official, or a copy of a bill of
services for the handling of legal or financial affairs. These examples
illustrate that, whenever possible, the employee's statement should
include demonstrable information that relates to the type of leave
being taken.
Section 825.309(b)(2) of the final rule requires the inclusion of
the approximate date on which the qualifying exigency commenced or will
commence. Section 825.309(b)(3) stipulates that if an employee requests
leave because of a qualifying exigency for a single, continuous period
of time, the employee should provide the beginning and end dates for
such absence. If an employee requests leave because of a qualifying
exigency on an intermittent or reduced schedule basis, Sec.
825.309(b)(4) of the final rule requires an estimate of the frequency
and duration of the qualifying exigency. These sections will not always
apply to every kind of qualifying exigency. When applicable, however,
all three of these provisions will assist employers by providing them
with sufficient information to adequately prepare for the employee's
absence in connection with qualifying exigency leave.
Finally, in Sec. 825.309(b)(5) of the final rule, the Department
allows the employer to require the inclusion of appropriate contact
information when an exigency involves meeting with a third party. In
addition to the name, title, organization, address, telephone number,
fax number, and e-mail address for the individual or entity with which
the employee is meeting, the contact information can also include a
brief description of the purpose of the meeting. Although the
Department recognizes that not every qualifying exigency involves a
third party, for those exigencies where a third party is involved such
detailed information should provide meaningful assurance and validation
for employers.
The Department also received a few comments regarding the creation
of a certification form to be used by employees and employers.
Infinisource, Inc. and the Equal Employment Advisory Council suggested
that the Department provide a sample qualifying exigency certification
form.
The final rule provides an optional form (Form WH-384) that is
described in Sec. 825.309(c) and included in Appendix G to the
regulations. The form reflects the certification requirements so as to
permit an employee to furnish appropriate information to support his or
her request for leave because of a qualifying exigency. This optional
Form WH-384, or another form containing the same basic information, may
be used by the employer. The final rule makes clear, however, that no
information may be required beyond that specified in Sec. 825.309 and
in all instances the information on the form must relate only to the
qualifying exigency for which the current need for leave exists.
[[Page 68025]]
The Department believes Form WH-384 will benefit both employees and
employers by providing all the certification requirements in a clear,
easy to follow format.
The Department also received many comments on the issues of
authentication and recertification. Many commenters requested that
employers be permitted to clarify or authenticate military active duty
orders and the event necessitating qualifying exigency leave. See AT&T;
Pennsylvania Governor's Office of Administration; Catholic Charities,
Diocese of Metuchen; National Association of Manufacturers; Association
of Corporate Counsel's Employment and Labor Law Committee. The
Association of Corporate Counsel's Employment and Labor Law Committee
suggested that employers be permitted to contact third parties involved
in the need for leave, such as calling ``a childcare provider to
confirm that they were consulted to provide care as a result of a
servicemember's call to duty.'' Senator Dodd and Representative Woolsey
et al. and the National Partnership for Women & Families, in joint
comments with the National Military Family Association, argued that
there should be no need to clarify or authenticate military active duty
orders. The National Partnership for Women & Families, in joint
comments with the National Military Family Association, acknowledged,
however, that ``[e]mployers should be able to authenticate the
certifications for the actual leave--for example by calling the school
and checking that the parent was scheduled for a conference at that
time.'' Senator Dodd and Representative Woolsey et al. similarly
suggested that an ``employer could request additional information if it
suspects that the employee is misusing the leave entitlement.'' On the
subject of recertification, AT&T and Catholic Charities requested that
recertifications be allowed. Catholic Charities asserted that ``the
employer should have the right to request a recertification every 30
days regardless of the duration of time that the certification states
the employee is to be out.'' AT&T asserted that recertifications should
be permitted at least once every six months for intermittent qualifying
exigency leave.
The Department agrees that employers should have the opportunity to
verify certain information in the certification in a limited way that
respects the privacy of the employee. Section 825.309(d) of the final
rule describes the verification process. If an employee submits a
complete and sufficient certification to support his or her request for
leave because of a qualifying exigency, the employer may not request
additional information from the employee. However, if the qualifying
exigency involves meeting with a third party, the employer may contact
the individual or entity with whom the employee is meeting for purposes
of verifying a meeting or appointment schedule and the nature of the
meeting between the employee and the specified individual entity. For
example, an employer could call a school to confirm that a meeting took
place between the employee and the teacher of a child of a covered
military member. The section provides that no additional information
may be requested by the employer and the employee's permission is not
required in order to verify meetings or appointments with third
parties.
In addition, the final rule allows an employer to contact an
appropriate unit of the Department of Defense to request verification
that a covered military member has been called to active duty status
(or notified of an impending call to active duty status) in support of
a contingency operation. Again, no additional information may be
requested by the employer and the employee's permission is not
required. This verification process will protect employees from
unnecessary intrusion while still providing a useful tool for employers
to verify the certification information given to them.
With regard to recertification, however, the Department agrees with
the comments that suggested that recertification is unnecessary; the
final rule does not provide for recertification. An employee is already
required to provide certification to the employer in connection with
leave taken for a qualifying exigency. See discussion regarding Sec.
825.309(b)(1), supra. A recertification would most likely result in the
employee providing the employer with a copy of the same active duty
orders already provided to the employer. Section 825.309(a), however,
does state that a copy of new active duty orders or other documentation
issued by the military shall be provided to the employer if the need
for leave because of a qualifying exigency arises out of a different
active duty or call to active duty order of the same or a different
covered military member.
Section 825.310 (Certification for Leave Taken To Care for a Covered
Servicemember (Military Caregiver Leave))
The military family leave provisions of the NDAA amended the FMLA's
certification requirements to permit an employer to request that leave
taken to care for a covered servicemember be supported by a medical
certification. 29 U.S.C. 2613(a). The FMLA's existing 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 the NDAA did 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. In light of this, the Department sought
comment in the NPRM on the appropriate requirements and content of a
certification for leave to care for a covered servicemember. The
Department also sought comment on whether a certification from the DOD
or VA 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 on active duty in the Armed Forces.
Section 825.310 of the final rule provides that when leave is taken
to care for a covered servicemember with a serious injury or illness,
an employer may require an employee to support his or her request for
leave with a sufficient certification. Section 825.310(a) of the final
rule permits an employer to require that certain necessary information
to support the request for leave be supported by a certification from
one of the following authorized health care providers: (1) A DOD health
care provider; (2) a VA health care provider; (3) a DOD TRICARE network
authorized private health care provider; or (4) a DOD non-network
TRICARE authorized private health care provider. Section 825.310(b)-(c)
of the final rule sets forth the information an employer may request
from an employee (or the authorized health care provider) in order to
support the employee's request for leave. As indicated in Sec.
825.310(d) of the final rule, the Department has developed a new
optional form, Form WH-385, which may be used to obtain appropriate
information to support an employee's request for leave to care for a
covered servicemember with a serious injury or illness. An employer may
use this optional form, or another form containing the same basic
information; however, as is the case for any required certification for
leave taken to care for a family member with a serious health
condition, no information may be required beyond that specified in
Sec. 825.310 of the final rule. In all instances, the information on
any required certification must relate only to
[[Page 68026]]
the serious injury or illness for which the current need for leave
exists.
Additionally, Sec. 825.310(e) of the final rule provides that an
employer requiring an employee to submit a certification for leave to
care for a covered servicemember must accept as sufficient
certification ``invitational travel orders'' (``ITOs'') or
``invitational travel authorizations'' (``ITAs'') issued by the DOD for
a family member to join an injured or ill servicemember at his or her
bedside. If an employee will need leave to care for a covered
servicemember beyond the expiration date specified in an ITO or an ITA,
the final rule provides that an employer may request further
certification from the employee. Lastly, Sec. 825.310(f) of the final
rule provides that 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.
The majority of comments received from both employees and employers
regarding certification requirements for military caregiver leave
requested that the Department create a separate certification process
for such leave, rather than incorporate such requests into the
certification process used for other FMLA qualifying reasons. For
example, the National Partnership for Women & Families, in joint
comments with the National Military Family Association, wrote that
because the ``triggering events'' for an employee to use leave for an
injured servicemember are significantly different from those for leave
taken for other FMLA-qualifying reasons, ``the medical certification
requirements for leave to care for an injured servicemember should
match those in the statute, rather than being grafted onto requirements
in the existing FMLA.'' The National School Boards Association also
commented that a certification for covered servicemember leave should
focus on each aspect of the definition of ``serious injury or illness''
and ``should not focus on `serious health condition' because this term
does not trigger the right to take military family leave.'' Finally,
comments submitted by Senator Dodd and Representative Woolsey et al.
suggested that any required certification should provide employers who
request certification with ``essential information.''
The Department agrees with those comments that suggested that the
certification requirements for taking leave to care for a covered
servicemember must necessarily be different than those for taking leave
to care for a family member with a serious health condition since the
``triggers'' for taking each type of leave are different. The NDAA's
definitions of ``serious injury or illness'' and ``covered
servicemember'' contain specific components that are unique to military
servicemembers that would not adequately be addressed if the
certification requirements for a serious health condition were adopted
for purposes of military caregiver leave. Moreover, adopting the
existing FMLA certification requirements for purposes of military
caregiver leave would permit an employer, in some instances, to obtain
medical and other information that is not relevant to support a request
to take FMLA leave to care for a covered servicemember.
Accordingly, the final rule creates a new regulatory section, Sec.
825.310, which sets forth separate certification requirements for
military caregiver leave. This section, as suggested by the majority of
commenters, provides that an employer may seek a certification which
provides information specific to the NDAA requirements for taking leave
to care for a covered servicemember, including: (1) Whether the
servicemember has incurred a serious injury or illness; (2) whether the
injury or illness may render the servicemember medically unfit to
perform the duties of the member's office, grade, rank, or rating; (3)
whether the injury or illness was incurred by the member in line of
duty on active duty; and (4) whether the servicemember is undergoing
medical treatment, recuperation, or therapy, is otherwise on outpatient
status, or is otherwise on the temporary disability retired list. The
Department notes that the optional certification form (WH-385) for
covered servicemember leave includes two additional categories of
internal DOD casualty assistance designations used by DOD health care
providers ((VSI) Very Seriously Ill/Injured and (SI) Seriously Ill/
Injured) that also meet the standard of a serious injury or illness.
At the same time, the Department also agrees with those commenters
who recommended that a certification for military caregiver leave
should contain certain information about the need for leave that is
also required of individuals requesting FMLA leave to care for a family
member with a serious health condition. See e.g., Jackson Lewis;
Association of Corporate Counsel's Employment and Labor Law Committee;
and AT&T. This information includes (1) the probable duration of the
injury or illness; (2) frequency and duration of leave required; (3) if
leave is requested on an intermittent or reduced schedule basis, an
estimate of the frequency and duration of such leave; and (4) the
family relationship of the eligible employee to the covered
servicemember. The Department believes it is reasonable to require all
individuals requesting leave to care for a family member to provide
this information, regardless of whether the family member has a serious
health condition or is a covered servicemember with a serious injury or
illness. Accordingly, Sec. 825.310(a)-(c) of the final rule permit an
employer to require such information. As is the case with the
certification process for leave taken to care for a family member with
a serious health condition, no information may be required beyond that
specified in Sec. 825.310 of the final rule.
Most of the commenters also agreed with the Department's initial
view in the NPRM that the DOD and the VA are in the best position to
determine what constitutes a ``serious injury or illness.''
Additionally, the majority of commenters also supported employees
providing certification from the DOD (or relevant military branch) or
VA to support a request for leave to care for a covered servicemember.
Domtar Paper Company wrote that, ``the DOL should adopt DOD
certification for FMLA purposes. We agree that military branches, as
well as the Department of Veterans' Affairs do a good job in making
these determinations.'' The Illinois Credit Union League believed a
certification from ``either Department'' should be ``sufficient.'' As
to ``serious injury or illness,'' Hewitt Associates supported providing
DOD or VA with ``deference in this analysis.''
Based upon extensive discussions with the DOD, as well as with the
VA, the Department believes that the DOD should not be the only entity
able to certify that an eligible employee is needed to care for a
covered servicemember with a serious injury or illness. At the present
time, servicemembers with serious injuries or illnesses intended to be
covered by the NDAA amendments do not receive care solely from DOD
health care providers. Rather, such covered servicemembers also may
receive care from either VA health care providers or DOD TRICARE
military health system authorized private health care providers.
Indeed, it is the Department's understanding that members of the
National Guard and Reserves, especially in more rural areas, will be
more likely to receive care from DOD TRICARE authorized private health
care providers than from DOD or even VA health care providers.\6\
[[Page 68027]]
Additionally, servicemembers on the temporary disability retired list
may be receiving care from these private health care providers.
Accordingly, Sec. 825.310(a) of the final rule provides that any of
the following health care providers may complete an employer-required
certification to support a request for military caregiver leave: (1) A
DOD health care provider; (2) a VA health care provider; (3) a DOD
TRICARE network authorized private health care provider; or (4) a DOD
non-network TRICARE authorized private health care provider.
---------------------------------------------------------------------------
\6\ Based upon discussions with the DOD, it is the Department's
understanding that some covered servicemembers in more remote areas
of the United States may not have a local health care provider who
is in the DOD TRICARE network. In these situations, TRICARE
authorizes non-network health care providers to administer care to
these servicemembers. These ``non-network'' health care providers
are specifically included in the regulations as one of the
categories of health care providers authorized to complete
certifications for leave to care for a covered servicemember.
---------------------------------------------------------------------------
If a VA or a DOD TRICARE authorized health care provider is unable
to make any of the military-related determinations (i.e., whether the
serious injury or illness may render the covered servicemember
medically unfit to perform the duties of the member's office, grade,
rank, or rating and/or whether the serious injury or illness was
incurred in line of duty on active duty) as part of the certification
process, Sec. 825.310(a) of the final rule provides that such health
care providers may complete the certification form by relying on a
determination from an authorized DOD representative (such as a recovery
care coordinator). The Department believes this solution sufficiently
protects an employer's right to obtain a sufficient certification while
not unduly burdening an employee seeking to take leave by unnecessarily
restricting the health care providers who may complete such a
certification. Based on consultation with the DOD, it is the
Department's understanding that every covered servicemember will have a
DOD representative who can serve as a point of contact for health care
providers who need information relating to the military-related
determinations requested in the FMLA certification form. For example,
the most seriously injured or ill covered servicemembers (i.e., those
servicemembers receiving injuries that the DOD terms catastrophic or
severe) will have either a ``Federal Recovery Coordinator'' or
``Recovery Care Coordinator'' assigned to assist the covered
servicemember and his or her family.
Although the military caregiver leave provisions of the NDAA permit
an eligible employee who is the next of kin of a covered servicemember
to take leave to care for a covered servicemember, the NDAA's
certification requirements appear to permit an employer to obtain a
certification issued by the health care provider of the employee's next
of kin, rather than the covered servicemember. See 29 U.S.C. 2613(a).
In the NPRM, the Department stated that it 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, and not the health care provider of the
next of kin. The comments addressing this issue agreed with the
Department 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
U.S. Postal Service wrote: ``A provider's medical certification of a
health condition can only pertain to his/her patient, which in this
case is the covered servicemember. No other interpretation makes sense.
A physician simply cannot provide any medical documentation for a `next
of kin' when that person receives no treatment, therapy, etc. Notably,
the overall FMLA scheme is one that requires certification of a
patient's condition from the treating provider. There is no logical
basis for construing the servicemember certification requirements any
differently.'' Additionally, the National School Boards Association
wrote that ``[t]he results of the statute as written are odd and would
only serve to inconvenience everyone in the process particularly the
servicemember whose medical certification would have to come from a
doctor [with] whom the service member has no relationship.''
After reviewing all of the comments, the Department agrees with
those comments that stated that an employer should only be able to
obtain a certification from the health care provider of the covered
servicemember for whom the eligible employee is caring. To permit an
employer to obtain a medical certification issued by the health care
provider of the ``next of kin,'' rather than the servicemember is
illogical, and does not serve the interests of either employees or
employers. Accordingly, the final rule provides that any certification
supporting a request for FMLA leave by a covered servicemember's next
of kin should be issued by the health care provider of the covered
servicemember--not the health care provider of the next of kin.
Additionally, Sec. 825.310(e) of the final rule provides that an
employer must accept the submission of ``invitational travel orders''
(``ITOs'') or ``invitational travel authorizations'' (``ITAs'') issued
for medical purposes, in lieu of the DOL optional certification form or
an employer's own form, as sufficient certification of a request for
military caregiver leave during the time period specified in the ITOs
or ITAs. Based on consultation with the DOD, it is the belief of the
Department that the issuance of such orders or authorizations, by
themselves, qualifies a servicemember as a ``covered servicemember''
for purposes of the military caregiver leave provisions of the FMLA.
The issuance of an ITO or ITA for medical purposes permits the family
member of the injured or ill servicemember to travel immediately to the
servicemember's bedside, at DOD's expense. These ITOs or ITAs for
medical purposes are not issued by the DOD as a matter of course, but
rather only when the servicemember is, at minimum, seriously injured or
ill. It is the Department's understanding that, in such cases, the ITO
or ITA is issued to a servicemember's family upon the direction of a
DOD health care provider and will state on its face that the travel
order or authorization is for ``medical purposes.''
The Department believes that permitting ITOs or ITAs to serve as
sufficient certification is appropriate in light of the fact that the
DOD has determined that the injury or illness incurred by the
servicemember is serious enough to warrant the immediate presence of a
family member at the servicemember's bedside. Moreover, in many
circumstances where ITOs or ITAs are issued, it may be extremely
difficult for an employee to provide an otherwise timely certification
that complies with the requirements of Sec. 825.310 to an employer.
The Department also believes this approach appropriately accommodates
an employer's right to obtain a sufficient certification from an
employee in order to designate such leave as FMLA qualified.
Given the seriousness of the injuries or illness incurred by a
servicemember whose family member receives an ITO or ITA, and the
immediate need for the family member at the servicemember's bedside, it
is the Department's intention to remove as many certification hurdles
for the employee as possible for the duration of the order or
authorization. Accordingly, the final rule further provides that during
the period of time specified in the ITO or ITA, an eligible employee
may take leave to care for the covered servicemember in a continuous
block of time or on an intermittent basis.
[[Page 68028]]
An eligible employee who provides an ITO or ITA to support his or her
request for leave may not be required to provide any additional or
separate certification that leave taken on an intermittent basis during
the period of time specified in the ITO or ITA is medically necessary.
The final rule also provides that an employer must not refuse to accept
an ITO or ITA because the order or authorization is not signed by a
health care provider. As long as the ITO or ITA is issued by the DOD,
an employer must accept it. While an ITO or ITA is only issued to
family members upon the direction of a DOD health care provider, the
actual order or authorization may or may not be signed by a health care
provider.
If an employee will need leave to care for a covered servicemember
beyond the expiration date specified in an ITO or ITA, the final rule
permits an employer to require that the employee have one of the
authorized health care providers listed under Sec. 825.310(a) complete
the DOL optional certification form (WH-385) or an employer's own form,
as requisite certification for the remainder of the employee's
necessary leave period. The Department is permitting this additional
certification, if an employer so chooses, in order to allow an employer
to obtain information about the employee's continued need for leave
once the ITO or ITA expires, including specific information regarding
the servicemember's injury or illness and its expected duration. The
Department believes this approach is reasonable since the ITO or ITA
will not provide the employer with such information initially.
Furthermore, the Department believes that once an ITO or ITA expires,
the employee will be in a better position to have an authorized health
care provider furnish a complete certification as to the
servicemember's medical condition and the employee's continuing need
for leave.
The final rule also permits an eligible employee who is a spouse,
parent, son, daughter or next of kin of a covered servicemember to
submit an ITO or ITA issued to another family member as sufficient
certification for the duration of time specified in the ITO or ITA,
even if the employee seeking leave is not the named recipient on the
ITO or ITA. Thus, for example, a covered servicemember's son may submit
an ITO issued to the servicemember's spouse to support the son's
request for FMLA leave to care for the servicemember during the time
period specified by the ITO. An employer must accept such an ITO or ITA
from the employee as sufficient certification, in lieu of the
Department's optional certification form (WH-385) or an employer's own
certification form, for the duration of time specified in the order or
authorization.
The DOD does not issue an ITO or ITA to every family member of an
injured or ill servicemember who might be eligible to take FMLA leave
to care for the covered servicemember. It is the Department's
understanding that if the DOD issues an ITO or ITA at all, they do so
for between one and three family members of the servicemember. However,
in some situations, the servicemember may have additional family
members who are eligible to take FMLA leave to care for the
servicemember, even if the DOD has not authorized an ITO for that
person. For example, an ITO or ITA can be issued to the spouse of a
servicemember without also being issued to a servicemember's parents,
children, or siblings. The Department believes that all family members
of a covered servicemember who are eligible to take FMLA leave to care
for the covered servicemember should be able to rely on the DOD's
issuance of an ITO or ITA as sufficient certification to support a
request for FMLA leave during the effective period of the ITO or ITA.
Like a named recipient in an ITO or ITA, an employee using another
family member's orders or authorizations may take the leave in a
continuous block or on an intermittent basis for the duration of time
specified in the ITO or ITA without providing an additional or separate
certification that such leave is medically necessary. However, an
employer may require an employee to provide confirmation of covered
family relationship to the seriously injured or ill servicemember
pursuant to Sec. 825.122(j) of the FMLA in support of the employee's
use of an ITO or ITA.
In addition to requesting comment on the appropriate certification
process for military caregiver leave, the Department also sought
comment on whether the clarification, authentication, second and third
opinion, and recertification provisions applicable to FMLA leave taken
to care for a family member with a serious health condition should be
applied to certifications supporting FMLA leave taken to care for a
covered servicemember. Sections 825.310(d) and (e)(2) of the final rule
provide that an employer may seek to authenticate and clarify a
certification provided in support of a request for leave to care for a
covered servicemember, including ITOs or ITAs. The final rule does not
permit an employer to seek second and/or third opinions of an
employee's need to care for a covered servicemember in any case.
Because leave to care for a covered servicemember is a one-time
entitlement that must be used within a ``single 12-month period,'' the
final rule also does not provide a recertification process for leave to
care for a covered servicemember. The final rule does permit an
employer to require an employee to provide confirmation of covered
family relationship to the covered servicemember pursuant to Sec.
825.122(j).
Comments addressing whether the FMLA clarification, authentication,
second and third opinion, and recertification processes used for other
types of FMLA leave should apply to military caregiver leave were
mixed. The U.S. Postal Service wrote that ``[c]onsistent with the other
provisions of the FMLA, the employer should have the ability to seek
clarification, authentication, recertification, and second/third
opinions, if necessary.'' Infinisource, Inc. commented that there are
``clear advantages'' for adopting the same certification scheme for
military caregiver leave that exists for leave for a serious health
condition, and that ``[t]his would include first and subsequent
certifications, second opinions and third opinions. It would be easiest
for employers and employees alike to know that there is one set of
rules for all types of FMLA leave.''
However, other commenters believed that a certification for
military caregiver leave should not require the same follow-up
mechanisms as permitted under the FMLA for a serious health condition.
AT&T wrote that if leave to care for a covered servicemember is limited
to a single 12-month period, there should be ``no need for a general
recertification (i.e., once every 6 months) after initial certification
has been secured.'' The National Partnership for Women & Families, in
joint comments with the National Military Family Association, argued
that the authentication and clarification processes applicable to other
types of FMLA leave should not apply to leave taken to care for a
covered servicemember because requiring ``frequent certification'' will
be difficult for the family members of servicemembers and will
discourage them from taking leave, particularly given the likelihood
that the employee will be away from home because the servicemember is
in a ``highly specialized'' hospital unit. These commenters also argued
that recertification is not necessary because the NDAA limits the leave
taking to one 12-month period.
The Department agrees with those commenters that argued that
similar procedures should be used for all types
[[Page 68029]]
of FMLA leave whenever feasible in order to minimize the number of
different procedures that have to be followed by both employees
requesting leave and employers administering leave programs.
Accordingly, the final rule permits employers to authenticate and
clarify medical certifications submitted to support a request for leave
to care for a covered servicemember using the procedures applicable to
FMLA leave taken to care for a family member with a serious health
condition. However, the Department also agrees with those comments that
suggested that it would not be appropriate to apply the recertification
and second and third opinion processes used for other types of FMLA
leave to military caregiver leave. Because an employee's use of
military caregiver leave is limited to a ``single 12-month period''
from the date such leave is first taken, the Department has concluded
that recertification and second and third opinions are not warranted
for purposes of military caregiver leave. In addition, because the
statutory standard for determining whether a family member has a
serious injury or illness is dependent on several determinations which
can only be made by the military, including whether the injury may
render the servicemember unfit to perform his or her duties and whether
the injury was incurred in the line of duty on active duty, the
Department believes it would be inappropriate to permit second and
third opinions regarding these determinations.
The Department also specifically sought comment in the NPRM on
whether there should be different timing requirements for the provision
of any required certification for military caregiver leave. The final
rule applies the same timing requirements to all requests for FMLA
leave. Thus, under Sec. 825.305(b) of the final rule, an employee
seeking to take military caregiver leave 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.
A number of commenters expressed concerns regarding timely receipt
of certifications from the DOD. The Unum Group stated that a
certification from the DOD should be sufficient to establish whether a
serious injury or illness exists, but that employers should also be
able to use a certification from a health care provider as well
``because of potential time concerns with receiving the certification
from the Department of Defense.'' The Manufacturers Alliance/MAPI
expressed concern with the timeliness in which the DOD and VA can
provide certifications, stating that ``numerous media reports about
some returning injured servicemembers who have faced obstacles and
delays in receiving treatment through these Departments--often as a
result of missing or inaccurate paperwork--at least call into question
whether these Departments have the full capability to supply
certifications with sufficient medical information in a timely fashion.
Neither employers nor employees would be well served if they must wait
months to obtain these certifications.'' The National Partnership for
Women & Families, in joint comments with the National Military Family
Association, commented that ``given the well documented delays and
uneven outcomes of employees going through the military disability
system, we are concerned that any certification requirement created by
the DOD or VA will be overly burdensome and may lead to unequal
results.'' Therefore, these commenters recommended that the Department
develop a ``simple form, similar to the medical forms used in the rest
of the FMLA, which will allow private health care providers, DOD, or
the VA to make this a simple and expedited process.'' They also
suggested that the Department should consult with the DOD and VA to
determine which office within these organizations would be responsible
for issuing certifications and set a ``maximum amount of time'' by
which the offices should respond to such a request--``for example, a
maximum of 15 days.'' In contrast, a number of employers and employer
groups, including the Equal Employment Advisory Council, ORC Worldwide,
and AT&T, recommended that the timing requirements set out in the
Department's NPRM for the certification of a serious health condition
should be applied to the certification for military caregiver leave.
The Department agrees with the comments submitted by Senator Dodd
and Representative Woolsey et al. that delays in the provision of
service at the DOD and VA could ``undermine the intent of the law'' in
providing family assistance to those who need it most. The Department
is fully cognizant of the special circumstances surrounding this type
of leave and the fact that an employee may have very little notice
before he or she is needed to care for a seriously injured or ill
servicemember. As noted by the National Partnership for Women &
Families, in joint comments with the National Military Family
Association, employees may need to travel in order to be with an
injured servicemember and may not be near a specific DOD or VA office
where paperwork can be completed. In addition, the Department fully
recognizes and acknowledges the concerns expressed by commenters
regarding the timely receipt of certifications from the DOD. It is for
these reasons that the Department is requiring employers to accept ITOs
and ITAs as sufficient certification for those employees who must
travel immediately to the bedside of their seriously injured or ill
servicemember.
Furthermore, these timing concerns guided the Department in working
with the DOD to create the Department's optional certification form
(WH-385). Consistent with the recommendation received from the National
Partnership for Women & Families, in joint comments with the National
Military Family Association, the Department created a ``simple form,
similar to the medical forms used in the rest of the FMLA'' which will
allow the DOD, VA, and DOD TRICARE private health care providers to
make this a ``simple and expedited process.'' The Department also
believes that the inclusion of TRICARE private health care providers as
one of the categories of health care providers authorized to complete a
certification will give greater flexibility to employees seeking to
certify that they are needed to care for a covered servicemember with a
serious injury or illness. Additionally, the Department believes the
inclusion of these private health care providers will allay the
concerns of commenters that there might be significant delays in the
receipt of certifications if only the DOD and/or VA could complete the
necessary certification.
The Department has taken significant steps to simplify the
certification process for military caregiver leave, such as creating,
with the assistance of the DOD, a simplified Department optional
certification form, by requiring an employer to accept ITOs or ITAs as
sufficient certification, and by authorizing TRICARE private health
care providers to issue certifications. Given these provisions, the
Department does not believe that different timing requirements should
be created for the receipt of certifications for military caregiver
leave. Thus, the final rule provides that an employee seeking FMLA
leave to care for a covered servicemember must comply with the timing
requirements for certifications set forth in Sec. 825.305(b). Under
this
[[Page 68030]]
section, an employee seeking FMLA leave to care for a covered
servicemember 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.
Section 825.311 (Intent To Return to Work)
The Department did not propose any changes in Sec. 825.309 in the
NPRM and received no significant comments on this section. In the final
rule, Sec. 825.309 is renumbered as Sec. 825.311 to account for the
new military family leave sections (Sec. Sec. 825.309 and 825.310) and
is otherwise adopted as proposed.
Section 825.312 (Fitness-for-Duty Certification)
Section 825.312 addresses the fitness-for-duty certification that
an employee may be required to submit upon return to work from FMLA
leave. This section was numbered Sec. 825.310 in the NPRM but is
renumbered as Sec. 825.312 in the final rule to account for the new
military family leave sections (Sec. Sec. 825.309 and 825.310). The
Department proposed 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 in
order for that person to provide the information directly to the
employer in the fitness-for-duty certification process as they do in
the initial certification process. The Department did not propose any
changes to current paragraph (b). The Department proposed to change
current paragraph (c) in two respects. First, the Department proposed
to change the requirement in current paragraph (c) that the fitness-
for-duty certification need only be a ``simple statement.'' The
Department proposed to allow an employer to require that the fitness-
for-duty certification address the employee's ability to perform the
essential functions of the employee's job as long as the employer
provides the employee with a list of those essential job functions at
the same time that the employer provides the eligibility notice
required by proposed Sec. 825.300(b). Second, the Department proposed
to allow an employer to contact the employee's health care provider
directly, consistent with the procedure in proposed Sec. 825.307(a),
for purposes of authenticating or clarifying the fitness-for-duty
certification. The Department did not propose any changes to current
paragraph (d). The Department proposed to modify current paragraph (e)
to require that the employer advise the employee in the eligibility
notice required by proposed Sec. 825.300(b) if the employer will
require a fitness-for-duty certification to return to work. The
Department proposed to add language to current paragraph (f) to make
clear that the employee is not entitled to the reinstatement
protections of the Act if he or she does not provide the required
fitness-for-duty certification or request additional FMLA leave. The
Department proposed to change current paragraph (g) to allow an
employer to require a fitness-for-duty certification up to once every
30 days if an employee has used intermittent or reduced schedule leave
during the 30-day period and 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.
Finally, the Department proposed deleting current paragraph (h) as
redundant with Sec. 825.213 regarding 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.
The final rule adopts the proposed change to paragraph (a). The
Department has moved the statements in current paragraph (b) that
discusses the applicability of provisions in state or local law or
collective bargaining agreements that govern an employee's return to
work to a new paragraph (g) in the final rule. The Department has also
moved the discussion of the ADA in current paragraph (b) to a new and
separate paragraph (h) in the final rule. Due to the reorganization of
this section in the final rule, proposed paragraph (c) is paragraph (b)
in the final rule. In paragraph (b) in the final rule, the Department
adopts the proposed change but modifies the language to make clear that
an employer may require that a fitness-for-duty certification
specifically address the employee's ability to perform the essential
functions of the employee's job. To do so, the final rules explain that
the employer must provide the employee with a list of the essential job
functions no later than with the designation notice required by Sec.
825.300(d), rather than with the eligibility notice as proposed, and
the employer must indicate in the designation notice that the
certification must address the employee's ability to perform those
essential functions. In addition, the Department has moved the
statement in current paragraph (e) that no second or third opinions on
a fitness-for-duty certification may be required to paragraph (b) in
the final rule. Current paragraph (d) is paragraph (c) in the final
rule. Current paragraph (e) is paragraph (d) in the final rule. The
Department has modified the notice requirement in paragraph (d) in the
final rule to provide that, if the employer will require a fitness-for-
duty certification, the employer must advise the employee of this
requirement in the designation notice and indicate therein whether that
certification must address the employee's ability to perform the
essential functions of the employee's job. Current paragraph (f) is
paragraph (e) in the final rule. The Department adopts the proposed
change to current paragraph (f) without modifications. Current
paragraph (g) is paragraph (f) in the final rule. The Department adopts
the proposal in this paragraph regarding uniformly-applied policies
permitting fitness-for-duty certifications for intermittent and reduced
schedule leave users when reasonable safety concerns are present and
adds a definition of ``reasonable safety concerns.'' ``Reasonable
safety concerns'' means a reasonable belief of a significant risk of
harm to the individual employee or others. In determining whether
reasonable safety concerns exist, an employer should consider the
nature and severity of the potential harm and the likelihood that
potential harm will occur. In addition, the Department has added a
notice requirement to this paragraph requiring the employer, if it
chooses to require a fitness-for-duty certification as allowed by this
paragraph, to inform the employee at the same time it issues the
designation notice that for each subsequent instance of intermittent or
reduced schedule leave, the employee will be required to submit a
fitness-for-duty certification unless one has already been submitted
within the past 30 days. Alternatively, the employer can set a
different interval for requiring a fitness-for-duty certification as
long as it does not exceed more than once every 30 days and the
employer advises the employee of the requirement in advance of the
employee taking intermittent or reduced schedule leave. The Department
deletes current paragraph (h) in the final rule.
The Department received few substantive comments on its proposal 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 enable that person to
provide the
[[Page 68031]]
information directly to the employer in the fitness-for-duty
certification process as they do in the initial certification process.
The Equal Employment Advisory Council supported the proposal, noting
the importance of the fitness-for-duty certification to an employee's
exercise of the right to reinstatement. The Department adopts the
proposed clarification to paragraph (a) without modification.
The Department did not propose any changes to current paragraph
(b), which addresses the applicability of provisions in state or local
law or collective bargaining agreements that govern an employee's
return to work, and the ADA in the fitness-for-duty context. However,
to make clear that the statements in this paragraph apply to all of the
provisions in Sec. 825.312, the Department has moved the statements in
current paragraph (b) to the end of the section in the final rule.
Thus, the statement that provisions in state or local law or the terms
of a collective bargaining agreement that govern an employee's return
to work shall be applied is in paragraph (g) in the final rule.
Additionally, for reasons discussed below, the Department has moved the
discussion of the ADA contained in current paragraph (b) to a new
paragraph (h) in the final rule in order to highlight the relationship
between the FMLA's fitness-for-duty certification and the ADA. The
Department does not intend for either of these changes to be
substantive.
In response the proposal in paragraph (c) to allow employers to
require that fitness-for-duty certifications contain more than a
``simple statement'' of the employee's ability to return to work, many
employers and employer organizations welcomed the ability to obtain a
certification that addresses the employee's ability to perform the
essential functions of the job. See National Association of
Manufacturers; National Business Group on Health; ORC Worldwide;
National Restaurant Association; AT&T; International Public Management
Association for Human Resources/International Municipal Lawyers
Association. Domtar Paper Company recognized that providing a list of
essential job functions may be burdensome to employers, but asserted
that it was worth the effort if the employer wants a more useful
fitness-for-duty certification.
In contrast, employee organizations and unions opposed this
proposed change, because they believed it would be duplicative,
onerous, and costly for employees. See United Food and Commercial
Workers International Union; Coalition of Labor Union Women; National
Partnership for Women & Families; Tracy Hutchinson. The Coalition of
Labor Union Women commented that the additional information that an
employee is required to provide will likely increase the cost to
employees because it might necessitate an additional medical
evaluation. Commenters including Richard Baerlocher and the United Food
and Commercial Workers International Union asserted that a more
detailed certification could delay an employee's return to work, which
could require the employee to take more FMLA leave than needed or face
discipline if the employee has no leave remaining. These commenters
argued that this will discourage employees from taking FMLA leave. The
United Food and Commercial Workers International Union also questioned
the necessity of a detailed fitness-for-duty certification when the
initial medical certification for FMLA leave requires the employee's
health care provider to assess the employee's condition in relationship
to the employee's essential job functions. This commenter argued that
because the health care provider has already considered the essential
functions of the employee's position in completing the initial
certification, by certifying that the employee is fit to return to
duty, the health care provider necessarily certifies that the
employee's serious health condition no longer prevents the employee
from being able to perform the essential functions of his or her job.
The Department notes that the current regulation already allows an
employer to delay an employee's return to work until the employee
provides a fitness-for-duty certification, assuming the employer has
appropriately notified the employee of the requirement. The only
difference under the proposed regulation is that the employer may, if
it so chooses, require that the fitness-for-duty certification address
the employee's ability to perform the essential functions of the job.
Because the employee will know in advance (as discussed below) that a
fitness-for-duty certification is required, and that it must address
the employee's ability to perform the essential functions of the
employee's job, and will have the list of essential job functions to
present to his or her health care provider, the additional requirement
that the fitness-for-duty certification address the employee's ability
to perform the essential functions of the job should not impose any
additional delay in the employee's return to work. Additionally,
requiring the health care provider to address the employee's essential
job functions when determining whether the employee is fit to return to
duty will produce a more meaningful fitness-for-duty certification. The
fact that the employee's health care provider certified, in the medical
certification submitted in support of the request for leave, that the
employee was unable to perform the essential functions of the
employee's position does not mean that the health care provider will
specifically consider these functions again when the employee seeks to
return to work unless specifically called upon to do so.
The AFL-CIO commented that the Department's proposal to allow
employers to require a fitness-for-duty certification that addresses an
employee's ability to perform the essential functions of the position
for all employees goes beyond what it asserted was a more limited
request by employer groups to allow more detailed certifications for
employees in safety-sensitive jobs. The Department notes that the FMLA
does not obligate employers to restore any employee to the same or
equivalent position if the employee is unable to resume work. Resuming
work requires that the employee be able to perform the essential
functions of the job. Accordingly, an employer is entitled in all cases
in which it is authorized to obtain a fitness-for-duty certification to
require that the certification address the employee's ability to
perform the essential functions of the position. An employer's rights
and obligations on this issue are not limited to employees working in
safety-sensitive jobs.
Several employers and employer organizations, while supportive of
the proposal, viewed the timing requirements under the proposal as
problematic. See Equal Employment Advisory Council; ORC Worldwide; HR
Policy Association; Manufacturers Alliance. Their comments on this
subject addressed proposed paragraph (e)'s requirement that the
employer inform the employee in the eligibility notice if the employer
will require a fitness-for-duty certification to return to work and
proposed paragraph (c)'s requirement that the employer provide the list
of essential job functions with the eligibility notice. Specifically,
they argued that this timing requirement is premature (for reasons
discussed in detail in conjunction with the discussion of paragraph (e)
below). These commenters stated that requiring employers to provide a
list of essential job functions with the eligibility notice will be
burdensome and costly to employers because in order to preserve the
option of requiring a fitness-for-duty certification, they will be
forced to
[[Page 68032]]
prepare lists of essential job functions in all instances; whereas if
they could determine later whether a fitness-for-duty certification
will be required and whether the fitness-for-duty certification needs
to address the employee's ability to perform the essential job
functions, they may decide not to require a fitness-for-duty
certification at all or not to require a certification that addresses
an employee's essential job functions in certain cases. These
commenters recommended that employers be permitted to provide the list
of essential job functions at a later time. The Equal Employment
Advisory Council suggested that the fitness-for-duty certification
notice requirement should come, at the earliest, at the designation
notice stage. ORC Worldwide suggested there be no time limit on when an
employer must advise an employee of the fitness-for-duty certification
requirement because this will change on a case-by-case basis. According
to the Manufacturers Alliance and the HR Policy Association, a later
notice requirement would not be burdensome to employees because
employees could simply fax or email the fitness-for-duty certification
and list of essential job functions to their health care providers upon
receiving notice that the fitness-for-duty certification is needed. The
National Association of Manufacturers and AT&T suggested altering the
timing to allow an employer to provide the list of essential job
functions directly to the health care provider when seeking
authentication or clarification of the fitness-for-duty certification.
As an initial matter, the Department notes that it has not prepared
or issued a fitness-for-duty certification form. It appears that
several commenters erroneously assumed that the Department had proposed
a separate fitness-for-duty certification form for an employee's health
care provider to complete. There is no fitness-for-duty certification
form, nor is there any specific format such a certification must follow
as long as it contains the required information. The Department also
notes that this section permits an employer to require that the
fitness-for-duty certification address the employee's ability to
perform the essential functions of his or her position. However, the
employer can chose to accept a simple statement fitness-for-duty
certification (or not require a fitness-for-duty certification at all).
The Department has modified the language in the final rule in paragraph
(b) to make this distinction clear. Specifically, if the employer
chooses to require a certification that addresses the employee's
ability to perform the essential functions of the employee's job, the
employer must so indicate in the designation notice (in addition to
providing a list of the essential functions of the employee's job).
In response to the comments about the timing requirements in the
proposal, the Department has changed the timing requirement in what was
proposed paragraph (e) and is now paragraph (d) in the final rule
(discussed in detail below) to coincide with the designation notice
instead of the eligibility notice. For consistency, the Department has
also changed paragraph (b) in the final rule to require the employer to
provide the list of essential functions no later than with the
designation notice. Therefore, final paragraph (b) states that if the
employer will require that the fitness-for-duty certification address
the employee's ability to perform the essential job functions, the
employer must provide the employee with the list of the essential job
functions no later than with the designation notice required by Sec.
825.300(d).
The AFL-CIO and the law firm Sherman & Howard each addressed the
preparation of the list of essential job functions. The AFL-CIO
commented that the proposal would appear to give employers the ability
to determine the essential job functions regardless of whether a
written job description already exists. The AFL-CIO believes that
employers that do not already have written job descriptions should not
be able to create a list of essential functions for the purpose of
determining if an employee is fit to return to duty because employers
will use this as an opportunity to create arbitrary lists to penalize
employees for taking FMLA leave. In contrast, the law firm Sherman &
Howard requested that employers be able to provide the list of
essential job functions regardless of whether those functions are
listed in a formal job description. While employers must set forth the
essential functions of an employee's position if they wish to require a
fitness for duty certification that specifically addresses those
functions, there is no requirement that an employer have pre-existing
written job descriptions. There is no legal requirement under the FMLA
that employers have written or formal job descriptions for all
positions. It would be unreasonably burdensome to impose such a
requirement. The Department notes, however, that an employer may rely
on its determination of the essential functions of a position in
denying an employee's return to work only to the extent that the
essential functions it has listed are in fact essential functions of
the position.
In conjunction with these proposed changes, the Department
requested input concerning 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. Several employers and employer
organizations requested that the Department establish a second and
third opinion process for fitness-for-duty certifications. See Equal
Employment Advisory Council; TOC Management Services; National School
Boards Association. The Independence (MO) Human Resources Department
and Catholic Charities noted that this is particularly important in
safety-sensitive positions. The Society for Human Resource Management
and the National Coalition to Protect Family Leave argued that
prohibiting an employer from seeking second and third opinions presents
safety concerns and conflicts with the fitness-for-duty assessment
permitted under the ADA. The Southern Company expressed concern that an
employee may pressure his or her health care provider to certify that
the employee is able to return to work before he or she is truly ready.
This commenter suggested that permitting a second and third opinion
would address this problem. The Association of American Railroads
requested that employers be allowed to apply the same fitness-for-duty
certification standards to employees returning from FMLA leave as
employers apply to employees returning from other forms of leave. The
law firm Vercruysse Murray & Calzone suggested that employers be
allowed to delay an employee's return to work pending a second and
third opinion. The Equal Employment Advisory Council noted that the
current regulation allows employers to require an employee to submit to
a medical examination after returning from leave so long as the
examination is consistent with ADA standards. It requested that the
final regulation explicitly permit such a post return-to-work
examination, in addition to second and third opinions on a fitness-for-
duty certification. Others, including the law firm Spencer Fane Britt &
Browne and Central Carolina Society for Human Resource Management
suggested as an alternative to second and third opinions in the
fitness-for-duty context that employers be allowed to require a full
medical examination by the employer's health care provider before
allowing an employee to return to work. These
[[Continued on page 68033]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 68033-68082]] The Family and Medical Leave Act of 1993
[[Continued from page 68032]]
[[Page 68033]]
commenters maintained that employers should use such examinations only
on a uniformly applied basis that does not distinguish between FMLA
leave and non-FMLA leave. On a similar note, the U.S. Department of
Transportation, Federal Railroad Administration requested that
employers be able to use their own health care providers to evaluate an
employee's fitness to return to duty.
The Equal Employment Opportunity Commission commented that,
contrary to some of the other commenters' assertions, prohibiting
second and third opinions on fitness-for-duty certifications does not
conflict with the ADA. The ADA does not expressly regulate second and
third opinions. The Equal Employment Opportunity Commission stated that
the current regulation already addresses the Commission's highest
priority by making clear in current paragraph (b) (paragraph (h) in the
final rule) that a fitness-for-duty examination must be job-related and
consistent with business necessity.
The National Federation of Federal Employees and the AFL-CIO were
opposed to including a second and third opinion process in the fitness-
for-duty certification procedure. Both commenters maintained that the
statute does not permit second and third opinions for fitness-for-duty
certifications. On a related note, the Association of Professional
Flight Attendants suggested that if an employer questions an employee's
general ability to perform the essential functions of the job, the
employer may choose to send the employee to a doctor for a general
fitness-for-duty examination at the employer's expense and on-the-clock
for the employee.
The Department declines to establish a second and third opinion
process for a fitness-for-duty certification. A second and third
opinion process would impose a significant burden on employees because
it would delay an employee's return to work from FMLA leave. The
statute permits an employee to return to work based on a uniformly-
applied policy permitting a fitness-for-duty certification from the
employee's health care provider, 29 U.S.C. 2614(a)(4). A fitness-for-
duty certification need only address the condition for which FMLA leave
was taken and the employee's ability to perform the essential functions
of the job. The employee's health care provider determines whether a
separate examination is required in order to determine the employee's
fitness to return to duty under the FMLA. The statute does not require
that an employee returning from FMLA leave submit to a medical
examination by an employer's health care provider. An employer may not
require that an employee submit to a medical exam by the employer's
health care provider as a condition of returning to work. A medical
examination at the employer's expense by an employer's health care
provider may be required only after the employee has returned from FMLA
leave and must be job-related and consistent with business necessity as
required by the ADA. Thus, if an employer is concerned about the health
care provider's fitness-for-duty certification, the employer may,
consistent with the ADA, require a medical exam at the employer's
expense after the employee has returned to work from FMLA leave as
stated in paragraph (h) in the final rule. The employer cannot,
however, delay the employee's return to work while arranging for and
having the employee undergo a medical examination. The Department has
moved the statement that no second or third opinions on a fitness-for-
duty certification may be required from current paragraph (e) to
paragraph (b) in the final rule because this follows logically the
discussion regarding the content of the certification and the
employer's ability to authenticate or clarify the fitness-for-duty
certification.
The second change the Department included in proposed paragraph (c)
was to allow an employer to contact the employee's health care provider
directly, consistent with the procedure in proposed Sec. 825.307(a),
for purposes of authenticating or clarifying the fitness-for-duty
certification. In conjunction with this change, the Department deleted
the statement that no additional information may be acquired because
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; any additional information,
however, must be limited to the condition for which the leave was taken
and the employee's ability to perform the essential functions of the
position.
The Service Employee International Union, the American Association
of University Women, and the National Employment Lawyers Association
opposed the Department's proposal to allow direct contact between the
employer and the employee's health care provider consistent with the
procedure proposed in Sec. 825.307(a). The National Employment Lawyers
Association expressed concern that this will have a chilling effect on
whether employees will feel secure in taking FMLA leave for their own
serious health condition. This issue of employer contact with the
employee's health care provider is discussed extensively in regard to
Sec. 825.307. For the same reasons outlined there, the Department
retains the provision allowing for an employer to contact directly the
employee's health care provider to clarify or authenticate a fitness-
for-duty certification. As discussed above in Sec. 825.307, the
Department has modified Sec. 825.307(a) to specify the manner in which
the employer may contact the employee's health care provider. Because
paragraph (b) explicitly references Sec. 825.307(a), the procedures
set forth in Sec. 825.307(a) apply in the fitness-for-duty
certification context.
As noted above, several commenters objected to proposed paragraph
(e)'s requirement that the employer advise the employee in the
eligibility notice if a fitness-for-duty certification will be
required. See, e.g., Equal Employment Advisory Council; ORC Worldwide;
HR Policy Association; Manufacturers Alliance. They argued that this
timing requirement is premature. The Equal Employment Advisory Council
stated that this is inconsistent with the Department's proposed
simplification of the notice process and will result in an undue
administrative burden on both employers and employees because some
employers do not require medical documentation until an employee misses
a threshold number of workdays. According to this commenter, requiring
notice at the eligibility notice stage will instead force employers to
require a fitness-for-duty certification in all instances in which the
FMLA permits them to do so and will force some employees to obtain
fitness-for-duty certifications that would otherwise not have been
required. The HR Policy Association expressed these same concerns and
asserted that this timing requirement could create a greater burden on
employers and employees rather than a lesser burden. The Equal
Employment Advisory Council suggested that the fitness-for-duty
certification notice requirement should come, at the earliest, at the
designation notice stage. ORC Worldwide and the HR Policy Association
suggested there be no time limit on when an employer must advise an
employee of the fitness-for-duty certification requirement because this
will change on a case-by-case basis.
In response to the comments about the timing requirements, the
Department has modified these requirements. As outlined in the
comments, an employer may not know
[[Page 68034]]
at the eligibility notice stage if it will need a fitness-for-duty
certification. It may depend on the nature of the employee's health
condition and the duration of the leave. Requiring that an employer
state that it will require a fitness-for-duty certification in order to
preserve its right to request one later could have the effect of
forcing an employer to require such certifications in all instances,
even when it would not do so otherwise. However, in order to reduce the
burden on the employee, if the employer is going to require a fitness-
for-duty certification prior to returning the employee to work, the
employer must provide notice of this requirement no later than in the
designation notice and indicate in the designation notice whether
certification must address the employee's ability to perform the
essential functions of the employee's job. Further, if the employer
will require a fitness-for-duty certification that addresses the
employee's ability to perform the essential job functions, the employer
must provide the employee with the list of essential functions as
required by final paragraph (b) no later than with the designation
notice.
The Department did not receive any significant comments
specifically addressed to the change in proposed paragraph (f) to add
language to current paragraph (f) to make clear that the employee is
not entitled to the reinstatement protections of the Act if he or she
does not provide the required fitness-for-duty certification or request
additional FMLA leave. The Department adopts the proposal without
modification. Due to the reorganization of this section, current
paragraph (f) is paragraph (e) in the final rule.
Proposed paragraph (g) allowed employers to require a uniformly-
applied policy permitting a fitness-for-duty certification for
employees returning from intermittent or reduced schedule leave if
reasonable safety concerns existed, but limited the frequency of such
certifications to once in a 30-day period in which intermittent or
reduced schedule leave was taken. Numerous employee unions and
organizations opposed proposed paragraph (g), focusing most of their
criticism on the increased costs that requiring fitness-for-duty
certifications for employees returning from intermittent or reduced
schedule leave would impose on employees. See, e.g., National
Federation of Federal Employees; Coalition of Labor Union Women;
National Employment Lawyers Association; AFL-CIO; National Partnership
for Women & Families; A Better Balance: The Work and Family Legal
Center. These commenters said that requiring an employee in a safety-
sensitive position to obtain a fitness-for-duty certification every 30
days when the employee has taken intermittent leave during the 30-day
period will increase the costs to the employee of taking FMLA leave,
which may cause employees to forego taking FMLA leave. Robert Schwartz
noted that an employee who is absent one day a month because of a back
condition could be required to submit twelve certifications a year.
Robert Jusino commented that this is especially costly for employees
who do not have health insurance or have a high deductible. He and the
American College of Occupational and Environmental Medicine each
suggested that the Department require the employer to pay for the
fitness-for-duty certification if the employer is going to require it
when an employee takes intermittent or reduced schedule leave.
Similarly, in response to the Department's request for suggestions on
how to minimize the cost to employees, A Better Balance: The Work and
Family Legal Center urged the Department to require employers to share
a portion of the cost of the required medical visits by providing paid
sick leave to cover the appointments, and in the case of employers who
do not provide health insurance, requiring the employer to pay the cost
of the medical visit necessary to obtain the fitness-for-duty
certification. The AFL-CIO argued that permitting fitness-for-duty
certifications for intermittent FMLA absences under any circumstances
is particularly unworkable and costly to employees with chronic
conditions such as migraines or asthma because the duration of the
leave is uncertain and the employee may not be able to schedule an
appointment with his or her health care provider or request that the
provider prepare the certification until the employee knows that the
condition has subsided. The AFL-CIO argued that in these cases, because
the certification is a condition of restoring the employee to work, the
employee will be forced to take more leave than actually needed while
obtaining the certification.
Employee commenters also questioned the value of the fitness-for-
duty certification in the intermittent and reduce schedule leave
context even when the employer has safety concerns. The AFL-CIO
maintained that this requirement is unnecessary in situations where the
employee's health condition has not changed. It argued that there is no
purpose in requiring repeat certifications other than imposing a burden
on employees to discourage them from taking such leave. The National
Employment Lawyers Association urged the Department to allow an
employer to require a fitness-for-duty certification for intermittent
leave users only if there is an observed material change in the
employee's condition.
Lastly, several employee commenters pointed out that the term
``reasonable safety concerns'' is ambiguous and urged the Department to
define the term. See, e.g., National Employment Lawyers Association;
AFL-CIO; National Partnership for Women & Families; National Employment
Lawyers Association. The National Partnership for Women & Families
questioned whether the safety concerns must be related to safety issues
of the job or safety issues posed by the serious health condition or
both, and how this term interacts with the ADA's direct threat
standard. Kindra Obermeier expressed concern that employers will
require a fitness-for-duty certification for intermittent or reduced
schedule leave as a blanket policy, not limited to the existence of
reasonable safety concerns.
Employers and employer organizations generally supported allowing
fitness-for-duty certifications for intermittent or reduced schedule
leave where reasonable safety concerns exist, but some felt that the
proposal did not go far enough. Several of these commenters supported
the proposal, stating that allowing employers to require a fitness-for-
duty certification once in a 30-day period when leave is taken during
that period adequately addressed their safety concerns and struck the
appropriate balance. See, e.g., U.S. Postal Service; Association of
American Railroads; National Association of Manufacturers; the Chamber;
Spencer Fane Britt & Browne; Southwest Airlines; Navy Federal Credit
Union; Southern Company; AT&T. The Southern Company recognized that
this will impose some burden on employees, but believed that the safety
considerations outweigh that burden. The U.S. Postal Service stated
that the ADA's direct threat standard (29 CFR 1630.2(r)) is itself
sufficient to restrain employers from requesting certifications on an
unwarranted and repetitive basis, and recommended that the Department
specifically apply the ADA standard.
Numerous employers and employer organizations, however, stated that
the proposal did not go far enough because allowing a fitness-for-duty
certification only once in a 30-day period when the employee takes more
than one instance of leave during that period does not
[[Page 68035]]
adequately address employers' safety concerns. They urged the
Department to allow employers to require a fitness-for-duty
certification after each instance of intermittent or reduced schedule
leave. See, e.g., Society for Human Resource Management; National
Coalition to Protect Family Leave; Food Marketing Institute; Colorado
Department of Personnel & Administration; Schreiber Foods; South
Carolina Office of Human Resources; Jackson Lewis; New York City (NY)
Law Department; City of Medford (OR); City of American Canyon (CA);
Dalton Corp.; International Public Management Association for Human
Resources/International Municipal Lawyers Association. WorldatWork
suggested that this would be particularly appropriate where employee
abuse is suspected. The law firm Willcox & Savage and the National
School Board Association believed that the fitness-for-duty
certification for employees returning from intermittent leave should
not be limited to situations where safety concerns exist. They argued
that all employees should be able to perform the essential functions of
the position, and requiring a certification regardless of whether there
are safety concerns would be a means of controlling abuse of
intermittent leave.
The National School Boards Association and the law firm Spencer
Fane Britt & Browne also requested that the Department define
``reasonable safety concerns.'' The National School Boards Association
suggested that the Department make clear that the safety concerns must
arise due to a particular health condition in relation to an employee's
position. As an example, this commenter suggested that a teacher who
suffers from seizures could not be required to provide a fitness-for-
duty certification, but a bus driver could. The law firm Spencer Fane
Britt & Browne suggested that the term include, at a minimum, the
possibility of risk of harm or injury to the employee or others,
whether the employee works around or with dangerous/hazardous equipment
or products, whether there are OSHA considerations, and whether there
are Department of Transportation driver medical qualification
considerations.
The Department agrees with the commenters that the term
``reasonable safety concerns'' needs further clarification. Therefore,
the Department has revised the regulation to include a definition of
this term. ``Reasonable safety concerns'' means a reasonable belief of
significant risk of harm to the individual employee or others. In
determining whether reasonable safety concerns exist, an employer
should consider the nature and severity of the potential harm and the
likelihood that potential harm will occur. The Department intends for
this to be a high standard. The determination that there are reasonable
safety concerns must rely on objective factual evidence, not subjective
perceptions. In other words, the employer must have a reasonable
belief, based on the objective information available, that there is a
significant risk of harm. Both the employee's condition for which FMLA
leave was taken and the employee's essential job functions are relevant
to determine if there are reasonable safety concerns. For example, a
delivery person whose essential job functions require him or her to
lift articles over a certain weight and who suffers from a back
condition that limits his or her ability to lift items above that
weight may present reasonable safety concerns upon return from
intermittent or reduced schedule FMLA leave due to the employee's back
condition. An air traffic controller who takes intermittent leave to
treat high blood pressure may present reasonable safety concerns upon
return from intermittent or reduced schedule FMLA leave due to the
employee's high blood pressure. A roofer who experiences panic attacks
may present reasonable safety concerns upon return from intermittent or
reduced schedule FMLA leave due to the employee's panic attacks. In
contrast, an office worker who has periodic seizures would likely not
present reasonable safety concerns. Similarly, a cashier who suffers
from migraines would likely not present reasonable safety concerns upon
return from intermittent or reduced schedule FMLA leave due to the
employee's migraines.
The Department recognizes that this new regulation may impose
additional costs on some employees. However, because the Department has
defined the term ``reasonable safety concerns'' to create a high
standard, and employers may only request a fitness-for-duty
certification pursuant to a uniformly-applied practice or policy, the
Department estimates that a relatively small group of employees will
fall into this category. For these employees, the significant safety
concerns that their conditions present in the context of their
essential job functions outweigh the burden imposed.
The Department wishes to emphasize that, even where employers have
a uniformly-applied policy of requesting fitness-for-duty
certifications, employees who take intermittent or reduced schedule
leave may only be required to provide such certifications where
reasonable safety concerns are present, and employers cannot under this
regulation require such certifications in all intermittent or reduced
schedule leave situations. Furthermore, the requirement may not be used
to penalize employees who take intermittent or reduced schedule leave.
An employer may impose this requirement only if there are reasonable
safety concerns present, as discussed above. The Department's objective
in allowing an employer to require a fitness-for-duty certification for
intermittent or reduced schedule leave is to ensure the safety of all
employees in the workplace and the public when there are legitimate
reasonable safety concerns.
The Department declines to adopt the suggestion that a fitness-for-
duty certification for intermittent or reduced schedule leave be
allowed only when there is a material change in the employee's
condition. This would not adequately address employers' legitimate
safety concerns. Likewise, the fact that an employee's condition has
not changed does not eliminate the reasonable safety concerns that may
be present depending on the particular condition for which leave was
taken and the employee's essential job functions.
The Department also declines to adopt the request to allow a
fitness-for-duty certification after each instance of intermittent or
reduced schedule leave. This would impose an unreasonable burden on
employees. If an employer is concerned that an employee's intermittent
or reduced schedule leave that occurs more often than once in a 30-day
period presents safety concerns, the employer may require the employee,
once returned to work from FMLA leave, to submit to a medical exam as
long as the exam is job-related and consistent with business necessity
as required by the ADA (see discussion above). Alternatively, if there
are changed circumstances in the employee's medical condition, Sec.
825.308(c) permits an employer to require recertification.
As provided in paragraph (d) of this section, if the employer will
require a fitness-for-duty certification, it must notify the employee
in the designation notice of this requirement. However, the Department
recognizes that this is logistically difficult when the intermittent or
reduced schedule leave is unforeseen and the employer may provide the
designation notice after the employee is ready to return to work. In
order to provide sufficient advance notice to the employee of the
fitness-for-duty certification requirement in connection with
intermittent leave, the Department has adopted a modified
[[Page 68036]]
notice requirement for a fitness-for-duty certification in such
circumstances. When an employee uses intermittent or reduced schedule
leave for a condition that presents reasonable safety concerns, if the
employer chooses to require a fitness-for-duty certification, the
employer shall inform the employee at the time it issues the
designation notice that for each subsequent instance of intermittent or
reduced schedule leave, the employee will be required to submit a
fitness-for-duty certification unless one has already been submitted
within the past 30 days. Alternatively, an employer can set a different
interval of time for a fitness-for-duty certification requirement as
long as it does not exceed once every 30 days and as long as the
employer advises the employee of the requirement in advance of the
employee taking the intermittent or reduced schedule leave. The
Department recognizes that the first time an employee uses intermittent
or reduced schedule leave and reasonable safety concerns exist, it may
be difficult to inform the employee of the fitness-for-duty
certification requirement in a timely manner. In such instances,
however, the employer may, consistent with the ADA, require a medical
exam after the employee has returned to work from FMLA leave.
The Department did not receive any comments on its proposal to
delete current paragraph (h) as redundant with Sec. 825.213.
Therefore, the Department has deleted current paragraph (h) in the
final rule. As stated above, the Department has moved the statement
regarding the applicability of the provisions in state or local law or
the terms of collective bargaining agreements that govern an employee's
return to work in current paragraph (b) to a new paragraph (h) in the
final rule in order to make clear that this applies to all of the
provisions in this section.
As stated above, the Department has also moved the discussion of
the ADA in current paragraph (b) to a new paragraph (h) in the final
rule. The Department has modified the discussion of the ADA in
paragraph (h) to make clear that medical examinations after the
employee has returned to work from FMLA leave must be job related and
consistent with business necessity. The Department has also included
the statement in Sec. 825.306(d) that ``[i]f an employee's serious
health condition may also be a disability within the meaning of the
ADA, the FMLA does not prevent the employer from following the
procedure for requesting medical information under the ADA'' in
paragraph (h). Based on the comments, it appears that both employers
and employees are confused regarding the interaction between the ADA
and the FMLA in relation to fitness-for-duty certifications. By moving
the discussion to a separate paragraph and including the statement in
Sec. 825.306(d) regarding the ADA, the Department intends to make
clear that, once an employee returns to work and is no longer on FMLA
leave, an employer may require a medical exam under the guidelines and
restrictions imposed by the ADA. At that point, the FMLA's fitness-for-
duty regulation no longer applies.
Section 825.313 (Failure To Provide Certification)
Current Sec. 825.311 provides that 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. Current Sec.
825.311(a) addresses the failure to provide timely certification of the
foreseeable need for FMLA leave, and Sec. 825.311(b) addresses the
failure to provide timely certification when the need for FMLA leave is
not foreseeable. Current Sec. 825.311(c) addresses an employee's
failure to provide timely certification of the employee's fitness to
return to work pursuant to Sec. 825.310 (Sec. 825.312 in the final
rule). In the NPRM, the Department proposed to explain more clearly the
implications of an employee's failure to provide medical certification
in a timely manner. To that end, the Department proposed to amend the
wording in current Sec. 825.311(a) and (b) permitting an employer to
``delay'' FMLA leave to instead clarify that an employer may ``deny''
FMLA leave until the required certification as provided. As explained
in the NPRM, the proposed change in language was intended to ensure
that both employees and employers understood the potential impact of a
failure to provide medical certification in a timely manner, but was
not a substantive change from the current regulation. The Department
also proposed a new Sec. 825.311(c) that addressed the consequences of
failing to provide timely recertification. Current Sec. 825.311(c) was
redesignated as Sec. 825.311(d) in the proposed rule, without a
substantive change. The final rule adopts Sec. 825.311 as proposed,
but the section is renumbered as Sec. 825.313 to account for the new
military family leave sections (Sec. Sec. 825.309 and 825.310).
Section 825.313(c) also clarifies that recertification does not apply
to leave taken for a qualifying exigency or to care for a covered
servicemember.
The Department received very few comments regarding proposed Sec.
825.311 (Sec. 825.313 in the final rule). The Equal Employment
Advisory Council supported the Department's clarification regarding the
consequences of an employee's failure to provide medical certification
but asked the Department to state even more explicitly in the final
rule that any absences an employee may have during the period in which
the employer may deny FMLA protection due to the failure to provide
timely certification may be treated as unexcused, even if certification
is later provided that covers the period of time in which the
protection was denied. The law firm of Vercruysse Murray & Calzone
expressed concern that this section could be read as prohibiting
employers from disciplining or terminating employees for absences that
occur during the period in which employers are permitted to deny FMLA
protection due to the employee's failure to provide timely
certification. TOC Management Services argued that employees should not
be given 15 days of protection, as indicated in the example in Sec.
825.311(a), when they fail to provide timely medical certification. The
National Retail Federation requested clarification as to whether FMLA
leave can be denied from the date the employer requests the
certification or from the date that the employee fails to timely
provide the certification. The Pennsylvania Governor's Office of
Administration asked for clarification of the employer's ability to
retroactively designate leave as FMLA-protected when an employee
provides late certification.
The Department believes that Sec. 825.311 as proposed (Sec.
825.313 in the final rule) is clear as to the consequences of an
employee's failure to provide timely certification or recertification.
Any absences that occur during the period in which an employer has the
right to deny FMLA protection due to the failure to provide timely
certification may be treated under the employer's normal attendance
policies. The Department disagrees that, where employees fail to
provide timely certification, employers should be able to deny FMLA
protection for the entire period from the request for certification
until such time as the certification is provided. Employees must be
provided at least 15 calendar days to provide the requested
certification, and are entitled to additional time when they are unable
to meet that deadline despite their diligent, good-faith efforts. The
Department expects that in all cases employees will communicate to
their employers the efforts they are making to secure the completed
medical certifications. See Sec. Sec. 825.305(b) and
[[Page 68037]]
825.308(d). Accordingly, an employee's certification (or
recertification) is not untimely until that period has passed, as the
regulation indicates. Finally, the Department notes that Sec. 825.313
permits employers to deny FMLA protection when an employee fails to
provide a timely certification or recertification, but it does not
require employers to do so. Employers always have the option of
accepting an untimely certification and not denying FMLA protection to
any absences that occurred during the period in which the certification
was delayed.
Sections 825.400-825.600
The Department noted in the NPRM that conforming changes would need
to be made to Sec. Sec. 825.400-825.600, which include Subpart D--
Enforcement Mechanisms, Subpart E--Recordkeeping Requirements, and
Subpart F--Special Rules Applicable to Employees of Schools, in order
to incorporate the new military family leave entitlements. The
Department proposed no other substantive changes to these sections,
although it did propose new titles and very minor editorial changes,
such as adding a reference to the Department's Web site 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 D--Enforcement Mechanisms (Sections 825.400-825.404)
There were very few comments on Sec. Sec. 825.400-825.404 of the
proposal. The final rule adopts proposed Sec. Sec. 825.400-825.404
without change, except as explained below with respect to the
incorporation of appropriate references to the military family leave
entitlements.
The military family leave amendments to the FMLA provide for the
recovery of damages equal to, in a case involving the need for 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, any actual monetary losses sustained by the employee up to a
sum equal to a total of 26 weeks of wages (rather than the usual 12
weeks). 29 U.S.C. 2617. In order to implement this provision, the
preamble to the NPRM stated the Department's belief that a conforming
revision would be required to Sec. 825.400(c), which, as proposed,
provided that an employee is entitled to wages, employment benefits, or
other compensation lost or denied to the employee by reason of the
violation or, where no such tangible loss has occurred, any actual
monetary losses sustained as a direct result of an employer's violation
of one or more of the provisions of FMLA up to an amount equal to a
total of 12 weeks of wages. See 73 FR at 7932. Accordingly, the final
rule amends Sec. 825.400(c) to provide that, in a case involving the
military caregiver leave, an employee is entitled to actual monetary
losses sustained up to sum equal to a total of 26 weeks of wages for
the employee. The final rule makes no other changes to proposed
Sec. Sec. 825.400-825.404.
Section 825.500 (Recordkeeping Requirements)
The only change proposed in Sec. 825.500 was to paragraph (c)(4)
to include a reference to the eligibility notice requirement in
proposed Sec. 825.300(b) and to delete the reference to the general
notice form. The final rule adopts these proposed changes, incorporates
a reference to the notice requirements for military family leave, and
further clarifies that employers should retain all written notices
given to employees as required under the FMLA and these regulations.
Comments on the FMLA recordkeeping provisions centered on proposed
Sec. 825.500(g), which, like the current regulations, requires that
certain records created for purposes of FMLA be maintained as
confidential medical records. The American Postal Workers Union, for
example, recommended that FMLA medical certifications be accessible
only to trained professionals employed by or representing the employer.
Many employees raised concerns about supervisors disclosing information
about an employee's serious health condition. Catholic Charities,
Diocese of Metuchen urged that the Department clarify whether this
section of the recordkeeping provisions applies to fitness-for-duty
documents.
The Department believes this section of the proposed rule, which
closely tracks the current regulation, adequately addresses the issues
raised by these comments. The proposed regulation provided that records
and documents relating to medical certifications, recertifications, or
medical histories of employees or employees' family members, created
for purposes of FMLA, are to be maintained as confidential medical
records in separate files/records from the usual personnel files, and
that if the ADA is also applicable, such records are to 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) are to be provided relevant information upon request.
Because a fitness-for-duty certification is a type of medical
certification, the Department does not believe that a separate
reference to fitness-for-duty certifications is required in this
section. As is the case under the current regulations, fitness-for-duty
certifications are to be maintained as confidential medical records
pursuant to Sec. 825.500(g).
The Department did make two minor changes in Sec. 825.500(c)(4) of
the final rule, which requires an employer to maintain copies of
notices provided to an employee pursuant to the FMLA. The proposed
recordkeeping requirement did not specifically mention the designation
notice (Form WH-382). In response to a comment from the Metro Regional
Transit Authority in Akron, Ohio, the final rule clarifies in Sec.
825.500(c)(4) that employers must maintain copies of all written
notices given to employees as required under the FMLA and these
regulations, and not just eligibility notices. Finally, in Sec.
825.500(g), a reference to ``medical certifications'' is changed to
``certifications'' to incorporate certifications related to the
military family leave provisions.
Subpart F--Special Rules Applicable to Employees of Schools (Sections
825.600-825.604)
There were very few comments on Sec. Sec. 825.600-825.604 of the
proposal. The National School Boards Association commented that the
possible regulatory changes the Department discussed in the preamble
regarding the application of the military family leave amendments to
eligible instructional employees of local educational agencies appeared
consistent with the new legislation. The American Federation of
Teachers commented on the need for the availability of FMLA leave for
its 1.4 million members and stated that ``without the ability to use
FMLA leave, many AFT members would have risked losing their jobs and/or
essential health insurance in order to provide necessary care for
themselves or for a family member. Increased restrictions on using such
leave could therefore have a
[[Page 68038]]
devastating impact upon workers.'' Other than changes to titles and
very minor editorial changes, the proposed text for Sec. Sec.
825.600--825.604 was the same as the current regulations. The preamble
to the proposed rule, however, stated that three related regulatory
changes would be required to incorporate the new military family leave
provisions into these sections of the FMLA regulations. 73 FR at 7932-
33.\7\
---------------------------------------------------------------------------
\7\ The military family leave provisions of the NDAA that 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 agencies are codified in
subsections (c)(1), (d)(2), and (d)(3) of 29 U.S.C. 2618.
---------------------------------------------------------------------------
First, the military family leave amendments provide that an
employer covered by 29 U.S.C. 2618 can require-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-that 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 accommodates recurring periods of leave. In order to
incorporate this change, the Department stated in the preamble to the
proposed rule that a minor technical revision would be required to
current and proposed 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 with a serious health
condition 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. The final rule incorporates this change.
Second, the military family leave amendments 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 stated in the preamble to the proposed rule that it believed
the text of Sec. 825.602(a)(2) and (a)(3) would need to be changed in
order to apply the limitations on leave near the end of an academic
term to military family leave. 73 FR at 7933. Specifically, current and
proposed Sec. 825.602(a)(2) provide that if 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. Current and proposed Sec. 825.602(a)(3) provide that an
employer may require an instructional employee to continue taking leave
until the end of the term if the employee begins leave that 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.
Because the military family leave amendments extend the limitations
in Sec. 825.602(a)(2) and (a)(3) only to leave taken to care for a
covered servicemember, and not leave taken because of a qualifying
exigency, the Department stated in the NPRM that these two FMLA
regulatory sections would need to be changed in order to specifically
reference the types of leave that are subject to the limitations,
namely: (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. 73 FR at 7933. The final rule incorporates these changes
and a minor grammatical change to Sec. 825.602(a)(3). No other changes
have been made to proposed Sec. Sec. 825.600-825.604.
Subpart G--Effect of Other Laws, Employer Practices, and Collective
Bargaining Agreements on Employee Rights Under FMLA (Sections 825.700-
825.702)
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. The NPRM proposed to delete the last sentence
of 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, in order to conform to the U.S. Supreme Court's decision
in Ragsdale which invalidated this provision. The Department proposed
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
proposed 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.
There were only a few comments on these changes. The Association of
Corporate Counsel's Employment and Labor Law Committee and the Equal
Employment Advisory Council commented that they supported the changes
in Sec. 825.700(a) to align the regulations with the Ragsdale
decision. The final rule adopts Sec. 825.700 as proposed and makes no
further changes.
Section 825.701 (Interaction With State laws)
Section 401(b) of the FMLA, 29 U.S.C. 2651(b), provides that
``Nothing in this Act or any amendment made by this Act shall be
construed to supersede any provision of any State or local law that
provides greater family or medical leave rights than the rights
established under this Act or any amendment made by this Act.'' When
Sec. 825.701 of the current rule was proposed for public comment, a
number of employer groups argued that this part of the statute should
be interpreted to apply only in the case of more generous State or
local law substantive provisions, such as eligibility and coverage
requirements, amount of leave, benefits and employment protections, and
substitution requirements, and not to procedural provisions such as
notification of leave and certification requirements. These commenters
argued at that time that any State or local law's (or implementing
regulation's) procedural provision that is inconsistent with the FMLA
should be preempted because of the administrative difficulty in trying
to determine if a particular State or local law's procedural provision
is more or less generous to the employee than the FMLA procedural
provisions. See the discussion on this topic in the preamble to the
current rule at 60 FR at 2230-32 (Jan. 6, 1995).
Because the wording of the statute provides that the FMLA does not
[[Page 68039]]
supersede ``any provision'' of any State or local law that provides
greater family or medical leave ``rights'' than those provided under
the FMLA, the Department stated in the preamble to the current rule
that it was not possible to apply section 401(b) of the statute only to
substantive provisions that provide more generous family or medical
leave benefits and not to procedural provisions that may extend greater
rights:
There is no basis under this [statutory] language or the
legislative history to distinguish between procedural provisions
that extend greater rights to employees and substantive provisions
that provide more generous family or medical leave benefits to
employees * * *. Given the literal language of FMLA, DOL has no
authority to preempt State laws to the extent they provide more
generous leave rights to employees. The results about which the
majority of the comments complained occur by operation of law (FMLA
and State family and medical leave laws), and cannot be mitigated by
regulation.
Id.
Although no changes to Sec. 825.701 were proposed in the NPRM, the
Department received a few comments regarding this section. TOC
Management Services raised a question regarding Sec. 825.701(a)(4).
Specifically, TOC Management Services commented,
Nothing in the [FMLA] statute limits the employer's ability to
request the second opinion if state law limits the ability. State
leave laws regulate their specific leave provisions, not the FMLA.
Clearly an employer would not have the ability to ask for the second
opinion if the employee's leave only qualified under state law and
such second opinions were prohibited by that state. But when an
employee is taking FMLA leave (even if it runs concurrently with
state leave), 29 U.S.C. 2601-2654 sets the parameters of that leave.
The DOL cannot enact regulations that contradict the statute; 29
U.S.C. 2623(c)(1) provides employers with the right to obtain second
opinions and the DOL cannot deprive employers of that statutory
right.
The Legal Aid Society-Employment Law Center also commented that
``many large corporations that operate throughout the Unites States
utterly fail to comply with California's more restrictive privacy laws
in California * * * [and that] DOL must take action to ensure that
large companies, which operate throughout the United States, comply
with California's more protective privacy and medical confidentiality
laws.''
The Department disagrees with the comment from TOC Management
Services that nothing in the FMLA limits the employer's ability to
request a second opinion in the case of FMLA leave contrary to State
law, ``even if it runs concurrently with state leave.'' It is correct
that State and local family and medical leave laws do not supersede or
preempt the FMLA. As explained above, however, section 401(b) of the
FMLA, 29 U.S.C. 2651(b), provides that the FMLA does not supersede or
preempt provisions of State or local laws (whether substantive or
procedural) that afford employees with greater rights than the FMLA.
Thus, an employer must comply with all the provisions of the FMLA and
any parallel State or local law that applies to a given leave request.
Conversely, the Department disagrees with the Legal Aid Society-
Employment Law Center's comment that the Department should take action
to ensure that companies comply with State privacy and confidentiality
laws. The Department's Wage and Hour Division administers and enforces
the FMLA and has no authority to administer or enforce any State laws.
Based on its consideration of these two comments, however, the
Department has decided that the examples in Sec. 825.701(a)(3) and
(a)(4) are not helpful because they can be read incorrectly to suggest
that the Department is assuming the responsibility for the
administration or enforcement of provisions of State or local laws that
afford employees with greater rights than the FMLA. As indicated above,
the Department's Wage and Hour Division administers and enforces the
FMLA and has no authority to administer or enforce State or local
family and medical leave laws. Employers who contact local Wage and
Hour offices with questions about State laws are referred to the
appropriate State government agency.
Thus, in order to avoid any misimpression that the Wage and Hour
Division enforces State or local family and medical leave laws, the
examples in the current Sec. 825.701(a)(3) and (a)(4) have been
removed from the text of the final rule. This change has no policy or
legal effect whatsoever on the continued application of the principle
embodied in section 401(b) of the FMLA, 29 U.S.C. 2651(b), that the
FMLA does not supersede or preempt any provision of a State or local
law that affords an employee with greater rights than the FMLA. This
change in the final rule is intended only to clarify that the
Department administers and enforces the FMLA; State and local
government agencies administer and enforce the laws for which they are
responsible; and employers must comply with all applicable laws. Where
a State or local law applies concurrently with the FMLA, there is
unfortunately no way for employers to avoid the administrative burden
that each leave request is to be considered first under one law
(including its benefit and procedural provisions) and then the
other(s). No other changes to the proposed text for Sec. 825.701 have
been made.
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. The Department
proposed to add a new paragraph (g) in this section to discuss the
interaction between the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) and the FMLA and incorporate the
information in a 2002 guidance memorandum on this matter. Existing
paragraph (g) of this section was proposed to be redesignated as
paragraph (h). The only other change in the proposal was to conform the
cross-reference in Sec. 825.702(d)(2) to the proper paragraph in
proposed Sec. 825.207. These changes are included in the final rule.
The Chamber stated that it supports the clarification in proposed
new Sec. 825.702(g), ``which codifies guidance issued by the
Department in July 2002, especially in light of the reentry into the
workforce of thousands of service members in the coming years.'' The
Equal Employment Advisory Council, however, commented that the
``Department's proposal to confer eligibility on military service
members pursuant to the Uniformed Services Employment and Reemployment
Rights Act (USERRA) * * * exceeds the Department's authority,'' and
that the proposed new Sec. 825.702(g), and a related new paragraph in
Sec. 825.110(c)(2) (in the section entitled ``Eligible employee'')
should be deleted.
The Department does not agree with this latter comment. The NPRM
included this new Sec. 825.702(g) simply to incorporate the substance
of a July 22, 2002 guidance memorandum, available at http://
www.dol.gov/vets/media/fmlarights.pdf, stating the Department's opinion
on the application of uniformed servicemembers' rights under USERRA to
family and medical leave. Under USERRA, servicemembers who are
reemployed are entitled to the rights and benefits that they would have
attained if they had remained continuously employed. The rights and
benefits protected by USERRA include those provided by employers and
those required by another statute, such as the right to leave under the
FMLA. Accordingly, under USERRA, a
[[Page 68040]]
returning servicemember would be entitled to FMLA leave if the hours
that he or she would have worked for the civilian employer during the
period of military service would have met the FMLA eligibility
threshold. This is not an expansion of FMLA rights through regulation;
this is a requirement of USERRA.
Section 825.702(b)-(e) of the current and proposed rule discuss the
interaction between the FMLA and the ADA, as amended. As indicated in
the preamble to the proposed rule, the Department received a number of
comments in response to the RFI that discussed the relationship between
the FMLA and the ADA, particularly regarding job modification, light
duty, and reassignment. See 73 FR at 7923 (Feb. 11, 2008). Many of
those comments were discussed in Chapter VII of the Department's 2007
Report on the RFI comments. See 72 FR at 35599 (June 28, 2007). The
preamble to the proposed rule stated that the Department could do
nothing to alter the fact that the two statutes serve distinctly
different purposes, provide different rights, and have different
eligibility criteria. See 73 FR at 7924. Although the Department did
not propose any regulatory changes, it did provide a lengthy discussion
in the preamble to the proposed rule regarding the interaction between
the FMLA and the ADA to aid both employees and employers.
In response to the NPRM, comments from employer groups continued to
express frustration over the difficulty of reconciling the two
statutes. The National Federation of Independent Business commented
that ``employers must navigate the complexities of both laws in order
to determine whether an employee should be granted medical leave in a
given situation * * *. [A]n employee's condition must be looked at from
both perspectives to determine whether the FMLA, ADA, or both apply * *
*. [For example,] an impaired employee entitled to ADA protections is
not limited to the 12 weeks leave permitted under the FMLA [and this
can] lead to situations where employers simply play it safe by
extending FMLA leave beyond 12 weeks without question because of
concerns that an employee would file an ADA discrimination lawsuit.''
The NPRM also prompted a significant number of comments on the
Department's preamble discussion of the interaction between the FMLA
and the ADA.
The Department recognizes the difficulty employers face in
addressing both ADA and FMLA compliance issues that can arise on a
particular leave request and the frustration that this administrative
burden causes. The Department continues to believe that the
administrative burden of complying with the FMLA and the ADA cannot be
reduced through revisions to the regulatory requirements under the
FMLA. 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). Thus, where both laws may apply, the
applicability of each statute needs to be evaluated independently. For
these reasons, the final rule does not make any changes to this
regulatory section in response to these comments. The words ``as
amended'' have been added to the reference to the ADA in Sec.
825.702(a), and to the definition of the ADA in Sec. 825.800, to
reflect the passage of the Americans with Disabilities Amendments Act
of 2008, which makes several changes to the definition of the term
``disability'' under the ADA. The Department notes that the EEOC will
be revising its ADA regulations to comply with these amendments, which
become effective on January 1, 2009.
Subpart H--Definitions
Section 825.800 (Definitions)
The current Sec. 825.800 contains the definitions of significant
terms used in the regulations. Changes to definitions that would be
affected by the Department's proposed rule were included in the NPRM.
Specifically, changes and clarifications were proposed to the
definitions of the terms ``continuing treatment,'' ``eligible
employee,'' ``employee,'' ``health care provider,'' ``serious health
condition,'' ``parent,'' and ``son or daughter.''
The Department received two comments on the content of the
definitions. WorldAtWork commented that the definition of ``son or
daughter'' should be expanded to children over age 18 who do not have a
mental or physical disability if they meet other conditions. Because
``son or daughter'' is defined by the statute itself, the Department is
not adopting this comment. See 29 U.S.C. 2611(12). The American Academy
of Physician Assistants stated its support for the Department's
inclusion of physician assistants in the definition of ``health care
provider.''
One commenter, Illinois Credit Union League expressed concern that
the cross-references made the definitions difficult to read; another
commenter, Catholic Charities, Diocese of Metuchen suggested that the
definitions should be placed at the beginning of the rule. The
Department agrees that it is preferable to avoid cross-references to
other sections in the definitions. This is not always possible,
however, without including very lengthy text in a definition that is
identical to text in another section. Also, no other commenters
suggested moving the definitions section to the front of the
regulation, and its current position in Sec. 825.800 is a familiar
location to many people. Consequently, these two comments were not
adopted in the final rule.
The final rule adopts Sec. 825.800 as proposed except where
changes were needed to conform the definitions to changes in other
sections of the final rule. Specifically, the final rule includes
additional changes to the definitions for ``continuing treatment'' and
``serious health condition.''
In the NPRM, the Department also stated that it was considering the
addition of certain new terms related to the military family leave
entitlements to the definitions found in Sec. 825.800. Specifically,
the Department stated that it would add the terms ``active duty,''
``contingency operation,'' ``covered servicemember,'' ``outpatient
status,'' ``next of kin,'' and ``serious injury or illness.'' These
terms are discussed in depth in the sections of the preamble related to
qualifying exigency leave (Sec. 825.126) and military caregiver leave
(Sec. 825.127).
In the final rule, Sec. 825.800 contains new definitions for the
terms ``active duty or call to active duty status,'' ``contingency
operation,'' ``covered military member,'' and ``son or daughter on
active duty or call to active duty status'' in relation to qualifying
exigency leave. It also contains new definitions for the terms
``covered servicemember,'' ``parent of a covered servicemember,''
``outpatient status,'' ``next of kin of a covered servicemember,''
``serious injury or illness,'' and ``son or daughter of a covered
servicemember'' in relation to military caregiver leave. The
definitions for these terms in Sec. 825.800 reflect the definitions
for these terms found in Sec. Sec. 825.126, 825.127, 825.309, and
825.310.
Paperwork Reduction Act
The Office of Management and Budget (OMB) has assigned control
number 1215-0181 to the FMLA information collections. In accordance
with the
[[Page 68041]]
Paperwork Reduction Act of 1995 (PRA), the February 11, 2008, NPRM
solicited comments on the FMLA information collections as they were
proposed to be changed. 44 U.S.C. 3506(c)(2). The Department also
submitted a contemporaneous request for OMB review of the proposed
revisions to the FMLA information collections, in accordance with 44
U.S.C. 3507(d). On March 11, 2008, the OMB issued a notice that
continued the previous approval of the FMLA information collections
under the existing terms of clearance. The OMB asked the Department to
resubmit the information collection request upon promulgation of a
final rule and after considering public comments on the FMLA NPRM.
While the Department received comments regarding substantive aspects of
the FMLA information collections, no comments directly addressed the
methodology for estimating the public burdens under the PRA. In order
to facilitate a full understanding of all the issues involved and avoid
duplication within this preamble, the public comments addressing FMLA
information collections imposed by this final rule are discussed in the
applicable portions of this preamble. The following table shows where
the various information collections appear in the final rule.
------------------------------------------------------------------------
Regulatory citation(s)
Information collection name within 29 CFR 825
------------------------------------------------------------------------
Employee's Notice of Need for FMLA Leave.. Sec. Sec. .100(d),
.301(b), .302, .303.
Notice to Employee of FMLA Eligibility.... Sec. .300(b).
Notice to Employee of FMLA Rights and Sec. .300(c).
Responsibilities.
Notice to Employee of FMLA Designation.... Sec. Sec. .127(c)(4),
.300(d), .301(a), .312.
Medical Certification/Recertification Sec. Sec. .100(d), .305-
(Self and Family). .308.
Fitness-For-Duty Medical Certification.... Sec. Sec. .100(d),
.212(a)(3), .216(b), .312.
Notice to Employee of Incomplete or Sec. .305(c).
Insufficient Medical Certification.
Notice to Employee of Change of 12-Month Sec. .200(d)(1), (e).
Period for Determining Entitlement.
Employee's Periodic Status Report......... Sec. .311.
Documenting Family Relationships.......... Sec. Sec. .122(j),
.310(d), (e)(3).
``Key Employee'' Notification............. Sec. Sec. .219,
.300(c)(1)(v).
Notice to Employee of Pending Cancellation Sec. .212(a)(1).
of Health Benefits.
Documenting Call to Military Active Duty.. Sec. .309(a).
Certification of Qualifying Exigency...... Sec. Sec. .309(b)-(c).
Servicemember's Designation of Next of Kin Sec. Sec. .122(d),
.127(b)(3).
Certification for Serious Injury or Sec. Sec. .307(a), .310.
Illness of Covered Servicemember.
General Recordkeeping..................... Sec. .500.
------------------------------------------------------------------------
Interested parties may obtain prototype FMLA notices via the Wage
and Hour Division's Forms Web site at http://www.dol.gov/esa/whd/forms/
index.htm, contacting the Wage and Hour Division at 1-866-4US-WAGE (1-
866-487-9243), or visiting a Wage and Hour Division District Office. A
list of District Office addresses is available on the Internet at
http://www.dol.gov/esa/whd/america2.htm. Prototype FMLA forms are also
available through the forms.gov Web site. Specifically, the Wage and
Hour Division offers the following prototype notices: Certification of
Serious Health Condition--Employee's Own Condition (Form WH-380-E),
Certification of Serious Health Condition--Employee's Family Member's
Condition (Form WH-380-F), Notice of FMLA Eligibility and Rights and
Responsibilities (Form WH-381), Notice to Employee of FMLA Designation
(Form WH-382), Certification of Qualifying Exigency (Form WH-384),
Certification for Serious Injury or Illness of Covered Servicemember
(Form WH-385).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The Department has resubmitted the
revised FMLA information collections to the OMB for approval, and the
Department intends to publish a notice announcing the OMB's decision
regarding this information collection request. A copy of the
information collection request can be obtained at http://
www.RegInfo.gov or by contacting the Wage and Hour Division as shown in
the FOR FURTHER INFORMATION CONTACT section of this preamble. The
existing FMLA information collection authorization will remain in
effect until the OMB finally approves the new information collection
request or this final rule takes effect on January 16, 2009, whichever
date is later.
VI. Executive Order 12866 and the Small Business Regulatory Enforcement
Fairness Act
This rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is an ``economically
significant'' regulatory action under section 3(f)(1) of Executive
Order 12866. Based on the analysis presented below, the Department has
determined that the final rule will have an annual effect on the
economy of $100 million or more. For similar reasons, the Department
has concluded that this rule is a major rule under the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.).
Therefore, the Department has prepared a Regulatory Impact Analysis
(``RIA'') in connection with this rule as required under Section
6(a)(3) of the Order and the Office of Management and Budget has
reviewed the rule. The RIA is presented in its entirety below.
Regulatory Impact Analysis
Chapter 1: Executive Summary
The final rule will revise the FMLA regulations published in 1995
and implement the new changes required by the National Defense
Authorization Act for FY 2008 (``NDAA''), Public Law 110-181. The
Department determined that changes to the 1995 regulations were
necessary because a decision by the U.S. Supreme Court and a number of
decisions by other federal courts invalidated aspects of the
regulations, the Department's experience administering the law, and
public comments that it has received. The NDAA expanded the FMLA to
allow eligible employees of covered employers to take FMLA-qualifying
leave ``[b]ecause of any qualifying exigency (as the Secretary [of
Labor] 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.'' The
NDAA also provides that ``an eligible employee who is the spouse, son,
daughter, parent, or next of kin of a covered servicemember shall be
entitled to a total of 26 workweeks of leave during a 12-month period
to care for the servicemember.'' (Pub. L. 110-181, Section 585(a)).
Based upon an analysis presented in more detail in the Preliminary
Regulatory Impact Analysis (PRIA),
[[Page 68042]]
which was in turn based on an analysis by CONSAD Research and the 2000
Westat Report the Department estimates that 285,237 firms are covered
by Title I of the FMLA.\8\ These firms operate 1.1 million
establishments and employ 95.8 million workers. In 2005, 77.1 million
workers or 80.5 percent of the workers employed at the covered
establishments met the FMLA eligibility requirements (i.e., have been
employed by their employer for 12 months and have worked for their
employer at least 1,250 hours during the previous 12 months). Based
upon CONSAD's projection of 2000 FMLA leave usage rates to 2007, the
Department estimates that 7.0 million workers took an estimated 10.5
million FMLA leaves. In addition, the Department estimates that 139,000
workers will take FMLA leave under the military leave provisions of the
NDAA.
---------------------------------------------------------------------------
\8\ The CONSAD analysis is available at: www.regulations.gov,
ESA-2008-0001-0002; and the 2000 Westat Report is available at
www.regulations.gov, ESA-2006-0022-0006.
---------------------------------------------------------------------------
The Department estimates that the revisions will result in total
first year net costs of $327.7 million and annual reoccurring costs of
$244.4 million for both workers and employers. Based upon a five year
pay-off period and a real interest rate of 3.0 percent (OMB Circular A-
4),\9\ total annualized costs for the revisions for both workers and
employers is $262.6 million. Based upon a five year pay-off period and
a real interest rate of 7.0 percent, total annualized costs for the
revisions for both workers and employers is $264.7 million. For
employers, the largest cost is the $257.3 million in recurring costs
related to the new military leave provisions (Sec. Sec. 825.126 and
.127). For workers, the largest cost is the $19.8 million in recurring
costs associated with the additional fitness-for-duty certifications
that may be required if a worker has used intermittent leave and a
reasonable safety concern exists (Sec. 825.312(f)).
---------------------------------------------------------------------------
\9\ Available on the Internet at: http://www.whitehouse.gov/omb/
circulars/a004/a-4.html.
---------------------------------------------------------------------------
The annualized costs for employers based upon a 7.0 percent
discount rate is $230.6 million, or about $2.41 for each of the 95.8
million workers employed at establishments covered by Title I of the
FMLA; and about $2.99 for each of the 77.1 million workers eligible to
take FMLA leave; and about $32.48 for each of the 7.1 million workers
who will take FMLA leave.\10\ The $230.6 million in costs also
represents less than 0.006 percent of the estimated $3.7 trillion in
payroll costs for the establishments covered by Title I of the FMLA
(CONSAD). Therefore, the Department has determined that the costs of
the final rule do not represent a significant economic impact for most
establishments covered by Title I of the FMLA.
---------------------------------------------------------------------------
\10\ As noted above, 7.0 million workers take FMLA leave, and
the Department estimates that 139,000 additional workers will take
FMLA leave under the military leave provisions of the NDAA, for a
total of 7.1 million.
---------------------------------------------------------------------------
The annualized costs for workers is $34.1 million, or about $0.36
for each of the 95.8 million workers employed at establishments covered
by Title I of the FMLA; and about $0.44 for each of the 77.1 million
workers eligible to take FMLA leave; and about $4.80 for each of the
7.1 million workers who will take FMLA leave. Therefore, the Department
has determined that the costs of the final rule do not represent a
significant economic impact for most workers who take leave under Title
I of the FMLA.
The Department anticipates that substantial but unquantifiable
benefits will accrue from the proposed revisions to the FMLA
regulations. First, associated with the addition of the provisions for
military leave, the families of servicemembers will no longer have to
worry about losing their jobs or health insurance due to absences to
care for a covered seriously injured or ill servicemember or due to a
qualifying exigency resulting from active duty or call to active duty
in support of a contingency operation. Second, the clarifications to
the regulations and the revisions to improve the communications between
employers and employees should reduce the uncertainty and the worries
about FMLA leave. Third, the revisions should reduce the costs of
unforeseeable intermittent FMLA leave in high-impact, time-sensitive
operations. And, finally, the proposed changes related to fitness-for-
duty certifications should reduce some presenteeism.
Chapter 2: Industry Profile
The industry profile presents the Department's best estimates of
the number of establishments covered by the FMLA and the number of
workers employed at those establishments. 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 Regulatory 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. The
NDAA amendments did not affect these eligibility requirements and,
therefore, have no impact on either the number of covered
establishments or eligible employees.
The industry profile estimates presented in the PRIA were developed
by CONSAD Research. Just as the Department did for the Request for
Information (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. CONSAD estimated the number of
firms based upon the U.S. Census Bureau, Statistics of U.S. Business,
2004.'' 73 FR at 7941.
In the PRIA, the Department used the estimated number of FMLA
covered workers that was developed by CONSAD using the data sources
listed above. Id. at 7942. The Department estimated the number of
workers eligible to take FMLA leave by applying estimates from the 2000
Westat Report to the Department's 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\11\ by the
number of workers covered by the FMLA in each industry. Id. at 7943.
---------------------------------------------------------------------------
\11\ DOL estimate developed from 2000 Westat Report, p. A-2-21.
---------------------------------------------------------------------------
In the PRIA, the Department estimated the number of workers who
took FMLA leave in 2005 by multiplying the number of covered and
eligible workers times the percentage of covered and eligible workers
who took FMLA leave, after adjusting the percentage in the 2000 Westat
Report to account for the increase in FMLA usage
[[Page 68043]]
over time. Id. at 7943. The number of workers who took intermittent
FMLA leave in 2005 was estimated using Westat's estimate that 23.9
percent of workers who take FMLA leave take some of the leave
intermittently. Id. at 7943-44.
Since the FMLA leave provisions for military families were enacted
after the 2000 Westat Report was completed, the Department estimated
the number of FMLA covered and eligible workers who would take
qualifying exigency leave or caregiver leave in the PRIA using a model
developed by CONSAD with data from the Defense Manpower Data Center,
the Current Population Survey and the Decennial Census of Population.
First, CONSAD developed a model to estimate the number of parents,
spouses, and adult sons and daughters of servicemembers; it then
calculated the employment rates for parents and spouses who might need
to take military family leave, using the employment rates for age
ranges expected to be associated with the age range of the military
servicemembers. Id. at 7954-55.
For qualifying exigency leave, the Department developed estimates
in the PRIA of the number of servicemembers deployed or activated for
contingency operations based upon Department of Defense data and then
used the CONSAD model to develop estimates of the potential number of
family members who may be eligible for qualifying exigency leave under
the FMLA. ``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. 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.'' Id. at 7956.
For caregiver leave, the Department developed estimates in the PRIA
of the number of seriously injured servicemembers based upon Department
of Defense data and then utilized the CONSAD model to develop estimates
of the potential number of caregivers who may be eligible for FMLA
leave. ``[T]he Department estimates that there are 1,500 to 14,000
seriously injured servicemembers whose potential caregivers may be
eligible for FMLA leave * * * Based on the assumption that the age
distribution of seriously wounded servicemembers is the same as the age
distribution of all military servicemembers * * *, 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.'' Id. at 7955.
The Department received no substantive comments on its PRIA
estimates of the number of establishments covered by the FMLA, the
number of workers employed at those establishments, and FMLA leave
usage. The Department believes the lack of substantive comments is due
to the fact that the Department used a methodology in the PRIA that was
similar to the methodology used in the Request for Information (RFI),
and that the methodology and estimates presented in the PRIA were based
upon a careful review of the comments the Department received in
response to the RFI and the refinements that were made to the
methodology at that stage of the rulemaking. For example, in response
to comments on the RFI that FMLA leave usage has probably increased
since Westat conducted its surveys in the 1999-2000 time period (see 72
FR 35622-23), the Department adjusted the FMLA usage rates developed by
Westat (see 73 FR 7943). The Department also supplemented the data in
the 2000 Westat Report that was used in the PRIA with data that was
submitted in response to the RFI.
Comments received by the Department on its PRIA estimates focused
on the age of the data the Department used to develop its estimates and
the need for the Department to conduct a new data collection before
proceeding with this rulemaking. For example, the United States
Congress, Joint Economic Committee (``JEC'') stated ``[r]ather than
commission a survey * * * the Department develops their main source of
data on FMLA coverage, eligibility, and usage by extrapolating forward
the trends from previously commissioned surveys * * * The Department
also relies on non-representative, industry sponsored data * * *.''
Similarly, the Institute for Women's Policy Research stated ``[t]he
proposed regulations rely on data from non-representative and possibly
biased samples; from a survey conducted in 2000 that did not directly
address some of the key issues for which changes are proposed; from
generalizations about individual employers' reports of their
experiences that cannot be compared with the entire universe of
employers; and from judgments about how use of the FMLA may have
changed since the 2000 survey was conducted.'' The National Partnership
for Women & Families stated that ``[s]ince 2000, DOL has not conducted
any rigorous surveys or analysis of how the FMLA is working * * * If
DOL is going to change regulations that DOL's own survey data show have
been working well for over a decade, DOL should have empirical evidence
to support those changes.'' See also AFL-CIO, American Association of
University Women, Communications Workers of America, Disability Policy
Collaboration.
This issue was initially raised in response to the RFI and the
Department addressed it in the Report on the RFI prior to publishing
the NPRM and PRIA. Although the Department recognizes that the RFI is
not the same as conducting a nationally representative FMLA survey, the
Department ``believes that 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 that supplements and updates our knowledge of the impacts
of FMLA leave. In fact, several organizations conducted national
surveys in response to the RFI.'' 72 FR at 35621.
The Department continues to believe the RFI was a satisfactory
alternative to conducting another national survey. As noted in the
report, the RFI yielded a wealth of data, some of which would have been
difficult to obtain in a survey. Further, the necessity to combine
multiple data sources from multiple years is a common concern in
regulatory analysis and is not a unique issue for the FMLA rulemaking.
Rulemakings can frequently take years to complete. Even if a data
collection is conducted before the rulemaking begins, it is not unusual
for the data to be years old by the time the rulemaking is completed.
Requiring the data to be ``up to date'' would leave very short time
frames for rulemakings to be completed and would allow parties to
hinder the proceedings simply by delaying them until the data are older
than some arbitrary age limitation. Further, requiring all data be
obtained from government surveys would be prohibitively costly and
would result in rulemakings taking even longer than they currently do.
For example, under this scenario, if some aspect of a rulemaking (e.g.,
an alternative that arose during the public comment
[[Page 68044]]
period) were not covered by existing survey data, then an agency would
be required to go out and conduct a new survey, and designing and
conducting a new survey could take a number of years during which time
some of the other data may become dated.
Finally, requiring an agency to only use recent government surveys
would have a chilling effect on the ability of agencies to use data
obtained through public comments in response to RFIs and NPRMs. In
fact, the Department was able to collect a considerable amount of data
in response to the RFI and NPRM. ``Some of the data submitted [in
response to the RFI] were national surveys (e.g., AARP, International
Foundation of Employee Benefit Plans, Society for Human Resource
Management, National Association of Manufacturers, U.S. Chamber of
Commerce, WorldatWork, and the College and University Professional
Association for Human Resources). Others submitted surveys or
collections of reports from their clients, customers, or members (e.g.,
Willcox & Savage, Kalamazoo Human Resources Management Association,
Manufacturers Alliance, Air Conference, Association of American Rail
Roads, Retail Industry Leaders Association, National Federation of
Independent Business, HR Policy Association, International Public
Management Association for Human Resources, and American Bakers
Association). Numerous other comments provided data from individual
companies (e.g., United Parcel Service, U.S. Postal Service, Honda,
Southwest Airlines, YellowBook, Madison Gas and Electric Company,
Edison Electric, Verizon, Delphi, MGM Mirage, Union Pacific, and
Palmetto Health) or government and quasi-government agencies (e.g., New
York City, Dallas Area Rapid Transit, Fairfax County, VA, the Port
Authority of Allegheny County, PA, and the City of Portland, OR). Other
comments provided references to previously published studies (e.g.,
Darby Associates, the Center for WorkLife Law, Women Employment Rights,
and the Family Care Alliance). Many comments were also received from
labor organizations and family advocates (e.g., AFL-CIO, Communications
Workers of America, National Partnership for Women and Families,
Families USA, 9to5, National Association of Working Women). Finally,
the Department received many comments from workers who took FMLA
leave.'' 72 FR at 35620.
Moreover, additional data was submitted in response to the NPRM,
including new membership surveys (e.g., WorldatWork, College and
University Professional Association for Human Resources (``CUPA-HR''),
Hinshaw & Culbertson, and Working America), corporate data (e.g., Unum
Group), and data on the costs being incurred by individual workers
(e.g., Jay Zeunen Sr.).
Given the FMLA surveys previously conducted by the Department, the
availability of data from other government surveys and the wealth of
data submitted by the public in response to the RFI and NPRM, the
Department concludes that it has sufficient data to meet its
responsibilities in this rulemaking. This position was supported by the
National Coalition to Protect Family Leave which stated ``[t]here is in
the record a substantial amount of data, analysis and conjecture on
which to base a description of various attributes of benefits and costs
arising from over a decade of experience under the FMLA.'' 72 FR at
35621.
Therefore, for its coverage estimates, the Department will continue
to use the estimates developed by CONSAD and presented in Table 4 of
the NPRM (73 FR 7943) and reproduced in Table 1 below. In 2005, there
were 285,237 private sector firms and government entities covered by
Title 1 of the FMLA. These covered entities operated 1.1 million
establishments and employed 95.8 million workers. In 2005, an estimated
77.1 million workers, or 80.5 percent of the workers employed at the
covered establishments, met the FMLA eligibility requirements (i.e.,
have been employed by their employer for 12 months and have worked for
their employer at least 1,250 hours during the previous 12 months).
Table 5 of the NPRM (73 FR 7944) presented the estimated distribution
of these workers by industry.
Table 1--Estimated Number of FMLA Covered Firms, Establishments and
Employment, 2005
------------------------------------------------------------------------
------------------------------------------------------------------------
Thousands of FMLA Covered Entities......................... 285.2
Thousands of FMLA Covered Establishments................... 1,134.6
Thousands of Workers Employed at FMLA Covered 95,793.5
Establishments............................................
------------------------------------------------------------------------
Source: U.S. Department of Labor, ESA, 2008.
For its estimates of FMLA leave usage under the 1995 regulations,
the Department will continue to use the estimates developed by CONSAD
and presented in Table 5 of the NPRM. (73 FR 7944). In 2005,
approximately 7.0 million workers (i.e., 7.3 percent of workers
employed at establishments covered by Title I of the FMLA) took FMLA
leave and 1.7 million workers (23.9 percent of all workers who took
FMLA leave) took intermittent FMLA leave.
Comments from the JEC criticized the Department's use of the 23.9
percent estimate from the 2000 Westat employee survey arguing that this
was only one of many estimates in the 2000 Westat Report. ``The
Department estimated the number of workers who took intermittent leave
in 2005 * * * [based upon] Westat's estimate that 23.9 percent of
workers who take FMLA take some leave intermittently. However, the data
that are available from the survey seem to suggest a wide range of
possible leave-takers who might use leave intermittently.'' The
Department examined the entire 2000 Westat employer and employee
questionnaires prior to publishing estimates in the RFI and the NPRM,
and determined that question 5B of the 2000 Westat employee survey
provides the best basis for estimating intermittent leave use. Based
upon the JEC comment and one from Albelda, Boushey and Lovell (cited in
the Report on the RFI, 72 FR 35626, Footnote 32), the Department has
carefully re-examined the survey instrument and stands by its earlier
determination.
Although intermittent leave is brought up in other questions, it is
important to examine the ``skip patterns'' in the questionnaire when
determining the appropriate question and data to use. Question 5B was
asked of all leave takers, which is why it was used by the Department
as the basis for its estimate. Question 8 of the Westat employee
survey, an alternative suggested by some commenters, was only asked of
leave takers who indicated that they took multiple leaves during the 18
month survey period. (See the last programming note on page D-10 of the
2000 Westat Report). Since Question 8 was not asked of all leave
takers, and since there was some concern about the meaning of ``leave''
in the 2000 Westat employee survey (see 73 FR at 7944), the Department
does not believe that Question 8 is appropriate to use as the basis for
its estimate.
Similarly, some commenters suggested that Question 17A of the
Westat employee survey should be used. However, as was noted by the
JEC, Question 17A was only asked of ``employees who took a leave that
the establishment classified as FMLA leave.'' The Department does not
believe that Question 17A is appropriate to use as the basis for its
estimate because the 2000 Westat survey data suggests that
[[Page 68045]]
many employees are unaware that their employers have designated their
leave as FMLA leave. (See the discussion of Sec. 825.300(c) in this
preamble and the discussions regarding estimating the number of workers
who took FMLA leave in 71 FR at 69511 (Dec. 1, 2006) and 72 FR at
35623-24 (June 28, 2007).) Therefore, the Department concludes that
Question 5B of the Westat employee survey provides the best basis for
estimating the number of workers who took intermittent FMLA leave.
Moreover, as was discussed in the Report on the RFI, the 23.9 percent
estimate based on Question 5B is consistent with data submitted by the
public on the use of intermittent FMLA leave. See id. at 35625.
The Department based its estimates of the leave that will be taken
under the military leave provisions of the NDAA on the analysis
presented in Appendix A of the PRIA (73 FR at 7954). However, after
reviewing that preliminary analysis the Department has made some
revisions.
In the NPRM, based upon the President's Commission on Care for
America's Returning Wounded Warriors and other sources, the Department
estimated that each year approximately 1,500 servicemembers would incur
a serious injury or illness in training and contingency operations.
Using the age distribution of the military and the likely family
structure based on that age distribution, the Department estimated that
these 1,500 serious injuries would result in approximately 1,900
caregivers taking FMLA leave. In the NPRM, the Department also provided
an alternative estimate based upon estimates from the Department of
Defense (``DOD'') Disability System. DOD separates or retires for
disability reasons (with benefits) about 14,000 servicemembers
annually. Based upon this estimate of serious illnesses and injuries
(e.g., illnesses and injuries serious enough to cause servicemembers to
separate from the military), the Department estimated there would be
about 17,700 potential caregivers for servicemembers who are separated
through the DOD Disability System every year.
The statute defines the term ``serious injury or illness'' for
members of the Armed Forces, including members of the National Guard or
Reserves, as ``an injury or illness incurred by the member in the 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.'' As discussed in the preamble above, the final rule
provides that a request to take military caregiver leave may be
supported by a certification that is completed by any one of the
following health care providers: (1) A DOD health care provider; (2) a
VA health care provider; (3) a DOD TRICARE network authorized private
health care provider; or (4) a DOD non-network TRICARE authorized
private health care provider. Depending upon how the four different
types of DOD or VA authorized health care providers interpret the
statutory definition of serious injury or illness, the estimates in the
NRPM may be too low. For example, in 2001, there were 1.9 million
reported injuries in the military of which 32,000 resulted in lost duty
time.\12\ If lost duty time injuries were classified as serious, then
about 40,500 workers would be eligible for caregiver leave.
---------------------------------------------------------------------------
\12\ DOD Military Injury Metrics Working Group White Paper,
November 2002, pg. G1, Available at: http://
www.ergoworkinggroup.org/ewgweb/SubPages/ProgramTools/Metrics/
MilitaryInjuryMetricsWhitepaperNov02rev.pdf.
---------------------------------------------------------------------------
Although not all lost duty time injuries are likely to be certified
for caregiver leave, the Department believes that the estimate based on
disability retirement alone is probably too low. Therefore, the
Department's best estimate is that about 29,100 workers will take
military caregiver leave each year.\13\
---------------------------------------------------------------------------
\13\ This estimate is the average of 17,700 and 40,500.
---------------------------------------------------------------------------
In the NRPM, the Department preliminarily estimated there were
339,000 servicemembers currently deployed or activated in support of
contingency operations and that this would result in 330,000 family
members taking FMLA leave for a qualifying exigency. (73 FR at 7957).
However, these estimates included all servicemembers on active duty in
contingency operations. As discussed in the preamble, under the statute
only family members of the servicemembers in the Reserves and National
Guard would qualify for the exigency leave. Of the 339,000
servicemembers deployed on or activated for contingency operations in
October 2007, one-third or 113,000 were Reserve and National Guard
personnel. This would result in about 110,000 family members being
eligible to take qualifying exigency leave each year.\14\
---------------------------------------------------------------------------
\14\ The reason there are fewer family members eligible to take
qualifying exigency leave than there are Reserve and Guard personnel
is because not every member of the Reserve and Guard will have a
covered and eligible family member.
---------------------------------------------------------------------------
Although the Department has no experience with the patterns of
leave use under the NDAA amendments, it assumes, as it did for the 1995
FMLA final rule, that most workers taking FLMA leave for qualifying
exigencies or to provide care to a seriously injured or ill
servicemember will not use their entire 12-week or 26-week allotment.
In addition, given the nature of the leave that would be taken under
the military leave provisions of the NDAA, the Department assumes that
all workers taking this type of leave will take some leave
intermittently. Table 2 presents the Department's best estimates for
FMLA usage.
Table 2--Estimated Use of FMLA Leave *
------------------------------------------------------------------------
------------------------------------------------------------------------
Millions of Workers Taking FMLA Leave........................ 7.100
Millions of Workers Taking FMLA Leave Under the 1995 7.000
Regulations...............................................
Millions of Workers Taking FMLA Leave to Care for Seriously 0.029
Ill or Injured Servicemembers.............................
Millions of Workers Taking FMLA Leave for Qualifying 0.110
Exigencies................................................
------------------------------------------------------------------------
Millions of Workers Taking Intermittent FMLA Leave........... 1.800
Millions of Workers Taking Intermittent FMLA Leave under 1.700
the 1995 regulations......................................
Millions of Workers Taking Intermittent FMLA Leave to Care 0.029
for Seriously Ill or Injured Servicemembers...............
Millions of Workers Taking Intermittent FMLA Leave for 0.110
Qualifying Exigencies.....................................
------------------------------------------------------------------------
* Based upon the 2005 estimates in Table 1.
Source: U.S. Department of Labor, ESA, 2008.
Chapter 3: Estimated Costs of the Final Revisions
This chapter presents a provision-by-provision analysis of the
changes in costs that would be incurred by employers and workers
covered by Title I of the FMLA. The estimates presented in the PRIA
were developed using three approaches.
First, the PRIA assessed the impacts that are generally applicable
to most employers and their employees. ``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 * * *
Although the vast majority of FMLA leave-takers will see no difference,
the Department estimates that employees will incur * * *
[[Page 68046]]
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.'' 73 FR at 7952.
Second, the PRIA qualitatively discussed the impacts on employers
and employees with highly time-sensitive operations. The Department
noted that ``[i]n 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. 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.'' Id. at 7954.
Third, the Department estimated the magnitude of the potential
costs associated with the NDAA military family leave provisions by
comparing the additional number of workers who might take FMLA leave
under the new requirements with those currently taking FMLA leave. Id.
at 7957.
The Department received no substantive comments on the methodology
that it used to estimate the costs in the PRIA. Although there were
some comments about the lack of draft provisions for the NDAA
amendments and the potential burden that such provisions could impose,
most of the comments that the Department received on its methodology
focused upon the underlying data. ``Since 2000, DOL has not conducted
any rigorous surveys or analysis of how the FMLA is working.''
(National Partnership for Women & Families). ``I am confused about why
some businesses are lobbying for these changes, when they cannot
demonstrate that the provisions have affected their business
operations.'' (Andrea Barreiro). ``The lack of adequate data may have
led the Department to underestimate the costs of the Proposed Rules for
employees.'' (JEC). ``There is no data about what conditions the
individuals have or in what industries they are employed. Lacking this
data, DOL cannot know if its proposed changes will remedy the claimed
problems.'' (Disability Policy Collaboration).
Some criticized the Department's reliance on the 2000 Westat
Report. For example, the Institute of Women's Policy Research stated
``[t]he most recent data available on FMLA coverage, eligibility, and
use are from a survey commissioned by the DOL and conducted by Westat
in 2000. Even when the survey results were published in 2001, these
data were unable to illuminate many aspects of FMLA use, because of
difficulty distinguishing between FMLA-qualifying leaves and other
leaves for similar circumstances that did not meet the criteria for
FMLA leave, and lack of emphasis on some topics that are now a bigger
concern. These data may not reflect the current average or range of
experiences with the FMLA of either workers or employers.'' The Equal
Employment Advisory Council also noted that ``[w]hile the 2000 Westat
Report * * * suggests little, if any, burden associated with
administering FMLA leave, we believe the Report does not accurately
reflect the level of difficultly employers have experienced in
attempting to comply with current FMLA regulations.''
Others criticized the Department for using data supplied by the
public. ``The Department also relies on non-representative, industry-
sponsored survey data for developing its recommendations.'' (JEC). ``It
is unlikely that information collected in this manner gives an accurate
picture of workers' or employers' experiences with the FMLA. DOL
assumptions * * * [draw on] non-representative survey of self-
interested respondents * * * Survey methodologists recognize that
individuals invited to participate in non-random-sampled surveys are
more likely to respond if they have strong feelings about the issues on
the survey instrument.'' (The Institute of Women's Policy Research)
The Department recognizes that the 2000 Westat Report has certain
limitations that affect the accuracy of the Department's estimates. In
fact, the Department raised many of these limitations in the RFI (see
71 FR at 69510-13) and was even criticized by some commenters for
raising these limitations (see 72 FR at 35621). As the Department has
previously noted, one purpose of the RFI ``was to supplement existing
data and information on the wide variety of economic impacts that the
FMLA is likely to have on both workers and employers, including
productivity and profitability.'' Id. at 35628.
In fact, the RFI provided the Department a vast quantity of data to
supplement the data in the 2000 Westat Report. The Department did not
indiscriminately utilize these data. Rather, whenever possible, the
Department prudently tried to validate estimates (including those based
on the 2000 Westat Report) by corroborating them from multiple sources.
Some of this validation was presented in the Report on the RFI (see,
for example, the discussions at 71 FR at 35623-26) and some in the PRIA
(see, for example, the discussions at 73 FR at 7942-43, 7946, and 7949-
50). Moreover, based upon its assessments, which were founded on
professional judgment and the comments received in response to the RFI,
the Department made appropriate adjustments to the raw survey data.
(See, for example, the discussions at 73 FR 7943, 7948 and 7952.)
The Department notes that it has been a long-standing established
procedure in regulatory assessment to combine data from multiple
sources and multiple years in order to address the limitations of any
one data source. In fact, this very procedure was used to develop the
estimates for the 1995 FMLA regulations. ``The Department's analysis
was principally based on a previous analysis of the cost impact of
prior versions of FMLA legislation pending before the U.S. Congress
which were conducted by the U.S. General Accounting Office (GAO). The
latest GAO report on FMLA legislation, updated to reflect the 1993
enactment * * * [was] based on a survey of selected firms in the
Detroit, Michigan and Charleston, South Carolina areas.'' (60 FR at
2236 (Jan. 6, 1995)). An examination of the 1993 GAO report referenced
by the Department (GAO/HRD-93-14R) indicates that the 1993 GAO
estimates were in fact based upon a 1987 GAO report (GAO/HRD-88-34).
To calculate an estimate for the cost to employers of providing
unpaid leave to eligible workers that reflect 1992 employment and
cost information we made three adjustments to our previous cost
estimates. First, we updated employers' health insurance costs.
Second, we increased the number of likely beneficiaries to reflect
employment growth. Third, we adjusted the duration of leave an
employee would take to reflect provisions of * * * the Family and
Medical Leave Act of 1993. (GAO/HRD-93-14R at 3).
According to the 1987 GAO report ``[t]o develop our cost estimates,
we obtained data from numerous sources.'' Two of the sources cited in
the report were the 1985 National Health Interview Survey, which was
used to estimate ``the number likely to take leave under the sick child
and temporary medical leave provisions'' and the 1982 National Long-
Term Care Survey, which was used to estimate ``the number likely to
[[Page 68047]]
take leave under the ill parent provision * * *'' (GAO/HRD-88-34 at 2).
Since none of the underlying data in the 1985 and 1982 surveys was
updated by either GAO or the Department, by the time the Department
published its 1995 FMLA regulations the underlying data were a decade
or more old.
The Department also notes that statistical agencies also use data
from multiple sources to adjust their survey data. For example, the
Bureau of Labor Statistics (``BLS'') estimates the monthly unemployment
rate based upon the Current Population Survey (``CPS'') of
approximately 60,000 households (http://www.bls.gov/cps/cps_htgm.htm).
According to the CPS Technical Documentation, the Census Bureau adjusts
the CPS population controls (weights) every year based on
administrative data, such as birth and death statistics, along with the
Census Bureau's estimates of net international migration (reflecting
both legal and illegal immigration). (http://www.bls.gov/cps/
documentation.htm#pop)
The Department, therefore, concludes that the general approach
presented in the NPRM to estimate the impacts of the proposed changes
to the FMLA regulations by combining data from multiple sources and
multiple years is reasonable. It is consistent with the approach
commonly used by regulatory agencies. In fact, it is very similar to
the approach previously used by the GAO and the Department to estimate
the impacts of the 1995 FMLA regulations (e.g., basing the rates on
data from multiple sources and updating the estimates to reflect
population and employment changes). The Department's approach (although
less sophisticated) is also similar in many respects to that used by
statistical agencies. In the example cited above, the sample frames
used by the BLS to estimate the unemployment rate at times may be as
much as a decade old. Therefore, the Bureau uses data from other
sources (e.g., birth and death statistics and Census Bureau's estimates
of net international migration) to adjust the sample frame, even though
it recognizes that the adjustments are imperfect and will require the
Bureau to periodically revise its estimates.
Thus, Department continued to use this approach for estimating the
impacts of the regulatory changes in the final rule. The provision-by-
provision analysis of the final rule (including and the new provisions
implementing the NDAA amendments) is presented below. As was the case
in the PRIA, the provision-by-provision analysis is followed by a
discussion of the qualitative impact on time-sensitive operations.\15\
---------------------------------------------------------------------------
\15\ However, the latter discussion was moved to another
chapter.
---------------------------------------------------------------------------
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. For the PRIA, the Department estimated: ``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.'' 73 FR at 7945.
Although the Department did not receive any comments on this estimate,
because of the provisions associated with the NDAA, for the final rule
the Department estimates that it will take eight hours instead of six
hours.
Given that the average hourly wage and benefits rate of a Human
Resource compensation and benefits specialist is $36.51,\16\ the
average one-time cost per covered firm is $292.08 (8 hours x $36.51).
Multiplying this average cost per firm by the estimated 285,237
entities \17\ that have FMLA covered establishments results in an
estimated one-time cost of about $83.3 million for employers to review
the changes and revise their policies and procedures.
---------------------------------------------------------------------------
\16\ Bureau of Labor Statistics, ``National Compensation Survey:
Occupational Wages in the United States, June 2006.'' Rate assumes
hourly wage plus 40% for benefits.
\17\ This estimate includes private sector entities, state and
local government entities, and quasi-governmental employers. See
Table 4 of the PRIA. Id. at 7943.
---------------------------------------------------------------------------
Although the Department did not receive any comments on this
estimate, because of the new provisions associated with the NDAA, for
the final rule the Department is estimating that it will take eight
rather than six hours to review the revised FMLA provisions, adjust
existing company policies accordingly, and disseminate information to
managers and staff. This change results in first year costs of $80
million for the final rule.
The FMLA and Its Purpose (Sec. Sec. 825.100 and .101)
In the final rule, the Department added references to the NDAA
military family leave to Sec. Sec. 825.100 and .101. The impact of
these changes is to expand the list of criteria under which an eligible
employee can qualify for FMLA-protected leave. The cost associated with
this update is included in the cost of reviewing and implementing the
final rule.
Clarifying the Treatment of Professional Employer Organizations (Sec.
825.106)
The Department is clarifying how the joint employment rules apply
to a Professional Employer Organization (``PEO''). 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.
However, where a PEO has the right to exercise control over the
activities of the client's employees, or has the right to hire, fire or
supervise them, or benefits from the work that the employees perform,
they are more likely to be considered a joint employer. Essentially, in
order to determine whether a PEO is a joint employer all of the facts
and circumstances must be evaluated to assess the economic realities of
the situation.
In the PRIA, the Department stated ``[a]lthough 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. Id. Although the
Department received several comments on Sec. 825.106, none of them
provided data or addressed the Department's estimated impact.
Therefore, the Department concludes that very few workers or employers
will be impacted by this clarification.
Clarifying the Definition of ``Public Agency'' (Sec. 825.108)
Although the Department proposed no changes to this section, in the
final rule the definition of ``public agency'' was revised to conform
to that used in the FLSA. 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. The Department
proposed 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.
As discussed in the preamble above, the final rule modifies the
proposal by extending the permissible gap to seven years. In the PRIA,
the Department determined that very few workers will be impacted by
this clarification because ``[i]n order to be impacted
[[Page 68048]]
* * * 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 seven 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.'' Id., Footnote 33. Even fewer workers are
likely to be impacted by the final rule, which extends the period to
seven years.
Although the Department received several comments on this change,
as noted in the preamble discussion above, none of the comments
provided estimates of the number of employers or workers who would be
impacted by the change, nor did they dispute the Department's
assessment. Therefore, the Department concludes that very few workers
or employers will be impacted by this change.
The final rule also adopts the two exceptions to the cap set forth
in Sec. 825.110(b)(2) for breaks in service resulting from an
employee's fulfillment of National Guard or Reserve military service
obligations and breaks where a written agreement exists concerning the
employer's intention to rehire the employee after the break in service.
The final rule also adopts the provision in Sec. 825.110(b)(4) stating
that an employer may consider prior employment falling outside the cap,
provided that it does so uniformly with respect to all employees with
similar breaks.
The Department also proposed and has adopted in the final rule
Sec. 825.110(d), which clarifies that an employee may attain FMLA
eligibility while out on a continuous block of leave when the employee
satisfies the requirement for 12 months of employment. The Department
believes that this change will have a minimal burden on employers
because it would only apply to employers who voluntarily allow
employees to go out on leave before the employee has satisfied the 12-
month requirement.
Finally, the Department deleted the ``deeming'' provisions in
current Sec. 825.110(c) and (d). This change should have no impact on
employers or employees because the Department believes that it cannot
enforce the deeming provisions of the current rule in light of the
Supreme Court's 2002 Ragsdale decision.
Determining 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. The Department proposed and is adopting a
modification to Sec. 825.111(a)(3) that when an employee is jointly
employed by two or more employees, the employer'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.
In the PRIA, the Department stated that it anticipates 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.''
Id. at 7946.
The Department did not receive comments disputing this assessment
although Burr & Forman was concerned about the potential impact of this
revision on small businesses using leased employees. The firm stated
that this revision ``would result in not only administrative burdens,
but also will result in additional costs in orienting and training
temporary employees rotating into slots vacated by those on leave.''
After carefully considering this comment, the Department disagrees
because the change impacts the eligibility of the jointly employed
worker, and regardless of the eligibility of the worker, the jointly
employed worker must still be counted as an employee by both the
primary and the secondary employers. That is, the small business would
have to count the leased employees towards the 50 or more employee
threshold for FMLA coverage whether or not those employees have their
home office or the actual physical place where they work as their
official worksite. Therefore, the Department concludes that this change
will have little net impact on workers or employers.
Qualifying Reasons for Leave, General Rule (Sec. 825.112)
The Department proposed no substantive changes to Sec. 825.112 but
did propose moving several paragraphs of the current rule to other
sections to improve the organization of the regulations. This
reorganization has been adopted in the final rule and will improve
understanding of the rules but will not substantively impact workers or
employers.
Serious Health Condition (Sec. 825.113) and Inpatient Care (Sec.
825.114)
The Department proposed and has adopted changes to Sec. 825.113 to
incorporate the definitions of ``incapacity'' and ``treatment'' from
current Sec. 825.114 and to move the definition of ``parent, spouse,
son or daughter'' to Sec. 825.122. In addition, Sec. 825.113 of the
final rule adopts, with limited change, language from Sec. 825.114
that illustrates the types of treatments and conditions not ordinarily
expected to be covered by the definition of serious health condition.
The reorganization and clarification will improve understanding of the
rules but will unlikely have an identifiable impact on either employers
or workers.
Clarifying the Definition of ``Continuing Treatment'' (Sec. 825.115)
Proposed Sec. 825.115 defined ``continuing treatment'' for
purposes of establishing a serious health condition. Two changes were
proposed from current regulations and they were adopted in the final
rule.
First, current Sec. 825.114(a)(2)(i)(A) establishes that an
employee can meet the definition of serious health condition if, in
connection with a period of incapacity of more than three consecutive
calendar days, the employee or family member is treated two or more
times by a health care provider. However, the current ``two visit''
requirement for serious health conditions is open-ended. In Sec.
825.115(a)(1), the Department proposed and has adopted a clarification
specifying that the two visits to a health care provider must take
place within 30 days unless extenuating circumstances exist to meet the
definition. The final rule also clarifies that the period of incapacity
must be
[[Page 68049]]
more than three consecutive ``full'' calendar days; that the 30-day
period begins with the first day of incapacity; and that the first
visit to the health care provider must occur within 7 days of the first
day of incapacity.
Second, the current definition of a chronic serious health
condition in Sec. 825.114(a)(2)(iii) is similarly open-ended because
the regulations do not define the term ``periodic visit.'' In Sec.
825.115(c)(1), as discussed in the preamble above, the Department
proposed and has adopted a clarification defining the term ``periodic
treatment'' as visiting a health care provider at least twice a year
for the same condition.
In the PRIA, the Department stated that the proposed clarifications
were ``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)-(v),
the Department is proposing to update only two. Those workers who meet
the other tests will not be affected * * *. 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. 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 `at least twice a year' will reduce
uncertainty in the workplace and decrease the burden for some
workers.'' 73 FR at 7946.
In response to the NPRM the Department received many comments from
individual employees and employee representatives that the Department's
assessment was incorrect and that these changes would increase the
burden on workers taking FMLA leave. For example, in response to the
Department's proposal to clarify in Sec. 825.115(a) that the two
visits to a health care provider must take place within a 30-calendar-
day period unless extenuating circumstances exist, the Communications
Workers of America (``CWA'') stated ``this arbitrary change [requiring
treatment by a health care provider twice within a 30-day period] will
impose an unwarranted burden on employees and their health care
providers * * *.'' The National Postal Mail Handlers Union stated that
``[t]o require the employee to visit the doctor a second time within 30
days imposes an undue cost and inconvenience on the employee, and a
burden on the already overburdened health care system. The employee is
likely to have a co-pay for this additional (and medically unnecessary)
visit and the employee's insurance may even refuse to cover such a
medically unnecessary appointment, potentially imposing great cost on
the employee.''
In response to the Department's proposal to clarify in Sec.
825.115(c) that the term ``periodic visit'' for chronic conditions
means visiting a health care provider at least twice a year for the
same condition, many members of the American Postal Workers Union
(``APWU'') stated ``[t]he new regulations would pose an unreasonable
burden on employees who suffer from long-term or chronic conditions,
requiring them to make unnecessary visits to their doctor, and forcing
them to pay for the extra visits.'' The JEC stated ``an employee with
an incurable disease, such as diabetes, may not actually need to go to
the doctor that often. This rule may in fact lead to the need for more
intermittent leave for those employees so that they can go to the
doctor * * *.''
After carefully reviewing all of the comments related to the
clarification that the two visits to a health care provider must take
place within a 30-day period unless extenuating circumstances exist,
and re-examining its assessment in the PRIA, the Department stands by
its earlier determination that this clarification is unlikely to have
any identifiable impact on FMLA leave-takers. As noted in the PRIA,
serious health conditions usually require two visits to a health care
provider within 30 days. In fact, the final rule's requirement of two
visits to a health care provider is encompassed by the current
standard. Therefore, workers will not have any additional costs under
this ``test'' than they did before. The only difference is the costs
for the two visits will be borne within 30 days instead of over some
indefinite period. Further, the final rule also includes the
``extenuating circumstances'' exception to the 30-day standard in Sec.
825.115(a)(1), so it is unlikely that any 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.
After carefully reviewing all of the comments related to the
clarification that the term ``periodic visit'' means visiting a health
care provider at least twice per year for the same condition, the
Department stands by its determination in the PRIA that this
clarification is unlikely to have any identifiable impact on FMLA
leave-takers. As noted in the PRIA, workers with chronic serious health
conditions that are currently covered by the FMLA typically visit their
health care providers twice a year. In fact, the current standard of
``periodic'' visits for chronic conditions is implicitly the same as
the final rule's requirement of two visits per year. As noted in the
preamble, the Department does not agree with comments from employee
groups that because many chronic conditions are stable and require
limited treatment, the twice per year standard is burdensome since that
view effectively ignores the requirement for ``periodic'' visits in the
current regulations. As with the requirement of two treatment visits
within 30 days, the determination of whether two treatment visits per
year are necessary is a medical determination to be made by the health
care provider. The clarification more effectively identifies the types
of chronic conditions Congress intended to cover under the FMLA,
without including some conditions that the Department believes are not
currently covered. The Department also notes that ``two visits to a
health care provider'' every year is not the sole criterion in the
regulations for determining a covered chronic serious health condition.
Therefore, workers with currently covered chronic conditions are
unlikely to incur any additional costs under this ``test'' than they
did before. 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 visits at least twice a year may reduce uncertainty
in the workplace and may decrease the burden for some workers.
[[Page 68050]]
Leave for Treatment of Substance Abuse (Sec. 825.119)
The Department proposed and has adopted in the final rule
consolidating in a single location the provisions in current Sec. Sec.
825.112(g) and 825.114(d). This reorganization will have no impact on
either employers or workers.
Leave for Pregnancy or Birth (Sec. 825.120)
The Department proposed and has adopted in the final rule
consolidating the existing regulations pertaining to pregnancy and
birth in a single location. In the final rule the Department also
clarifies that a husband is entitled to FMLA-protected leave if he is
needed to care for his wife who is incapacitated due to her pregnancy
(e.g., if the pregnant wife is unable to transport herself to a
doctor's appointment). As with all care for covered family members
under the FMLA such care may include providing psychological comfort
and reassurance. The Department also clarified that FMLA leave to care
for a pregnant woman is available to the spouse and not, for example,
to a boyfriend or fianc[eacute] who is the father of the unborn child.
The reorganization and clarification will have no impact on either
employers or workers.
Leave for Adoption or Foster Care (Sec. 825.121)
The Department proposed and has adopted the consolidation of the
existing regulations pertaining to the rights and obligations with
regard to adoption and foster care. The reorganization will have no
impact on either employers or workers.
Clarifying the Definitions of Spouse, Parent, Son and Daughter (Sec.
825.122)
The proposal relocated these definitions from existing Sec.
825.113 and made some minor editorial changes. In addition, Sec.
825.122(f) of the proposal added language that the employer could
require the employee to provide documentation to confirm a family
relationship such as a sworn, notarized statement or a submitted and
signed tax return. In the final rule the Department adopted the edits
but did not adopt the proposed language in paragraph (f) regarding the
additional documentation necessary to confirm the family relationship,
and retained the current regulation instead. The Department also
further reorganized this section by inserting clarifying definitions
related to military caregiver leave and moving the language about
documentation confirming a family relationship to new Sec. 825.122(j).
In addition, in the final rule the Department clarified (as did the
proposal) that an adult child must be incapable of self-care because of
a disability at the time FMLA leave is to commence. The reorganization,
edits and clarifications will have no impact on either employers or
workers.
Unable To Perform the Functions of the Position (Sec. 825.123)
The Department proposed no substantive changes to this section but
proposed to clarify in paragraph (b) that a sufficient medical
certification must specify what functions the employee is unable to
perform. The final rule adopts the proposal with one minor change. In
order to make the terminology consistent with 29 U.S.C. 2613(b)(3) and
(4)(B), paragraph (b) of the final rule uses the term ``essential
functions.'' The edits and clarifications will have no impact on either
employers or workers.
Needed To Care for a Family Member or Covered Servicemember (Sec.
825.124)
The proposal relocated the regulations that define the phrase
``needed to care for'' a family member from Sec. 825.116. In addition,
the Department clarified that the employee need not be the only
individual, or even the only family member, available to provide care
to the family member with a serious health condition. The
reorganization and clarification will have no impact on either
employers or workers.
Definition of Health Care Provider (Sec. 825.125)
The Department proposed and has adopted a change to the definition
of health care provider by clarifying the status of a physician
assistant (``PA''). Corresponding changes were also made to Sec.
825.115 (Continuing treatment) and Sec. 825.800 (Definitions). The
reorganization and clarifications will have no impact on either
employers or workers. As was noted previously in the preamble, most PAs
are already included in the definition of health care provider because
the vast majority of group health plans accept them when substantiating
a claim for benefits.
Leave Because of a Qualifying Exigency (Sec. 825.126) and Leave To
Care for a Covered Servicemember With a Serious Injury or Illness
(Sec. 825.127)
Section 825.126 (addressing what is referred to as ``qualifying
exigency leave'' in this document) implements the provision of the NDAA
that eligible employees may take up to 12 weeks of FMLA leave for any
qualifying exigency arising out of the fact that the spouse, son,
daughter or parent of the employee is on active duty or has been
notified of an impending call to active duty status in support of a
contingency operation. As discussed in the preamble, for the purposes
of Sec. 825.126 servicemembers include members of the National Guard,
the Reserves, and certain retired members of the Regular Armed Forces
and retired Reserve who are the spouse, son, daughter or parent of the
eligible employee. Section 825.126 also includes a list of qualifying
exigencies.
Section 825.127 (addressing what is referred to as ``military
caregiver leave'' in this document) implements the provision of the
NDAA that provides that eligible employees may take up to 26 weeks of
FMLA leave during a single 12-month period to care for a ``covered
servicemember'' with a serious injury or illness incurred by the
servicemember in the line of duty on active duty that may render the
servicemember medically unfit to perform the duties of his or her
office, grade, rank or rating. For the purposes of this section, a
``covered servicemember'' must be a member of the Armed Forces,
including a member of the National Guard or Reserves, who has a serious
injury or illness for which he or she is (1) undergoing medical
treatment, recuperation or therapy; or (2) otherwise in ``outpatient
status;'' or (3) otherwise on the temporary disability retired list
(``TRDL''). Former members of the Armed Forces, former members of the
National Guard and Reserves, and members on the permanent disability
retired list (``PDRL'') are not ``covered servicemembers.'' In order to
care for a covered servicemember, an employee must be the spouse, son,
daughter, parent or next of kin of a covered servicemember.
As discussed in the PRIA (id. at 7954), the Department identified
the potential number of covered and eligible workers who may be
impacted by the military family leave provisions but did not develop
specific cost estimates for these provisions. Rather, based upon the
potential increase in the number of FMLA-eligible workers who would
take FMLA leave due to the military family leave provisions and the
assumption that the costs of military family leave are similar to the
costs of current FMLA leaves, the Department estimated that the cost of
the FMLA could potentially increase by as much as 5 percent,\18\ Id.
[[Page 68051]]
at 7957. Although the Department received many comments on the NDAA
provisions, they primarily indicated support for the new entitlements
and provided recommendations on how they should be implemented. None of
the comments addressed the estimation of potential impacts.
---------------------------------------------------------------------------
\18\ As was discussed in the PRIA, the Department believed that
a 5 percent cost increase may be an over-estimate because (1) the
NDAA did not change the scope of covered employers or eligible
workers under the FMLA and 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, and (2) 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,
similarly, not all employees eligible to take FMLA leave will do so
under the new military family leave provisions. Id. at 7957.
---------------------------------------------------------------------------
Because Sec. Sec. 825.126 and 825.127 are new provisions, the
Department has no history on which to base its estimates. For example,
there are no existing surveys (either conducted by the public or the
federal government) that can be used as a basis to estimate the leave
patterns of workers taking either qualifying exigency leave under Sec.
825.126 or military caregiver leave under Sec. 825.127. Therefore, the
Department is using a different approach to estimate the impacts of
Sec. Sec. 825.126 and 825.127 than it used to estimate the impacts of
the other provisions.
First, based upon its analysis of the provisions, the Department
developed typical profiles of the leave patterns of workers that it
estimates would take qualifying exigency leave under Sec. 825.126 and
military caregiver leave under Sec. 825.127. The Department believes
that a typical employee who will take qualifying exigency leave under
Sec. 825.126 will have the following leave pattern:
Upon notification of the deployment of the servicemember,
the eligible employee will take a block of one week of unforeseeable
FMLA leave to address qualifying exigencies (e.g., under Sec.
825.126(a)(1)(i)).
During the deployment of the servicemember, the eligible
employee will take ten days of unforeseeable FMLA leave to address
qualifying exigencies under Sec. 825.126(a).
During the deployment of the servicemember, the eligible
employee will take a block of one week of foreseeable FMLA leave to
join the servicemember while the servicemember is on ``Rest and
Recuperation'' (Sec. 825.126(a)(6)).
Post deployment of the servicemember, the eligible
employee will take a block of one week of foreseeable FMLA leave to
address qualifying exigencies (Sec. 825.126(a)(7)).
The Department believes that a typical employee who will take
military caregiver leave under Sec. 825.127 will have the following
leave pattern:
Upon receiving notification of the serious injury or
illness of the covered servicemember the eligible employee will take a
block of four weeks of unforeseeable FMLA leave to care for the covered
servicemember.
The eligible employee will subsequently take a second
block of two weeks of unforeseeable FMLA leave to care for the covered
servicemember after the covered servicemember is transferred to a
rehabilitation facility.
During the single 12-month period, the eligible employee
will take two one-week blocks of unforeseeable FMLA leave to care for
the covered servicemember, under the assumption that the covered
servicemember may experience an unanticipated complication.
During the single 12-month period, the eligible employee
will schedule and take 40 individual days of foreseeable FMLA leave to
care for the covered servicemember.
Next, the Department assessed the costs associated with each type
of leave. As noted in the NPRM, the Department recognized that the NDAA
``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.'' Id. at 7957.
The Department determined that the marginal costs related to workers
taking both kinds of military family leave under Sec. Sec. 825.126 and
825.127 result from the cost of providing health insurance during the
period the worker is on leave and the efficiency costs associated with
unexpected absences. The Department believes these two categories of
costs are reasonable proxies for the opportunity cost of the NDAA
provisions, since health insurance coverage represents the marginal
compensation an employer is still required to cover under the FMLA when
a worker is absent, and unexpected absences have long been identified
in this rulemaking and other FMLA leave studies as a potential source
of burden above and beyond the cost of a replacement worker. Since FMLA
leave is unpaid, as was done in the promulgation of the 1995 FMLA
regulation, the Department is not assessing the costs associated with
the replacement workers as a cost of this rulemaking.
The Department based the costs of providing health insurance on
data from the BLS, Employer Costs for Employee Compensation survey.
According to the June 2008 report (USDL: 08-1271), employers spend an
average of $2.25 per hour on health insurance (see Table 1, pg. 5).
Based upon the assumption that typical employees work 8-hour days and
40-hour workweeks, typical employees will cost their employer
approximately $450 for the estimated 200 hours (i.e., 25 days x 8 hours
per day) of FMLA leave that they will take for qualifying exigency
leave under Sec. 825.126 and $1,440 for the estimated 640 hours (i.e.,
80 days x 8 hours per day) of FMLA leave that they will take for
military caregiver leave under Sec. 825.127.
The Department based the costs of unforeseeable FMLA leave on data
from the Unscheduled Absence Survey by CCH \19\ and a 2008 Employee
Absenteeism survey conducted by WorldatWork.\20\ According to the CCH
2005 survey, the average per-employee cost of unscheduled absenteeism
is $660. Since this estimate was per employee, the Department converted
it to a per day estimate. According to the 2008 WorldatWork Employee
Absenteeism survey, employees averaged 5.3 days of unplanned absences
per year. Applying this rate to the $660 cost per employee results in
an estimated cost of $125 per day for unplanned absences. Based upon
comments made regarding the need for employee notification, the
Department assumes that this cost only applies to the first day of the
blocks of unforeseeable FMLA leave because employers will have had time
to schedule coverage on the subsequent days. Therefore, the Department
estimates that the one block and 10 individual days of unforeseeable
FMLA leave taken by a typical employee for qualifying exigency leave
under Sec. 825.126 will cost employers $1,375 and the four blocks of
unforeseeable FMLA leave taken by a typical employee for military
caregiver leave under Sec. 825.127 will cost employers $500.
---------------------------------------------------------------------------
\19\ Available at: http://www.cch.com/Press/news/2005/
200510121h.asp.
\20\ Available at: http://www.worldatwork.org/waw/
adimComment?id=28206.
---------------------------------------------------------------------------
Thus the Department estimates a typical employee utilizing FMLA
leave under the provisions of the NDAA will cost his or her employer
approximately $1,825 for qualifying exigency leave under Sec. 825.126
and $1,940 for military caregiver leave under Sec. 825.127. Based on
an estimated 110,000 eligible employees taking qualifying exigency
leave under Sec. 825.126, the Department estimates that Sec. 825.126
will result in added costs to employers of $200.8 million. Based on an
estimated 29,100 eligible employees taking military caregiver leave
under Sec. 825.127, the Department estimates that Sec. 825.127 will
result in added costs to employers of $56.5 million.
[[Page 68052]]
The Department also estimated other costs associated with the
military leave provisions, such as those related to the employer
notification provisions in Sec. 825.300. Those costs are presented in
the appropriate sections below.
The Department did not assess any additional costs for foreseeable
FMLA leave taken under Sec. Sec. 825.126 and 825.127. The Department
believes that employers covered by the FMLA will have the systems in
place to handle these foreseeable FMLA leaves after the occurrence of
the initial unforeseeable FMLA leaves were taken. Moreover, after the
employee has supplied the initial information for the employer to
determine that the initial unforeseeable leave qualifies as FMLA leave,
the certification requirements for the subsequent leave taken under
Sec. Sec. 825.126 and 825.127 are less burdensome. Finally, the
marginal administrative costs for the foreseeable FMLA leaves taken
under Sec. Sec. 825.126 and 825.127 are negligible (e.g., once the
eligible employee has taken the initial unforeseen leave under either
Sec. Sec. 825.126 or 825.127, the employer is on notice that
additional leaves will follow, so that the costs to employers of
administering subsequent scheduled leaves taken under either Sec. Sec.
825.126 or 825.127 will be nominal).
Amount of Leave (Sec. 825.200)
Section 825.200 explains the basic leave entitlement. The
Department proposed and has adopted a clarification regarding how
holidays are counted when they fall in a week that an employee needs
less than a full week of FMLA leave. Specifically, in these situations,
it has been the Department's enforcement position not to count the
holidays against the employee's 12-week entitlement. The Department has
not made any changes in the treatment of holidays which fall within a
full week of FMLA leave. The Department also added additional
explanation to the rolling leave year calculation. These clarifications
will have no impact on either employers or workers.
Leave To Care for a Parent (Sec. 825.201)
The Department proposed and has adopted some changes to make the
regulations more clear and accessible. The requirements regarding leave
for the birth, adoption or foster care of a child have been relocated
to Sec. 825.120 and Sec. 825.121. Therefore, Sec. 825.201 now only
covers leave to care for a parent, which was previously in Sec.
825.202. The reorganization and edits will have no impact on either
employers or workers.
Intermittent Leave or Reduced Schedule Leave (Sec. 825.202)
The Department proposed and has adopted some changes to make the
regulations more clear and accessible. The Department made three edits
in final rule. First, the parenthetical phrase ``(as distinguished from
voluntary treatments and procedures)'' was deleted because it was an
unnecessary and confusing reference to provisions in the 1993 interim
rule that were dropped when the 1995 regulations were promulgated.
Next, a clear definition of ``medical necessity'' for intermittent
leave was included by combining existing language from current Sec.
825.117 and illustrations from current Sec. 825.203(c). Finally, as
explained in the preamble, the Department agreed with commenters to
delete the word ``related'' from the phrase ``treatment of related
serious health condition'' as an unnecessary term and potentially
problematic. Overall, the aforementioned changes to this section were
well received by commenters to the NPRM. The reorganization and edits
will have no impact on either employers or workers.
Scheduling of Intermittent or Reduced Schedule Leave (Sec. 825.203)
The Department proposed and has adopted some changes to make the
regulations more clear and accessible. In addition, the Department
proposed and has adopted an editorial change to clarify that employees
who take intermittent FMLA leave have a statutory obligation to make a
``reasonable effort'' to schedule such leave so as not to disrupt
unduly the employer's operations. The reorganization and clarification
that more closely follows the statutory language will have no impact on
either employers or workers.
Transfer of an Employee to an Alternative Position During Intermittent
Leave or Reduced Schedule Leave (Sec. 825.204)
The Department proposed and has adopted some non-substantive
editorial changes to this section such as adding new subheadings. In
addition, the NPRM solicited comments on whether to alter the rules to
expand employers' ability to transfer workers who take intermittent
FMLA leave to alternative positions. As discussed in the preamble
above, the Department found no statutory basis to permit transfers to
an alternative position for those taking unscheduled or unforeseeable
intermittent leave and declined to make this change in the final rule.
The non-substantive edits will have no impact on either employers or
workers.
Increments of FMLA Leave for Intermittent or Reduced Schedule Leave
(Sec. 825.205)
The Department proposed and has adopted some changes to make the
regulations more clear and accessible such as relocating some of the
language currently in Sec. 825.203 and adding subtitles. The
reorganization and clarification will have no impact on either
employers or workers.
In addition, the NPRM requested comments on whether the minimum
increment of leave should be raised for all workers or in situations
where a physical impossibility prevents an employee from commencing
work part-way through a shift. As discussed in the preamble above, the
Department retained the current requirement that employers use the
shortest period of time their leave system uses to account for other
types of leave as long as it does not exceed one hour. In doing so, the
Department also recognized that employers may account ``for absences or
use of leave in varying increments at different times of the day or
shift.'' This clarification coupled with the one hour increment
discussed above allows employers to assess FMLA-leave time in
increments of an hour to tardy employees, so long as the employees do
not work during the time charged as leave. However, the Department went
on to adopt changes related to situations where it is not possible for
an employee to commence work part-way through a shift.
The language in the final rule makes it clear that the Department
intends the exception to be applied narrowly to situations where an
employee is physically unable to access the worksite after the start of
the shift such as where a flight attendant or a railroad conductor is
scheduled to work aboard an airplane or train, or a laboratory employee
is unable to enter or leave a sealed ``clean room'' during a certain
period of time.
According to the Bureau of Labor Statistics, Occupational
Employment Survey, approximately 3.75 million employees work on flight
crews, train crews, ship crews, and as truck, bus, and subway drivers.
The Department also estimates another 150,000 employees work in clean
rooms for a total of 3.9 million workers.\21\ It is likely
[[Page 68053]]
that about 80.5 percent of these workers are covered and eligible to
take FMLA leave; that about 9.1 percent of those workers will take FMLA
leave; and that about 23.9 percent of those workers will take
intermittent FMLA leave, or about 68,000 workers. Further, since the
Department intends the physical impossibility exception to be applied
narrowly, this is likely to be an overestimate of the number of workers
who actually will be impacted by the change because it likely includes
a number of workers who will not fit into the exception examples
provided in the preamble above.
---------------------------------------------------------------------------
\21\ According to a 1999 report in the San Francisco Chronicle,
roughly 74,000 people across the country work in clean rooms
building semiconductors. The report is available at: http://
www.sfgate.com/cgi-bin/article.cgi?f=/c/a/1999/04/19/
BU86426.DTL&type=printable. The Department has doubled this estimate
to account for clean rooms in other industries and employment growth
since 1999.
---------------------------------------------------------------------------
Using Data from the BLS' Occupation Employment Statistics survey,
the Department estimates that the median hourly wage for flight crews,
train crews, ship crews, drivers, and clean room workers to be about
$17.66 per hour.
Assuming that the regulatory change will result in an average of
eight hours of additional unpaid leave for each of the estimated 68,000
workers who take intermittent leave in situations where it is not
possible for them to commence work part-way through a shift, then at
most $9.6 million per year (e.g., 68,000 workers per year x 8 hours per
worker x $17.66 per hour) would be transferred from these employees to
their employers in the form of unpaid FMLA leave or using accrued paid
leave.\22\ Again, since the Department intends the physical
impossibility exception to be applied narrowly, this is likely to be an
overestimate of the cost of this provision.
---------------------------------------------------------------------------
\22\ Based on the comments, the Department has determined that
under the current regulations some employers end up having to pay
two workers for the same shift when one worker shows up late for
work because they take intermittent FMLA leave (i.e., the worker
called in to take the shift of the employee on FMLA leave, and the
employee returning from FMLA leave). For example, the Airline
Industrial Relations Conference (comment for the RFI), noted that 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.'' Under the final rule, the employee could remain on unpaid
FMLA leave. Since under the final rule the employer would no longer
have to pay two employees for the same shift, the value of the
unpaid leave of the employee on FMLA leave is effectively a transfer
to the employer.
---------------------------------------------------------------------------
Finally, in response to comments, the Department is making two
revisions to the calculation of leave to address issues that arise when
an employee's schedule varies. First, the Department clarified that
workweeks and fractions thereof may be converted to hours for tracking
purposes. Second, the Department changed the rule for calculating an
average workweek when the employee has no normal schedule to a 12-month
rather than a 12-week average to account for seasonal variation. As
discussed in the preamble above, the Department believes that it has
addressed the commenters' concerns by changing the calculation of leave
so that overtime is factored into the leave entitlement, either because
the regular schedule is over 40 hours or because the employee is on a
variable schedule and the hours are averaged over a 12-month period.
The Department concludes that the changes to the calculation of leave
will have no impact on either employers or workers.
Substitution of Paid Leave (Sec. 825.207)
The Department proposed and has adopted several changes to Sec.
825.207 allowing employers to apply their normal paid leave policies to
the substitution of all types of paid leave for unpaid leave. In
addition, the Department proposed and has adopted changes that permit
employers and employees to voluntarily agree to supplement workers'
compensation benefits with accrued paid leave; allow the substitution
of compensatory time accrued by public agency employees; and deleted
current Sec. 825.207(h), which states that where paid leave is
substituted for unpaid FMLA leave and employer's procedural
requirements for taking paid leave are less stringent than the
requirements of the FMLA, employees cannot be required to comply with
the higher FMLA standards. Finally, the Department made a few editorial
changes such as deleting the term ``running concurrently.''
Several commenters criticized the Department's assessment in the
PRIA that the proposed changes to this section would have little
impact. Id. at 7947. The JEC stated ``[t]he Department does not provide
evidence that employees can easily access paid leave or vacation time,
or whether they can easily use paid time off for FMLA. While some FMLA
leaves can be planned or requested far in advance, many cannot.'' The
Institute for Women's Policy Research stated ``DOL does not report
having surveyed employers about the conditions they may impose on
taking paid leave, such as whether the leave must be requested some
number of days or weeks in advance, whether a minimum amount of paid
leave must be taken at once, or whether the leave must be coordinated
with co-workers' leave.'' The National Partnership for Women & Families
stated ``if an employer does not allow vacation leave during certain
times of the year, requires five days notice for vacation time, or
requires that vacation time be taken in four hour blocks, an employee
will have to abide by these rules when taking leave concurrently with
FMLA leave in order to be paid while on FMLA leave * * * Many employees
cut their leaves short because they cannot afford to go too long
without a paycheck. DOL's proposed new rule may increase the number of
employees that will have to face the agonizing choice between a
paycheck and their health or the health of a loved one.'' The Coalition
of Labor Union Women (``CLUW'') noted that ``information from members
indicates that the vast majority of unpaid leaves are unscheduled,
caused by unforeseen medical problems. CLUW is concerned that this
regulatory change will make it more difficult for an employee to
qualify for much-needed leave without income loss.'' The AFL-CIO stated
that ``[m]any collective bargaining agreements require employees to bid
on vacation time on an annual basis, and the Department's
reinterpretation would foreclose the use of paid vacation leave in
these workplaces.'' The Institute for Women's Policy Research also
stated that ``[i]t seems entirely reasonable to expect that some share
of FMLA leave-takers will not be able to meet their employer's general
paid leave requirements and thus will not be paid during their FMLA
leave. This will place a new financial burden on workers.''
The Department notes that it presented evidence based on data in
the 2000 Westat Report that suggests many employees can easily access
paid leave or vacation time. Id. at 7947. 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 a large
majority of workers will have no problem complying with their
employers' leave policies. Moreover, the Department concurs with the
Institute for Women's Policy Research that it is entirely reasonable to
expect that some FMLA leave-takers will not be able to meet their
employers' general paid leave requirements and thus will not be paid
during their FMLA leave. In fact, the Department presented data in the
PRIA from the 2000 Westat Report that suggests 14 percent of workers
reported that it was difficult to get time off and that a similarly
small percentage of the workers who received paid vacation or personal
leave during their FMLA leave may have some difficulty satisfying their
employers' paid leave policies.
The Department notes that the analysis presented in the PRIA was
not
[[Page 68054]]
based upon the assertion that very few workers would lose the ability
to use paid vacation and personal leave when they take FMLA leave under
the revised provisions. Rather, based upon data from the 2000 Westat
Report, the Department determined that 63.8 percent of workers do not
run either paid vacation or personal leave concurrently with their FMLA
leave. Moreover, of those workers who do use the types of paid leave
covered by the update in the final rule, many are likely to have no
problem complying with their employers' paid leave policies. 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.
In addition, a number of commenters pointed out that allowing
employees to have paid vacation leave run concurrently with their
unpaid FMLA leave without having to meet their employer's normal paid
vacation leave-taking rules, places employees using FMLA leave in a
more favorable position regarding the use of employer provided paid
leave than their coworkers taking vacation or personal leave for non-
FMLA reasons.
However, the Department recognizes that the inability to take paid
vacation leave concurrently with FMLA leave may have an impact on some
workers. Those workers who are covered by a collective bargaining
agreement (``CBA'') that requires them to bid on their vacations may
not be able to substitute paid vacation leave for unpaid FMLA leave
under the final rule unless their CBAs are changed. In addition, it is
likely that some workers who take FMLA leave that is unscheduled and
unforeseen will not be able to comply with their employers' procedures
(particularly those related to advanced notice) for taking vacation or
personal leave.
For the purposes of this RIA, however, the revisions have no impact
on the workers' ability to take unpaid protected FMLA leave or the
workers' ability to use accrued paid leave under their employers'
procedures. 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, and for the workers who may 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. Thus any impacts resulting from the final rule will be in the
nature of a lost opportunity to have paid leave run concurrently with
FMLA leave rather than actual income losses. How the lost opportunities
affect individual workers will depend on the amount of deferred paid
leave and the workers' financial status. Ultimately, the FMLA is an
unpaid leave statute that does not convey the right to the paid leave
that workers may have accrued but are not yet fully vested in. See Wage
and Hour Opinion Letter FMLA-75 (November 14, 1995). Nor does the
Department believe that Congress intended to put FMLA leave-takers in a
more favorable position regarding the use of employer provided paid
leave than their coworkers taking vacation or personal leave for non-
FMLA reasons. Therefore, the Department believes it has appropriately
determined for the purposes of the RIA that the updated text in the
final rule will have only minor unquantifiable impacts on workers.
Employee Payment of Group Health Benefit Premiums (Sec. 825.210)
The Department proposed and adopted some editorial changes (e.g.,
deleting the word unpaid) and some technical corrections (e.g., related
to the cross-references) to Sec. 825.210. These editorial changes and
technical corrections will have no impact on employers or workers.
Employee Failure To Make Health Premium Payments (Sec. 825.212)
The Department proposed and adopted a revision to Sec. 825.212(c),
which clarifies 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, the employer still has a duty to reinstate the
employee's health insurance when the employee returns to work, and the
employer may be liable for harm suffered by the employee as a result of
a failure to do so. Since this revision was a clarification of and not
a change to the Department's enforcement position, it will have no
impact on employers or workers.
Employer Recovery of Benefit Costs (Sec. 825.213)
The Department proposed and adopted a revision to Sec. 825.213 to
move language from current Sec. 825.310(h) in order to combine it with
other issues involving repayment of health premiums. This relocation of
the language will have no impact on employers or workers.
Employee Right to Reinstatement (Sec. 825.214)
The Department proposed and adopted organizational changes and
minor edits to Sec. 825.214 by moving language from current Sec.
825.214(b) to Sec. 825.216(c). This relocation of the language and
minor edits will have no impact on employers or workers.
Equivalent Position (Sec. 825.215)
The Department proposed and adopted minor organizational changes to
Sec. 825.215 such as adding subtitle headings and making some
editorial changes. The only substantive change proposed and adopted was
modifying perfect attendance awards in Sec. 825.215(c)(2) to allow
employers to disqualify employees from bonuses or other payments based
on achievement of a specified job-related performance goal where the
employee has not met the goal due to FMLA leave so long as this is done
in a nondiscriminatory manner. In the final rule the Department
replaced the proposed phrase ``unless otherwise paid to employees on
equivalent non-FMLA leave status'' with ``unless otherwise paid to
employees on an equivalent leave status for a reason that does not
qualify as FMLA leave.'' The final rule also changed Sec.
825.215(c)(1) to include the same limitation on the employer's ability
to deny pay increases.
As was noted in the PRIA, ``[p]erfect 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. In such situations,
both employers and employees gain from the bonus. Employers reduce
their costs. Employees increase their income * * * 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.'' Id. at 7947 (footnote omitted).
Several employee organizations and unions opposed the change
asserting that it would provide a disincentive to take FMLA leave
(e.g., Working America/Working America Education Fund, Center for
WorkLife Law, and National Partnership for Women & Families). However,
as was noted in the NRPM, employers believe ``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,
[[Page 68055]]
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.'' Id. at 7898.
The Department concludes that making the change is more favorable
to workers than the current trend of companies eliminating all perfect
attendance awards. The revisions were drafted to reduce the
disincentive for employers to provide such awards by treating workers
who take FMLA leave in a similar manner to employees ``on equivalent
leave status for a reason that does not qualify as FMLA leave.''
Although the Department expects that some reduction in unnecessary
absenteeism will reduce overall employer costs, data limitations
inhibit the Department from quantifying the impact of this revision.
Similarly, the nondiscriminatory treatment of FMLA leave for pay
increases based upon seniority, length of service or performance in
revised Sec. 825.215(c)(1) should eliminate the disincentive for
employers to provide these pay increases on these bases.
Limitations on an Employee's Right to Reinstatement (Sec. 825.216)
The Department proposed and adopted organizational changes and
minor edits to Sec. 825.216 such as moving language from current Sec.
825.214(b) and Sec. 825.312, as well as reordering and combining
paragraphs to Sec. 825.216(c). This relocation of the language and
minor edits will have no impact on employers or workers.
Explanation of Key Employees and Their Rights (Sec. 825.217 through
825.219)
The Department proposed and has adopted minor changes to update the
reference to ``salary basis.'' The updated reference will have no
impact on employers or workers.
Protection for Employees Who Request Leave or Otherwise Assert FMLA
Rights (Sec. 825.220)
The Department proposed and has adopted new language in Sec.
825.220 setting forth the remedies for interfering with an employee's
FMLA rights, such as referencing retaliation. The Department also
proposed and has adopted a change to Sec. 825.220(c) to clarify that
the prohibition against interference includes a prohibition against
retaliation as well as a prohibition against discrimination. These
clarifications will have no impact on employers or workers.
The Department also proposed and has adopted modified language in
Sec. 825.220(d) to clarify that the prohibition against employees
waiving their rights applies only to prospective FMLA rights and does
not apply to settling past FMLA claims. The Department concurs with the
comments of the College and University Professional Association for
Human Resources that the primary impact of ``this clarification * * *
will help promote voluntary resolution of claims and reduce unnecessary
litigation.'' Although it should be easier for employers and workers to
settle FMLA claims, data limitations prevent the Department from
quantifying the benefits of this clarification.
Finally, the Department proposed and adopted clarifying
modifications to Sec. 825.220(d) so that light duty does not count
against the employee's 12 week FMLA leave entitlement.
Since the Department received no comments on its analysis presented
in the NPRM, it retains that analysis for the final rule. ``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.'' Id. at 7947.
Changes to the Employer Notification Requirements (Sec. 825.300)
The Department proposed a reorganization of the notice requirements
so that all of the employer notice requirements were consolidated in
Sec. 825.300 under the major topics of ``general,'' ``eligibility,''
and ``designation'' notices, and ``consequences of failing to provide
notice.'' The final rule adopts the consolidated format, but makes
additional changes to further clarify employer obligations to provide
notice to employees. In addition, the final rule creates a new section,
titled ``Rights and responsibilities notice'' and relocates provisions
from proposed Sec. 825.300(b)(3) to that section. Each of the major
topics is discussed below.
General Notice (Sec. 825.300(a))
Current Sec. 825.300 addresses the statutory posting requirement
applicable to employers (29 U.S.C. 2619(a)). The Department proposed
and retained the current requirement that covered employers must post
the general notice even if no employees are eligible for FMLA leave
(see current Sec. 825.300(a) and final Sec. 825.300(a)(2)). The
Department also proposed and has adopted changes to allow electronic
posting and to increase the civil money penalties for willful
violations of the posting requirement. The Department believes that
electronic posting of the notice can facilitate increased employee
awareness while limiting cost burdens on employers. Although electronic
posting should result in some cost savings for employers, the
Department has not quantified this impact because it will depend on
many site-specific factors such as the accessibility of the notice to
both employees and applicants. Increasing the civil money penalties
from $100 to $110 was statutorily required by the Federal Civil
Penalties Inflation Adjustment Act of 1990 as amended by the Debt
Collection and Improvement Act of 1996 and will partially address the
erosion of the penalties due to inflation over time.
Current Sec. 825.300(c) requires that if the employer's workforce
is comprised of a significant portion of workers who are not literate
in English then the employer must post the notice in a language in
which the employees are literate. The Department proposed retaining
this requirement that appears in the final rule in Sec. 825.300(a)(4).
The final rule explicitly informs employers that prototypes are
available from the Wage and Hour Division office nearest the employer
or may be downloaded from the agency's Internet Web site. Thus, because
no changes have been made to the requirement there are no impacts on
workers or employers; to the extent employers avail themselves of Wage
and Hour Division prototypes, however, their costs should be reduced.
Under current Sec. 825.301(a)(1), the general notice must contain
the same information that is required to be posted in current Sec.
825.300(a), and a prototype notice is available in current Appendix C.
In the NPRM, proposed Sec. 825.300(a)(3) required covered
employers with eligible employees to distribute a general notice of
[[Page 68056]]
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 format, regardless of
whether an employee requests leave. Based upon the comments received
(see preamble discussion), the Department modified this provision in
the final rule so that employers are required to provide the general
notice either by including it in an employee handbook or other written
guidance to employees concerning employee benefits or leave rights, if
such written materials exist, or by distributing a copy to each new
employee upon hire. The Department has retained the proposal in the
final rule that the general notice may be distributed by electronic
means, and has also updated Appendix C.
In the proposal, the Department estimated the costs that would be
incurred by employers who do not have handbooks. Id. at 7948. Many
employers commented about the burden that the proposed requirement
would impose.
For the final rule, the Department has determined that because
current Sec. 825.301(a)(2) and (c) require employers to provide the
general notice to employees no less often than the first time in each
six-month period that an employee gives notice of the need for leave,
and the final Sec. 825.301(a) only requires the general notice to be
posted and included in employee handbooks or other written guidance, or
in the alternative, distributed to each new employee upon hiring, the
burden and cost to employers of this subsection of the general notice
requirements will be reduced.
In the proposal, the Department estimated the costs that would be
incurred by employers who do not have handbooks. Id. at 7948. Many
employers commented about the burden that the new requirement would
impose. For example, Spencer Fane Britt & Browne asserted ``[t]here is
also no other federal employment law that requires such onerous notice
requirements * * *.'' (See also the preamble discussion of Sec.
825.300(a)(3)). However, since none of the comments specifically
addressed the Department's approach, the Department will use the same
approach in the final rule to estimate the increased costs for covered
employers without handbooks with an adjustment so that costs are only
associated with new employees:
CONSAD estimated the number of additional notices that may be
required for this provision, based upon data from the 2000 Westat
Report * * * employers currently send out about 1 million general
notices to employees requesting leave * * * Under the new provision
* * * 6.8 million additional general notices [will be] sent out each
year * * * 2.2 million * * * will be emailed, 4.2 million will be
hand-delivered at work, and 0.4 million notices will be sent by
regular mail * * * 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 * * * the estimated cost to prepare the 29,000 email
notices is about $1.1 million * * * and the estimated cost for
57,000 firms to hand deliver notices is about $3.4 million * * * The
estimated cost * * * to prepare and deliver the notice through
regular mail is about $0.6 million * * * Adding all of these costs
together yields a total estimated annual additional cost of about
$5.1 million for the general notice proposal. Id. at 7948.
After receiving these general notices when they are hired, 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. Based upon data from Westat, in
the PRIA the Department estimates that the number of FMLA leave-takers
will increase by about 37,000 employees because of the proposed general
notice provision resulting in annual estimated administrative costs of
approximately $1.7 million. Id.
The Department used data from the Job Openings and Labor Turnover
Survey (``JOLTS'') to adjust the PRIA estimates for providing the
general notice to new employees rather than all employees on an annual
basis. According to the 2008 annual release, hires in 2007 were
equivalent to 42 percent of employment. (USDL 08-0332 at 5.) \23\
Applying this 42 percent to the costs for all workers results in an
estimated $2.1 million for the general notice (i.e., 42% of $5.1
million) and $0.7 million for increased leave use (i.e., 42% of $1.7
million).
---------------------------------------------------------------------------
\23\ Available at: http://www.bls.gov/news.release/archives/
jolts_03122008.htm.
---------------------------------------------------------------------------
Eligibility Notice (Sec. 825.300(b))
The Department proposed and adopted changes to consolidate and
strengthen the existing eligibility notices in Sec. 825.300(b).
Consistent with current Sec. 825.110, the employer continues to be
responsible for communicating eligibility status.
The Department proposed and adopted an extension to the time frame
for the employer to respond to an employee's request for leave in Sec.
825.300(b)(1) from 2 days to 5 days. In the final rule, the Department
reinserted the phrase ``absent extenuating circumstances'' that appears
in current Sec. 825.110(d).
In the NPRM, the Department stated ``[p]roviding more time will
reduce mistakes and provide greater certainty in the workplace, and
this typically benefits both workers and employers.'' Id. at 7949.
Based on the comments supporting the extension (see, for example,
Infinisource, Hinshaw & Culbertson, U.S. Small Business
Administration's Office of Advocacy, Community Health and Counseling
Services, Hewitt Associates, and Southwest Airlines), the Department
concludes that its initial assessment was correct, despite the fact
that many comments argued for shorter or longer periods (see the
preamble discussion of Sec. 825.300(b)).
In the PRIA, the Department combined the savings resulting in the
longer time given employers to provide both the eligibility and
designation notices in a single calculation. For the final rule, the
Department has determined that two calculations are necessary because
the number of eligibility notices will be greater than the number of
designation notices.
As noted in the PRIA, CONSAD, 2.1 at 20, estimated that the 95.8
million workers employed in establishments covered by the FMLA made
12.7 million leave requests in 2005. See id. The Department estimates
that the changes related to increasing the time permitted to provide
the eligibility notices will save employers an average of five minutes
per notice of a ``compensation and benefits specialist'' time in
processing each request. At a cost of $36.51 per hour, saving 0.08
hours on each of the estimated 12.7 million leaves requested results in
a savings of about $37.1 million.
Proposed Sec. 825.300(b)(2) required employers to notify employees
both of their eligibility status and the availability of FMLA
entitlement. The Department notes that the requirement to inform
employees if they are eligible to take FMLA leave is not a new one, and
the obligation has always been triggered by the employee providing
notice of the need for leave that may be covered under the FMLA. See
current Sec. Sec. 825.110(d), 825.302, 825.303. The new requirement in
proposed Sec. 825.300(b)(2), which is retained in the final rule, is
that when an employer determines that an employee is not, in fact,
eligible to take FMLA leave, the employer must inform the employee and
indicate why the employee is not eligible. If the employee is not
eligible for FMLA leave, the proposal would have required employers to
list the reasons why the employee is not eligible
[[Page 68057]]
or that the employee has no FMLA leave available ``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 worksite where
50 or more employees are employed by the employer within 75 miles of
that worksite.'' Id. at 7978. However, the Department's assessment in
the PRIA was ``that there will be very little additional burden, since
the employer is already required to calculate such information in order
to determine eligibility.'' Id. at 7949.
The Department received a number of comments on this proposed
revision. For example, National Association of Manufacturers (``NAM'')
stated that ``[p]roposed Sec. 825.300(b)(2) may present a significant
administrative burden on employers because it invites employees to
request information about eligibility and entitlement without imminent
need for leave. Currently, employers need only calculate eligibility
and verify remaining leave if an employee has expressed a need for
foreseeable leave, or at the time that the need for leave arises. NAM
members are concerned that employers will be obligated to respond to
requests for verification of eligibility and entitlement in addition to
all of the requests they already receive from employees with an actual
need for leave. The proposed regulation should require that employers
need only provide information about FMLA eligibility and entitlement in
concert with an imminent need for leave.'' Hewitt Associates stated
``employers must send a separate notice that informs employees that
they are ineligible * * * [This] will mean a large increase in
notifications produced as the current regulations have not required
employers to communicate FMLA data to ineligible employees.'' And,
according to Society for Human Resource Management ``[t]he practical
import of this requirement is that any time an employee requests leave
that involves any type of medical issue, the employer would be required
to send out paperwork indicating that the employee is not eligible or
entitled to leave.''
In response to these and other comments (see the preamble
discussion of Sec. 825.300(b)(2)), the Department changed the proposed
requirements. The provision in the final rule permits the employer to
limit the notification that the employee is ineligible to any one of
the potential reasons why an employee fails to meet the eligibility
requirements. In addition, in recognition of the potential inaccuracies
in the employer's estimates the Department modified this provision to
indicate that the information is a ``good faith estimate.'' The
Department disagrees with the Society for Human Resource Management's
assertion, however, that the revised provisions will increase
employers' burden because they will be obligated to respond to employee
requests for verification of eligibility. Current Sec. 825.301(d),
which has been relocated to Sec. 825.300(b)(5), specifies that
``[e]mployers are also expected to responsively answer questions from
employees concerning their rights and responsibilities under the
FMLA.'' So there is no new obligation being created except for
providing the notice in writing to workers who are ineligible to take
FMLA leave.
As noted in the PRIA, CONSAD estimated that 12.7 million of the
95.8 million workers employed in establishments covered by the FMLA
requested FMLA leave in 2005, and that these requests resulted in 7.0
million workers taking FMLA leave. Id. at 7949. This strongly suggests
that 5.7 million workers were denied FMLA leave either because the
worker was found to be ineligible, or because the condition did not
rise to the level of a serious health condition. In the PRIA, all of
the denials were implicitly assumed to be eligible workers being denied
due to the condition so all of the costs were attributed to changes in
the designation notice. This is clearly not the case. For the final
rule, the Department is attributing one-half of the denials to the
workers being found ineligible, and one-half of the workers who were
denied FMLA leave on the basis that the workers' or the family members'
condition did not rise to the level of a serious health condition.
The Department assumes that the 2.85 million workers (i.e., 5.7
million divided by 2) who were denied FMLA leave on the basis of
eligibility will on average receive 1.5 denial notices per year.\24\
The Department estimates that creating and distributing 4.3 million
eligibility notices (i.e., 2.85 million times 1.5) to workers found to
be ineligible will cost employers on average about 10 minutes of a
``compensation and benefits specialist'' time for each notice. This
estimate does not include the time for the calculations, since the
calculations are required by both the current and revised provisions to
determine eligibility. At a cost of $36.51 per hour for each of the
estimated 4.3 million requests from workers found to be ineligible to
take FMLA leave will result in additional costs of about $26.2 million
(i.e., 4.3 million times $36.51/6).
---------------------------------------------------------------------------
\24\ This accounts for some workers being denied multiple times
due to different reasons. For example, a worker who is initially
denied because they have worked less than 12 months for the employer
may be subsequently denied on the basis that they did not work 1,250
hours in the previous 12 months.
---------------------------------------------------------------------------
The remainder of Sec. 825.300(b) is based upon current Sec.
825.301(a) with some minor conforming edits such as changing the two
day period to five days as was done in Sec. 825.300(b)(1) (see
preamble discussion). In addition, in response to comments that
providing a list of essential job functions with the eligibility notice
would create an administrative burden for employers, the final rule was
restructured so that employers are required to provide employees with
the list of essential job functions no later than the designation
notice, if the employer requires a fitness-for-duty certification to
return to work. These changes from the current rule will have no impact
on employers or workers.
Finally, the Department estimates that the additional eligibility
notices for the 139,000 workers taking military leave under Sec. Sec.
825.126 and .127 will each take about 10 minutes of a Human Resource
Compensation and Benefits Specialist's time to prepare. At an average
hourly wage and benefits rate of $36.51, this will result in additional
costs of $0.8 million (i.e., 139,000 x $36.51/6).
Rights and Responsibilities Notice (Sec. 825.300(c))
The final rule moved proposed Sec. 825.300(b)(3) to final Sec.
825.300(c), separating the notice of rights and responsibilities from
the notice of eligibility. To simplify the timing of the notice of
rights and responsibilities and to avoid unnecessary administrative
burden on employers, Sec. 825.300(c)(1) of the final rule requires
employers to provide this notice to employees at the same time that
they provide the eligibility notice. Additionally, if the information
in the notice of rights and responsibilities changes, Sec.
825.300(c)(4) also requires the employer to notify the employee of any
changes within five business days of the first notice of the need for
FMLA leave subsequent to any change. This timing requirement will
ensure that employees receive timely notice of the expectations and
obligations associated with their FMLA leave each leave year and also
receive prompt notice of any change in those rights or responsibilities
during the leave year. In addition, the final rule makes some
clarifying changes to the
[[Page 68058]]
language of proposed Sec. 825.300(b)(3). Also, in response to comments
that providing a list of essential job functions with the eligibility
notice would create an administrative burden for employers (see, for
example, Hewitt Associates, Vercruysse Murray & Calzone, ORC Worldwide,
AT&T, and NAM), the final rule was restructured so that employers are
required to notify employees no later than the designation notice that
a fitness-for-duty certification is required and to provide the list of
essential job functions at that time, if the employer wants the
worker's ability to perform these functions addressed in the fitness-
for-duty certification. Finally, the prototype notice is referenced in
Sec. 825.300(c)(6). Since the requirements of this section are in
current Sec. 5.301(b)(1), these changes will have no impact on
employers or their employees.
However, the additional workers taking FMLA leave under the
military leave provisions in Sec. Sec. 825.126 and 825.127 will result
in additional rights and responsibilities notices. The Department
estimates that each rights and responsibilities notice will take about
20 minutes of a Human Resource Compensation and Benefits Specialist's
time to prepare. At an average hourly wage and benefits rate of $36.51,
preparing 139,000 rights and responsibilities notices will result in
additional costs of $1.7 million (i.e., 139,000 x $36.51/3).
Designation Notice (Sec. 825.300(d))
Under current and proposed regulations, employers must notify the
employee in writing when the leave is designated as FMLA leave. Section
825.300(d) outlines the requirements of the designation notice an
employer must provide to an employee. Additional requirements are
located in Sec. 825.301. The revisions were designed to strengthen and
clarify the existing requirements currently located in Sec.
825.208(b). In the final rule, the Department is requiring employers to
provide the list of essential job functions to employees (in those
cases in which this is to be addressed in the fitness-for-duty
certification as discussed above) no later than with the designation
notice for those workers who are required to provide a fitness-for-duty
certification in order to return to work. The cost of providing the
list of essential job functions for employers is estimated below in the
section of the RIA that discusses Sec. 825.310. Because of this
change, several of the provisions have been renumbered.
The proposed Sec. 825.300(c)(1) required 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. In the final rule, the Department adopts this change but
reinserts the phrase ``absent extenuating circumstances'' that appears
in current Sec. 825.208(b)(1) and makes some minor editorial edits.
Several comments stated that increasing the time to provide the
designation notice would reduce the burden on employers. See, e.g.,
Retail Industry Leaders Association, Illinois Credit Union League,
Verizon, and Cummins.
Since the Department did not receive any comments on its
methodology for estimating the costs of the designation notice in the
PRIA, the Department is using a similar approach here. CONSAD estimated
that the 95.8 million workers employed in establishments covered by the
FMLA made 12.7 million leave requests in 2005. The Department estimated
above, that 1.1 million leave requests were denied on the basis that
the workers were ineligible. The remaining 11.6 million leave requests
require designation notices. As in the PRIA, the Department estimates
that the changes related to increasing the time permitted to provide
the eligibility notices will save employers an average of 5 minutes per
notice of a ``compensation and benefits specialist'' time in processing
each request. At a cost of $36.51 per hour, saving 0.08 hours on each
of the estimated 11.6 million determination notices results in a
savings of about $33.9 million for employers.
Proposed Sec. 825.300(c)(2) requires the employer to notify the
employee if the leave is not designated as FMLA leave and the reason
the leave was not designated. This change has also been adopted in
Sec. 825.300(d)(1) with minor editorial changes. Since the Department
did not receive any substantive comments on the estimates presented in
the PRIA, a similar approach to estimate the costs is used for the
final rule. As noted above, based on the CONSAD analysis, the
Department estimated that 5.7 million covered employees who request
FMLA leave each year are denied that leave. The Department assumes that
one-half of these workers are denied FMLA leave on the basis that the
worker was ineligible for FMLA leave, and one-half are due to the
condition not qualifying as a serious health condition. To account for
multiple denials based upon different conditions, the Department
assumes that these workers would average 1.5 denials per 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 providing the 2.85
million workers (i.e., 5.7 million/2) with the explanation why their
requests for FMLA has been denied will result in a cost to employers of
about $52.0 million (i.e., 2.85 million times $36.51/2).
Proposed Sec. 825.300(c)(3) permits employers to provide both the
eligibility notice and the designation notice at the same time. This
change has been adopted as Sec. 825.300(d)(2) with minor editorial
changes. The Department assumes that employers will have sufficient
information to provide both the eligibility and designation notices for
about 25 percent of the approved FMLA leaves (e.g., the employer will
probably issue both notices at the same time for many unforeseeable
health conditions that result in an overnight hospital stay). The
Department estimates that the changes related to providing both notices
at the same time will save employers an average of 10 minutes per
notice of a Human Resource Compensation and Benefits Specialist's time
in processing each leave. At a cost of $36.51 per hour, saving 0.17
hours on 25 percent of 10.5 million leaves results in a savings of
about $16.3 million for employers.
The new provisions related to fitness-for-duty certifications are
located in Sec. 825.300(d)(3). As discussed above, this change was
made in response to comments that the proposed requirement to include
this information with the eligibility notice would have unduly burdened
employers. Since the final requirement is based upon current Sec.
825.301(b)(1)(v) it will have no impact on employers or workers.
Proposed Sec. 825.300(c)(4) referenced a new prototype designation
notice. The form is referenced in Sec. 825.300(d)(4) in the final
rule. Although the inclusion of a prototype designation notice should
make compliance easier for employers, the Department has not assessed
the savings.
Proposed Sec. 825.300(c)(1) expressly required that the employer
inform the employee of the number of hours, days or weeks that would be
designated as FMLA leave. The Department has adopted this with the
change discussed below as Sec. 825.300(d)(6) in the final rule. Since
the Department did not receive any substantive comments on the
methodology used in the PRIA (id. at 7949) to estimate the burden of
providing the estimated amount of designated FMLA leave to workers, the
same approach was used for the final rule. The Department assumes it
would take an additional 10 minutes of Human
[[Page 68059]]
Resource Compensation and Benefits Specialist's time to process each
designation because of the new requirement to provide the amount of
time that will be designated as FMLA leave to workers. Based upon 10.5
million leaves, this will result in about $65.9 million in additional
costs.
To the extent that future leave would be needed but the exact
amount of leave was unknown, proposed Sec. 825.300(c)(1) also required
that the employer inform the employee every 30 days that leave was
designated as FMLA leave and advise the employee of the amount so
designated. In the PRIA, the Department estimated that providing
designation notices every 30 days to workers with chronic conditions
would cost employers approximately $121.9 million per year. Id. The
Department received many comments about the burden this provision would
impose on employers. For example, the Chamber of Commerce of the United
States of America (the ``Chamber''), stated ``[s]uch a requirement will
require employers to constantly monitor and communicate with numerous,
if not hundreds, of employees who take intermittent FMLA leave. This
requirement is therefore unduly burdensome.'' See also, Community
Health and Counseling Services, New York City Law Department, NY,
Unified Government of Wyandotte County/Kansas City (KS), and Vercruysse
Murray and Calzone. In response to these comments, Sec. 825.300(d)(6)
of the final rule requires that if it is not possible to provide the
hours, days or weeks that will be counted against the employee's FMLA
leave entitlement (such as in the case of unforeseeable intermittent
leave), then the amount of leave counted against the employee's FMLA
leave entitlement must be provided upon the request by the employee,
and then only every 30 days and only if the employee has taken FMLA
leave. Since the new language in the final rule is simply a
clarification of existing Sec. 825.301(d), this change will have no
impact on employers or workers.
However, the additional workers taking FMLA leave under the
military leave provisions in Sec. Sec. 825.126 and 825.127 will result
in additional designation notices. The Department estimates that each
rights and responsibilities will take about 20 minutes of a Human
Resource Compensation and Benefits Specialist's time to prepare. At an
average hourly wage and benefits rate of $36.51, preparing 139,000
designation notices will result in additional costs of $1.7 million
(i.e., 139,000 x $36.51/3).
Consequences of Failing To Provide Notice (Sec. 825.300(e))
The Department proposed in Sec. 825.300(d) and has adopted as
Sec. 825.300(e) a remedy provision tailored to individualized harm for
any violation of the general, eligibility, or designation notice
requirements. This provision arises out of the U.S. Supreme Court's
Ragsdale decision which invalidated the remedy provision in current
Sec. 825.301(f). As in any action arising under the FMLA, any remedy
is specific to the facts of the individual's circumstances, and a court
may order appropriate relief. For the purposes of this RIA the
Department assumes full compliance with the final rule and, therefore,
has not estimated any cost associated with this provision.
Employer Designation of FMLA Leave (Sec. 825.301)
The Department proposed and has adopted the relocation of the
requirements of current Sec. 825.301 into Sec. 825.300 (see the
discussion above) and the requirements in current Sec. 825.208
addressing the designation of FMLA leave, in order to consolidate all
the designation requirements in one place. In addition, as is discussed
in the preamble, the Department proposed and adopted several changes
necessitated by the U.S. Supreme Court's Ragsdale decision. For
example, the Department has changed the remedy provisions because the
current remedy provisions have not been enforceable since Ragsdale. In
addition, the Department made some editorial changes and clarifications
such as removing the references to ``unpaid leave'' and ``paid'' leave
because the provisions apply to all FMLA leave. Finally, the Department
proposed and adopted the elimination of the ``provisional designation''
concept in current Sec. 825.208(e)(2) because it could cause confusion
over whether leave is protected prior to the actual designation,
especially in cases where the leave does not eventually qualify for the
Act's protections.
Although many comments supported the Department's proposal to
delete the provisional designation, some employee representatives
commented that workers benefit from the designation because it allows
employers to make a quick determination. The National Partnership for
Women & Families noted that ``DOL does not explain how this change
could affect workers and whether the lack of a provisional designation
accompanied by DOL's proposal to grant employers more time to respond
to employee's requests for FMLA leave will make employees less likely
to take FMLA leave as they will not know quickly whether the leave will
be covered.'' See also, Communications Workers of America, American
Association of University Women, and AFL-CIO. As noted in the preamble,
the Department believes provisional designation gives the workers a
false sense of comfort that their leave is job protected under the
FMLA. If an employee takes leave under a provisional designation and
the leave is subsequently determined not to qualify as FMLA leave then
the leave will not be protected regardless of the provisional
designation. The Department believes that it is better not to provide
workers with a provisional designation so that they can make
alternative arrangements if possible to avoid taking unprotected leave
or take leave with the full knowledge that it may be unprotected.
The Department, therefore, concludes that none of these changes
should have an impact on employers and their employees.
Employees Notifying Their Employers of the Need for Leave (Sec. Sec.
825.302, .303 and .304)
Sections 825.302, 825.303 and 825.304 of the current regulations
require an employee to notify his or her employer of the need for leave
and to generally schedule leave for planned medical treatments in a way
that the absences do not unduly disrupt the employer's business
operations. The Department proposed and adopted several revisions to
these requirements intended to reduce the impact of leave taking and
uncertainty in the workplace without negatively impacting leave-
needers.
Sections 825.302, 825.303 and 825.304 of the final rule require an
employee who seeks leave due to a condition for which the employer has
previously provided FMLA-protected leave to inform the employer that
the leave is for a condition that was previously certified or for which
the employee has previously taken FMLA leave. This change should reduce
the burden on employers with no impact on employees. However, data is
not available for the Department to estimate the savings that will
result from this change.
The final rule also requires the employee to provide notice as soon
as practicable and comply with the employer's usual procedures for
calling in and requesting leave, except where unusual circumstances
exist. If the employee fails to comply with these requirements, the
employer may delay FMLA coverage for the leave. As the Department
stated in the PRIA the
[[Page 68060]]
``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.'' Id. at 7950.
As noted in both the RFI Report (72 FR at 35631) and the PRIA (73
FR at 7950), ``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.''
In response to the NPRM, CUPA-HR stated that ``call-in procedures
can be `critical to an employer's ability to ensure appropriate
staffing levels.' This issue is of major concern for CUPA-HR members,
with close to 65 percent of those participating in a recent survey
reporting problems with notice for leave and unscheduled absences.''
The Society for Human Resource Management (``SHRM'') stated that
``[w]hen unforeseen leave is used, in many cases co-workers bear the
burden of such call-ins, because employers do not have enough time to
adequately staff for the employee absences and still run their
operations if the co-worker is allowed to depart from work. In other
cases, the co-worker must bear the burden of performing their own job
and that of the employee on FMLA leave because of the lack of notice
provided.''
In the PRIA the Department estimated that the ``net impact of all
of the revisions discussed in Sec. Sec. 825.302, 825.303 and 825.304
would be a net savings of about $121.8 million.'' 73 FR at 7951. The
Department's estimated savings were based upon its estimate of the
potential number of leaves impacted by the revisions. According to a
2007 survey conducted by the Society for Human Resource Management (the
SHRM survey),\25\ ``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. 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. 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).'' Id. at 7950.
---------------------------------------------------------------------------
\25\ FMLA and Its Impact on Organizations: A Survey Report by
the Society for Human Resource Management, July 2007, available at:
www.shrm.org/hrresources/surveys_published/
FMLA%20And%20Its%20Impact%20On%20Organizations%20Survey%20Report.pdf.
---------------------------------------------------------------------------
The JEC criticized the Department's estimate of the no or short
notice leaves stating ``[t]he Department relies on an estimate for the
prevalence of lack of notice that seems unreasonably high * * * the
SHRM data are not based on a nationally representative sample, but
rather on a survey of self-selected SHRM human resource practitioners.
Further, the description of SHRM's analysis does not make clear how or
if SHRM dealt with `notice' when the employee fell sick at work or
needed to leave work to care for a sick family member. The Department's
statement that the SHRM's finding is consistent with that of the
Employment Policy Foundation (EPF) does not bolster the claim. The EPF
is an industry-sponsored non-profit that has now gone out of business;
their reports are currently not available to the public and their
analysis should not be relied on as the basis for policymaking because
it may be biased and is now unverifiable. It is unclear whether the
SHRM survey is referring to all FMLA leaves or only intermittent leave
and the final number seems much higher than expected. The term
``episodic conditions'' implies that the survey only applies to a
subset of leaves * * * If 46 percent of all leaves provide no advance
notice, this implies that two-thirds of all non-new child leaves do not
provide notice, since the Westat Report finds that a quarter of leaves
are for pregnancy or care for a new child and are therefore foreseeable
in most cases. This high share of employees providing no notice seems
highly suspect * * *.''
First, the Department notes that although the JEC asserts that the
SHRM ``estimate for the prevalence of lack of notice * * * seems
unreasonably high'', the JEC provides no data to support its assertion.
If the JEC is basing its assertion on data, these data were not given
to the Department in any of the comments to the RFI or the NRPM. Nor
did the Department find such data in any of the comments or literature
reviewed by CONSAD or DOL staff. Therefore, the Department concludes
that the JEC assertion was not based upon any data; in contrast, the
Department's PRIA estimate was based on available data.
Next, the JEC asserts that the Department should not use the SHRM
survey because it is unrepresentative and SHRM's findings cannot be
confirmed by the EPF report because the EPF report is unavailable to
the public.\26\ Although SHRM conducted a membership survey, the survey
respondents represented a broad range of firms based upon industry,
staff size, unionization, and region (SHRM Survey). The Department
would normally be concerned about the over representation of medium and
large firms, which comprised approximately 75 percent of the
respondents that reported size; however, this is not a significant
issue in this analysis because the FMLA specifically excludes small
businesses with fewer than 50 employees from the scope of coverage.
---------------------------------------------------------------------------
\26\ A similar criticism of the SHRM survey was made by the
Institute for Women's Policy Research.
---------------------------------------------------------------------------
Moreover, as discussed previously, the Department attempted to
validate estimates including those from the Westat surveys by comparing
them to estimates from alternative sources. The Department agrees with
the JEC that this validation is particularly important when using data
from membership surveys. Although this validation was not always
possible despite the Department's efforts to collect data in the RFI,
in this instance the SHRM estimate was collaborated by estimates from
the EPF. In spite of some limitations in both the SHRM and EPF surveys,
the fact that their estimates are very close to each other provides
confidence in the use of these estimates. The JEC's assertion that the
Department cannot use the EPF survey to validate the SHRM survey
because the EPF report is unavailable to the public is incorrect. The
Department placed the EPF report in the publicly available RFI docket
\27\ as it did many other materials (e.g., the Westat report \28\) that
were referenced in the RFI. These materials are still available on the
regulations.gov Web site.
---------------------------------------------------------------------------
\27\ Available at: www.regulations.gov/fdmspublic/
ContentViewer?objectId=09000064801e8894&disposition=attachment&conten
tType=pdf.
\28\ Available at: www.regulations.gov/fdmspublic/
ContentViewer?objectId=09000064801ec387&disposition=attachment&conten
tType=pdf.
---------------------------------------------------------------------------
The JEC makes a valid point that the application of SHRM's 46
percent rate to all leaves may have overstated the impacts of the
revisions because the 46 percent rate applied to ``episodic
conditions'' implying that it only applies to a subset of leaves. So
the
[[Page 68061]]
Department has reassessed the findings of the SHRM survey and presents
a summary of the review below.
SHRM found that 8 percent of workers at covered establishments took
FMLA leave in the past year (SHRM survey), which is comparable to
CONSAD's estimate of 7.3 percent based upon adjusted Westat survey data
(73 FR at 7943). As previously discussed in the PRIA, the issue with
both the SHRM and Westat surveys is that employees may take leave that
involves more than one event or episode. ``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).'' Id. at 7944.
When reviewing the findings in the SHRM survey for the PRIA, the
Department felt that it was not appropriate to remove leave taken for
family reasons, even though SHRM reported (at 17) that employees can
and do provide significant notice for the actual birth or adoption.
Similarly, the Department did not feel that it was appropriate to
remove leave taken for catastrophic events even though the SHRM survey
breaks these out in Figure 7 (at 17). For example, while SHRM states
``[f]or catastrophic event[s], it should come as no surprise when an
employee provides notice on the same day of leave due to its
unforeseeable nature (50%),'' the Department felt that the employee may
have subsequent episodes of treatment, rehabilitation, and flare-ups.
Therefore, in the PRIA the Department applied the rate for episodic
conditions to all leaves.
However, based upon its reconsideration of the SHRM survey, the
Department has reanalyzed the data towards the goal of applying the
rate for episodic conditions to only a subset of leaves that may be a
better estimate of those leaves that are truly episodic. According to
Table 10 of the SHRM survey, leaves for family-related reasons \29\
account for 38 percent of leaves and leaves for medical reasons \30\
account for 59 percent of leaves. Together these two reasons account
for nearly 100 percent or all reasons for leave given rounding errors.
Since Table 10 also states that leaves for episodic conditions \31\
account for 32 percent of leaves, the leave for episodic conditions
must overlap the leave for family-related and medical reasons.
---------------------------------------------------------------------------
\29\ Family-related reasons include maternity, birth or adoption
of a child or newly placed foster child. (SHRM Survey)
\30\ Medical reasons include an employee's serious health
condition or care for a child, spouse or parent who has a serious
health condition. (SHRM Survey)
\31\ Episodic condition includes ongoing injuries, ongoing
illnesses and/or non-life-threatening conditions. (SHRM Survey)
---------------------------------------------------------------------------
Moreover, the estimated number of episodic leaves based on the 2000
Westat Report can be calculated by subtracting the Department's
estimate of 7.0 million workers who had at least one FMLA leave episode
in 2005 from its estimate of 10.5 million FMLA leaves taken in
2005.\32\ If the resulting 3.5 million episodic (or multiple event)
FMLA leaves is divided by the 10.5 million estimated total FMLA leaves,
then episodic conditions accounted for 33 percent of leaves in the 2000
Westat employee survey, a figure almost identical to the SHRM estimate.
Therefore, the Department now believes that it is appropriate to only
apply SHRM's notification rate for episodic conditions to one-third of
FMLA leaves. Thus, the Department estimates that no notice is currently
being provided prior to the start of the workday for 1.6 million leaves
(i.e., 46 percent of the estimated 3.5 million leaves for episodic
conditions).\33\
---------------------------------------------------------------------------
\32\ Note these estimates do not include the estimated 200,000
employees who will take an estimated 300,000 leaves under the
military leave provisions of the NDAA because when estimating the
costs of Sec. Sec. 825.126 and .127 the Department did not include
costs that would be saved by the revisions to Sec. Sec. 825.302,
.303 and .304.
\33\ The Department notes that SHRM's 46% estimate is not only
consistent with the EPF estimates as was noted previously, but is
also consistent with the WorldatWork estimate that 51% of
intermittent leaves are unscheduled and that notice for 56% of
intermittent leaves occurs either on the day of the absence (43%) or
the day following the absence (10%).
---------------------------------------------------------------------------
The Department believes that this estimate probably understates the
actual amount of leave taken for episodic conditions because, as
previously stated, the 10.5 million estimated number of leaves may be
understated because of issues with the term ``leave.'' However, this is
somewhat, although not completely, compensated by the fact that some
leaves for episodic conditions will not be affected by the revisions to
Sec. Sec. 825.302, 825.303 and 825.304.\34\ As was noted by the JEC,
there has been no attempt to estimate the number of employees who
either fell sick at work or needed to leave work to care for a sick
family member. As is the case for catastrophic events, the changes to
Sec. Sec. 825.302, 825.303 and 825.304 will not increase the amount of
notice that the employees can provide for these unforeseeable leaves,
so these leaves should not be included in the basis for the savings
resulting from the changes.
---------------------------------------------------------------------------
\34\ According to WorldatWork, notice of 7% of intermittent
leaves occurs during the work shift. However, WorldatWork also
estimated that notice for 56% of intermittent leaves occurs either
on the day of the absence or the day following the absence. So if
the notices given during the work shift are removed, then according
to WorldatWork, notice for 49% of intermittent leaves was either
provided on the day of the absence but prior to the shift or the day
after the shift. (1528.1, attachment at 7) This estimate is slightly
higher than the 46% SHRM estimate of the no or short notice leaves
used by the Department.
---------------------------------------------------------------------------
Since there were no comments on the remainder of the Department's
analysis of the revisions to Sec. Sec. 825.302, 825.303 and 825.304,
the Department simply divided the PRIA estimate of $121.8 million by
three to arrive at an estimated net savings of about $40.6 million.
Medical Certifications (Sec. Sec. 825.305, 825.306 and 825.307)
Sections 25.305, 825.306 and 825.307 specify the requirements for
medical certifications. Each section is discussed below, followed by
the Department's estimate of the impact of the combined updates to the
medical certification provisions.
General Rule for Medical Certifications (Sec. 825.305)
Section 825.305 sets forth the general rules governing employer
requests for medical certification to substantiate an employee's need
for FMLA leave due to a serious health condition. The Department
proposed and adopted a change to Sec. 825.305(b) to increase the usual
time frame during which an employer should request medical
certification from two business days to five business days after the
employee provides notice of the need for FMLA leave. This change is
consistent with the modifications made to Sec. 825.300. The Department
also proposed and adopted a change to Sec. 825.305(b), in order to
make it consistent with the timing requirements of Sec. 825.311, by
requiring the employee to 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),
[[Page 68062]]
unless it is not practicable under the particular circumstances to do
so despite the employee's diligent, good faith efforts.
The Department proposed and adopted additions to Sec. 825.305(c)
to clarify the meaning of incomplete and insufficient certifications
and set forth a procedure for curing incomplete or insufficient
certifications. As a result, the final rule requires the employer to
notify the employee in writing of what information is necessary for
completing the medical certification and to provide the employee at
least seven calendar days to furnish the additional information.
The Department proposed and adopted changes to Sec. 825.305(d) to
clarify that if an employee fails to submit a complete and sufficient
certification despite the opportunity afforded by the provisions of
Sec. 825.305(c), the employer may deny the taking of FMLA leave. In
addition, the Department proposed and adopted a clarification that when
the employer requires a certification, the employee's obligation to
provide either a complete and sufficient certification or provide any
necessary authorization for the healthcare provider to release a
complete and sufficient certification directly to the employer applies
to initial certifications, recertifications, second and third opinions
and fitness-for-duty certifications.
Finally, the Department proposed and adopted the deletion of Sec.
825.305(e), which specified that if the employee's sick leave plan had
less stringent requirements than the FMLA, only the less stringent
requirements may be required when the employee substitutes any form of
paid leave for FMLA leave. The Department proposed and adopted updates
to Sec. 825.305(e), consistent with Opinion Letter FMLA2005-2-A,
clarifying that an employer can require annual medical certifications
in those cases where a serious health condition extends beyond a single
leave year.
Both Sec. Sec. 825.305(b) and 825.305(c) provide employees with
additional time or a more specific time period to either initially
submit the medical certification or to cure a deficiency. Section
825.305(b) increases the time an employer can request medical
certification from the employee from two business days to five business
days after receiving the employee notice of the need for leave.
Providing more time will reduce mistakes and provide greater certainty
in the workplace, and this typically benefits both workers and
employers. The clarification in Sec. 825.305(c) of the meaning of
incomplete and insufficient certifications should also provide greater
certainty in the workplace, benefiting both workers and employers.
Finally, the change in Sec. 825.305(c), requiring 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) will also provide greater certainty in the
workplace and benefit both workers and employers.
As discussed in the preamble, several commenters believe these
updates will ``immediately and drastically improve FMLA
communications'' (the Chamber); reduce the number of times ``the
employees are forced to go back to their health care providers
repeatedly in a vain attempt to guess what the * * * [employer] would
like'' (National Postal Mail Handlers Union); and ``alleviate delay and
uncertainty in the FMLA approval process as well as unnecessary
administrative burdens associated with repeated follow-up
communications related to the certification process * * * both
employers and employees will understand what their obligations are in
the certification process'' (Society for Human Resource Management).
Content of the Medical Certifications (Sec. 825.306)
Section 825.306 addresses how much information an employer can
obtain in the medical certification to substantiate the existence of a
serious health condition. It also references optional form WH-380 for
use in the certification process and specifies that while other forms
may be used, no additional information beyond that contained in WH-380
may be required.
The Department proposed and adopted several revisions to the
medical certification form in Sec. 825.306 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 also proposed and
adopted with modifications several revisions to optional form WH-380.
The Department proposed and adopted the deletion of Sec. 825.306(c),
which contained language similar to that deleted from Sec. 825.305(e).
The Department proposed and adopted the incorporation of language from
current Sec. 825.307(a)(1), explaining the interaction between
workers' compensation and the FMLA with regard to the clarification of
medical information in Sec. 825.306(c). Finally, the Department
proposed and adopted additions to this provision clarifying that if an
employee is required to submit additional information to receive
payments under a paid leave or benefit plan, the employer may require
that the employee provide the 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 paid
leave and does not affect the employee's right to unpaid FMLA leave.
The Department also added new Sec. 825.306(d) clarifying that where a
serious health condition is a disability under the ADA, employers are
not prevented from following the procedures under the ADA for
requesting medical information, and new Sec. 825.306(e) codifying the
Department's long-standing position that employers may not require
employees to sign a release of their medical information as a condition
of taking FMLA leave, but that employees must submit a complete and
sufficient certification upon request.
Similar to the changes made to Sec. 825.305, the clarifications in
Sec. 825.306 should provide greater certainty in the workplace,
benefiting both workers and employers. As the CUPA-HR noted in its
comments, ``[i]n the past, there has been unnecessary confusion over
certifications, with close to 70 percent of CUPA-HR members responding
to a survey reporting that they received vague information in
certifications and close to half reporting challenges in authenticating
or verifying information * * *.''
Authentication and Clarification of the Medical Certification (Sec.
825.307)
Current Sec. 825.307 addresses the employer's ability to clarify
or authenticate an FMLA certification. Section 825.307(a) permits an
employer, with the employee's permission, to have its own health care
provider contact the employee's health care provider in order to
clarify or authenticate an FMLA certification. The Department proposed
and adopted a change to Sec. 825.307(a) that allows employers to
contact the employee's health care provider directly. In response to
privacy concerns expressed by employees and their representatives, the
Department added a requirement to the final rule that specifies the
employer's representative contacting the employee's health care
provider must be a human resource professional, a leave administrator,
or a management official, but in no case may it be the employee's
direct supervisor.
[[Page 68063]]
As discussed in the preamble, two types of contact between the
employer and the employee's health care provider are permitted. An
employer may contact the employee's health care provider for the
purposes of clarification and authentication of the medical
certification. In both cases, however, the employer may request no
additional information beyond that included in the certification form
and any sharing of individually identifiable health information by a
HIPAA-covered health care provider must be in compliance with the HIPAA
Privacy Rule at 45 CFR Parts 160 and 164. The revision also specifies
that the employee is not required to permit his or her health care
provider to communicate with the employer, but that if such contact is
not permitted and the employee does not otherwise clarify an unclear
certification, the employer may deny the designation of FMLA leave. The
revision also specifies that prior to making any contact with the
health care provider, the employer must first provide the employee an
opportunity to cure any deficiencies in the certification pursuant to
the procedures set forth in Sec. 825.305(c).
In Sec. 825.307(b), the Department also proposed and adopted the
consolidation of current Sec. 825.307(a)(2) and (b) setting forth the
requirements for an employer to obtain a second opinion and added
language requiring the employee or the employee's family to authorize
his or her health care provider to release any medical information
pertaining to the serious health condition at issue if such information
is requested by the second opinion health care provider. The Department
also proposed and adopted a similar requirement for the third opinion
in Sec. 825.307(c).
The new provision in Sec. 825.307(d) 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.
No changes were made to Sec. 825.307(e) and (f) involving travel
expenses for second and third opinions. In response to comments
regarding medical certifications from foreign health care providers,
the final rule modifies Sec. 825.307(f) to require that employees
provide a written translation of any certification by a foreign health
care provider that is completed in a language other than English. The
Department believes that in most situations either the employee or a
member of the employee's family will be able to provide the
translation, so this change should have a minimal impact on workers.
The changes to Sec. 825.307 should expedite the certification
process, thereby reducing the uncertainty to both employers and their
employees. Similar to the changes made to Sec. Sec. 825.305 and .306,
providing greater certainty in the workplace should benefit both
workers and employers. SHRM stated that the current regulatory
requirement ``creates unnecessary delay and expense for employers'' and
that ``the proposed changes should help ensure that the certification
process is more efficient and less burdensome.'' The Chamber stated the
changes ``will streamline the medical certification'' and ``are among
the most impactful changes proposed by the Department.'' The National
Coalition to Protect Family Leave noted that smaller employers will no
longer ``have to incur the unnecessary expense of finding a health care
provider to make contact with the employee's provider and educate them
on what information the employer needs to be clarified.'' The National
Newspaper Association applauded the Department on its proposed
revisions to streamline the medical certification process stating that
the ``bright-line rule helps to eliminate confusion and frustration for
both the employee and employer'' and that ``permitting the employer to
authenticate the certificate directly with the health care provider is
a significant improvement in the FMLA regulations for small
businesses.''
Estimated Impacts of the Revisions to the Medical Certification
Requirements
In the PRIA, the Department estimated the savings that would result
from the changes to medical certification requirements in Sec. Sec.
825.305, 825.306 and 825.307 based upon the estimated number of leaves
that involve serious health conditions and thus may require medical
certifications. ``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), and 92 percent of covered
establishments required medical documentation for covered leave due to
a serious health condition. [footnote omitted] 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. [footnote omitted] At a cost $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.'' Id. at 7951.
Since the Department received no substantive comments on this
estimate, it is retaining it in this analysis.
Recertifications (Sec. 825.308)
Current Sec. 825.308 addresses the employer's ability to seek
recertification of the employee's medical condition. The changes to
this section are intended to address the uncertainty regarding how
often an employer can seek recertification.
Section 825.308(a) of the current regulations sets forth the rule
for recertification for pregnancy, chronic or permanent/long-term
conditions and generally permits recertifications no more often than
every 30 days in connection with an absence. The Department proposed
and has adopted in the final rule a clarification to Sec. 825.308(a)
entitled the ``30 day rule'' that sets forth a general rule permitting
recertification every 30 days in connection with an absence.
Section 825.308(b)(1) of the current regulations states that where
a certification specifies a minimum duration of incapacity of more than
30 days, generally employers may not request recertifications until the
specified minimum duration has passed. Section 825.308(b)(2) of the
current regulations states that for FMLA leave taken intermittently or
on a reduced leave schedule basis, generally employers may not request
recertification in less than the minimum period specified on the
certification as necessary for such leave.
As discussed in the preamble, the Department proposed to resolve
the uncertainty under current Sec. 825.308 as to how often employers
could seek recertification of chronic conditions where the
certification indicates that the duration of the condition is
``lifetime.'' Under the current regulation, it is unclear whether such
certification would be subject to recertification every 30 days under
Sec. 825.308(a) because the conditions are chronic, or whether they
would never be subject to recertification under Sec. 825.308(b)(2)
because the certification indicated the need for intermittent leave for
the employee's lifetime. As noted in the NPRM, the Department proposed
in Sec. 825.308(b) to permit employers, in all cases, to request
recertifications in connection with absences every six months if the
certification indicated the ongoing need for intermittent leave. The
proposal represented a change in the Department's position, which had
[[Page 68064]]
previously been that certifications indicating an ``indefinite'' or
``unknown'' duration were subject to recertification every 30 days. See
Wage and Hour Opinion Letter FMLA2004-2-A (May 25, 2004), where
implicit in the four scenarios that are the subject of the opinion
letter is the assumption that each scenario would involve some
intermittent or reduced schedule leave. In the PRIA, the Department
assumed that ``this clarification will not impact either employers or
employees.'' Id. 7951.
Further, as noted in the preamble above, the current 825.308(b) has
two subsections, the first of which addresses certifications specifying
a minimum period of incapacity in excess of 30 days, and the second of
which addresses certifications specifying a minimum period during which
intermittent or reduced schedule leave will be needed; in both
situations an employer may not request recertification until the
minimum period has passed. The Department has interpreted current Sec.
825.308(b) as applying to those situations in which the certification
states that an employee will need leave due to a serious health
condition for a specified period in excess of 30 days, regardless of
whether that leave is taken as a single continuous block of leave or on
an intermittent or reduced schedule basis.
In the final rule, Sec. 825.308(b) has also been modified to
clarify that the rule applies to conditions where the minimum duration
of the condition, as opposed to the minimum duration of the incapacity,
exceeds 30 days. This is a clarification, not a change in the
Department's enforcement position. The final rule also provides an
example of how the six-month recertification provision would apply.
Section 825.308(c) of the current regulations provides that in all
situations not covered by Sec. 825.308(a) and (b), employers may
generally request recertifications at any reasonable interval,
including less than every 30 days, but only if certain circumstances
exist as described in current Sec. 825.308(c)(1), (2), and (3). The
Department proposed and adopted entitling Sec. 825.308(c) ``Less than
30 days'' which explains, similar to current Sec. 825.308(c)(1), (2),
and (3), under what circumstances the employers could request
recertifications more frequently than every 30 days. Examples were also
added to this provision.
Section 825.308(d) of the current regulations requires employees to
provide recertifications within 15 calendar days of the employer's
request, unless it is not practicable to do so despite the employee's
diligent, good faith efforts. The only change made to Sec. 825.308(d)
was entitling it ``Timing.''
Section 825.308(e) of the current regulations provides that
recertification is at the employee's expense and that no second opinion
may be required for recertification. Current Sec. 825.308(e) was
redesignated as Sec. 825.308(f) with no other change.
The Department proposed and adopted the addition of new
recertification requirements in Sec. 825.308(e), entitled ``Content,''
which clarifies that an employer may request the same information on
recertification as required for the initial certification in Sec.
825.306, and that the employee has the same obligation to cooperate in
providing the recertification as in providing the initial
certification. In addition, the Department proposed and adopted a
clarification that employers may provide the employee's health care
provider with a record of the employee's absence pattern and ask
whether the leave is consistent with the employee's serious health
condition.
The Department received significant comments from both employers
and employees regarding this proposal that confirmed the confusion that
exists in this area. Some employers and their representatives
interpreted proposed Sec. 825.308(b) as diminishing their
recertification rights, while others interpreted it as increasing their
rights. Most employees and their representatives interpreted proposed
Sec. 825.308(b) as increasing their recertification burden. However,
the AFL-CIO supported the proposed change, arguing that
recertifications on a 30-day basis for long-term conditions are
burdensome on employees.
The Institute for Women's Policy Research provided an alternative
estimate of the potential increased burden on workers. ``According to
the Federal Register document, there are 2 million FMLA leave-takers
with a chronic health condition. Analysis of the 2006 National Health
Interview Survey shows that 10.9 percent of workers with one of five
major chronic health diseases (diabetes, chronic obstructive pulmonary
disease, asthma, congestive heart disease, and hypertension) have not
seen a physician in the last year, and another 14.2 percent have
visited a physician only once in the past year (Institute for Women's
Policy Research analysis). If workers with other chronic health
diseases have similar health-care utilization rates, requiring these
leave-takers to have at least two doctor visits per year will result in
an additional 720,000 doctor visits annually. At an average cost of
$71.72 and assuming each visit takes two hours of workers' time
(including travel and waiting), valued at $17.57 per hour (the wage
used by the DOL in its impact estimates), and that that time is unpaid,
this requirement will cost nearly $77 million per year in medical
expenses and lost wages.''
The Department disagrees with this estimate for two reasons. First,
as explained in the preamble, and noted above, the proposed and final
Sec. 825.308(b) represents a change in the Department's position from
permitting a recertification every 30 days for chronic or permanent/
long-term conditions regardless of whether the leave is taken as a
single continuous block of leave or on an intermittent or reduced
schedule basis to permitting a recertification every six months where
the certification provides no time-frame, or indicates a minimum
duration of ``lifetime,'' or ``indefinitely.'' Arguably, this will
reduce the burden on workers.
Second, a chronic serious health condition within the meaning of
Sec. 825.114(a)(2)(iii) of the current FMLA regulations requires
periodic treatment by a health care provider. General statistics
involving all workers with chronic conditions are inappropriate. The
fact that over 10 percent of the workers in the study analyzed by the
Institute for Women's Policy Research reported not seeing a physician
in the past year indicates that either their conditions did not meet
the requirements of current Sec. 825.114(a)(2)(iii)(A), and thus are
not chronic serious health conditions qualifying for FMLA leave, or
they were answering the question specifically concerning physicians as
opposed to all qualifying health care providers for FMLA purposes such
as physician assistants. Moreover, the analysis submitted by the
Institute for Women's Policy Research does not include the savings that
would result from the change under the proposed and final rule that
recertifications for chronic serious health conditions cannot be
required more frequently than once every six months, which is less
frequently than some employers currently require.
In reexamining this proposed and final provision, and carefully
considering all of the comments, the Department concludes that this
provision will not increase the burden on either employers or
employees, and arguably may reduce the costs associated with
recertifications. However, data limitations prevent the Department from
making a specific estimate.
[[Page 68065]]
The proposed and adopted change to Sec. 825.308(e) will 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 cannot estimate what impact this proposal
would have on the alleged misuse of FMLA leave. See id. at 7951.
Certification for Leave Taken Because of a Qualifying Exigency (Sec.
825.309)
Under the military family leave provisions of the NDAA, 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.'' While the Department
has attempted to mirror the existing FMLA certification process
wherever possible for qualifying exigency leave, the unique nature of
this leave necessitates that an employee provide different information
in order to confirm the need for leave. In the final rule, the
certification requirements for leave taken because of a qualifying
exigency are set forth in Sec. 825.309.
Section 825.309(a) of the final rule establishes that an employer
may require an employee to provide a copy of the covered military
member's active duty orders or other documentation issued by the
military which indicates that the covered military member is on active
duty (or has been notified of an impending call or order to active
duty) in support of a contingency operation, and the dates of the
covered military member's active duty service. Sec. 825.309(b)
establishes that each time leave is first taken for one of the
qualifying exigencies specified in Sec. 825.118, an employer may
require an employee to provide a certification that sets forth certain
information. Section 825.309(c) of the final rule describes the
optional form developed by the Department for employees' use in
obtaining certification that meets the FMLA's certification
requirements. Section 825.309(d) of the final rule establishes the
verification process for certifications.
The Department estimates that requesting, reviewing and verifying
the certifications for the estimated 110,000 workers taking exigency
leave under Sec. 825.126 will take an average of about 20 minutes of a
Human Resource Compensation and Benefits Specialist's time. At an
average hourly wage and benefits rate of $36.51, this will result in
additional costs of $1.3 million (i.e., 110,000 x $36.51/3).
Certification for Leave Taken To Care for a Covered Servicemember
(Sec. 825.310)
The military family leave provisions of the NDAA amended the FMLA's
certification requirements to permit an employer to request that leave
taken to care for a covered servicemember be supported by a medical
certification. The FMLA's existing 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.
Section 825.310 of the final rule provides that when leave is taken
to care for a covered servicemember with a serious injury or illness,
an employer may require an employee to support his or her request for
leave with a sufficient certification. Section 825.310(a) permits an
employer to require that certain necessary information support the
request for leave. Section 825.310(b) of the final rule sets forth the
information an employer may request from an employee in order to
support his or her request for leave. Section 825.310(c) of the final
rule describes the optional form developed by the Department for
employees' use in obtaining certification that meets the FMLA's
certification requirements. Section 825.310(d) describes alternatives
to the optional form that employers must accept from employees
obtaining certifications.
The Department estimates that requesting, reviewing and verifying
the certifications for the estimated 29,100 workers taking caregiver
leave under Sec. 825.127 will take an average of about 30 minutes of a
Human Resource Compensation and Benefits Specialist's time. At an
average hourly wage and benefits rate of $36.51, this will result in
additional costs of $0.5 million (i.e., 29,100 x $36.51/3).
Intent To Return To Work (Sec. 825.311)
The Department did not propose any changes in Sec. 825.309 in the
NPRM and received no significant comments on this section. In the final
rule, Sec. 825.309 is renumbered as Sec. 825.311 to account for the
new military family leave sections (Sec. Sec. 825.309 and 825.310) and
is otherwise adopted as proposed. This change will not result in any
costs to employers or workers.
Employer Refusal To Reinstate an Employee (formerly Sec. 825.312)
Current Sec. 825.312 addresses the conditions under which an
employer can refuse to reinstate an employee after FMLA leave. Current
Sec. 825.312(a)-(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 other regulatory sections, the Department proposed and
adopted their deletion and the renumbering of current paragraphs (g)
and (h) as Sec. 825.216(d) and (e). As no substantive changes have
been made, and none of the comments disputed the Department's
assessment, the Department concludes that these changes will impose no
additional costs on workers or employers.
Certifications for Fitness-For-Duty (Sec. 825.312)
Current Sec. 825.310, which was renumbered in the final rule as
Sec. 825.312, addresses the fitness-for-duty certification that an
employee may be required to submit upon return to work from FMLA leave.
The Department proposed in Sec. 825.310(a) and adopted in Sec.
825.312(a) the addition of a sentence clarifying that employees have
the same obligation to provide complete certification or provide
sufficient authorization to the health care provider in order for that
person to provide the information directly to the employer in the
fitness-for-duty certification process as they do in the initial
certification process.
The final rule, deleted the current Sec. 825.310(b) and moved the
discussion of the applicability of state or local law, or collective
bargaining agreements that govern an employee's return to work, to a
new Sec. 825.312(g). The Department also moved the discussion of the
ADA to a new Sec. 825.312(h) in the final rule.
Current Sec. 825.310(c) states that the fitness-for-duty
certification may be a simple statement. The Department proposed two
changes. First, the employer would be permitted to require that the
fitness-for-duty certification address the employee's ability to
perform the essential functions of the employee's job as long as the
employer provides the employee with a list of those essential job
functions at the same time that the employer provides the eligibility
notice required by proposed Sec. 825.300(b). Second, the employer
would be permitted to contact the employee's health care provider
directly, consistent with the procedure in proposed Sec. 825.307(a),
for purposes of authenticating or clarifying the fitness-for-duty
certification. These changes were generally adopted in the final rule
but the subsection has been renumbered as Sec. 825.312(b). However,
[[Page 68066]]
in the final rule, the Department also modified the language to specify
that, if the employer requires that the fitness-for-duty certification
address the employee's ability to perform the essential functions of
the employee's job, then the employer must provide the employee with a
list of those essential job functions no later than the designation
notice required by Sec. 825.300(c) and specify in the designation
notice that the fitness-for-duty certification must address the
employee's ability to perform those essential functions.
The Department did not propose or make any changes to current Sec.
825.310(d). This paragraph has been renumbered as 825.312(c) in the
final rule.
Current Sec. 825.310(e) requires employers to advise the employee
if the employer will require fitness-for-duty certification to return
to work. If the employer has a handbook explaining employment policies
and benefits, the handbook should explain the employer's general policy
regarding any requirement for fitness-for-duty certification to return
to work. Specific notice shall also be given to any employee from whom
fitness-for-duty certification will be required either at the time the
notice of the need for leave is given or immediately after leave
commences and the employer is advised of the medical circumstances
requiring the leave, unless the employee's condition changes from one
that did not previously require certification pursuant to the
employer's practice or policy. No second or third fitness-for-duty
certification may be required. Current Sec. 825.310(e) also does not
allow second or third fitness-for-duty certifications.
The Department's proposed Sec. 825.310(e) required employers to
advise their employees in the eligibility notice required by Sec.
825.300(b) if the employer will require a fitness-for-duty
certification to return to work, and retained the prohibition on second
or third fitness-for-duty certifications.
In the final rule, proposed Sec. 825.310(e) has been renumbered as
Sec. 825.312(d), and it has been modified to state that if the
employer requires a fitness-for-duty certification, the employer must
advise the employee of this requirement in the designation notice and
indicate therein whether that certification must address the employee's
ability to perform the essential functions of the employee's job. The
final rule also retains the prohibition on second or third fitness-for-
duty certifications, but has moved the statement to paragraph (b) in
the final rule.
The Department proposed changes to language in Sec. 825.310(f) to
clarify that the employee is not entitled to the reinstatement
protections of the Act if he or she does not provide the required
fitness-for-duty certification or request additional FMLA leave. These
changes have been adopted in renumbered 825.312(e) of the final rule.
The Department proposed a change to Sec. 825.310(g) permitting an
employer to require a fitness-for-duty certification up to once every
30 days if an employee has used intermittent or reduced schedule leave
during the 30-day period and 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.
This change has been adopted and renumbered as Sec. 825.312(f) in the
final rule.
Finally, the Department proposed and adopted the deletion of
current Sec. 825.310(h) as redundant with Sec. 825.213 regarding
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.
In the PRIA, the Department stated that ``[t]hese proposed changes
have several important impacts. First, they would better protect the
safety and health of workers taking leave, and their coworkers. Second,
[proposed] 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.'' Id.
at 7952.
As noted in the preamble, many employees and employee
representatives opposed the proposed change permitting employers to
require a fitness-for-duty certification to address an employee's
ability to perform essential job functions because they believe it
would be duplicative, onerous, and costly for workers. Some commenters
argued that the proposal would discourage workers from taking FMLA
leave. One commenter argued that because the health care provider has
already considered the essential functions of the employee's position
in completing the initial certification, by certifying that the
employee is fit to return to duty, the health care provider necessarily
certifies that the employee's serious health condition no longer
prevents the employee from being able to perform the essential
functions of his or her job.
In the PRIA, the Department determined that proposed Sec.
825.310(c) allows for a fitness-for-duty certification similar to that
of the initial medical certification of the FMLA leave and, therefore,
did not estimate any additional costs for workers. Id. at 7952.
However, the Department estimated that the additional information
needed for a fitness-for-duty certification will result in an estimated
$4.7 million in additional costs to health care providers to review the
employee's essential job functions and provide the additional
information. The Department believes that although these costs would
most likely be passed on to workers, the workers' health insurance
would likely pay for much of these added costs. Id. at 7952.
After reviewing the comments, Department has determined that under
the final rule workers will visit their health care providers the same
number of times as they do under the current regulations for the
following reasons. The current regulation already allows an employer to
delay an employee's return to work until the employee provides a
fitness-for-duty certification as long as the employer has
appropriately notified the employee of the requirement. The fact that
health care providers have already considered the job functions of the
employee's position in completing the initial medical certification
under current Sec. 825.306(b)(4)(ii) does not preclude employers from
requiring workers to visit a health care provider to obtain a fitness-
for-duty certification under current Sec. 825.310(c), even if the
fitness-for-duty certification need only be a simple statement of an
employee's ability to return to work (as long as employers have
complied with all of the requirements in current Sec. 825.310).
Therefore, the Department has determined that Sec. 825.312(b) will
impose no additional costs on workers aside from those identified
below.
The Department estimates that the additional information needed for
a fitness-for-duty certification will result in an estimated $4.7
million in additional costs to health care providers to review the
employee's essential job functions and provide the additional
information. The Department believes that although these costs would
likely be passed on to employees, workers' health insurance may pay for
some of these added costs.
Proposed Sec. 825.310(g) (Sec. 825.312(f) in the final rule)
permits an employer to require an employee to furnish a fitness-for-
duty certification every 30 days if an employee has used intermittent
leave during that period and reasonable safety concerns exist. Based on
the costs of additional fitness-for-duty certifications that would be
required under this provision, the PRIA estimated about
[[Page 68067]]
$6.6 million per year in additional costs to workers. Id. at 7952.
Several employees and employee groups commented on the costs this
change would impose on workers. For example, the Coalition of Labor
Union Women stated that ``employees will be burdened with the financial
costs of these added examinations which will increase the risk that
they will forego FMLA leave or be denied it unfairly.'' The National
Employment Lawyers Association, Massachusetts Chapter stated ``it could
be unduly burdensome for employees who are using intermittent leave
because of a chronic condition to have to get recertified every 30
days. In some instances, such a person may not even need FMLA leave
more than once in a 30-day period. To require the employee to get re-
certified that often could require him or her to be recertified every
time he or she takes FMLA leave * * * .'' The AFL-CIO stated that the
``requirement is unworkable because employees generally take
intermittent leave in periods that last for no more than a few days
(and may even last for less than a full day). It is highly unlikely
that an employee will be able to obtain a fitness-for-duty
certification from the health care provider without giving more advance
notice * * * failure to obtain a certification as soon as the employee
is able to return to work will only prolong the employee's unpaid
absence.''
Based upon these comments and those of individual workers,
particularly members of the APWU, the Department has revised its
methodology to include an estimate for lost income or paid leave
resulting from the potential delay in workers' return to duty while
they obtain the required fitness-for-duty certifications.
As was the case in the PRIA, since a fitness-for-duty certification
can only be required when a reasonable safety concerns exists, the
Department anticipates that this revision is likely to impact very few
workers. For the final rule, the Department developed this estimate
based upon an approach used in the PRIA. Id. at 7952. According to the
2000 Westat Report, 52.4 percent of workers take leave for their own
serious health condition. Id. Therefore, about 3.7 million (i.e., 52.4%
of 7 million) take FMLA leave for their own serious health condition.
The 2000 Westat Report also found that 23.9 percent of workers took it
intermittently,\35\ suggesting that about 880,000 workers (i.e., 23.9%
of 3.7 million) take intermittent FMLA leave for their own serious
health conditions.
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\35\ The 2000 Westat Report, Table 2.3, p. 2-5; and those that
answered yes to Question A5B of Westat's employee questionnaire.
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In the PRIA, the Department assumed that five percent of these
leave-takers, or 44,000 workers, will be required to have a fitness-
for-duty certification where reasonable safety concerns exist. Although
the Department received many comments on how burdensome the proposed
revision would be on workers and the impact that it might have, none of
the comments provided any data or evidence to suggest that the
Department's five percent assumption was incorrect. As discussed in the
preamble, the Department intends for the term [l`dquo]reasonable safety
concerns'' to be a high standard. The determination that there are
reasonable safety concerns must rely on objective factual evidence, not
subjective perceptions. Although this new regulation may impose
additional costs on some employees, the Department continues to believe
that at most five percent of these leave-takers, or 44,000 workers,
will be required to provide fitness-for-duty certifications under Sec.
825.312(f) (i.e., 5.0% of 880,000).
As in the PRIA (see id.), the Department assumes that on average
these workers will be required to provide three fitness-for-duty
certifications for the intermittent leave they take at an average of
$50 cost per certification. Thus the 132,000 additional certifications
(i.e., 3 certifications per worker x 44,000 workers) will cost workers
about $6.6 million per year.
In addition, since these workers may not be allowed to return to
work until they obtain a fitness-for-duty certification, these workers
may remain on paid or unpaid leave. As noted by the AFL-CIO, for
workers with chronic conditions taking intermittent FMLA leave, the
inability to obtain a certification as soon as the employee is able to
return to work will prolong the employee's paid or unpaid absence.
However, some of these workers will be able to obtain the fitness-for-
duty certifications without any loss of income because they will be
able to obtain the required certification before they are ready to
return to work.\36\ Therefore, the Department assumes that each of the
three fitness-for-duty certifications will on average result in the
loss of one-half of an 8-hour work day. Based upon a fully loaded
average hourly rate for production and nonsupervisory workers on
private nonfarm payrolls of $24.60 (id. at 7950), the Department
estimates that the ``cost'' for workers of the paid or unpaid leave
associated with each certification will be on average about $100.
Therefore, the ``cost'' of the unpaid or paid leave will be about $13.2
million per year (i.e., $100 per certification times 132,000
certifications).
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\36\ For example, some workers will be able to visit their
health care provider during the period that they are on FMLA leave
solely to obtain the required fitness-for-duty certification.
---------------------------------------------------------------------------
Although the Department recognizes that this provision will impose
a direct cost on workers who do not have health insurance or have a
high deductible, the Department expects a large portion of this cost is
likely to be paid by the employee's health insurance, some of which is
financed by employers. As noted in the PRIA, 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. Id. at 7952-53.
Thus the Department estimates that the revision to Sec. 825.312(f)
will result in annual costs of about $19.8 million to workers (i.e.,
$6.6 million for additional visits to the health care providers plus
$13.2 million in lost income or paid leave).
The Department used the same approach as in the PRIA to estimate
the impact of these additional certifications on employers. Id. Based
upon the assessment 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, the 132,000 fitness-
for-duty certifications will result in about $2.4 million in additional
costs for employers.
Although the net impact of the revisions to Sec. 825.312 will be a
cost of about $2.4 million for employers and $19.8 million for
employees (Sec. 825.312(f)), the changes in Sec. 825.312 will
increase workplace safety by making sure that workers are healthy
enough to return to work and do not pose a health or safety risk to
themselves or others. Although many employers and employer
organizations recognize that this provision will impose some additional
cost on the workplace, they generally believe that the safety
considerations outweigh the cost. However, data limitations inhibit the
Department from quantifying the health and safety benefits of this
provision for workers and employers.
[[Page 68068]]
Failure To Provide Medical Certification (Sec. 825.313)
Current Sec. 825.311, renumbered as Sec. 825.313 in the final
rule, provides that 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. The Department proposed and
adopted a clarification that would permit employers to ``deny'' FMLA
leave until the medical certification is provided and added Sec.
825.311(c) (renumbered Sec. 825.313(c) in the final rule) which
addressed the consequences to employees for failing to provide timely
recertification. As discussed in the NPRM (id. at 7922) and in this
preamble, these are not substantive changes to the current rule, but
clarifications intended to ensure that both employees and employers
understand the potential impact of a failure to provide certification
in a timely manner. Although the Department received several comments
on this clarification, as noted in the preamble discussion above, none
of the comments disputed the Department's assessment. Therefore, the
Department concludes that very few, if any, workers or employers will
be impacted by this clarification.
Enforcement Mechanisms (Sec. Sec. 825.400-825.404)
Only minor editorial changes were proposed to the enforcement
mechanisms in Sec. Sec. 825.400-825.404. The final rule adopts these
changes. In addition, the final rule makes a conforming revision to
Sec. 825.400(c) to add that employees taking FMLA leave for the new
military family leave entitlements under Sec. Sec. 825.126 and 825.127
are entitled to actual monetary losses sustained as a direct result of
an employer's violation of one or more of the provisions of the FMLA.
The Department concludes that these changes will have no quantifiable
impacts.
Recordkeeping (Sec. 825.500)
Current Sec. 825.500 deals with the recordkeeping requirements. In
addition to minor editorial changes, the Department proposed and
adopted a revision to Sec. 825.500(c)(4) to include the eligibility
notice in Sec. 825.300(b). The final rule also clarifies that
employers must maintain copies of all written notices given to
employees. These changes should have very little impact on either
workers or employers.
Special Rules Applicable to Employees of Schools (Sec. Sec. 825.600-
825.604)
Only changes to the titles and other minor editorial changes were
proposed to the special rules for schools in Sec. Sec. 825.600-
825.604. The final rule adopts these changes, which should have very
little impact on either workers or employers.
In addition, the final rule makes conforming revisions to
Sec. Sec. 825.601 and 825.602 so that the special rules are applicable
when an eligible instructional employee takes leave to care for a
covered servicemember under Sec. 825.127, as is specified by the
statute. Since the eligible instructional employees have been taking
FMLA leave under the special rules for more than a decade, these
changes should have very little impact on either workers or employers.
Effect of Other Laws, Employer Practices, and Collective Bargaining
Agreements on Employee Rights Under FMLA (Sec. Sec. 825.700 Through
825.702)
The Department proposed and adopted several revisions to Sec.
825.700 because they either dealt with the initial applicability of the
standard or because they were invalidated by Ragsdale. Since these
provisions have no effect, their deletion will have no economic impact
on either workers or employers.
In the final rule, the Department also deleted two examples in
Sec. 825.701(a) regarding the interaction of the FMLA and state law
because the examples may be incorrectly read to suggest that the
Department is assuming responsibility for the administration or
enforcement of state or local laws. Since the Department only
administers and enforces the FMLA and not state or local laws, this
deletion will have no impact on either workers or employers, except to
avoid potential misunderstandings regarding the Department's
enforcement role under the FMLA.
The Department proposed and adopted the addition of a new paragraph
to Sec. 825.702 (the interaction with federal and state anti-
discrimination laws) to clarify the interaction between the FMLA and
USERRA. Since this addition is not an expansion of FMLA rights through
regulation but merely an instruction of how USERRA affects the rights
of uniformed servicemembers to FMLA leave, it will have little impact
on either workers or employers, except to avoid potential
misunderstandings.
Similarly, the Department proposed and has adopted with
modifications clarifications to the interaction between the FMLA and
the ADA. This also is not an expansion of FMLA rights through
regulation but merely interpretive guidance that will have little
impact on either workers or employers, except to avoid potential
misunderstandings.
Definitions (Sec. 825.800)
The Department proposed and adopted changes and clarifications to
several terms in Sec. 825.800 including ``continuing treatment,''
``eligible employee,'' ``employee,'' ``health care provider,''
``serious health condition,'' ``parent'' and ``son or daughter.'' In
addition, due to the implementation of the NDAA provisions for military
leave, the final rule makes other changes in the proposed definitions
of the terms ``continuing treatment'' and ``serious health condition''
and adds new definitions for the terms ``active duty or call to active
duty status,'' ``contingency operation,'' ``covered military member,''
``covered servicemembers,'' ``parent of a covered servicemember,''
``outpatient status,'' ``son or daughter on active duty or call to
active duty,'' ``serious injury or illness'' in the case of a member of
the Armed Forces, ``son or daughter of a covered servicemember'' and
``next of kin of a covered servicemember.'' The change or addition of
these definitions will have little impact on either workers or
employers, except to avoid potential misunderstandings.
Summary of Impacts
The Department estimates that the revisions will result in a total
first year net costs of $327.7 million and annual reoccurring costs of
$244.4 million for both workers and employers. Based upon a five year
pay-off period and a real interest rate of 3.0 percent (OMB Circular A-
4),\37\ total annualized costs for the revisions for both workers and
employers is $262.6 million. Based upon a five year pay-off period and
a real interest rate of 7.0 percent, total annualized costs for the
revisions for both workers and employers is $264.7 million. For
employers, the largest cost is the $257.3 million in recurring costs
related to the new military leave provisions (Sec. Sec. 825.126 and
825.127). For workers, the largest cost is the $19.8 million in
recurring costs associated with the additional fitness-for-duty
certifications that may be required if a worker has used intermittent
leave and a reasonable safety concern exists (Sec. 825.312(f)).
---------------------------------------------------------------------------
\37\ Available on the Internet at: http://www.whitehouse.gov/
omb/circulars/a004/a-4.html.
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Table 3 presents a summary of the impacts discussed above.
[[Page 68069]]
Table 3--Summary of the Impacts of the Revisions to the FMLA Regulations
------------------------------------------------------------------------
Cost to Cost to
Provision employers employees
($millions) ($millions)
------------------------------------------------------------------------
First Year Costs.............................. $83.3 $0.0
Sec. 825.126................................ 200.8 0.0
Sec. 825.127................................ 56.5 0.0
Sec. 825.205................................ -9.6 9.6
Sec. 825.300(a)............................. 2.8 0.0
Sec. 825.300(b)............................. -10.1 0.0
Sec. 825.300(c)............................. 1.7 0.0
Sec. 825.300(d)............................. 69.4 0.0
Sec. Sec. 825.302-.304..................... -40.6 0.0
Sec. Sec. 825.305-.307..................... -64.8 0.0
Sec. 825.309................................ 1.3 0.0
Sec. 825.310................................ 0.5 0.0
Sec. 825. 312(b)............................ 0.0 4.7
Sec. 825.312(f)............................. 2.4 19.8
-------------------------
Total First Year Costs.................... 293.6 34.1
Total Reoccurring Costs................... 210.3 34.1
------------------------------------------------------------------------
Source: U.S. Department of Labor.
Chapter 4: Feasibility of the Revised Regulation
This chapter discusses the feasibility of paying for the estimated
$264.7 million in total annualized costs associated with the revisions
based upon a 7.0 percent discount rate.
The annualized costs for employers is $230.6 million, or about
$2.41 for each of the 95.8 million workers employed at establishments
covered by Title I of the FMLA; and about $2.99 for each of the 77.1
million workers eligible to take FMLA leave; and about $32.48 for each
of the 7.1 million workers who will take FMLA leave.\38\ The $230.6
million in costs also represents less than 0.006 percent of the
estimated $3.7 trillion in payroll costs for the establishments covered
by Title I of the FMLA (CONSAD). Therefore, the Department has
determined that the costs of the final rule do not represent a
significant economic impact for most establishments covered by Title I
of the FMLA.
---------------------------------------------------------------------------
\38\ As noted above, 7.0 million workers took FMLA leaves, and
the Department estimates that 139,000 additional workers will take
FMLA leave under the military leave provisions of the NDAA, for a
total of 7.1 million.
---------------------------------------------------------------------------
While it is certainly possible that some establishments may have
several employees who take military leave under new Sec. Sec. 825.126
and 825.127, the associated $1,825 cost for each employee taking
exigency leave under Sec. 825.126 and $1,940 for each employee taking
military caregiver leave under Sec. 825.127 should not have a
significant impact on otherwise financially healthy establishments.
Based upon a fully loaded average hourly rate for production and
nonsupervisory workers on private nonfarm payrolls of $24.60 (73 FR at
7950), and the assumption of an average 2,000 hour working year (i.e.,
8 hours per day x 5 days per week x 50 weeks per year), $1,940 would
represent an increase of about 4 percent in the average annual cost of
$49,500 for such employees.
The annualized costs for workers is $34.1 million, or about $0.36
for each of the 95.8 million workers employed at establishments covered
by Title I of the FMLA; and about $0.44 for each of the 77.1 million
workers eligible to take FMLA leave; and about $4.80 for each of the
7.1 million workers who will take FMLA leave. Therefore, the Department
has determined that the costs of the final rule do not represent a
significant economic impact of for most workers who take leave under
Title I of the FMLA.
However, it is possible that some of the 44,000 workers who will
need additional fitness-for-duty certifications under Sec. 825.312(f)
will incur significant impacts. Although the estimated $150 in lost
wages plus health care provider office visits charges represents about
0.04 percent of the average annual $35,000 earnings of such employees,
these employees may be required to obtain several fitness-for-duty
certifications. At the extreme, if some employees without health
insurance were required to obtain a fitness-for-duty certification each
month, $1,800 (i.e., $150 x 12) would represent over 5 percent of the
average annual $35,000 earnings of such employees. In this example,
these workers could be motivated to work with their employers to
transfer to alternative positions that did not involve ``reasonable
safety concerns.''
However, the Department expects a large portion of this cost is
likely to be paid by the employee's health insurance, some of which is
financed by employers. As noted in the PRIA, 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. Id. at 7952-53.
Chapter 5: Benefits Not Quantified
The Department anticipates that substantial but unquantifiable
benefits will accrue from the proposed revisions to the FMLA
regulations. First, associated with the addition of the provisions for
military leave, the families of servicemembers will no longer have to
worry about losing their jobs or health insurance due to absences to
care for a covered seriously injured or ill servicemember or due to a
qualifying exigency resulting from active duty or call to active duty
in support of a contingency operation. Second, the clarifications to
the regulations and the revisions to improve the communications between
employers and employees should reduce the uncertainty and the worries
about FMLA leave. Third, the revisions should reduce the costs of
unforeseeable intermittent FMLA leave in high-impact, time-sensitive
operations. And, finally, the revisions related to fitness-
[[Page 68070]]
for-duty certifications should reduce presenteeism. Each of these
benefits is discussed qualitatively below.
The Benefits of Military Leave
According to the comments submitted by several members of Congress
``[t]hese new provisions, which constitute the first expansion of the
FMLA since its enactment 15 years ago, are designed to make it easier
for workers with family in military service to balance their work and
family lives during these particularly demanding times without the fear
of losing their jobs * * * '' The inclusion of military leave
provisions in the FMLA was overwhelmingly supported by employers and
employees, as well as both their representatives.
National Partnership for Women & Families/National
Military Family Association stated ``[w]e strongly support the
expansion of the FMLA and the use of FMLA leave by military families,
and we believe that the leave provided by the expansion of the FMLA
will be of great assistance to military families * * * we urge the
Department to create regulations that are fair to employees and
recognize and honor the sacrifice made by military servicemembers and
their families * * * The expansion of FMLA leave for military families
enjoys bipartisan support, and the regulations for this leave should
not be controversial.''
The National Postal Mail Handlers Union ``urges the
Department to act promptly in issuing regulations to implement the
newly enacted provisions allowing employees that have family members
serving our nation to take time off in order to handle issues arising
out of their family members' military service.''
The National Military Family Association ``strongly urges
the DOL to issue the regulations for the military expansions of the
FMLA * * * We have heard from military families frustrated that they
could not access leave--military families need access to the FMLA leave
now.''
The Southern Company Entities ``strongly support the
legislative intent and effort of expanding the FMLA to cover certain
events and aspects of military service of employees and their family
members. We understand and agree with the need for employees to be
absent from work in certain situations related to military service or
in situations where they are needed to assist family members recovering
from injuries sustained in their military service.''
The National Business Group on Health stated ``[e]mployers
recognize the importance of added flexibility and the need to support
military families.''
``The NAM and our member companies are very supportive of
the many men and women who serve in the Armed Forces, including the
Reserves and the National Guard. Similarly, we understand the need for
employees whose family members have been called to active duty to take
time off from work in order to handle critical and pressing matters
resulting from the servicemember's absence. We also understand
employees' needs to care for a loved one injured during their service
in the military. The NAM hopes that any new military FMLA regulations
will recognize the current supportive environment in the workplace
related to military service * * * ''
Waushara County (WI) stated ``[w]e have many guard
(spouse) employees that are being called to active duty and the impact
may be extensive. Specifics on how and when this leave is applicable
will help to alleviate problems in the administration of the Act.''
Many of the write-in campaigns for the NPRM voiced support
for military leave. For example, many SHRM members stated ``I support
the legislative intent of expanding the FMLA to cover these qualifying
events'' and numerous individual workers stated ``I do support the
provisions dealing with `light duty' and military family leave * * *.''
These provisions should not only make it easier for workers with
family in military service to balance their work and family lives
without fear of losing their jobs but the knowledge that their family
members have such leave available should also mitigate some of the
burdens felt by servicemembers faced with serious illness or injury or
deployment in support of contingency operations.
The Benefits From the Clarifications to the Regulations and the
Revisions To Improve Communications
Many of the revisions were designed to clarify the requirements
that the FMLA imposes on both employees and employers, and to improve
the communication between the parties. As was noted in the Report on
the RFI (72 FR at 35556-60 (June 28, 2007)), the knowledge that
employees can take FMLA leave without fear of losing their jobs or
health insurance has been critical in getting them through difficult
times. ``[I]t is easy to lose perspective about the overall value of
the workplace protections provided by the Act. That value is best shown
in the comments submitted by individual employees and, in some
instances their employers or representatives.'' Id.
Employees will benefit from better communications resulting from
the changes because it allows them to better understand their rights
and responsibilities under the FMLA.
``As a cancer survivor myself, I cannot imagine how much
more difficult those days of treatments and frequent doctor
appointments would've been without FMLA.'' Id.
``I was out of work for a short period of time due to a
serious medical condition that was treatable. FMLA gives the employee
the ability to tend to these concerns with their full attention, to
recuperate without sacrificing their career [or] their livelihood.''
Id.
``FMLA saved my job and I also believe saved my life, and
to this day gives me a sense of security against any discipline or
termination based on my legitimate medical needs.'' Id.
``Knowing that I was protected meant I didn't have to
choose between my Father's health and my job.'' Id.
``A Cingular employee with a good work record has Lupus
which causes periodic flare-ups that prevent her from working and
require weekly therapy and regular doctor visits. FMLA has allowed her
to remain stress-free * * * because she does not need to worry about
losing her job.'' Id.
``[A]n employee said she was `[s]o thankful when my
employer informed me of this law because it gave my mom peace of mind
knowing that I would be available for her when she needed me.' '' Id.
``I was secure in the knowledge that I could come right
back to my job, and I developed a keen sense of loyalty to my employer
which has more than once prevented me from looking for work
elsewhere.'' (72 FR 35559).
``The Department received many comments [to the RFI] emphasizing
the positive impact the FMLA has on employee morale and how it
increases worker retention and lowers turnover costs. By reducing
employee turnover, some commenters argued that the FMLA reduces
employer costs.'' Id. at 35629.
Employers will also benefit from better communications resulting
from the changes to Sec. Sec. 825.302--825.304 because they will allow
employers to staff their operations more efficiently and thereby reduce
costs.
Southwest Airways noted in comments to the RFI that the
Department's current ``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
[[Page 68071]]
such notice as is practicable.'' Id. at 35576.
NAM stated ``[a]s currently interpreted by DOL, the FMLA
has become the single largest source of uncontrolled absences and,
thus, the single largest source of all the costs those absences create:
Missed deadlines, late shipments, lost business, temporary help, and
over-worked staff.'' Id.
The Chamber stated in its comments to the NPRM that the
``[l]ack of advance notice for unscheduled absences is one of the
biggest disruptions employers point to as an unintended consequence of
the current regulations.''
The University of Minnesota noted ``[d]ealing with such
situations is extremely difficult. Supervisors do not know if the
employee will come in to work on any given day. They do not know if the
employee will work an entire shift. Employees will simply notify their
supervisors, in many cases after the fact, that they have experienced
symptoms and cannot come in to work, or must leave work early. A
comment by a supervisor regarding a performance issue may result in the
employee excusing himself/herself for the rest of the day. Without
proper notice, a supervisor cannot make plans for a replacement * * *
Nonetheless, the current statutory and regulatory provisions provide
employers with few options.'' 72 FR at 35579.
SHRM also noted in their comments to the NPRM that the
need for standard call-in procedures because without them ``employers
do not have enough time to adequately staff for the employee absences
and still run their operations if the co-worker is allowed to depart
from work. In other cases, the co-worker must bear the burden of
performing their own job and that of the employee on FMLA leave because
of the lack of notice provided.''
The Benefits in the High-Impact, Time-Sensitive Operations
As the Department noted in the PRIA, the lack of employee notice is
especially difficult for employers with 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 * * * 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 * * *.
* * * 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 * * * 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.'' 73 FR at 7953-54.
The Benefits of Reduced Presenteeism
Revisions to the fitness-for-duty requirements should help
employers address the growing problem of presenteeism. According to a
survey conducted by Harris Interactive for CCH ``[t]he problem of
presenteeism--when employees come to work even though they are ill and
pose problems of contagion and lower productivity--is an emerging area
of concern for organizations. Nearly half (48 percent) of employers
surveyed reported that presenteeism is a problem in their
organizations, up over 20 percent from the 39 percent who saw it as a
problem last year * * * While the direct hit to the bottom line isn't
immediately evident with presenteeism, the hidden, indirect costs are
very high * * * When someone doesn't feel well, they are simply not as
productive, nor is the quality of their work as high * * * Then, there
is the added problem of spreading illnesses to other employees who in
turn either call in sick, or come in sick * * *.'' \39\
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\39\ http://www.cch.com/Press/news/2005/200510121h.asp.
---------------------------------------------------------------------------
Presenteeism was discussed in the Report on the RFI. ``According to
the Center for Worklife Law, `The cost of lost productivity due to
presenteeism is significantly greater than the cost of lost
productivity due to absenteeism. The total annual cost of lost
productivity is $250 billion. Presenteeism accounts for $180 billion or
72% of that total * * * Although many commenters [to the RFI] cited the
overall costs of presenteeism and asserted that FMLA has some positive
impact on limiting those costs, no one attempted to quantify the
marginal effect or economic impact that enactment of the FMLA had on
the issue. However, the lack of a quantitative estimate does not mean
that the FMLA does not have an impact on presenteeism.'' 72 FR at
35628-29.
Regulatory Flexibility Act
The Regulatory Flexibility Act requires that agencies prepare a
regulatory flexibility analyses for final 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 (including
workers who are jointly employed). 29 U.S.C. 2611(4). In addition, the
FMLA excludes employees from eligibility for FMLA leave if the total
number of employees, including those jointly 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 examined the impact of the final rule on all firms
covered under the FMLA, including those with 50 to 500 employees, and
estimated the net impact of the changes would increase the overall
costs for all firms, both large and small because of the new military
leave provisions of the NDAA. Most small businesses (establishments),
89.4 percent, are excluded from FMLA coverage by statute.\40\ An
estimated 6.3
[[Page 68072]]
percent of establishments employing less than 50 employees are covered
by the Act because the entities employ at least 50 employees within 75
miles of the worksite. 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 a small percentage--
10.6%) of small employers.\41\
---------------------------------------------------------------------------
\40\ However, if an employer has 15 workers and jointly employs
another 40 workers with a temporary employment agency, then the
employer would be covered by the FMLA.
\41\ The Department of Labor based these estimates on the Westat
2000 establishment survey data.
---------------------------------------------------------------------------
The annualized costs for employers are $230.6 million based upon a
7.0 percent discount rate, which comes to about $210 for each of the
estimated 1.1 million establishments and about $32.48 for each of the
7.1 million workers who will take FMLA leave. Clearly, costs of this
magnitude do not represent a significant impact for most of the
establishments, even the smaller businesses, covered by Title I of the
FMLA.
The major cost increases for all businesses, including the smaller
businesses result from the new military leave provisions in Sec. Sec.
825.126 and 825.127. It is certainly possible that some small
businesses in specific locations may have several employees who take
military leave and the additional costs ($1,825 for each employee
taking qualifying exigency leave and $1,940 for each employee taking
military caregiver leave) associated with those leaves are not trivial.
Based upon a fully loaded average hourly rate for production and
nonsupervisory workers on private nonfarm payrolls of $24.60 (id. at
7950), and the assumption of an average 2,000 hour working year (i.e.,
8 hours per day x 5 days per week x 50 weeks per year), $1,940 would
only represent an increase of about 4 percent in the average annual
cost of $49,500 for such employees.
However, many of the provisions in the final rule will decrease the
costs for all businesses, including smaller businesses. Some of these
changes are discussed below.
Increments of Leave for Intermittent or Reduced Schedule
Leave (Sec. 825.205)--The final rule includes an exception that
permits employers to designate the entire shift as FMLA leave and count
it against the employee's FMLA leave entitlement in situations where it
is not possible for an employee using intermittent leave or working a
reduced leave schedule to commence work midway through a shift. Since
smaller employers are less likely to have an alternative position for
workers who miss their normal shift than larger employers, this change
is likely to benefit smaller employers more.
Employer Notice Requirements (Sec. 825.300)--The final
rule increases the amount of time employers have to notify the employee
of eligibility of FMLA leave and the designation of FMLA leave. Smaller
employers, who typically do not have dedicated HR staff, should benefit
most from this additional time.
Authentication and Clarification of the Medical
Certification (Sec. 825.307)--The final rule permits employers to
contact the employee's health care provider directly, rather than
through a third-party health care provider that represents the
employer. Smaller employers, who typically do not either contract with
third-party health care providers or have health care providers on
staff, should benefit most from this change.
The Chief Counsel for Advocacy of the Small Business Administration
(SBA) submitted comments in response to the NPRM that recommended: (1)
That DOL finalize additional reforms to minimize the costs of the
rulemaking on small entities; (2) narrow the definition of serious
health condition in proposed Sec. 825.114; (3) increase the minimum
increment of intermittent leave in proposed Sec. 825.203 to half a day
or four hours; (4) clarify the employee notice requirements in proposed
Sec. 825.302; (5) provide further guidance on medical certifications
in proposed Sec. Sec. 825.305-.308; and (6) complete a Section 610
Periodic Review of the FMLA regulations. As discussed in the preamble,
after carefully considering the comments the Department has modified a
number of proposed sections in the final rule that reduces the cost of
the final rule on all businesses, including small businesses, and
clarifies the employer and employee notice requirements. The Department
has also provided additional guidance on the medical certification
provisions in the final rule. However, for the reasons discussed in the
preamble the Department has not narrowed the definition of serious
health condition, nor increased the minimum increment of intermittent
leave as recommended by SBA. In response to the SBA's Section 610
review recommendation, the Department notes that during this rulemaking
it did consider whether the FMLA rule should be continued without
change, or should be amended or rescinded, consistent with the stated
objectives of the statute, to minimize any significant economic impact
of the rules upon a substantial number of small entities. Specifically,
the Department considered the following factors during this rulemaking:
(1) The continued need for the rule; (2) the nature of complaints or
comments received concerning the rule from the public; (3) the
complexity of the rule; (4) the extent to which the rule overlaps,
duplicates, or conflicts with other Federal rules, and, to the extent
feasible, with State and local government rules; and (5) the length of
time since the rule was published in 1995, and the degree to which
technology, economic conditions, and case law has changed. However,
because the new military leave provisions could impose a cost on some
small entities, the Department is committed to conducting a complete
Section 610 review of the FMLA at the appropriate time.
Consequently, the Department has certified to the Chief Counsel for
Advocacy of the Small Business Administration that this final rule will
not have a significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act, and
therefore, a regulatory flexibility analysis is not required for this
rule.
Executive Order 13132 (Federalism)
This rule does not have federalism implications as outlined in
Executive Order 13132 regarding federalism. The 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 rule was reviewed under the terms of Executive Order 13175 and
determined not to have ``tribal implications.'' The 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 was prepared.
Effects on Families
The final rule was assessed as required by section 654 of the
Treasury and General Government Appropriations Act, 1999, and the
Department has determined that it will not adversely affect the well-
being of a significant number of families. As discussed in the
preamble, the Department expects a large portion of the cost of the
final rule to be paid by the employee's health insurance, some
[[Page 68073]]
of which is financed by employers. As previously noted, 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. Id. at 7952-53.
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 rule is
not subject to Executive Order 13045 because, although the 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 does
not concern environmental health or safety risks that may
disproportionately affect children.
Environmental Impact Assessment
The Department reviewed this rule 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, and found that the rule will not have a significant impact
on the quality of the human environment. Thus, no environmental
assessment or environmental impact statement was prepared.
Executive Order 13211, Energy Supply
This 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 rule 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 rule was drafted and reviewed in accordance with Executive
Order 12988 and will not unduly burden the federal court system. The
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 4th day of November 2008.
Victoria A. Lipnic,
Assistant Secretary, Employment Standards Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division.
0
For the reasons set out in the preamble, Title 29, Chapter V of the
Code of Federal Regulations is amended revising Part 825 to read 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, next of kin
of a covered servicemember, adoption, foster care, son or daughter
on active duty or call to active duty status, son or daughter of a
covered servicemember, and parent of a covered servicemember.
825.123 Unable to perform the functions of the position.
825.124 Needed to care for a family member or covered servicemember.
825.125 Definition of health care provider.
825.126 Leave because of a qualifying exigency.
825.127 Leave to care for a covered servicemember with a serious
injury or illness.
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 FMLA leave for intermittent or reduced
schedule leave.
825.206 Interaction with the FLSA.
825.207 Substitution of paid leave.
825.208 [Reserved]
825.209 Maintenance of employee benefits.
825.210 Employee payment of group health benefit premiums.
825.211 Maintenance of benefits under multi-employer health plans.
825.212 Employee failure to pay health plan premium payments.
825.213 Employer recovery of benefit costs.
825.214 Employee right to reinstatement.
825.215 Equivalent position.
825.216 Limitations on an employee's right to reinstatement.
825.217 Key employee, general rule.
825.218 Substantial and grievous economic injury.
825.219 Rights of a key employee.
825.220 Protection for employees who request leave or otherwise
assert FMLA rights.
Subpart C--Employee and Employer Rights and Obligations Under the Act
825.300 Employer notice requirements.
825.301 Designation of FMLA leave.
825.302 Employee notice requirements for foreseeable FMLA leave.
825.303 Employee notice requirements for unforeseeable FMLA leave.
825.304 Employee failure to provide notice.
825.305 Certification, general rule.
825.306 Content of medical certification for leave taken because of
an employee's own serious health condition or the serious health
condition of a family member.
825.307 Authentication and clarification of medical certification
for leave taken because of an employee's own serious health
condition or the serious health condition of a family member; second
and third opinions.
825.308 Recertifications for leave taken because of an employee's
own serious health condition or the serious health condition of a
family member.
825.309 Certification for leave taken because of a qualifying
exigency.
825.310 Certification for leave taken to care for a covered
servicemember (military caregiver leave).
825.311 Intent to return to work.
[[Page 68074]]
825.312 Fitness-for-duty certification.
825.313 Failure to provide certification.
Subpart D--Enforcement Mechanisms
825.400 Enforcement, general rules.
825.401 Filing a complaint with the Federal Government.
825.402 Violations of the posting requirement.
825.403 Appealing the assessment of a penalty for willful violation
of the posting requirement.
825.404 Consequences for an employer when not paying the penalty
assessment after a final order is issued.
Subpart E--Record-Keeping Requirements
825.500 Record-keeping 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.
Appendix A to Part 825--Index [Reserved]
Appendix B to Part 825--Certification of Health Care Provider (Forms
WH-380E & WH-380F)
Appendix C to Part 825--Notice to Employees Of Rights Under FMLA (WH
Publication 1420)
Appendix D to Part 825--Notice of Eligibility and Rights &
Responsibilities (Form WH-381)
Appendix E to Part 825--Designation Notice to Employee of FMLA Leave
(Form WH-382)
Appendix F to Part 825--[Reserved]
Appendix G to Part 825--Certification of Qualifying Exigency for
Military Family Leave (Form WH-384)
Appendix H to Part 825--Certification for Serious Injury or Illness of
Covered Servicemember for Military Family Leave (Form WH-385)
Authority: 29 U.S.C. 2654.
Subpart A--Coverage Under the Family and Medical Leave Act
Sec. 825.100 The Family and Medical Leave Act.
(a) The Family and Medical Leave Act of 1993, as amended, (FMLA or
Act) allows ``eligible'' employees of a covered employer to take job-
protected, unpaid leave, or to substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 12 workweeks in
any 12 months (see Sec. 825.200(b)) because of the birth of a child
and to care for the newborn child, because of the placement of a child
with the employee for adoption or foster care, because the employee is
needed to care for a family member (child, spouse, or parent) with a
serious health condition, because the employee's own serious health
condition makes the employee unable to perform the functions of his or
her job, or because of any qualifying exigency arising out of the fact
that the employee's spouse, son, daughter, or parent is a covered
military member on active duty (or has been notified of an impending
call or order to active duty) in support of a contingency operation. In
addition, ``eligible'' employees of a covered employer may take job-
protected, unpaid leave, or substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 26 workweeks in
a ``single 12-month period'' to care for a covered servicemember with a
serious injury or illness (see Sec. 825.127(c)). In certain cases,
FMLA leave may be taken on an intermittent basis rather than all at
once, or the employee may work a part-time schedule.
(b) An employee on FMLA leave is also entitled to have health
benefits maintained while on leave as if the employee had continued to
work instead of taking the leave. If an employee was paying all or part
of the premium payments prior to leave, the employee would continue to
pay his or her share during the leave period. The employer may recover
its share only if the employee does not return to work for a reason
other than the serious health condition of the employee or the
employee's covered family member, the serious injury or illness of a
covered servicemember, or another reason beyond the employee's control.
(c) An employee generally has a right to return to the same
position or an equivalent position with equivalent pay, benefits, and
working conditions at the conclusion of the leave. The taking of FMLA
leave cannot result in the loss of any benefit that accrued prior to
the start of the leave.
(d) The employer generally has a right to advance notice from the
employee. In addition, the employer may require an employee to submit
certification to substantiate that the leave is due to the serious
health condition of the employee or the employee's covered family
member, due to the serious injury or illness of a covered
servicemember, or because of a qualifying exigency. Failure to comply
with these requirements may result in a delay in the start of FMLA
leave. Pursuant to a uniformly applied policy, the employer may also
require that an employee present a certification of fitness to return
to work when the absence was caused by the employee's serious health
condition (see Sec. Sec. 825.312 and 825.313). The employer may delay
restoring the employee to employment without such certificate relating
to the health condition which caused the employee's absence.
Sec. 825.101 Purpose of the Act.
(a) FMLA is intended to allow employees to balance their work and
family life by taking reasonable unpaid leave for medical reasons, for
the birth or adoption of a child, for the care of a child, spouse, or
parent who has a serious health condition, for the care of a covered
servicemember with a serious injury or illness, or because of a
qualifying exigency arising out of the fact that the employee's spouse,
son, daughter, or parent is on active duty or call to active duty
status in support of a contingency operation. The Act is intended to
balance the demands of the workplace with the needs of families, to
promote the stability and economic security of families, and to promote
national interests in preserving family integrity. It was intended that
the Act accomplish these purposes in a manner that accommodates the
legitimate interests of employers, and in a manner consistent with the
Equal Protection Clause of the Fourteenth Amendment in minimizing the
potential for employment discrimination on the basis of sex, while
promoting equal employment opportunity for men and women.
(b) The FMLA was predicated on two fundamental concerns--the needs
of the American workforce, and the development of high-performance
organizations. Increasingly, America's children and elderly are
dependent upon family members who must spend long hours at work. When a
family emergency arises, requiring workers to attend to seriously-ill
children or parents, or to newly-born or adopted infants, or even to
their own serious illness, workers need reassurance that
[[Page 68075]]
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 employer is not determined by the
application of any single criterion, but rather the entire relationship
is to be reviewed in its totality. Factors considered in determining
whether two or more entities are an integrated employer include:
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common ownership/financial control.
(d) An ``employer'' includes any person who acts directly or
indirectly in the interest of an employer to any of the employer's
employees. The definition of ``employer'' in section 3(d) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly includes any
person acting directly or indirectly in the interest of an employer in
relation to an employee. As under the FLSA, individuals such as
corporate officers ``acting in the interest of an employer'' are
individually liable for any violations of the requirements of FMLA.
Sec. 825.105 Counting employees for determining coverage.
(a) The definition of ``employ'' for purposes of FMLA is taken from
the Fair Labor Standards Act, Sec. 3(g), 29 U.S.C. 203(g). The courts
have made it clear that the employment relationship under the FLSA is
broader than the traditional common law concept of master and servant.
The difference between the employment relationship under the FLSA and
that under the common law arises from the fact that the term ``employ''
as defined in the Act includes ``to suffer or permit to work.'' The
courts have indicated that, while ``to permit'' requires a more
positive action than ``to suffer,'' both terms imply much less positive
action than required by the common law. Mere knowledge by an employer
of work done for the employer by another is sufficient to create the
employment relationship under the Act. The courts have said that there
is no definition that solves all problems as to the limitations of the
employer-employee relationship under the Act; and that determination of
the relation cannot be based on ``isolated factors'' or upon a single
characteristic or ``technical concepts,'' but depends ``upon the
circumstances of the whole activity'' including the underlying
``economic reality.'' In general an employee, as distinguished from an
independent contractor who is engaged in a business of his/her own, is
one who ``follows the usual path of an employee'' and is dependent on
the business which he/she serves.
(b) Any employee whose name appears on the employer's payroll will
be considered employed each working day of the calendar week, and must
be counted whether or not any compensation is received for the week.
However, the FMLA applies only to employees who are employed within any
State of the United States, the District of Columbia or any Territory
or possession of the United States. Employees who are employed outside
these areas are not counted for purposes of determining employer
coverage or employee eligibility.
(c) Employees on paid or unpaid leave, including FMLA leave, leaves
of absence, disciplinary suspension, etc., are counted as long as the
employer has a reasonable expectation that the employee will later
return to active employment. If there is no employer/employee
relationship (as when an employee is laid off, whether temporarily or
permanently) such individual is not counted. Part-time employees, like
full-time employees, are considered to be employed each working day of
the calendar week, as long as they are maintained on the payroll.
(d) An employee who does not begin to work for an employer until
after the first working day of a calendar week, or who terminates
employment before the last working day of a calendar week, is not
considered employed on each working day of that calendar week.
(e) A private employer is covered if it maintained 50 or more
employees on the payroll during 20 or more calendar workweeks (not
necessarily consecutive workweeks) in either the current or the
preceding calendar year.
(f) Once a private employer meets the 50 employees/20 workweeks
threshold, the employer remains covered until it reaches a future point
where it no longer has employed 50 employees for 20 (nonconsecutive)
workweeks in the current and preceding calendar year. For example, if
an employer who met the 50 employees/20 workweeks test in the calendar
year as of September 1, 2008, subsequently dropped below 50
[[Page 68076]]
employees before the end of 2008 and continued to employ fewer than 50
employees in all workweeks throughout calendar year 2009, the employer
would continue to be covered throughout calendar year 2009 because it
met the coverage criteria for 20 workweeks of the preceding (i.e.,
2008) calendar year.
Sec. 825.106 Joint employer coverage.
(a) Where two or more businesses exercise some control over the
work or working conditions of the employee, the businesses may be joint
employers under FMLA. Joint employers may be separate and distinct
entities with separate owners, managers, and facilities. Where the
employee performs work which simultaneously benefits two or more
employers, or works for two or more employers at different times during
the workweek, a joint employment relationship generally will be
considered to exist in situations such as:
(1) Where there is an arrangement between employers to share an
employee's services or to interchange employees;
(2) Where one employer acts directly or indirectly in the interest
of the other employer in relation to the employee; or,
(3) Where the employers are not completely disassociated with
respect to the employee's employment and may be deemed to share control
of the employee, directly or indirectly, because one employer controls,
is controlled by, or is under common control with the other employer.
(b)(1) A determination of whether or not a joint employment
relationship exists is not determined by the application of any single
criterion, but rather the entire relationship is to be viewed in its
totality. For example, joint employment will ordinarily be found to
exist when a temporary placement agency supplies employees to a second
employer.
(2) A type of company that is often called a ``Professional
Employer Organization'' (PEO) contracts with client employers to
perform administrative functions such as payroll, benefits, regulatory
paperwork, and updating employment policies. The determination of
whether a PEO is a joint employer also turns on the economic realities
of the situation and must be based upon all the facts and
circumstances. A PEO does not enter into a joint employment
relationship with the employees of its client companies when it merely
performs such administrative functions. On the other hand, if in a
particular fact situation, a PEO has the right to hire, fire, assign,
or direct and control the client's employees, or benefits from the work
that the employees perform, such rights may lead to a determination
that the PEO would be a joint employer with the client employer,
depending upon all the facts and circumstances.
(c) In joint employment relationships, only the primary employer is
responsible for giving required notices to its employees, providing
FMLA leave, and maintenance of health benefits. Factors considered in
determining which is the ``primary'' employer include authority/
responsibility to hire and fire, assign/place the employee, make
payroll, and provide employment benefits. For employees of temporary
placement agencies, for example, the placement agency most commonly
would be the primary employer. Where a PEO is a joint employer, the
client employer most commonly would be the primary employer.
(d) Employees jointly employed by two employers must be counted by
both employers, whether or not maintained on one of the employer's
payroll, in determining employer coverage and employee eligibility. For
example, an employer who jointly employs 15 workers from a temporary
placement agency and 40 permanent workers is covered by FMLA. (A
special rule applies to employees jointly employed who physically work
at a facility of the secondary employer for a period of at least one
year. See Sec. 825.111(a)(3).) An employee on leave who is working for
a secondary employer is considered employed by the secondary employer,
and must be counted for coverage and eligibility purposes, as long as
the employer has a reasonable expectation that that employee will
return to employment with that employer. In those cases in which a PEO
is determined to be a joint employer of a client employer's employees,
the client employer would only be required to count employees of the
PEO (or employees of other clients of the PEO) if the client employer
jointly employed those employees.
(e) Job restoration is the primary responsibility of the primary
employer. The secondary employer is responsible for accepting the
employee returning from FMLA leave in place of the replacement employee
if the secondary employer continues to utilize an employee from the
temporary placement agency, and the agency chooses to place the
employee with the secondary employer. A secondary employer is also
responsible for compliance with the prohibited acts provisions with
respect to its jointly employed employees, whether or not the secondary
employer is covered by FMLA. See Sec. 825.220(a). The prohibited acts
include prohibitions against interfering with an employee's attempt to
exercise rights under the Act, or discharging or discriminating against
an employee for opposing a practice which is unlawful under FMLA. A
covered secondary employer will be responsible for compliance with all
the provisions of the FMLA with respect to its regular, permanent
workforce.
Sec. 825.107 Successor in interest coverage.
(a) For purposes of FMLA, in determining whether an employer is
covered because it is a ``successor in interest'' to a covered
employer, the factors used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Adjustment Act will be considered. However,
unlike Title VII, whether the successor has notice of the employee's
claim is not a consideration. Notice may be relevant, however, in
determining successor liability for violations of the predecessor. The
factors to be considered include:
(1) Substantial continuity of the same business operations;
(2) Use of the same plant;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products or services; and
(8) The ability of the predecessor to provide relief.
(b) A determination of whether or not a ``successor in interest''
exists is not determined by the application of any single criterion,
but rather the entire circumstances are to be viewed in their totality.
(c) When an employer is a ``successor in interest,'' employees'
entitlements are the same as if the employment by the predecessor and
successor were continuous employment by a single employer. For example,
the successor, whether or not it meets FMLA coverage criteria, must
grant leave for eligible employees who had provided appropriate notice
to the predecessor, or continue leave begun while employed by the
predecessor, including maintenance of group health benefits during the
leave and job restoration at the conclusion of the leave. A successor
which meets FMLA's coverage criteria must count periods of employment
and hours worked for the predecessor for purposes of determining
employee eligibility for FMLA leave.
[[Page 68077]]
Sec. 825.108 Public agency coverage.
(a) An ``employer'' under FMLA includes any ``public agency,'' as
defined in section 3(x) of the Fair Labor Standards Act, 29 U.S.C.
203(x). Section 3(x) of the FLSA defines ``public agency'' as the
government of the United States; the government of a State or political
subdivision of a State; or an agency of the United States, a State, or
a political subdivision of a State, or any interstate governmental
agency. ``State'' is further defined in Section 3(c) of the FLSA to
include any State of the United States, the District of Columbia, or
any Territory or possession of the United States.
(b) The determination of whether an entity is a ``public'' agency,
as distinguished from a private employer, is determined by whether the
agency has taxing authority, or whether the chief administrative
officer or board, etc., is elected by the voters-at-large or their
appointment is subject to approval by an elected official.
(c)(1) A State or a political subdivision of a State constitutes a
single public agency and, therefore, a single employer for purposes of
determining employee eligibility. For example, a State is a single
employer; a county is a single employer; a city or town is a single
employer. Whether two agencies of the same State or local government
constitute the same public agency can only be determined on a case-by-
case basis. One factor that would support a conclusion that two
agencies are separate is whether they are treated separately for
statistical purposes in the Census of Governments issued by the Bureau
of the Census, U.S. Department of Commerce.
(2) The Census Bureau takes a census of governments at 5-year
intervals. Volume I, Government Organization, contains the official
counts of the number of State and local governments. It includes
tabulations of governments by State, type of government, size, and
county location. Also produced is a universe list of governmental
units, classified according to type of government. Copies of Volume I,
Government Organization, and subsequent volumes are available from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, U.S. Department of Commerce District Offices, or
can be found in Regional and selective depository libraries, or online
at http://www.census.gov/govs/www/index.html. For a list of all
depository libraries, write to the Government Printing Office, 710 N.
Capitol St., NW., Washington, DC 20402.
(d) All public agencies are covered by the FMLA regardless of the
number of employees; they are not subject to the coverage threshold of
50 employees carried on the payroll each day for 20 or more weeks in a
year. However, employees of public agencies must meet all of the
requirements of eligibility, including the requirement that the
employer (e.g., State) employ 50 employees at the worksite or within 75
miles.
Sec. 825.109 Federal agency coverage.
(a) Most employees of the government of the United States, if they
are covered by the FMLA, are covered under Title II of the FMLA
(incorporated in Title V, Chapter 63, Subchapter 5 of the United States
Code) which is administered by the U.S. Office of Personnel Management
(OPM). OPM has separate regulations at 5 CFR Part 630, Subpart L.
Employees of the Government Printing Office are covered by Title II.
While employees of the Government Accountability Office and the Library
of Congress are covered by Title I of the FMLA, the Comptroller General
of the United States and the Librarian of Congress, respectively, have
responsibility for the administration of the FMLA with respect to these
employees. Other legislative branch employees, such as employees of the
Senate and House of Representatives, are covered by the Congressional
Accountability Act of 1995, 2 U.S.C. 1301.
(b) The Federal Executive Branch employees within the jurisdiction
of this part 825 include:
(1) Employees of the Postal Service;
(2) Employees of the Postal Regulatory Commission;
(3) A part-time employee who does not have an established regular
tour of duty during the administrative workweek; and,
(4) An employee serving under an intermittent appointment or
temporary appointment with a time limitation of one year or less.
(c) Employees of other Federal executive agencies are also covered
by this part 825 if they are not covered by Title II of FMLA.
(d) Employees of the judicial branch of the United States are
covered by these regulations only if they are employed in a unit which
has employees in the competitive service. For example, employees of the
U.S. Tax Court are covered by this part 825.
(e) For employees covered by these regulations, the U.S. Government
constitutes a single employer for purposes of determining employee
eligibility. These employees must meet all of the requirements for
eligibility, including the requirement that the Federal Government
employ 50 employees at the worksite or within 75 miles.
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 seven years
or more need not be counted in determining whether the employee has
been employed by the employer for at least 12 months.
(2) Employment periods preceding a break in service of more than
seven years must be counted in determining whether the employee has
been employed by the employer for at least 12 months where:
(i) The employee's break in service is occasioned by the
fulfillment of his or her National Guard or Reserve military service
obligation. The time served performing the military service must be
also counted in determining whether the employee has been employed for
at least 12 months by the employer. However, this section does not
provide any greater entitlement to the employee than would be available
under the Uniformed Services Employment and Reemployment Rights Act
(USERRA), 38 U.S.C. 4301, et seq.; or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes).
(3) If an employee is maintained on the payroll for any part of a
week, including any periods of paid or unpaid leave (sick, vacation)
during which other benefits or compensation are provided by the
employer (e.g., workers' compensation, group health plan benefits,
etc.), the week counts as a week of employment. For purposes of
determining whether intermittent/occasional/casual employment qualifies
[[Page 68078]]
as ``at least 12 months,'' 52 weeks is deemed to be equal to 12 months.
(4) Nothing in this section prevents employers from considering
employment prior to a continuous break in service of more than seven
years when determining whether an employee has met the 12-month
employment requirement. However, if an employer chooses to recognize
such prior employment, the employer must do so uniformly, with respect
to all employees with similar breaks in service.
(c)(1) Except as provided in paragraph (c)(2) of this section,
whether an employee has worked the minimum 1,250 hours of service is
determined according to the principles established under the Fair Labor
Standards Act (FLSA) for determining compensable hours of work. (See 29
CFR part 785). The determining factor is the number of hours an
employee has worked for the employer within the meaning of the FLSA.
The determination is not limited by methods of recordkeeping, or by
compensation agreements that do not accurately reflect all of the hours
an employee has worked for or been in service to the employer. Any
accurate accounting of actual hours worked under FLSA's principles may
be used.
(2) Pursuant to USERRA, an employee returning from fulfilling his
or her National Guard or Reserve military obligation shall be credited
with the hours of service that would have been performed but for the
period of military service in determining whether the employee worked
the 1,250 hours of service. Accordingly, a person reemployed following
military service has the hours that would have been worked for the
employer added to any hours actually worked during the previous 12-
month period to meet the 1,250 hour requirement. In order to determine
the hours that would have been worked during the period of military
service, the employee's pre-service work schedule can generally be used
for calculations.
(3) In the event an employer does not maintain an accurate record
of hours worked by an employee, including for employees who are exempt
from FLSA's requirement that a record be kept of their hours worked
(e.g., bona fide executive, administrative, and professional employees
as defined in FLSA Regulations, 29 CFR part 541), the employer has the
burden of showing that the employee has not worked the requisite hours.
An employer must be able to clearly demonstrate, for example, that
full-time teachers (see Sec. 825.800 for definition) of an elementary
or secondary school system, or institution of higher education, or
other educational establishment or institution (who often work outside
the classroom or at their homes) did not work 1,250 hours during the
previous 12 months in order to claim that the teachers are not eligible
for FMLA leave.
(d) The determination of whether an employee has worked for the
employer for at least 1,250 hours in the past 12 months and has been
employed by the employer for a total of at least 12 months must be made
as of the date the FMLA leave is to start. An employee may be on ``non-
FMLA leave'' at the time he or she meets the eligibility requirements,
and in that event, any portion of the leave taken for an FMLA-
qualifying reason after the employee meets the eligibility requirement
would be ``FMLA leave.'' (See Sec. 825.300(b) for rules governing the
content of the eligibility notice given to employees.)
(e) Whether 50 employees are employed within 75 miles to ascertain
an employee's eligibility for FMLA benefits is determined when the
employee gives notice of the need for leave. Whether the leave is to be
taken at one time or on an intermittent or reduced leave schedule
basis, once an employee is determined eligible in response to that
notice of the need for leave, the employee's eligibility is not
affected by any subsequent change in the number of employees employed
at or within 75 miles of the employee's worksite, for that specific
notice of the need for leave. Similarly, an employer may not terminate
employee leave that has already started if the employee-count drops
below 50. For example, if an employer employs 60 employees in August,
but expects that the number of employees will drop to 40 in December,
the employer must grant FMLA benefits to an otherwise eligible employee
who gives notice of the need for leave in August for a period of leave
to begin in December.
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,
[[Page 68079]]
their worksite is the office to which they report and from which
assignments are made.
(3) For purposes of determining that employee's eligibility, when
an employee is jointly employed by two or more employers (see Sec.
825.106), the employee's worksite is the primary employer's office from
which the employee is assigned or reports, unless the employee has
physically worked for at least one year at a facility of a secondary
employer, in which case the employee's worksite is that location. The
employee is also counted by the secondary employer to determine
eligibility for the secondary employer's full-time or permanent
employees.
(b) The 75-mile distance is measured by surface miles, using
surface transportation over public streets, roads, highways and
waterways, by the shortest route from the facility where the employee
needing leave is employed. Absent available surface transportation
between worksites, the distance is measured by using the most
frequently utilized mode of transportation (e.g., airline miles).
(c) The determination of how many employees are employed within 75
miles of the worksite of an employee is based on the number of
employees maintained on the payroll. Employees of educational
institutions who are employed permanently or who are under contract are
``maintained on the payroll'' during any portion of the year when
school is not in session. See Sec. 825.105(c).
Sec. 825.112 Qualifying reasons for leave, general rule.
(a) Circumstances qualifying for leave. Employers covered by FMLA
are required to grant leave to eligible employees:
(1) For birth of a son or daughter, and to care for the newborn
child (see Sec. 825.120);
(2) For placement with the employee of a son or daughter for
adoption or foster care (see Sec. 825.121);
(3) To care for the employee's spouse, son, daughter, or parent
with a serious health condition (see Sec. Sec. 825.113 and 825.122);
(4) Because of a serious health condition that makes the employee
unable to perform the functions of the employee's job (see Sec. Sec.
825.113 and 825.123);
(5) Because of any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a covered military
member on active duty (or has been notified of an impending call or
order to active duty) in support of a contingency operation (see
Sec. Sec. 825.122 and 825.126); and
(6) To care for a covered servicemember with a serious injury or
illness if the employee is the spouse, son, daughter, parent, or next
of kin of the servicemember (see Sec. Sec. 825.122 and 825.127).
(b) Equal application. The right to take leave under FMLA applies
equally to male and female employees. A father, as well as a mother,
can take family leave for the birth, placement for adoption, or foster
care of a child.
(c) Active employee. In situations where the employer/employee
relationship has been interrupted, such as an employee who has been on
layoff, the employee must be recalled or otherwise be re-employed
before being eligible for FMLA leave. Under such circumstances, an
eligible employee is immediately entitled to further FMLA leave for a
qualifying reason.
Sec. 825.113 Serious health condition.
(a) For purposes of FMLA, ``serious health condition'' entitling an
employee to FMLA leave means an illness, injury, impairment or physical
or mental condition that involves inpatient care as defined in Sec.
825.114 or continuing treatment by a health care provider as defined in
Sec. 825.115.
(b) The term ``incapacity'' means inability to work, attend school
or perform other regular daily activities due to the serious health
condition, treatment therefore, or recovery therefrom.
(c) The term ``treatment'' includes (but is not limited to)
examinations to determine if a serious health condition exists and
evaluations of the condition. Treatment does not include routine
physical examinations, eye examinations, or dental examinations. A
regimen of continuing treatment includes, for example, a course of
prescription medication (e.g., an antibiotic) or therapy requiring
special equipment to resolve or alleviate the health condition (e.g.,
oxygen). A regimen of continuing treatment that includes the taking of
over-the-counter medications such as aspirin, antihistamines, or
salves; or bed-rest, drinking fluids, exercise, and other similar
activities that can be initiated without a visit to a health care
provider, is not, by itself, sufficient to constitute a regimen of
continuing treatment for purposes of FMLA leave.
(d) Conditions for which cosmetic treatments are administered (such
as most treatments for acne or plastic surgery) are not ``serious
health conditions'' unless inpatient hospital care is required or
unless complications develop. Ordinarily, unless complications arise,
the common cold, the flu, ear aches, upset stomach, minor ulcers,
headaches other than migraine, routine dental or orthodontia problems,
periodontal disease, etc., are examples of conditions that do not meet
the definition of a serious health condition and do not qualify for
FMLA leave. Restorative dental or plastic surgery after an injury or
removal of cancerous growths are serious health conditions provided all
the other conditions of this regulation are met. Mental illness or
allergies may be serious health conditions, but only if all the
conditions of this section are met.
Sec. 825.114 Inpatient care.
Inpatient care means an overnight stay in a hospital, hospice, or
residential medical care facility, including any period of incapacity
as defined in Sec. 825.113(b), or any subsequent treatment in
connection with such inpatient care.
Sec. 825.115 Continuing treatment.
A serious health condition involving continuing treatment by a
health care provider includes any one or more of the following:
(a) Incapacity and treatment. A period of incapacity of more than
three consecutive, full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition, that also
involves:
(1) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider;
or
(2) Treatment by a health care provider on at least one occasion,
which results in a regimen of continuing treatment under the
supervision of the health care provider.
(3) The requirement in paragraphs (a)(1) and (2) of this section
for treatment by a health care provider means an in-person visit to a
health care provider. The first (or only) in-person treatment visit
must take place within seven days of the first day of incapacity.
(4) Whether additional treatment visits or a regimen of continuing
treatment is necessary within the 30-day period shall be determined by
the health care provider.
(5) The term ``extenuating circumstances'' in paragraph (a)(1) of
this section means circumstances beyond the employee's control that
[[Page 68080]]
prevent the follow-up visit from occurring as planned by the health
care provider. Whether a given set of circumstances are extenuating
depends on the facts. For example, extenuating circumstances exist if a
health care provider determines that a second in-person visit is needed
within the 30-day period, but the health care provider does not have
any available appointments during that time period.
(b) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(c) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(d) Permanent or long-term conditions. A period of incapacity which
is permanent or long-term due to a condition for which treatment may
not be effective. The employee or family member must be under the
continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(e) Conditions requiring multiple treatments. Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
for:
(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity
of more than three consecutive, full calendar days in the absence of
medical intervention or treatment, such as cancer (chemotherapy,
radiation, etc.), severe arthritis (physical therapy), or kidney
disease (dialysis).
(f) Absences attributable to incapacity under paragraph (b) or (c)
of this section qualify for FMLA leave even though the employee or the
covered family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three consecutive, full calendar days. For example, an employee
with asthma may be unable to report for work due to the onset of an
asthma attack or because the employee's health care provider has
advised the employee to stay home when the pollen count exceeds a
certain level. An employee who is pregnant may be unable to report to
work because of severe morning sickness.
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
FMLA leave for a birth expires at the end of the 12-month period
beginning on the date of the birth. If state law allows, or the
employer permits, bonding leave to be taken beyond this period, such
leave will not qualify as FMLA leave. See Sec. 825.701 regarding non-
FMLA leave which may be available under applicable State laws. Under
this section, both the mother and father are entitled to FMLA leave
even if the newborn does not have a serious health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for birth of the employee's son or daughter or to care for the
child after birth, for placement of a son or daughter with the employee
for adoption or foster care or to care for the child after placement,
or to care for the employee's parent with a serious health condition.
This limitation on the total weeks of leave applies to leave taken for
the reasons specified as long as a husband and wife are employed by the
``same employer.'' It would apply, for example, even though the spouses
are employed at two different worksites of an employer located more
than 75 miles from each other, or by two different operating divisions
of the same company. On the other hand, if one spouse is ineligible for
FMLA leave, the other spouse would be entitled to a full 12 weeks of
FMLA leave. Where the husband and wife both use a portion of the total
12-week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took 6 weeks of leave to
care for a healthy, newborn child, each could use an additional 6 weeks
due to his or her own serious health condition or to care for a child
with a serious health condition. Note, too, that many State pregnancy
disability laws specify a period of disability either before or after
the birth of a child; such periods would also be considered FMLA leave
for a serious health condition of the mother, and would not be subject
to the combined limit.
(4) The mother is entitled to FMLA leave for incapacity due to
pregnancy, for prenatal care, or for her own serious health condition
following the birth of the child. Circumstances may require that FMLA
leave begin before the actual date of birth of a child. An expectant
mother may take FMLA leave before the birth of the child for prenatal
care or if
[[Page 68081]]
her condition makes her unable to work. The mother is entitled to leave
for incapacity due to pregnancy even though she does not receive
treatment from a health care provider during the absence, and even if
the absence does not last for more than three consecutive calendar
days. For example, a pregnant employee may be unable to report to work
because of severe morning sickness.
(5) The husband is entitled to FMLA leave if needed to care for his
pregnant spouse who is incapacitated or if needed to care for her
during her prenatal care, or if needed to care for the spouse following
the birth of a child if the spouse has a serious health condition. See
Sec. 825.124.
(6) Both the mother and father are entitled to FMLA leave if needed
to care for a child with a serious health condition if the requirements
of Sec. Sec. 825.113 through 825.115 and 825.122(c) are met. Thus, a
husband and wife may each take 12 weeks of FMLA leave if needed to care
for their newborn child with a serious health condition, even if both
are employed by the same employer, provided they have not exhausted
their entitlements during the applicable 12-month FMLA leave period.
(b) Intermittent and reduced schedule leave. An eligible employee
may use intermittent or reduced schedule leave after the birth to be
with a healthy newborn child only if the employer agrees. For example,
an employer and employee may agree to a part-time work schedule after
the birth. If the employer agrees to permit intermittent or reduced
schedule leave for the birth of a child, the employer may require the
employee to transfer temporarily, during the period the intermittent or
reduced leave schedule is required, to an available alternative
position for which the employee is qualified and which better
accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
mother or newborn child. See Sec. Sec. 825.202 through 825.205 for
general rules governing the use of intermittent and reduced schedule
leave. See Sec. 825.121 for rules governing leave for adoption or
foster care. See Sec. 825.601 for special rules applicable to
instructional employees of schools.
Sec. 825.121 Leave for adoption or foster care.
(a) General rules. Eligible employees are entitled to FMLA leave
for placement with the employee of a son or daughter for adoption or
foster care as follows:
(1) Employees may take FMLA leave before the actual placement or
adoption of a child if an absence from work is required for the
placement for adoption or foster care to proceed. For example, the
employee may be required to attend counseling sessions, appear in
court, consult with his or her attorney or the doctor(s) representing
the birth parent, submit to a physical examination, or travel to
another country to complete an adoption. The source of an adopted child
(e.g., whether from a licensed placement agency or otherwise) is not a
factor in determining eligibility for leave for this purpose.
(2) An employee's entitlement to leave for adoption or foster care
expires at the end of the 12-month period beginning on the date of the
placement. If state law allows, or the employer permits, leave for
adoption or foster care to be taken beyond this period, such leave will
not qualify as FMLA leave. See Sec. 825.701 regarding non-FMLA leave
which may be available under applicable State laws. Under this section,
the employee is entitled to FMLA leave even if the adopted or foster
child does not have a serious health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for the placement of the employee's son or daughter or to care
for the child after placement, for the birth of the employee's son or
daughter or to care for the child after birth, or to care for the
employee's parent with a serious health condition. This limitation on
the total weeks of leave applies to leave taken for the reasons
specified as long as a husband and wife are employed by the ``same
employer.'' It would apply, for example, even though the spouses are
employed at two different worksites of an employer located more than 75
miles from each other, or by two different operating divisions of the
same company. On the other hand, if one spouse is ineligible for FMLA
leave, the other spouse would be entitled to a full 12 weeks of FMLA
leave. Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took 6 weeks of leave to
care for a healthy, newly placed child, each could use an additional 6
weeks due to his or her own serious health condition or to care for a
child with a serious health condition.
(4) An eligible employee is entitled to FMLA leave in order to care
for an adopted or foster child with a serious health condition if the
requirements of Sec. Sec. 825.113 through 825.115 and 825.122(c) are
met. Thus, a husband and wife may each take 12 weeks of FMLA leave if
needed to care for an adopted or foster child with a serious health
condition, even if both are employed by the same employer, provided
they have not exhausted their entitlements during the applicable 12-
month FMLA leave period.
(b) Use of intermittent and reduced schedule leave. An eligible
employee may use intermittent or reduced schedule leave after the
placement of a healthy child for adoption or foster care only if the
employer agrees. Thus, for example, the employer and employee may agree
to a part-time work schedule after the placement for bonding purposes.
If the employer agrees to permit intermittent or reduced schedule leave
for the placement for adoption or foster care, the employer may require
the employee to transfer temporarily, during the period the
intermittent or reduced leave schedule is required, to an available
alternative position for which the employee is qualified and which
better accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
adopted or foster child. See Sec. Sec. 825.202 through 825.205 for
general rules governing the use of intermittent and reduced schedule
leave. See Sec. 825.120 for general rules governing leave for
pregnancy and birth of a child. See
[[Page 68082]]
Sec. 825.601 for special rules applicable to instructional employees
of schools.
Sec. 825.122 Definitions of spouse, parent, son or daughter, next of
kin of a covered servicemember, adoption, foster care, son or daughter
on active duty or call to active duty status, son or daughter of a
covered servicemember, and parent of a covered servicemember.
(a) Spouse. Spouse means a husband or wife as defined or recognized
under State law for purposes of marriage in the State where the
employee resides, including common law marriage in States where it is
recognized.
(b) Parent. Parent means a biological, adoptive, step or foster
father or mother, or any other individual who stood in loco parentis to
the employee when the employee was a son or daughter as defined in
paragraph (c) of this section. This term does not include parents ``in
law.''
(c) Son or daughter. For purposes of FMLA leave taken for birth or
adoption, or to care for a family member with a serious health
condition, son or daughter means a biological, adopted, or foster
child, a stepchild, a legal ward, or a child of a person standing in
loco parentis, who is either under age 18, or age 18 or older and
``incapable of self-care because of a mental or physical disability''
at the time that FMLA leave is to commence.
(1) ``Incapable of self-care'' means that the individual requires
active assistance or supervision to provide daily self-care in three or
more of the ``activities of daily living'' (ADLs) or ``instrumental
activities of daily living'' (IADLs). Activities of daily living
include adaptive activities such as caring appropriately for one's
grooming and hygiene, bathing, dressing and eating. Instrumental
activities of daily living include cooking, cleaning, shopping, taking
public transportation, paying bills, maintaining a residence, using
telephones and directories, using a post office, etc.
(2) ``Physical or mental disability'' means a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual. Regulations at 29 CFR 1630.2(h), (i), and
(j), issued by the Equal Employment Opportunity Commission under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define
these terms.
(3) Persons who are ``in loco parentis'' include those with day-to-
day responsibilities to care for and financially support a child, or,
in the case of an employee, who had such responsibility for the
employee when the employee was a child. A biological or legal
relationship is not necessary.
(d) Next of kin of a covered servicemember. ``Next of kin of a
covered servicemember'' means the nearest blood relative other than the
covered servicemember's spouse, parent, son, or daughter, in the
following order of priority: Blood relatives who have been granted
legal custody of the covered servicemember by court decree or statutory
provisions, brothers and sisters, grandparents, aunts and uncles, and
first cousins, unless the covered servicemember has specifically
designated in writing another blood relative as his or her nearest
blood relative for purposes of military caregiver leave under the FMLA.
When no such designation is made, and there are multiple family members
with the same level of relationship to the covered servicemember, all
such family members shall be considered the covered servicemember's
next of kin and may take FMLA leave to provide care to the covered
servicemember, either consecutively or simultaneously. When such
designation has been made, the designated individual shall be deemed to
be the covered servicemember's only next of kin. See Sec.
825.127(b)(3).
(e) Adoption. ``Adoption'' means legally and permanently assuming
the responsibility of raising a child as one's own. The source of an
adopted child (e.g., whether from a licensed placement agency or
otherwise) is not a factor in determining eligibility for FMLA leave.
See Sec. 825.121 for rules governing leave for adoption.
(f) Foster care. Foster care is 24-hour care for children in
substitution for, and away from, their parents or guardian. Such
placement is made by or with the agreement of the State as a result of
a voluntary agreement between the parent or guardian that the child be
removed from the home, or pursuant to a judicial determination of the
necessity for foster care, and involves agreement between the State and
foster family that the foster family will take care of the child.
Although foster care may be with relatives of the child, State action
is involved in the removal of the child from parental custody. See
Sec. 825.121 for rules governing leave for foster care.
(g) Son or daughter on active duty or call to active duty status.
``Son or daughter on active duty or call to active duty status'' means
the employee's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the employee stood in loco parentis, who is
on active duty or call to active duty status, and who is of any age.
See Sec. 825.126(b)(1).
(h) Son or daughter of a covered servicemember. ``Son or daughter
of a covered servicemember'' means the servicemember's biological,
adopted, or foster child, stepchild, legal ward, or a child for whom
the servicemember stood in loco parentis, and who is of any age. See
Sec. 825.127(b)(1).
(i) Parent of a covered servicemember. ``Parent of a covered
servicemember'' means a covered servicemember's biological, adoptive,
step or foster father or mother, or any other individual who stood in
loco parentis to the covered servicemember. This term does not include
parents ``in law.'' See Sec. 825.127(b)(2).
(j) Documenting relationships. For purposes of confirmation of
family relationship, the employer may require the employee giving
notice of the need for leave to provide reasonable documentation or
statement of family relationship. This documentation may take the form
of a simple statement from the employee, or a child's birth
certificate, a court document, etc. The employer is entitled to examine
documentation such as a birth certificate, etc., but the employee is
entitled to the return of the official document submitted for this
purpose.
Sec. 825.123 Unable to perform the functions of the position.
(a) Definition. An employee is ``unable to perform the functions of
the position'' where the health care provider finds that the employee
is unable to work at all or is unable to perform any one of the
essential functions of the employee's position within the meaning of
the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. 12101
et seq., and the regulations at 29 CFR 1630.2(n). An employee who must
be absent from work to receive medical treatment for a serious health
condition is considered to be unable to perform the essential functions
of the position during the absence for treatment.
(b) Statement of functions. An employer has the option, in
requiring certification from a health care provider, to provide a
statement of the essential functions of the employee's position for the
health care provider to review. A sufficient medical certification must
specify what functions of the employee's position the employee is
unable to perform so that the employer can then determine whether the
employee is unable to perform one or more essential functions of the
employee's position. For purposes of FMLA, the essential functions of
the employee's position are to be determined with reference to the
position the employee held at the time
[[Continued on page 68083]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 68083-68133]] The Family and Medical Leave Act of 1993
[[Continued from page 68082]]
[[Page 68083]]
notice is given or leave commenced, whichever is earlier. See Sec.
825.306.
Sec. 825.124 Needed to care for a family member or covered
servicemember.
(a) The medical certification provision that an employee is
``needed to care for'' a family member or covered servicemember
encompasses both physical and psychological care. It includes
situations where, for example, because of a serious health condition,
the family member is unable to care for his or her own basic medical,
hygienic, or nutritional needs or safety, or is unable to transport
himself or herself to the doctor. The term also includes providing
psychological comfort and reassurance which would be beneficial to a
child, spouse or parent with a serious health condition who is
receiving inpatient or home care.
(b) The term also includes situations where the employee may be
needed to substitute for others who normally care for the family member
or covered servicemember, or to make arrangements for changes in care,
such as transfer to a nursing home. The employee need not be the only
individual or family member available to care for the family member or
covered servicemember.
(c) An employee's intermittent leave or a reduced leave schedule
necessary to care for a family member or covered servicemember includes
not only a situation where the condition of the family member or
covered servicemember itself is intermittent, but also where the
employee is only needed intermittently--such as where other care is
normally available, or care responsibilities are shared with another
member of the family or a third party. See Sec. Sec. 825.202 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.
Sec. 825.126 Leave because of a qualifying exigency.
(a) Eligible employees may take FMLA leave while the employee's
spouse, son, daughter, or parent (the ``covered military member'') is
on active duty or call to active duty status as defined in Sec.
825.126(b)(2) for one or more of the following qualifying exigencies:
(1) Short-notice deployment.
(i) To address any issue that arises from the fact that a covered
military member is notified of an impending call or order to active
duty in support of a contingency operation seven or less calendar days
prior to the date of deployment;
(ii) Leave taken for this purpose can be used for a period of seven
calendar days beginning on the date a covered military member is
notified of an impending call or order to active duty in support of a
contingency operation;
(2) Military events and related activities.
(i) To attend any official ceremony, program, or event sponsored by
the military that is related to the active duty or call to active duty
status of a covered military member; and
(ii) To attend family support or assistance programs and
informational briefings sponsored or promoted by the military, military
service organizations, or the American Red Cross that are related to
the active duty or call to active duty status of a covered military
member;
(3) Childcare and school activities.
(i) To arrange for alternative childcare when the active duty or
call to active duty status of a covered military member necessitates a
change in the existing childcare arrangement for a biological, adopted,
or foster child, a stepchild, or a legal ward of a covered military
member, or a child for whom a covered military member stands in loco
parentis, who is either under age 18, or age 18 or older and incapable
of self-care because of a mental or physical disability at the time
that FMLA leave is to commence;
(ii) To provide childcare on an urgent, immediate need basis (but
not on a routine, regular, or everyday basis) when the need to provide
such care arises from the active duty or call to active duty status of
a covered military member for a biological, adopted, or foster child, a
stepchild, or a legal ward of a covered military member, or a child for
whom a covered military member stands in loco parentis, who is either
under age 18, or age 18 or older and incapable of self-care because of
a mental or physical disability at the time that FMLA leave is to
commence;
(iii) To enroll in or transfer to a new school or day care facility
a biological, adopted, or foster child, a stepchild, or a legal ward of
the covered military member, or a child for whom the covered military
member stands in loco parentis, who is either under age 18, or age 18
or older and incapable of self-care because of a mental or physical
disability at the time that FMLA leave is to commence, when enrollment
or transfer is necessitated by the active duty or call to active duty
status of a covered military member; and
(iv) To attend meetings with staff at a school or a daycare
facility, such as meetings with school officials regarding disciplinary
measures, parent-teacher conferences, or meetings with school
counselors, for a biological, adopted, or foster child, a stepchild, or
a legal ward of the covered military member, or a child for whom the
covered military member stands in loco parentis, who is either under
age 18, or age 18 or older and incapable of self-care because of a
[[Page 68084]]
mental or physical disability at the time that FMLA leave is to
commence, when such meetings are necessary due to circumstances arising
from the active duty or call to active duty status of a covered
military member;
(4) Financial and legal arrangements.
(i) To make or update financial or legal arrangements to address
the covered military member's absence while on active duty or call to
active duty status, such as preparing and executing financial and
healthcare powers of attorney, transferring bank account signature
authority, enrolling in the Defense Enrollment Eligibility Reporting
System (DEERS), obtaining military identification cards, or preparing
or updating a will or living trust; and
(ii) To act as the covered military member's representative before
a federal, state, or local agency for purposes of obtaining, arranging,
or appealing military service benefits while the covered military
member is on active duty or call to active duty status, and for a
period of 90 days following the termination of the covered military
member's active duty status;
(5) Counseling. To attend counseling provided by someone other than
a health care provider for oneself, for the covered military member, or
for the biological, adopted, or foster child, a stepchild, or a legal
ward of the covered military member, or a child for whom the covered
military member stands in loco parentis, who is either under age 18, or
age 18 or older and incapable of self-care because of a mental or
physical disability at the time that FMLA leave is to commence,
provided that the need for counseling arises from the active duty or
call to active duty status of a covered military member;
(6) Rest and recuperation.
(i) To spend time with a covered military member who is on short-
term, temporary, rest and recuperation leave during the period of
deployment;
(ii) Eligible employees may take up to five days of leave for each
instance of rest and recuperation;
(7) Post-deployment activities.
(i) To attend arrival ceremonies, reintegration briefings and
events, and any other official ceremony or program sponsored by the
military for a period of 90 days following the termination of the
covered military member's active duty status; and
(ii) To address issues that arise from the death of a covered
military member while on active duty status, such as meeting and
recovering the body of the covered military member and making funeral
arrangements;
(8) Additional activities. To address other events which arise out
of the covered military member's active duty or call to active duty
status provided that the employer and employee agree that such leave
shall qualify as an exigency, and agree to both the timing and duration
of such leave.
(b) A ``covered military member'' means the employee's spouse, son,
daughter, or parent on active duty or call to active duty status.
(1) A ``son or daughter on active duty or call to active duty
status'' means the employee's biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the employee stood in loco
parentis, who is on active duty or call to active duty status, and who
is of any age.
(2) ``Active duty or call to active duty status'' means duty under
a call or order to active duty (or notification of an impending call or
order to active duty) in support of a contingency operation pursuant
to: Section 688 of Title 10 of the United States Code, which authorizes
ordering to active duty retired members of the Regular Armed Forces and
members of the retired Reserve who retired after completing at least 20
years of active service; Section 12301(a) of Title 10 of the United
States Code, which authorizes ordering all reserve component members to
active duty in the case of war or national emergency; Section 12302 of
Title 10 of the United States Code, which authorizes ordering any unit
or unassigned member of the Ready Reserve to active duty; Section 12304
of Title 10 of the United States Code, which authorizes ordering any
unit or unassigned member of the Selected Reserve and certain members
of the Individual Ready Reserve to active duty; Section 12305 of Title
10 of the United States Code, which authorizes the suspension of
promotion, retirement or separation rules for certain Reserve
components; Section 12406 of Title 10 of the United States Code, which
authorizes calling the National Guard into federal service in certain
circumstances; chapter 15 of Title 10 of the United States Code, which
authorizes calling the National Guard and state military into federal
service in the case of insurrections and national emergencies; or any
other provision of law during a war or during a national emergency
declared by the President or Congress so long as it is in support of a
contingency operation.
(i) Employees are eligible to take FMLA leave because of a
qualifying exigency when the covered military member is on active duty
or call to active duty status in support of a contingency operation
pursuant to one of the provisions of law identified in paragraph (b)(2)
of this section as either a member of the reserve components (Army
National Guard of the United States, Army Reserve, Navy Reserve, Marine
Corps Reserve, Air National Guard of the United States, Air Force
Reserve and Coast Guard Reserve), or a retired member of the Regular
Armed Forces or Reserve. An employee whose family member is on active
duty or call to active duty status in support of a contingency
operation as a member of the Regular Armed Forces is not eligible to
take leave because of a qualifying exigency.
(ii) A call to active duty for purposes of leave taken because of a
qualifying exigency refers to a Federal call to active duty. State
calls to active duty are not covered unless under order of the
President of the United States pursuant to one of the provisions of law
identified in paragraph (b)(2) of this section in support of a
contingency operation.
(3) The active duty orders of a covered military member will
generally specify if the servicemember is serving in support of a
contingency operation by citation to the relevant section of Title 10
of the United States Code and/or by reference to the specific name of
the contingency operation. A military operation qualifies as a
contingency operation if it:
(i) is designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(ii) results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12305, or 12406 of Title 10 of the United States Code,
chapter 15 of Title 10 of the United States Code, or any other
provision of law during a war or during a national emergency declared
by the President or Congress. 10 U.S.C. 101(a)(13).
Sec. 825.127 Leave to care for a covered servicemember with a serious
injury or illness.
(a) Eligible employees are entitled to FMLA leave to care for a
current member of the Armed Forces, including a member of the National
Guard or Reserves, or a member of the Armed Forces, the National Guard
or Reserves who is on the temporary disability retired list, who has a
serious injury or illness incurred in the line of duty on active duty
for which he or she is
[[Page 68085]]
undergoing medical treatment, recuperation, or therapy; or otherwise in
outpatient status; or otherwise on the temporary disability retired
list. Eligible employees may not take leave under this provision to
care for former members of the Armed Forces, former members of the
National Guard and Reserves, and members on the permanent disability
retired list.
(1) A ``serious injury or illness'' means an injury or illness
incurred by a covered servicemember in the line of duty on active duty
that may render the servicemember medically unfit to perform the duties
of his or her office, grade, rank or rating.
(2) ``Outpatient status,'' with respect to a covered servicemember,
means the status of a member of the Armed Forces assigned to either a
military medical treatment facility as an outpatient; or a unit
established for the purpose of providing command and control of members
of the Armed Forces receiving medical care as outpatients.
(b) In order to care for a covered servicemember, an eligible
employee must be the spouse, son, daughter, or parent, or next of kin
of a covered servicemember.
(1) A ``son or daughter of a covered servicemember'' means the
covered servicemember's biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the covered servicemember
stood in loco parentis, and who is of any age.
(2) A ``parent of a covered servicemember'' means a covered
servicemember's biological, adoptive, step or foster father or mother,
or any other individual who stood in loco parentis to the covered
servicemember. This term does not include parents ``in law.''
(3) The ``next of kin of a covered servicemember'' is the nearest
blood relative, other than the covered servicemember's spouse, parent,
son, or daughter, in the following order of priority: blood relatives
who have been granted legal custody of the servicemember by court
decree or statutory provisions, brothers and sisters, grandparents,
aunts and uncles, and first cousins, unless the covered servicemember
has specifically designated in writing another blood relative as his or
her nearest blood relative for purposes of military caregiver leave
under the FMLA. When no such designation is made, and there are
multiple family members with the same level of relationship to the
covered servicemember, all such family members shall be considered the
covered servicemember's next of kin and may take FMLA leave to provide
care to the covered servicemember, either consecutively or
simultaneously. When such designation has been made, the designated
individual shall be deemed to be the covered servicemember's only next
of kin. For example, if a covered servicemember has three siblings and
has not designated a blood relative to provide care, all three siblings
would be considered the covered servicemember's next of kin.
Alternatively, where a covered servicemember has a sibling(s) and
designates a cousin as his or her next of kin for FMLA purposes, then
only the designated cousin is eligible as the covered servicemember's
next of kin. An employer is permitted to require an employee to provide
confirmation of covered family relationship to the covered
servicemember pursuant to Sec. 825.122(j).
(c) An eligible employee is entitled to 26 workweeks of leave to
care for a covered servicemember with a serious injury or illness
during a ``single 12-month period.''
(1) The ``single 12-month period'' described in paragraph (c) of
this section begins on the first day the eligible employee takes FMLA
leave to care for a covered servicemember and ends 12 months after that
date, regardless of the method used by the employer to determine the
employee's 12 workweeks of leave entitlement for other FMLA-qualifying
reasons. If an eligible employee does not take all of his or her 26
workweeks of leave entitlement to care for a covered servicemember
during this ``single 12-month period,'' the remaining part of his or
her 26 workweeks of leave entitlement to care for the covered
servicemember is forfeited.
(2) The leave entitlement described in paragraph (c) of this
section is to be applied on a per-covered-servicemember, per-injury
basis such that an eligible employee may be entitled to take more than
one period of 26 workweeks of leave if the leave is to care for
different covered servicemembers or to care for the same servicemember
with a subsequent serious injury or illness, except that no more than
26 workweeks of leave may be taken within any ``single 12-month
period.'' An eligible employee may take more than one period of 26
workweeks of leave to care for a covered servicemember with more than
one serious injury or illness only when the serious injury or illness
is a subsequent serious injury or illness. When an eligible employee
takes leave to care for more than one covered servicemember or for a
subsequent serious injury or illness of the same covered servicemember,
and the ``single 12-month periods'' corresponding to the different
military caregiver leave entitlements overlap, the employee is limited
to taking no more than 26 workweeks of leave in each ``single 12-month
period.''
(3) An eligible employee is entitled to a combined total of 26
workweeks of leave for any FMLA-qualifying reason during the ``single
12-month period'' described in paragraph (c) of this section, provided
that the employee is entitled to no more than 12 weeks of leave for one
or more of the following: because of the birth of a son or daughter of
the employee and in order to care for such son or daughter; because of
the placement of a son or daughter with the employee for adoption or
foster care; in order to care for the spouse, son, daughter, or parent
with a serious health condition; because of the employee's own serious
health condition; or because of a qualifying exigency. Thus, for
example, an eligible employee may, during the ``single 12-month
period,'' take 16 weeks of FMLA leave to care for a covered
servicemember and 10 weeks of FMLA leave to care for a newborn child.
However, the employee may not take more than 12 weeks of FMLA leave to
care for the newborn child during the ``single 12-month period,'' even
if the employee takes fewer than 14 weeks of FMLA leave to care for a
covered servicemember.
(4) In all circumstances, including for leave taken to care for a
covered servicemember, the employer is responsible for designating
leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the
designation to the employee as provided in Sec. 825.300. In the case
of leave that qualifies as both leave to care for a covered
servicemember and leave to care for a family member with a serious
health condition during the ``single 12-month period'' described in
paragraph (c) of this section, the employer must designate such leave
as leave to care for a covered servicemember in the first instance.
Leave that qualifies as both leave to care for a covered servicemember
and leave taken to care for a family member with a serious health
condition during the ``single 12-month period'' described in paragraph
(c) of this section must not be designated and counted as both leave to
care for a covered servicemember and leave to care for a family member
with a serious health condition. As is the case with leave taken for
other qualifying reasons, employers may retroactively designate leave
as leave to care for a covered servicemember pursuant to Sec.
825.301(d).
[[Page 68086]]
(d) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 26 workweeks of leave during the ``single 12-month period''
described in paragraph (c) of this section if the leave is taken for
birth of the employee's son or daughter or to care for the child after
birth, for placement of a son or daughter with the employee for
adoption or foster care, or to care for the child after placement, to
care for the employee's parent with a serious health condition, or to
care for a covered servicemember with a serious injury or illness. This
limitation on the total weeks of leave applies to leave taken for the
reasons specified as long as a husband and wife are employed by the
``same employer.'' It would apply, for example, even though the spouses
are employed at two different worksites of an employer located more
than 75 miles from each other, or by two different operating divisions
of the same company. On the other hand, if one spouse is ineligible for
FMLA leave, the other spouse would be entitled to a full 26 workweeks
of FMLA leave.
Subpart B--Employee Leave Entitlements Under the Family and Medical
Leave Act
Sec. 825.200 Amount of leave.
(a) Except in the case of leave to care for a covered servicemember
with a serious injury or illness, an eligible employee's FMLA leave
entitlement is limited to a total of 12 workweeks of leave during any
12-month period for any one, or more, of the following reasons:
(1) The birth of the employee's son or daughter, and to care for
the newborn child;
(2) The placement with the employee of a son or daughter for
adoption or foster care, and to care for the newly placed child;
(3) To care for the employee's spouse, son, daughter, or parent
with a serious health condition;
(4) Because of a serious health condition that makes the employee
unable to perform one or more of the essential functions of his or her
job; and,
(5) Because of any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a covered military
member on active duty (or has been notified of an impending call or
order to active duty) in support of a contingency operation.
(b) An employer is permitted to choose any one of the following
methods for determining the ``12-month period'' in which the 12 weeks
of leave entitlement described in paragraph (a) of this section occurs:
(1) The calendar year;
(2) Any fixed 12-month ``leave year,'' such as a fiscal year, a
year required by State law, or a year starting on an employee's
``anniversary'' date;
(3) The 12-month period measured forward from the date any
employee's first FMLA leave under paragraph (a) begins; or,
(4) A ``rolling'' 12-month period measured backward from the date
an employee uses any FMLA leave as described in paragraph (a).
(c) Under methods in paragraphs (b)(1) and (b)(2) of this section
an employee would be entitled to up to 12 weeks of FMLA leave at any
time in the fixed 12-month period selected. An employee could,
therefore, take 12 weeks of leave at the end of the year and 12 weeks
at the beginning of the following year. Under the method in paragraph
(b)(3) of this section, an employee would be entitled to 12 weeks of
leave during the year beginning on the first date FMLA leave is taken;
the next 12-month period would begin the first time FMLA leave is taken
after completion of any previous 12-month period. Under the method in
paragraph (b)(4) of this section, the ``rolling'' 12-month period, each
time an employee takes FMLA leave the remaining leave entitlement would
be any balance of the 12 weeks which has not been used during the
immediately preceding 12 months. For example, if an employee has taken
eight weeks of leave during the past 12 months, an additional four
weeks of leave could be taken. If an employee used four weeks beginning
February 1, 2008, four weeks beginning June 1, 2008, and four weeks
beginning December 1, 2008, the employee would not be entitled to any
additional leave until February 1, 2009. However, beginning on February
1, 2009, the employee would again be eligible to take FMLA leave,
recouping the right to take the leave in the same manner and amounts in
which it was used in the previous year. Thus, the employee would recoup
(and be entitled to use) one additional day of FMLA leave each day for
four weeks, commencing February 1, 2009. The employee would also begin
to recoup additional days beginning on June 1, 2009, and additional
days beginning on December 1, 2009. Accordingly, employers using the
rolling 12-month period may need to calculate whether the employee is
entitled to take FMLA leave each time that leave is requested, and
employees taking FMLA leave on such a basis may fall in and out of FMLA
protection based on their FMLA usage in the prior 12 months. For
example, in the example above, if the employee needs six weeks of leave
for a serious health condition commencing February 1, 2009, only the
first four weeks of the leave would be FMLA-protected.
(d)(1) Employers will be allowed to choose any one of the
alternatives in paragraph (b) of this section for the leave
entitlements described in paragraph (a) of this section provided the
alternative chosen is applied consistently and uniformly to all
employees. An employer wishing to change to another alternative is
required to give at least 60 days notice to all employees, and the
transition must take place in such a way that the employees retain the
full benefit of 12 weeks of leave under whichever method affords the
greatest benefit to the employee. Under no circumstances may a new
method be implemented in order to avoid the Act's leave requirements.
(2) An exception to this required uniformity would apply in the
case of a multi-State employer who has eligible employees in a State
which has a family and medical leave statute. The State may require a
single method of determining the period during which use of the leave
entitlement is measured. This method may conflict with the method
chosen by the employer to determine ``any 12 months'' for purposes of
the Federal statute. The employer may comply with the State provision
for all employees employed within that State, and uniformly use another
method provided by this regulation for the leave entitlements described
in paragraph (a) for all other employees.
(e) If an employer fails to select one of the options in paragraph
(b) of this section for measuring the 12-month period for the leave
entitlements described in paragraph (a), the option that provides the
most beneficial outcome for the employee will be used. The employer may
subsequently select an option only by providing the 60-day notice to
all employees of the option the employer intends to implement. During
the running of the 60-day period any other employee who needs FMLA
leave may use the option providing the most beneficial outcome to that
employee. At the conclusion of the 60-day period the employer may
implement the selected option.
(f) An eligible employee's FMLA leave entitlement is limited to a
total of 26 workweeks of leave during a ``single 12-month period'' to
care for a covered servicemember with a serious injury or illness. An
employer shall determine the ``single 12-month period'' in which the
26-weeks-of-leave-entitlement
[[Page 68087]]
described in this paragraph occurs using the 12-month period measured
forward from the date an employee's first FMLA leave to care for the
covered servicemember begins. See Sec. 825.127(d)(1).
(g) During the ``single 12-month period'' described in paragraph
(f), an eligible employee's FMLA leave entitlement is limited to a
combined total of 26 workweeks of FMLA leave for any qualifying reason.
See Sec. 825.127(d)(2).
(h) For purposes of determining the amount of leave used by an
employee, the fact that a holiday may occur within the week taken as
FMLA leave has no effect; the week is counted as a week of FMLA leave.
However, if an employee is using FMLA leave in increments of less than
one week, the holiday will not count against the employee's FMLA
entitlement unless the employee was otherwise scheduled and expected to
work during the holiday. Similarly, if for some reason the employer's
business activity has temporarily ceased and employees generally are
not expected to report for work for one or more weeks (e.g., a school
closing two weeks for the Christmas/New Year holiday or the summer
vacation or an employer closing the plant for retooling or repairs),
the days the employer's activities have ceased do not count against the
employee's FMLA leave entitlement. Methods for determining an
employee's 12-week leave entitlement are also described in Sec.
825.205.
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. See also Sec. 825.127(d).
Sec. 825.202 Intermittent leave or reduced leave schedule.
(a) Definition. FMLA leave may be taken ``intermittently or on a
reduced leave schedule'' under certain circumstances. Intermittent
leave is FMLA leave taken in separate blocks of time due to a single
qualifying reason. A reduced leave schedule is a leave schedule that
reduces an employee's usual number of working hours per workweek, or
hours per workday. A reduced leave schedule is a change in the
employee's schedule for a period of time, normally from full-time to
part-time.
(b) Medical necessity. For intermittent leave or leave on a reduced
leave schedule taken because of one's own serious health condition, to
care for a parent, son, or daughter with a serious health condition, or
to care for a covered servicemember with a serious injury or illness,
there must be a medical need for leave and it must be that such medical
need can be best accommodated through an intermittent or reduced leave
schedule. The treatment regimen and other information described in the
certification of a serious health condition and in the certification of
a serious injury or illness, if required by the employer, addresses the
medical necessity of intermittent leave or leave on a reduced leave
schedule. See Sec. Sec. 825.306, 825.310. Leave may be taken
intermittently or on a reduced leave schedule when medically necessary
for planned and/or unanticipated medical treatment of a serious health
condition or of a covered servicemember's serious injury or illness, or
for recovery from treatment or recovery from a serious health condition
or a covered servicemember's serious injury or illness. It may also be
taken to provide care or psychological comfort to a covered family
member with a serious health condition or a covered servicemember with
a serious injury or illness.
(1) Intermittent leave may be taken for a serious health condition
of a parent, son, or daughter, for the employee's own serious health
condition, or a serious injury or illness of a covered servicemember
which requires treatment by a health care provider periodically, rather
than for one continuous period of time, and may include leave of
periods from an hour or more to several weeks. Examples of intermittent
leave would include leave taken on an occasional basis for medical
appointments, or leave taken several days at a time spread over a
period of six months, such as for chemotherapy. A pregnant employee may
take leave intermittently for prenatal examinations or for her own
condition, such as for periods of severe morning sickness. An example
of an employee taking leave on a reduced leave schedule is an employee
who is recovering from a serious health condition and is not strong
enough to work a full-time schedule.
(2) Intermittent or reduced schedule leave may be taken for
absences where the employee or family member is incapacitated or unable
to perform the essential functions of the position because of a chronic
serious health condition or a serious injury or illness of a covered
servicemember, even if he or she does not receive treatment by a health
care provider. See Sec. Sec. 825.113 and 825.127.
(c) Birth or placement. When leave is taken after the birth of a
healthy child or placement of a healthy child for adoption or foster
care, an employee may take leave intermittently or on a reduced leave
schedule only if the employer agrees. Such a schedule reduction might
occur, for example, where an employee, with the employer's agreement,
works part-time after the birth of a child, or takes leave in several
segments. The employer's agreement is not required, however, for leave
during which the mother has a serious health condition in connection
with the birth of her child or if the newborn child has a serious
health condition. See Sec. 825.204 for rules governing transfer to an
alternative position that better accommodates intermittent leave. See
also Sec. 825.120 (pregnancy) and Sec. 825.121 (adoption and foster
care).
(d) Qualifying exigency. Leave due to a qualifying exigency may be
taken on an intermittent or reduced leave schedule basis.
[[Page 68088]]
Sec. 825.203 Scheduling of intermittent or reduced schedule leave.
Eligible employees may take FMLA leave on an intermittent or
reduced schedule basis when medically necessary due to the serious
health condition of a covered family member or the employee or the
serious injury or illness of a covered servicemember. See Sec.
825.202. Eligible employees may also take FMLA leave on an intermittent
or reduced schedule basis when necessary because of a qualifying
exigency. If an employee needs leave intermittently or on a reduced
leave schedule for planned medical treatment, then the employee must
make a reasonable effort to schedule the treatment so as not to disrupt
unduly the employer's operations.
Sec. 825.204 Transfer of an employee to an alternative position
during intermittent leave or reduced schedule leave.
(a) Transfer or reassignment. If an employee needs intermittent
leave or leave on a reduced leave schedule that is foreseeable based on
planned medical treatment for the employee, a family member, or a
covered servicemember, including during a period of recovery from one's
own serious health condition, a serious health condition of a spouse,
parent, son, or daughter, or a serious injury or illness of a covered
servicemember, or if the employer agrees to permit intermittent or
reduced schedule leave for the birth of a child or for placement of a
child for adoption or foster care, the employer may require the
employee to transfer temporarily, during the period that the
intermittent or reduced leave schedule is required, to an available
alternative position for which the employee is qualified and which
better accommodates recurring periods of leave than does the employee's
regular position. See Sec. 825.601 for special rules applicable to
instructional employees of schools.
(b) Compliance. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced schedule leave.
(c) Equivalent pay and benefits. The alternative position must have
equivalent pay and benefits. An alternative position for these purposes
does not have to have equivalent duties. The employer may increase the
pay and benefits of an existing alternative position, so as to make
them equivalent to the pay and benefits of the employee's regular job.
The employer may also transfer the employee to a part-time job with the
same hourly rate of pay and benefits, provided the employee is not
required to take more leave than is medically necessary. For example,
an employee desiring to take leave in increments of four hours per day
could be transferred to a half-time job, or could remain in the
employee's same job on a part-time schedule, paying the same hourly
rate as the employee's previous job and enjoying the same benefits. The
employer may not eliminate benefits which otherwise would not be
provided to part-time employees; however, an employer may
proportionately reduce benefits such as vacation leave where an
employer's normal practice is to base such benefits on the number of
hours worked.
(d) Employer limitations. An employer may not transfer the employee
to an alternative position in order to discourage the employee from
taking leave or otherwise work a hardship on the employee. For example,
a white collar employee may not be assigned to perform laborer's work;
an employee working the day shift may not be reassigned to the
graveyard shift; an employee working in the headquarters facility may
not be reassigned to a branch a significant distance away from the
employee's normal job location. Any such attempt on the part of the
employer to make such a transfer will be held to be contrary to the
prohibited acts of the FMLA.
(e) Reinstatement of employee. When an employee who is taking leave
intermittently or on a reduced leave schedule and has been transferred
to an alternative position no longer needs to continue on leave and is
able to return to full-time work, the employee must be placed in the
same or equivalent job as the job he or she left when the leave
commenced. An employee may not be required to take more leave than
necessary to address the circumstance that precipitated the need for
leave.
Sec. 825.205 Increments of FMLA leave for intermittent or reduced
schedule leave.
(a) Minimum increment. (1) When an employee takes FMLA leave on an
intermittent or reduced leave schedule basis, the employer must account
for the leave using an increment no greater than the shortest period of
time that the employer uses to account for use of other forms of leave
provided that it is not greater than one hour and provided further that
an employee's FMLA leave entitlement may not be reduced by more than
the amount of leave actually taken. If an employer accounts for use of
leave in varying increments at different times of the day or shift, the
employer may not account for FMLA leave in a larger increment than the
shortest period used to account for other leave during the period in
which the FMLA leave is taken. If an employer accounts for other forms
of leave use in increments greater than one hour, the employer must
account for FMLA leave use in increments no greater than one hour. An
employer may account for FMLA leave in shorter increments than used for
other forms of leave. For example, an employer that accounts for other
forms of leave in one hour increments may account for FMLA leave in a
shorter increment when the employee arrives at work several minutes
late, and the employer wants the employee to begin work immediately.
Such accounting for FMLA leave will not alter the increment considered
to be the shortest period used to account for other forms of leave or
the use of FMLA leave in other circumstances.
(2) Where it is physically impossible for an employee using
intermittent leave or working a reduced leave schedule to commence or
end work mid-way through a shift, such as where a flight attendant or a
railroad conductor is scheduled to work aboard an airplane or train, or
a laboratory employee is unable to enter or leave a sealed ``clean
room'' during a certain period of time, the entire period that the
employee is forced to be absent is designated as FMLA leave and counts
against the employee's FMLA entitlement.
(b) Calculation of leave. (1) When an employee takes leave on an
intermittent or reduced leave schedule, only the amount of leave
actually taken may be counted toward the employee's leave entitlement.
The actual workweek is the basis of leave entitlement. Therefore, if an
employee who would otherwise work 40 hours a week takes off 8 hours,
the employee would use \1/5\ of a week of FMLA leave. Similarly, if a
full-time employee who would otherwise work 8-hour days works 4-hour
days under a reduced leave schedule, the employee would use \1/2\ week
of FMLA leave. Where an employee works a part-time schedule or variable
hours, the amount of FMLA leave that an employee uses is determined on
a pro rata or proportional basis. For example, if an employee who would
otherwise work 30 hours per week, but works only 20 hours a week under
a reduced leave schedule, the employee's ten hours of leave would
constitute one-third (\1/3\) of a week of FMLA leave for each week the
employee works the reduced leave schedule. An employer may convert
these fractions to their hourly equivalent so long as the conversion
equitably reflects the
[[Page 68089]]
employee's total normally scheduled hours. See also, Sec. Sec. 825.601
and 825.602, special rules for schools.
(2) If an employer has made a permanent or long-term change in the
employee's schedule (for reasons other than FMLA, and prior to the
notice of need for FMLA leave), the hours worked under the new schedule
are to be used for making this calculation.
(3) If an employee's schedule varies from week to week to such an
extent that an employer is unable to determine with any certainty how
many hours the employee would otherwise have worked (but for the taking
of FMLA leave), a weekly average of the hours scheduled over the 12
months prior to the beginning of the leave period (including any hours
for which the employee took leave of any type) would be used for
calculating the employee's leave entitlement.
(c) Overtime. If an employee would normally be required to work
overtime, but is unable to do so because of a FMLA-qualifying reason
that limits the employee's ability to work overtime, the hours which
the employee would have been required to work may be counted against
the employee's FMLA entitlement. In such a case, the employee is using
intermittent or reduced schedule leave. For example, if an employee
would normally be required to work for 48 hours in a particular week,
but due to a serious health condition the employee is unable to work
more than 40 hours that week, the employee would utilize eight hours of
FMLA-protected leave out of the 48-hour workweek (\8/48\ = \1/6\
workweek). Voluntary overtime hours that an employee does not work due
to a serious health condition may not be counted against the employee's
FMLA leave entitlement.
Sec. 825.206 Interaction with the FLSA.
(a) Leave taken under FMLA may be unpaid. If an employee is
otherwise exempt from minimum wage and overtime requirements of the
Fair Labor Standards Act (FLSA) as a salaried executive,
administrative, professional, or computer employee (under regulations
issued by the Secretary, 29 CFR part 541), providing unpaid FMLA-
qualifying leave to such an employee will not cause the employee to
lose the FLSA exemption. See 29 CFR 541.602(b)(7). This means that
under regulations currently in effect, where an employee meets the
specified duties test, is paid on a salary basis, and is paid a salary
of at least the amount specified in the regulations, the employer may
make deductions from the employee's salary for any hours taken as
intermittent or reduced FMLA leave within a workweek, without affecting
the exempt status of the employee. The fact that an employer provides
FMLA leave, whether paid or unpaid, and maintains records required by
this part regarding FMLA leave, will not be relevant to the
determination whether an employee is exempt within the meaning of 29
CFR part 541.
(b) For an employee paid in accordance with the fluctuating
workweek method of payment for overtime (see 29 CFR 778.114), the
employer, during the period in which intermittent or reduced schedule
FMLA leave is scheduled to be taken, may compensate an employee on an
hourly basis and pay only for the hours the employee works, including
time and one-half the employee's regular rate for overtime hours. The
change to payment on an hourly basis would include the entire period
during which the employee is taking intermittent leave, including weeks
in which no leave is taken. The hourly rate shall be determined by
dividing the employee's weekly salary by the employee's normal or
average schedule of hours worked during weeks in which FMLA leave is
not being taken. If an employer chooses to follow this exception from
the fluctuating workweek method of payment, the employer must do so
uniformly, with respect to all employees paid on a fluctuating workweek
basis for whom FMLA leave is taken on an intermittent or reduced leave
schedule basis. If an employer does not elect to convert the employee's
compensation to hourly pay, no deduction may be taken for FMLA leave
absences. Once the need for intermittent or reduced scheduled leave is
over, the employee may be restored to payment on a fluctuating 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 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 serious injury or illness; or for leave
which is more generous than provided by FMLA. Employers may comply with
State law or the employer's own policy/practice under these
circumstances and maintain the employee's eligibility for exemption or
for the fluctuating workweek method of pay by not taking hourly
deductions from the employee's pay, in accordance with FLSA
requirements, or may take such deductions, treating the employee as an
``hourly'' employee and pay overtime premium pay for hours worked over
40 in a workweek.
Sec. 825.207 Substitution of paid leave.
(a) Generally, FMLA leave is unpaid leave. However, under the
circumstances described in this section, FMLA permits an eligible
employee to choose to substitute accrued paid leave for FMLA leave. If
an employee does not choose to substitute accrued paid leave, the
employer may require the employee to substitute accrued paid leave for
unpaid FMLA leave. The term ``substitute'' means that the paid leave
provided by the employer, and accrued pursuant to established policies
of the employer, will run concurrently with the unpaid FMLA leave.
Accordingly, the employee receives pay pursuant to the employer's
applicable paid leave policy during the period of otherwise unpaid FMLA
leave. An employee's ability to substitute accrued paid leave is
determined by the terms and conditions of the employer's normal leave
policy. When an employee chooses, or an employer requires, substitution
of accrued paid leave, the employer must inform the employee that the
employee must satisfy any procedural requirements of the paid leave
policy only in connection with the receipt of such payment. See Sec.
825.300(c). If an employee does not comply with the additional
requirements in an employer's paid leave policy, the employee is not
entitled to substitute accrued paid leave, but the employee remains
entitled to take unpaid FMLA leave. Employers may not discriminate
against employees on FMLA leave in the administration of their paid
leave policies.
(b) If neither the employee nor the employer elects to substitute
paid leave for unpaid FMLA leave under the above conditions and
circumstances, the employee will remain entitled to all the
[[Page 68090]]
paid leave which is earned or accrued under the terms of the employer's
plan.
(c) If an employee uses paid leave under circumstances which do not
qualify as FMLA leave, the leave will not count against the employee's
FMLA leave entitlement. For example, paid sick leave used for a medical
condition which is not a serious health condition or serious injury or
illness does not count against the employee's FMLA leave entitlement.
(d) Leave taken pursuant to a disability leave plan would be
considered FMLA leave for a serious health condition and counted in the
leave entitlement permitted under FMLA if it meets the criteria set
forth above in Sec. Sec. 825.112-825.115. In such cases, the employer
may designate the leave as FMLA leave and count the leave against the
employee's FMLA leave entitlement. Because leave pursuant to a
disability benefit plan is not unpaid, the provision for substitution
of the employee's accrued paid leave is inapplicable, and neither the
employee nor the employer may require the substitution of paid leave.
However, employers and employees may agree, where state law permits, to
have paid leave supplement the disability plan benefits, such as in the
case where a plan only provides replacement income for two-thirds of an
employee's salary.
(e) The Act provides that a serious health condition may result
from injury to the employee ``on or off'' the job. If the employer
designates the leave as FMLA leave in accordance with Sec. 825.300(d),
the leave counts against the employee's FMLA leave entitlement. Because
the workers' compensation absence is not unpaid, the provision for
substitution of the employee's accrued paid leave is not applicable,
and neither the employee nor the employer may require the substitution
of paid leave. However, employers and employees may agree, where state
law permits, to have paid leave supplement workers' compensation
benefits, such as in the case where workers' compensation only provides
replacement income for two-thirds of an employee's salary. If the
health care provider treating the employee for the workers'
compensation injury certifies the employee is able to return to a
``light duty job'' but is unable to return to the same or equivalent
job, the employee may decline the employer's offer of a ``light duty
job.'' As a result the employee may lose workers' compensation
payments, but is entitled to remain on unpaid FMLA leave until the
employee's FMLA leave entitlement is exhausted. As of the date workers'
compensation benefits cease, the substitution provision becomes
applicable and either the employee may elect or the employer may
require the use of accrued paid leave. See also Sec. Sec. 825.210(f),
825.216(d), 825.220(d), 825.307(a) and 825.702(d)(1) and (2) regarding
the relationship between workers' compensation absences and FMLA leave.
(f) Section 7(o) of the Fair Labor Standards Act (FLSA) permits
public employers under prescribed circumstances to substitute
compensatory time off accrued at one and one-half hours for each
overtime hour worked in lieu of paying cash to an employee when the
employee works overtime hours as prescribed by the Act. This section of
the FLSA limits the number of hours of compensatory time an employee
may accumulate depending upon whether the employee works in fire
protection or law enforcement (480 hours) or elsewhere for a public
agency (240 hours). In addition, under the FLSA, an employer always has
the right to cash out an employee's compensatory time or to require the
employee to use the time. Therefore, if an employee requests and is
permitted to use accrued compensatory time to receive pay for time
taken off for an FMLA reason, or if the employer requires such use
pursuant to the FLSA, the time taken may be counted against the
employee's FMLA leave entitlement.
Sec. 825.208 [Reserved]
Sec. 825.209 Maintenance of employee benefits.
(a) During any FMLA leave, an employer must maintain the employee's
coverage under any group health plan (as defined in the Internal
Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as
coverage would have been provided if the employee had been continuously
employed during the entire leave period. All employers covered by FMLA,
including public agencies, are subject to the Act's requirements to
maintain health coverage. The definition of ``group health plan'' is
set forth in Sec. 825.800. For purposes of FMLA, the term ``group
health plan'' shall not include an insurance program providing health
coverage under which employees purchase individual policies from
insurers provided that:
(1) No contributions are made by the employer;
(2) Participation in the program is completely voluntary for
employees;
(3) The sole functions of the employer with respect to the program
are, without 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
[[Page 68091]]
the same terms as prior to taking the leave, including family or
dependent coverages, without any qualifying period, physical
examination, exclusion of pre-existing conditions, etc. See Sec.
825.212(c).
(f) Except as required by the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA) and for ``key'' employees (as
discussed below), an employer's obligation to maintain health benefits
during leave (and to restore the employee to the same or equivalent
employment) under FMLA ceases if and when the employment relationship
would have terminated if the employee had not taken FMLA leave (e.g.,
if the employee's position is eliminated as part of a nondiscriminatory
reduction in force and the employee would not have been transferred to
another position); an employee informs the employer of his or her
intent not to return from leave (including before starting the leave if
the employer is so informed before the leave starts); or the employee
fails to return from leave or continues on leave after exhausting his
or her FMLA leave entitlement in the 12-month period.
(g) If a ``key employee'' (see Sec. 825.218) does not return from
leave when notified by the employer that substantial or grievous
economic injury will result from his or her reinstatement, the
employee's entitlement to group health plan benefits continues unless
and until the employee advises the employer that the employee does not
desire restoration to employment at the end of the leave period, or the
FMLA leave entitlement is exhausted, or reinstatement is actually
denied.
(h) An employee's entitlement to benefits other than group health
benefits during a period of FMLA leave (e.g., holiday pay) is to be
determined by the employer's established policy for providing such
benefits when the employee is on other forms of leave (paid or unpaid,
as appropriate).
Sec. 825.210 Employee payment of group health benefit premiums.
(a) Group health plan benefits must be maintained on the same basis
as coverage would have been provided if the employee had been
continuously employed during the FMLA leave period. Therefore, any
share of group health plan premiums which had been paid by the employee
prior to FMLA leave must continue to be paid by the employee during the
FMLA leave period. If premiums are raised or lowered, the employee
would be required to pay the new premium rates. Maintenance of health
insurance policies which are not a part of the employer's group health
plan, as described in Sec. 825.209(a), are the sole responsibility of
the employee. The employee and the insurer should make necessary
arrangements for payment of premiums during periods of unpaid FMLA
leave.
(b) If the FMLA leave is substituted paid leave, the employee's
share of premiums must be paid by the method normally used during any
paid leave, presumably as a payroll deduction.
(c) If FMLA leave is unpaid, the employer has a number of options
for obtaining payment from the employee. The employer may require that
payment be made to the employer or to the insurance carrier, but no
additional charge may be added to the employee's premium payment for
administrative expenses. The employer may require employees to pay
their share of premium payments in any of the following ways:
(1) Payment would be due at the same time as it would be made if by
payroll deduction;
(2) Payment would be due on the same schedule as payments are made
under COBRA;
(3) Payment would be prepaid pursuant to a cafeteria plan at the
employee's option;
(4) The employer's existing rules for payment by employees on
``leave without pay'' would be followed, provided that such rules do
not require prepayment (i.e., prior to the commencement of the leave)
of the premiums that will become due during a period of unpaid FMLA
leave or payment of higher premiums than if the employee had continued
to work instead of taking leave; or,
(5) Another system voluntarily agreed to between the employer and
the employee, which may include prepayment of premiums (e.g., through
increased payroll deductions when the need for the FMLA leave is
foreseeable).
(d) The employer must provide the employee with advance written
notice of the terms and conditions under which these payments must be
made. See Sec. 825.300(c).
(e) An employer may not require more of an employee using unpaid
FMLA leave than the employer requires of other employees on ``leave
without pay.''
(f) An employee who is receiving payments as a result of a workers'
compensation injury must make arrangements with the employer for
payment of group health plan benefits when simultaneously taking FMLA
leave. See Sec. 825.207(e).
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
[[Page 68092]]
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 either a serious
health condition of the employee or the employee's family member, or a
serious injury or illness of a covered servicemember, which would
otherwise entitle the employee to leave under FMLA; or
(2) Other circumstances beyond the employee's control. Examples of
``other circumstances beyond the employee's control'' are necessarily
broad. They include such situations as where a parent chooses to stay
home with a newborn child who has a serious health condition; an
employee's spouse is unexpectedly transferred to a job location more
than 75 miles from the employee's worksite; a relative or individual
other than a covered family member has a serious health condition and
the employee is needed to provide care; the employee is laid off while
on leave; or, the employee is a ``key employee'' who decides not to
return to work upon being notified of the employer's intention to deny
restoration because of substantial and grievous economic injury to the
employer's operations and is not reinstated by the employer. Other
circumstances beyond the employee's control would not include a
situation where an employee desires to remain with a parent in a
distant city even though the parent no longer requires the employee's
care, or a parent chooses not to return to work to stay home with a
well, newborn child.
(3) When an employee fails to return to work because of the
continuation, recurrence, or onset of either a serious health condition
of the employee or employee's family member, or a serious injury or
illness of a covered servicemember, thereby precluding the employer
from recovering its (share of) health benefit premium payments made on
the employee's behalf during a period of unpaid FMLA leave, the
employer may require medical certification of the employee's or the
family member's serious health condition or the covered servicemember's
serious injury or illness. Such certification is not required unless
requested by the employer. The cost of the certification shall be borne
by the employee, and the employee is not entitled to be paid for the
time or travel costs spent in acquiring the certification. The employee
is required to provide medical certification in a timely manner which,
for purposes of this section, is within 30 days from the date of the
employer's request. For purposes of medical certification, the employee
may use the optional DOL forms developed for these purposes (see
Sec. Sec. 825.306(b), 825.310(c)-(d) and Appendices B and H 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
[[Page 68093]]
plan, payment of claims incurred during the period of FMLA leave. To
the extent recovery is allowed, the employer may recover the costs
through deduction from any sums due to the employee (e.g., unpaid
wages, vacation pay, profit sharing, etc.), provided such deductions do
not otherwise violate applicable Federal or State wage payment or other
laws. Alternatively, the employer may initiate legal action against the
employee to recover such costs.
Sec. 825.214 Employee right to reinstatement.
General rule. On return from FMLA leave, an employee is entitled to
be returned to the same position the employee held when leave
commenced, or to an equivalent position with equivalent benefits, pay,
and other terms and conditions of employment. An employee is entitled
to such reinstatement even if the employee has been replaced or his or
her position has been restructured to accommodate the employee's
absence. See also Sec. 825.106(e) for the obligations of joint
employers.
Sec. 825.215 Equivalent position.
(a) Equivalent position. An equivalent position is one that is
virtually identical to the employee's former position in terms of pay,
benefits and working conditions, including privileges, perquisites and
status. It must involve the same or substantially similar duties and
responsibilities, which must entail substantially equivalent skill,
effort, responsibility, and authority.
(b) Conditions to qualify. If an employee is no longer qualified
for the position because of the employee's inability to attend a
necessary course, renew a license, fly a minimum number of hours, etc.,
as a result of the leave, the employee shall be given a reasonable
opportunity to fulfill those conditions upon return to work.
(c) Equivalent pay. (1) An employee is entitled to any
unconditional pay increases which may have occurred during the FMLA
leave period, such as cost of living increases. Pay increases
conditioned upon seniority, length of service, or work performed must
be granted in accordance with the employer's policy or practice with
respect to other employees on an equivalent leave status for a reason
that does not qualify as FMLA leave. An employee is entitled to be
restored to a position with the same or equivalent pay premiums, such
as a shift differential. If an employee departed from a position
averaging ten hours of overtime (and corresponding overtime pay) each
week, an employee is ordinarily entitled to such a position on return
from FMLA leave.
(2) Equivalent pay includes any bonus or payment, whether it is
discretionary or non-discretionary, made to employees consistent with
the provisions of paragraph (c)(1) of this section. However, if a bonus
or other payment is based on the achievement of a specified goal such
as hours worked, products sold or perfect attendance, and the employee
has not met the goal due to FMLA leave, then the payment may be denied,
unless otherwise paid to employees on an equivalent leave status for a
reason that does not qualify as FMLA leave. For example, if an employee
who used paid vacation leave for a non-FMLA purpose would receive the
payment, then the employee who used paid vacation leave for an FMLA-
protected purpose also must receive the payment.
(d) Equivalent benefits. ``Benefits'' include all benefits provided
or made available to employees by an employer, including group life
insurance, health insurance, disability insurance, sick leave, annual
leave, educational benefits, and pensions, regardless of whether such
benefits are provided by a practice or written policy of an employer
through an employee benefit plan as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3).
(1) At the end of an employee's FMLA leave, benefits must be
resumed in the same manner and at the same levels as provided when the
leave began, and subject to any changes in benefit levels that may have
taken place during the period of FMLA leave affecting the entire
workforce, unless otherwise elected by the employee. Upon return from
FMLA leave, an employee cannot be required to requalify for any
benefits the employee enjoyed before FMLA leave began (including family
or dependent coverages). For example, if an employee was covered by a
life insurance policy before taking leave but is not covered or
coverage lapses during the period of unpaid FMLA leave, the employee
cannot be required to meet any qualifications, such as taking a
physical examination, in order to requalify for life insurance upon
return from leave. Accordingly, some employers may find it necessary to
modify life insurance and other benefits programs in order to restore
employees to equivalent benefits upon return from FMLA leave, make
arrangements for continued payment of costs to maintain such benefits
during unpaid FMLA leave, or pay these costs subject to recovery from
the employee on return from leave. See Sec. 825.213(b).
(2) An employee may, but is not entitled to, accrue any additional
benefits or seniority during unpaid FMLA leave. Benefits accrued at the
time leave began, however, (e.g., paid vacation, sick or personal leave
to the extent not substituted for FMLA leave) must be available to an
employee upon return from leave.
(3) If, while on unpaid FMLA leave, an employee desires to continue
life insurance, disability insurance, or other types of benefits for
which he or she typically pays, the employer is required to follow
established policies or practices for continuing such benefits for
other instances of leave without pay. If the employer has no
established policy, the employee and the employer are encouraged to
agree upon arrangements before FMLA leave begins.
(4) With respect to pension and other retirement plans, any period
of unpaid FMLA leave shall not be treated as or counted toward a break
in service for purposes of vesting and eligibility to participate.
Also, if the plan requires an employee to be employed on a specific
date in order to be credited with a year of service for vesting,
contributions or participation purposes, an employee on unpaid FMLA
leave on that date shall be deemed to have been employed on that date.
However, unpaid FMLA leave periods need not be treated as credited
service for purposes of benefit accrual, vesting and eligibility to
participate.
(5) Employees on unpaid FMLA leave are to be treated as if they
continued to work for purposes of changes to benefit plans. They are
entitled to changes in benefits plans, except those which may be
dependent upon seniority or accrual during the leave period,
immediately upon return from leave or to the same extent they would
have qualified if no leave had been taken. For example, if the benefit
plan is predicated on a pre-established number of hours worked each
year and the employee does not have sufficient hours as a result of
taking unpaid FMLA leave, the benefit is lost. (In this regard, Sec.
825.209 addresses health benefits.)
(e) Equivalent terms and conditions of employment. An equivalent
position must have substantially similar duties, conditions,
responsibilities, privileges and status as the employee's original
position.
(1) The employee must be reinstated to the same or a geographically
proximate worksite (i.e., one that does not involve a significant
increase in commuting time or distance) from where the employee had
previously been employed. If the employee's original worksite has been
closed, the employee is entitled to the same rights
[[Page 68094]]
as if the employee had not been on leave when the worksite closed. For
example, if an employer transfers all employees from a closed worksite
to a new worksite in a different city, the employee on leave is also
entitled to transfer under the same conditions as if he or she had
continued to be employed.
(2) The employee is ordinarily entitled to return to the same shift
or the same or an equivalent work schedule.
(3) The employee must have the same or an equivalent opportunity
for bonuses, profit-sharing, and other similar discretionary and non-
discretionary payments.
(4) FMLA does not prohibit an employer from accommodating an
employee's request to be restored to a different shift, schedule, or
position which better suits the employee's personal needs on return
from leave, or to offer a promotion to a better position. However, an
employee cannot be induced by the employer to accept a different
position against the employee's wishes.
(f) De minimis exception. The requirement that an employee be
restored to the same or equivalent job with the same or equivalent pay,
benefits, and terms and conditions of employment does not extend to de
minimis, intangible, or unmeasurable aspects of the job.
Sec. 825.216 Limitations on an employee's right to reinstatement.
(a) An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been
continuously employed during the FMLA leave period. An employer must be
able to show that an employee would not otherwise have been employed at
the time reinstatement is requested in order to deny restoration to
employment. For example:
(1) If an employee is laid off during the course of taking FMLA
leave and employment is terminated, the employer's responsibility to
continue FMLA leave, maintain group health plan benefits and restore
the employee cease at the time the employee is laid off, provided the
employer has no continuing obligations under a collective bargaining
agreement or otherwise. An employer would have the burden of proving
that an employee would have been laid off during the FMLA leave period
and, therefore, would not be entitled to restoration. Restoration to a
job slated for lay-off when the employee's original position is not
would not meet the requirements of an equivalent position.
(2) If a shift has been eliminated, or overtime has been decreased,
an employee would not be entitled to return to work that shift or the
original overtime hours upon restoration. However, if a position on,
for example, a night shift has been filled by another employee, the
employee is entitled to return to the same shift on which employed
before taking FMLA leave.
(3) If an employee was hired for a specific term or only to perform
work on a discrete project, the employer has no obligation to restore
the employee if the employment term or project is over and the employer
would not otherwise have continued to employ the employee. On the other
hand, if an employee was hired to perform work on a contract, and after
that contract period the contract was awarded to another contractor,
the successor contractor may be required to restore the employee if it
is a successor employer. See Sec. 825.107.
(b) In addition to the circumstances explained above, an employer
may deny job restoration to salaried eligible employees (``key
employees,'' as defined in Sec. 825.217(c)), if such denial is
necessary to prevent substantial and grievous economic injury to the
operations of the employer; or may delay restoration to an employee who
fails to provide a fitness-for-duty certificate to return to work under
the conditions described in Sec. 825.312.
(c) If the employee is unable to perform an essential function of
the position because of a physical or mental condition, including the
continuation of a serious health condition or an injury or illness also
covered by workers' compensation, the employee has no right to
restoration to another position under the FMLA. The employer's
obligations may, however, be governed by the Americans with
Disabilities Act (ADA), as amended. See Sec. 825.702, state leave
laws, or workers' compensation laws.
(d) An employee who fraudulently obtains FMLA leave from an
employer is not protected by FMLA's job restoration or maintenance of
health benefits provisions.
(e) If the employer has a uniformly-applied policy governing
outside or supplemental employment, such a policy may continue to apply
to an employee while on FMLA leave. An employer which does not have
such a policy may not deny benefits to which an employee is entitled
under FMLA on this basis unless the FMLA leave was fraudulently
obtained as in paragraph (d) of this section.
Sec. 825.217 Key employee, general rule.
(a) A ``key employee'' is a salaried FMLA-eligible employee who is
among the highest paid 10 percent of all the 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
[[Page 68095]]
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.
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)
[[Page 68096]]
cannot ``trade off'' the right to take FMLA leave against some other
benefit offered by the employer. This does not prevent the settlement
or release of FMLA claims by employees based on past employer conduct
without the approval of the Department of Labor or a court. Nor does it
prevent an employee's voluntary and uncoerced acceptance (not as a
condition of employment) of a ``light duty'' assignment while
recovering from a serious health condition (see Sec. 825.702(d)). An
employee's acceptance of such ``light duty'' assignment does not
constitute a waiver of the employee's prospective rights, including the
right to be restored to the same position the employee held at the time
the employee's FMLA leave commenced or to an equivalent position. The
employee's right to restoration, however, ceases at the end of the
applicable 12-month FMLA leave year.
(e) Individuals, and not merely employees, are protected from
retaliation for opposing (e.g., filing a complaint about) any practice
which is unlawful under the Act. They are similarly protected if they
oppose any practice which they reasonably believe to be a violation of
the Act or regulations.
Subpart C--Employee and Employer Rights and Obligations Under the
Act
Sec. 825.300 Employer notice requirements.
(a) General notice. (1) Every employer covered by the FMLA is
required to post and keep posted on its premises, in conspicuous places
where employees are employed, a notice explaining the Act's provisions
and providing information concerning the procedures for filing
complaints of violations of the Act with the Wage and Hour Division.
The notice must be posted prominently where it can be readily seen by
employees and applicants for employment. The poster and the text must
be large enough to be easily read and contain fully legible text.
Electronic posting is sufficient to meet this posting requirement as
long as it otherwise meets the requirements of this section. An
employer that willfully violates the posting requirement may be
assessed a civil money penalty by the Wage and Hour Division not to
exceed $110 for each separate offense.
(2) Covered employers must post this general notice even if no
employees are eligible for FMLA leave.
(3) If an FMLA-covered employer has any eligible employees, it
shall also provide this general notice to each employee by including
the notice in employee handbooks or other written guidance to employees
concerning employee benefits or leave rights, if such written materials
exist, or by distributing a copy of the general notice to each new
employee upon hiring. In either case, distribution may be accomplished
electronically.
(4) To meet the requirements of paragraph (a)(3) of this section,
employers may duplicate the text of the notice contained in Appendix C
of this part or may use another format so long as the information
provided includes, at a minimum, all of the information contained in
that notice. Where an employer's workforce is comprised of a
significant portion of workers who are not literate in English, the
employer shall provide the general notice in a language in which the
employees are literate. Prototypes are available from the nearest
office of the Wage and Hour Division or on the Internet at 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 reason, the employer must notify the employee of
the employee's eligibility to take FMLA leave within five business
days, absent extenuating circumstances. See Sec. 825.110 for
definition of an eligible employee. Employee eligibility is determined
(and notice must be provided) at the commencement of the first instance
of leave for each FMLA-qualifying reason in the applicable 12-month
period (see Sec. Sec. 825.127(c) and 825.200(b)). All FMLA absences
for the same qualifying reason are considered a single leave and
employee eligibility as to that reason for leave does not change during
the applicable 12-month period.
(2) The eligibility notice must state whether the employee is
eligible for FMLA leave as defined in Sec. 825.110(a). If the employee
is not eligible for FMLA leave, the notice must state at least one
reason why the employee is not eligible, including as applicable the
number of months the employee has been employed by the employer, the
number of hours of service worked for the employer during the 12-month
period, and whether the employee is employed at a worksite where 50 or
more employees are employed by the employer within 75 miles of that
worksite. Notification of eligibility may be oral or in writing;
employers may use Appendix D of this part 825 to provide such
notification to employees. The employer is obligated to translate this
notice in any situation in which it is obligated to do so in Sec.
825.300(a)(4).
(3) If, at the time an employee provides notice of a subsequent
need for FMLA leave during the applicable 12-month period due to a
different FMLA-qualifying reason, and the employee's eligibility status
has not changed, no additional eligibility notice is required. If,
however, the employee's eligibility status has changed (e.g., if the
employee has worked less than 1,250 hours of service for the employer
in the 12 months preceding the commencement of leave for the subsequent
qualifying reason or the size of the workforce at the worksite has
dropped below 50 employees), the employer must notify the employee of
the change in eligibility status within five business days, absent
extenuating circumstances.
(c) Rights and responsibilities notice. (1) Employers shall provide
written notice detailing the specific expectations and obligations of
the employee and explaining any consequences of a failure to meet these
obligations. The employer is obligated to translate this notice in any
situation in which it is obligated to do so in Sec. 825.300(a)(4).
This notice shall be provided to the employee each time the eligibility
notice is provided pursuant to paragraph (b) of this section. If leave
has already begun, the notice should be mailed to the employee's
address of record. Such specific notice must include, as appropriate:
(i) That the leave may be designated and counted against the
employee's annual FMLA leave entitlement if qualifying (see Sec. Sec.
825.300(c) and 825.301) and the applicable 12-month period for FMLA
entitlement (see Sec. Sec. 825.127(c), 825.200(b), (f), and (g));
(ii) Any requirements for the employee to furnish certification of
a serious health condition, serious injury or illness, or qualifying
exigency arising out of active duty or call to active duty status, and
the consequences of failing to do so (see Sec. Sec. 825.305, 825.309,
825.310, 825.313);
(iii) The employee's right to substitute paid leave, whether the
employer will require the substitution of paid leave, the conditions
related to any substitution, and the employee's entitlement to take
unpaid FMLA leave if the employee does not meet the conditions for paid
leave (see Sec. 825.207);
(iv) Any requirement for the employee to make any premium payments
to maintain health benefits and the arrangements for making such
payments (see Sec. 825.210), and the possible consequences of failure
to make such
[[Page 68097]]
payments on a timely basis (i.e., the circumstances under which
coverage may lapse);
(v) The employee's status as a ``key employee'' and the potential
consequence that restoration may be denied following FMLA leave,
explaining the conditions required for such denial (see Sec. 825.218);
(vi) The employee's rights to maintenance of benefits during the
FMLA leave and restoration to the same or an equivalent job upon return
from FMLA leave (see Sec. Sec. 825.214 and 825.604); and
(vii) The employee's potential liability for payment of health
insurance premiums paid by the employer during the employee's unpaid
FMLA leave if the employee fails to return to work after taking FMLA
leave (see Sec. 825.213).
(2) The notice of rights and responsibilities may include other
information--e.g., whether the employer will require periodic reports
of the employee's status and intent to return to work--but is not
required to do so.
(3) The notice of rights and responsibilities may be accompanied by
any required certification form.
(4) If the specific information provided by the notice of rights
and responsibilities changes, the employer shall, within five business
days of receipt of the employee's first notice of need for leave
subsequent to any change, provide written notice referencing the prior
notice and setting forth any of the information in the notice of rights
and responsibilities that has changed. For example, if the initial
leave period was paid leave and the subsequent leave period would be
unpaid leave, the employer may need to give notice of the arrangements
for making premium payments.
(5) Employers are also expected to responsively answer questions
from employees concerning their rights and responsibilities under the
FMLA.
(6) A prototype notice of rights and responsibilities 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
www.wagehour.dol.gov. Employers may adapt the prototype notice as
appropriate to meet these notice requirements. The notice of rights and
responsibilities may be distributed electronically so long as it
otherwise meets the requirements of this section.
(d) Designation notice. (1) The employer is responsible in all
circumstances for designating leave as FMLA-qualifying, and for giving
notice of the designation to the employee as provided in this section.
When the employer has enough information to determine whether the leave
is being taken for a FMLA-qualifying reason (e.g., after receiving a
certification), the employer must notify the employee whether the leave
will be designated and will be counted as FMLA leave within five
business days absent extenuating circumstances. Only one notice of
designation is required for each FMLA-qualifying reason per applicable
12-month period, regardless of whether the leave taken due to the
qualifying reason will be a continuous block of leave or intermittent
or reduced schedule leave. If the employer determines that the leave
will not be designated as FMLA-qualifying (e.g., if the leave is not
for a reason covered by FMLA or the FMLA leave entitlement has been
exhausted), the employer must notify the employee of that
determination. If the employer requires paid leave to be substituted
for unpaid FMLA leave, or that paid leave taken under an existing leave
plan be counted as FMLA leave, the employer must inform the employee of
this designation at the time of designating the FMLA leave.
(2) If the employer has sufficient information to designate the
leave as FMLA leave immediately after receiving notice of the
employee's need for leave, the employer may provide the employee with
the designation notice at that time.
(3) If the employer will require the employee to present a fitness-
for-duty certification to be restored to employment, the employer must
provide notice of such requirement with the designation notice. If the
employer will require that the fitness-for-duty certification address
the employee's ability to perform the essential functions of the
employee's position, the employer must so indicate in the designation
notice, and must include a list of the essential functions of the
employee's position. See Sec. 825.312. If the employer handbook or
other written documents (if any) describing the employer's leave
policies clearly provide that a fitness-for-duty certification will be
required in specific circumstances (e.g., by stating that fitness-for-
duty certification will be required in all cases of back injuries for
employees in a certain occupation), the employer is not required to
provide written notice of the requirement with the designation notice,
but must provide oral notice no later than with the designation notice.
(4) The designation notice must be in writing. A prototype
designation notice 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 http://
www.wagehour.dol.gov. 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.
(5) If the information provided by the employer to the employee in
the designation notice changes (e.g., the employee exhausts the FMLA
leave entitlement), the employer shall provide, within five business
days of receipt of the employee's first notice of need for leave
subsequent to any change, written notice of the change.
(6) The employer must notify the employee of the amount of leave
counted against the employee's FMLA leave entitlement. If the amount of
leave needed is known at the time the employer designates the leave as
FMLA-qualifying, the employer must notify the employee of the number of
hours, days, or weeks that will be counted against the employee's FMLA
leave entitlement in the designation notice. If it is not possible to
provide the hours, days, or weeks that will be counted against the
employee's FMLA leave entitlement (such as in the case of unforeseeable
intermittent leave), then the employer must provide notice of the
amount of leave counted against the employee's FMLA leave entitlement
upon the request by the employee, but no more often than once in a 30-
day period and only if leave was taken in that period. The notice of
the amount of leave counted against the employee's FMLA entitlement may
be oral or in writing. If such notice is oral, it shall be confirmed in
writing, no later than the following payday (unless the payday is less
than one week after the oral notice, in which case the notice must be
no later than the subsequent payday). Such written notice may be in any
form, including a notation on the employee's pay stub.
(e) Consequences of failing to provide notice. Failure to follow
the notice requirements set forth in this section may constitute an
interference with, restraint, or denial of the exercise of an
employee's FMLA rights. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)).
Sec. 825.301 Designation of FMLA leave.
(a) Employer responsibilities. The employer's decision to designate
leave as FMLA-qualifying must be based only
[[Page 68098]]
on information received from the employee or the employee's
spokesperson (e.g., if the employee is incapacitated, the employee's
spouse, adult child, parent, doctor, etc., may provide notice to the
employer of the need to take FMLA leave). In any circumstance where the
employer does not have sufficient information about the reason for an
employee's use of leave, the employer should inquire further of the
employee or the spokesperson to ascertain whether leave is potentially
FMLA-qualifying. Once the employer has acquired knowledge that the
leave is being taken for a FMLA-qualifying reason, the employer must
notify the employee as provided in Sec. 825.300(d).
(b) Employee responsibilities. An employee giving notice of the
need for FMLA leave does not need to expressly assert rights under the
Act or even mention the FMLA to meet his or her obligation to provide
notice, though the employee would need to state a qualifying reason for
the needed leave and otherwise satisfy the notice requirements set
forth in Sec. 825.302 or Sec. 825.303 depending on whether the need
for leave is foreseeable or unforeseeable. An employee giving notice of
the need for FMLA leave must explain the reasons for the needed leave
so as to allow the employer to determine whether the leave qualifies
under the Act. If the employee fails to explain the reasons, leave may
be denied. In many cases, in explaining the reasons for a request to
use leave, especially when the need for the leave was unexpected or
unforeseen, an employee will provide sufficient information for the
employer to designate the leave as FMLA leave. An employee using
accrued paid leave may in some cases not spontaneously explain the
reasons or their plans for using their accrued leave. However, if an
employee requesting to use paid leave for a FMLA-qualifying reason does
not explain the reason for the leave and the employer denies the
employee's request, the employee will need to provide sufficient
information to establish a FMLA-qualifying reason for the needed leave
so that the employer is aware that the leave may not be denied and may
designate that the paid leave be appropriately counted against
(substituted for) the employee's FMLA leave entitlement. Similarly, an
employee using accrued paid vacation leave who seeks an extension of
unpaid leave for a FMLA-qualifying reason will need to state the
reason. If this is due to an event which occurred during the period of
paid leave, the employer may count the leave used after the FMLA-
qualifying reason against the employee's FMLA leave entitlement.
(c) Disputes. If there is a dispute between an employer and an
employee as to whether leave qualifies as FMLA leave, it should be
resolved through discussions between the employee and the employer.
Such discussions and the decision must be documented.
(d) Retroactive designation. If an employer does not designate
leave as required by Sec. 825.300, the employer may retroactively
designate leave as FMLA leave with appropriate notice to the employee
as required by Sec. 825.300 provided that the employer's failure to
timely designate leave does not cause harm or injury to the employee.
In all cases where leave would qualify for FMLA protections, an
employer and an employee can mutually agree that leave be retroactively
designated as FMLA leave.
(e) Remedies. If an employer's failure to timely designate leave in
accordance with Sec. 825.300 causes the employee to suffer harm, it
may constitute an interference with, restraint of, or denial of the
exercise of an employee's FMLA rights. An employer may be liable for
compensation and benefits lost by reason of the violation, for other
actual monetary losses sustained as a direct result of the violation,
and for appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)). For example, if an employer that was
put on notice that an employee needed FMLA leave failed to designate
the leave properly, but the employee's own serious health condition
prevented him or her from returning to work during that time period
regardless of the designation, an employee may not be able to show that
the employee suffered harm as a result of the employer's actions.
However, if an employee took leave to provide care for a son or
daughter with a serious health condition believing it would not count
toward his or her FMLA entitlement, and the employee planned to later
use that FMLA leave to provide care for a spouse who would need
assistance when recovering from surgery planned for a later date, the
employee may be able to show that harm has occurred as a result of the
employer's failure to designate properly. The employee might establish
this by showing that he or she would have arranged for an alternative
caregiver for the seriously-ill son or daughter if the leave had been
designated timely.
Sec. 825.302 Employee notice requirements for foreseeable FMLA leave.
(a) Timing of notice. An employee must provide the employer at
least 30 days advance notice before FMLA leave is to begin if the need
for the leave is foreseeable based on an expected birth, placement for
adoption or foster care, planned medical treatment for a serious health
condition of the employee or of a family member, or the planned medical
treatment for a serious injury or illness of a covered servicemember.
If 30 days notice is not practicable, such as because of a lack of
knowledge of approximately when leave will be required to begin, a
change in circumstances, or a medical emergency, notice must be given
as soon as practicable. For example, an employee's health condition may
require leave to commence earlier than anticipated before the birth of
a child. Similarly, little opportunity for notice may be given before
placement for adoption. For foreseeable leave due to a qualifying
exigency notice must be provided as soon as practicable, regardless of
how far in advance such leave is foreseeable. Whether FMLA leave is to
be continuous or is to be taken intermittently or on a reduced schedule
basis, notice need only be given one time, but the employee shall
advise the employer as soon as practicable if dates of scheduled leave
change or are extended, or were initially unknown. In those cases where
the employee is required to provide at least 30 days notice of
foreseeable leave and does not do so, the employee shall explain the
reasons why such notice was not practicable upon a request from the
employer for such information.
(b) As soon as practicable means as soon as both possible and
practical, taking into account all of the facts and circumstances in
the individual case. When an employee becomes aware of a need for FMLA
leave less than 30 days in advance, it should be practicable for the
employee to provide notice of the need for leave either the same day or
the next business day. In all cases, however, the determination of when
an employee could practicably provide notice must take into account the
individual facts and circumstances.
(c) Content of notice. An employee shall provide at least verbal
notice sufficient to make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. Depending on the situation, such information may include that a
condition renders the employee unable to perform the functions of the
job; that the employee is pregnant or has been
[[Page 68099]]
hospitalized overnight; whether the employee or the employee's family
member is under the continuing care of a health care provider; if the
leave is due to a qualifying exigency, that a covered military member
is on active duty or call to active duty status, and that the requested
leave is for one of the reasons listed in Sec. 825.126(a); if the
leave is for a family member, that the condition renders the family
member unable to perform daily activities, or that the family member is
a covered servicemember with a serious injury or illness; and the
anticipated duration of the absence, if known. When an employee seeks
leave for the first time for a FMLA-qualifying reason, the employee
need not expressly assert rights under the FMLA or even mention the
FMLA. When an employee seeks leave due to a FMLA-qualifying reason, for
which the employer has previously provided FMLA-protected leave, the
employee must specifically reference the qualifying reason for leave or
the need for FMLA leave. In all cases, the employer should inquire
further of the employee if it is necessary to have more information
about whether FMLA leave is being sought by the employee, and obtain
the necessary details of the leave to be taken. In the case of medical
conditions, the employer may find it necessary to inquire further to
determine if the leave is because of a serious health condition and may
request medical certification to support the need for such leave (see
Sec. 825.305). An employer may also request certification to support
the need for leave for a qualifying exigency or for military caregiver
leave (see Sec. Sec. 825.309, 825.310). When an employee has been
previously certified for leave due to more than one FMLA-qualifying
reason, the employer may need to inquire further to determine for which
qualifying reason the leave is needed. An employee has an obligation to
respond to an employer's questions designed to determine whether an
absence is potentially FMLA-qualifying. Failure to respond to
reasonable employer inquiries regarding the leave request may result in
denial of FMLA protection if the employer is unable to determine
whether the leave is FMLA-qualifying.
(d) Complying with employer policy. An employer may require an
employee to comply with the employer's usual and customary notice and
procedural requirements for requesting leave, absent unusual
circumstances. For example, an employer may require that written notice
set forth the reasons for the requested leave, the anticipated duration
of the leave, and the anticipated start of the leave. An employee also
may be required by an employer's policy to contact a specific
individual. Unusual circumstances would include situations such as when
an employee is unable to comply with the employer's policy that
requests for leave should be made by contacting a specific number
because on the day the employee needs to provide notice of his or her
need for FMLA leave there is no one to answer the call-in number and
the voice mail box is full. Where an employee does not comply with the
employer's usual notice and procedural requirements, and no unusual
circumstances justify the failure to comply, FMLA-protected leave may
be delayed or denied. However, FMLA-protected leave may not be delayed
or denied where the employer's policy requires notice to be given
sooner than set forth in paragraph (a) of this section and the employee
provides timely notice as set forth in paragraph (a) of this section.
(e) Scheduling planned medical treatment. When planning medical
treatment, the employee must consult with the employer and make a
reasonable effort to schedule the treatment so as not to disrupt unduly
the employer's operations, subject to the approval of the health care
provider. Employees are ordinarily expected to consult with their
employers prior to the scheduling of treatment in order to work out a
treatment schedule which best suits the needs of both the employer and
the employee. For example, if an employee who provides notice of the
need to take FMLA leave on an intermittent basis for planned medical
treatment neglects to consult with the employer to make a reasonable
effort to arrange the schedule of treatments so as not to unduly
disrupt the employer's operations, the employer may initiate
discussions with the employee and require the employee to attempt to
make such arrangements, subject to the approval of the health care
provider. See Sec. Sec. 825.203 and 825.205.
(f) Intermittent leave or leave on a reduced leave schedule must be
medically necessary due to a serious health condition or a serious
injury or illness. An employee shall advise the employer, upon request,
of the reasons why the intermittent/reduced leave schedule is necessary
and of the schedule for treatment, if applicable. The employee and
employer shall attempt to work out a schedule for such leave that meets
the employee's needs without unduly disrupting the employer's
operations, subject to the approval of the health care provider.
(g) An employer may waive employees' FMLA notice requirements. See
Sec. 825.304.
Sec. 825.303 Employee notice requirements for unforeseeable FMLA
leave.
(a) Timing of notice. When the approximate timing of the need for
leave is not foreseeable, an employee must provide notice to the
employer as soon as practicable under the facts and circumstances of
the particular case. It generally should be practicable for the
employee to provide notice of leave that is unforeseeable within the
time prescribed by the employer's usual and customary notice
requirements applicable to such leave. See Sec. 825.303(c). Notice may
be given by the employee's spokesperson (e.g., spouse, adult family
member, or other responsible party) if the employee is unable to do so
personally. For example, if an employee's child has a severe asthma
attack and the employee takes the child to the emergency room, the
employee would not be required to leave his or her child in order to
report the absence while the child is receiving emergency treatment.
However, if the child's asthma attack required only the use of an
inhaler at home followed by a period of rest, the employee would be
expected to call the employer promptly after ensuring the child has
used the inhaler.
(b) Content of notice. An employee shall provide sufficient
information for an employer to reasonably determine whether the FMLA
may apply to the leave request. Depending on the situation, such
information may include that a condition renders the employee unable to
perform the functions of the job; that the employee is pregnant or has
been hospitalized overnight; whether the employee or the employee's
family member is under the continuing care of a health care provider;
if the leave is due to a qualifying exigency, that a covered military
member is on active duty or call to active duty status, that the
requested leave is for one of the reasons listed in Sec. 825.126(a),
and the anticipated duration of the absence; or if the leave is for a
family member that the condition renders the family member unable to
perform daily activities or that the family member is a covered
servicemember with a serious injury or illness; and the anticipated
duration of the absence, if known. When an employee seeks leave for the
first time for a FMLA-qualifying reason, the employee need not
expressly assert rights under the FMLA or even mention the FMLA. When
an employee seeks leave due to a qualifying reason, for which the
employer has previously
[[Page 68100]]
provided the employee FMLA-protected leave, the employee must
specifically reference either the qualifying reason for leave or the
need for FMLA leave. Calling in ``sick'' without providing more
information will not be considered sufficient notice to trigger an
employer's obligations under the Act. The employer will be expected to
obtain any additional required information through informal means. An
employee has an obligation to respond to an employer's questions
designed to determine whether an absence is potentially FMLA-
qualifying. Failure to respond to reasonable employer inquiries
regarding the leave request may result in denial of FMLA protection if
the employer is unable to determine whether the leave is FMLA-
qualifying.
(c) Complying with employer policy. When the need for leave is not
foreseeable, an employee must comply with the employer's usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances. For example, an employer may require
employees to call a designated number or a specific individual to
request leave. However, if an employee requires emergency medical
treatment, he or she would not be required to follow the call-in
procedure until his or her condition is stabilized and he or she has
access to, and is able to use, a phone. Similarly, in the case of an
emergency requiring leave because of a FMLA-qualifying reason, written
advance notice pursuant to an employer's internal rules and procedures
may not be required when FMLA leave is involved. If an employee does
not comply with the employer's usual notice and procedural
requirements, and no unusual circumstances justify the failure to
comply, FMLA-protected leave may be delayed or denied.
Sec. 825.304 Employee failure to provide notice.
(a) Proper notice required. In all cases, in order for the onset of
an employee's FMLA leave to be delayed due to lack of required notice,
it must be clear that the employee had actual notice of the FMLA notice
requirements. This condition would be satisfied by the employer's
proper posting of the required notice at the worksite where the
employee is employed and the employer's provision of the required
notice in either an employee handbook or employee distribution, as
required by Sec. 825.300.
(b) Foreseeable leave--30 days. When the need for FMLA leave is
foreseeable at least 30 days in advance and an employee fails to give
timely advance notice with no reasonable excuse, the employer may delay
FMLA coverage until 30 days after the date the employee provides
notice. The need for leave and the approximate date leave would be
taken must have been clearly foreseeable to the employee 30 days in
advance of the leave. For example, knowledge that an employee would
receive a telephone call about the availability of a child for adoption
at some unknown point in the future would not be sufficient to
establish the leave was clearly foreseeable 30 days in advance.
(c) Foreseeable leave--less than 30 days. When the need for FMLA
leave is foreseeable fewer than 30 days in advance and an employee
fails to give notice as soon as practicable under the particular facts
and circumstances, the extent to which an employer may delay FMLA
coverage for leave depends on the facts of the particular case. For
example, if an employee reasonably should have given the employer two
weeks notice but instead only provided one week notice, then the
employer may delay FMLA-protected leave for one week (thus, if the
employer elects to delay FMLA coverage and the employee nonetheless
takes leave one week after providing the notice (i.e., a week before
the two week notice period has been met) the leave will not be FMLA-
protected).
(d) Unforeseeable leave. When the need for FMLA leave is
unforeseeable and an employee fails to give notice in accordance with
Sec. 825.303, the extent to which an employer may delay FMLA coverage
for leave depends on the facts of the particular case. For example, if
it would have been practicable for an employee to have given the
employer notice of the need for leave very soon after the need arises
consistent with the employer's policy, but instead the employee
provided notice two days after the leave began, then the employer may
delay FMLA coverage of the leave by two days.
(e) Waiver of notice. An employer may waive employees' FMLA notice
obligations or the employer's own internal rules on leave notice
requirements. If an employer does not waive the employee's obligations
under its internal leave rules, the employer may take appropriate
action under its internal rules and procedures for failure to follow
its usual and customary notification rules, absent unusual
circumstances, as long as the actions are taken in a manner that does
not discriminate against employees taking FMLA leave and the rules are
not inconsistent with Sec. 825.303(a).
Sec. 825.305 Certification, general rule.
(a) General. An employer may require that an employee's leave to
care for the employee's covered family member with a serious health
condition, or due to the employee's own serious health condition that
makes the employee unable to perform one or more of the essential
functions of the employee's position, be supported by a certification
issued by the health care provider of the employee or the employee's
family member. An employer may also require that an employee's leave
because of a qualifying exigency or to care for a covered servicemember
with a serious injury or illness be supported by a certification, as
described in Sec. Sec. 825.309 and 825.310, respectively. An employer
must give notice of a requirement for certification each time a
certification is required; such notice must be written notice whenever
required by Sec. 825.300(c). An employer's oral request to an employee
to furnish any subsequent certification is sufficient.
(b) Timing. In most cases, the employer should request that an
employee furnish certification at the time the employee gives notice of
the need for leave or within five business days thereafter, or, in the
case of unforeseen leave, within five business days after the leave
commences. The employer may request certification at some later date if
the employer later has reason to question the appropriateness of the
leave or its duration. The employee must provide the requested
certification to the employer within 15 calendar days after the
employer's request, unless it is not practicable under the particular
circumstances to do so despite the employee's diligent, good faith
efforts or the employer provides more than 15 calendar days to return
the requested certification.
(c) Complete and sufficient certification. The employee must
provide a complete and sufficient certification to the employer if
required by the employer in accordance with Sec. Sec. 825.306,
825.309, and 825.310. The employer shall advise an employee whenever
the employer finds a certification incomplete or insufficient, and
shall state in writing what additional information is necessary to make
the certification complete and sufficient. A certification is
considered incomplete if the employer receives a certification, but one
or more of the applicable entries have not been completed. A
certification is considered insufficient if the employer receives a
complete certification, but the information provided is vague,
ambiguous, or non-responsive. The
[[Page 68101]]
employer must provide the employee with seven calendar days (unless not
practicable under the particular circumstances despite the employee's
diligent good faith efforts) to cure any such deficiency. If the
deficiencies specified by the employer are not cured in the resubmitted
certification, the employer may deny the taking of FMLA leave, in
accordance with Sec. 825.313. A certification that is not returned to
the employer is not considered incomplete or insufficient, but
constitutes a failure to provide certification.
(d) Consequences. At the time the employer requests certification,
the employer must also advise an employee of the anticipated
consequences of an employee's failure to provide adequate
certification. If the employee fails to provide the employer with a
complete and sufficient certification, despite the opportunity to cure
the certification as provided in paragraph (c) of this section, or
fails to provide any certification, the employer may deny the taking of
FMLA leave, in accordance with Sec. 825.313. It is the employee's
responsibility either to furnish a complete and sufficient
certification or to furnish the health care provider providing the
certification with any necessary authorization from the employee or the
employee's family member in order for the health care provider to
release a complete and sufficient certification to the employer to
support the employee's FMLA request. This provision will apply in any
case where an employer requests a certification permitted by these
regulations, whether it is the initial certification, a
recertification, a second or third opinion, or a fitness for duty
certificate, including any clarifications necessary to determine if
such certifications are authentic and sufficient. See Sec. Sec.
825.306, 825.307, 825.308, and 825.312.
(e) Annual medical certification. Where the employee's need for
leave due to the employee's own serious health condition, or the
serious health condition of the employee's covered family member, lasts
beyond a single leave year (as defined in Sec. 825.200), the employer
may require the employee to provide a new medical certification in each
subsequent leave year. Such new medical certifications are subject to
the provisions for authentication and clarification set forth in Sec.
825.307, including second and third opinions.
Sec. 825.306 Content of medical certification for leave taken because
of an employee's own serious health condition or the serious health
condition of a family member.
(a) Required information. When leave is taken because of an
employee's own serious health condition, or the serious health
condition of a family member, an employer may require an employee to
obtain a medical certification from a health care provider that sets
forth the following information:
(1) The name, address, telephone number, and fax number of the
health care provider and type of medical practice/specialization;
(2) The approximate date on which the serious health condition
commenced, and its probable duration;
(3) A statement or description of appropriate medical facts
regarding the patient's health condition for which FMLA leave is
requested. The medical facts must be sufficient to support the need for
leave. Such medical facts may include information on symptoms,
diagnosis, hospitalization, doctor visits, whether medication has been
prescribed, any referrals for evaluation or treatment (physical
therapy, for example), or any other regimen of continuing treatment;
(4) If the employee is the patient, information sufficient to
establish that the employee cannot perform the essential functions of
the employee's job as well as the nature of any other work
restrictions, and the likely duration of such inability (see Sec.
825.123(b) and (c));
(5) If the patient is a covered family member with a serious health
condition, information sufficient to establish that the family member
is in need of care, as described in Sec. 825.124, and an estimate of
the frequency and duration of the leave required to care for the family
member;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment of the employee's or a
covered family member's serious health condition, information
sufficient to establish the medical necessity for such intermittent or
reduced schedule leave and an estimate of the dates and duration of
such treatments and any periods of recovery;
(7) If an employee requests leave on an intermittent or reduced
schedule basis for the employee's serious health condition, including
pregnancy, that may result in unforeseeable episodes of incapacity,
information sufficient to establish the medical necessity for such
intermittent or reduced schedule leave and an estimate of the frequency
and duration of the episodes of incapacity; and
(8) If an employee requests leave on an intermittent or reduced
schedule basis to care for a covered family member with a serious
health condition, a statement that such leave is medically necessary to
care for the family member, as described in Sec. Sec. 825.124 and
825.203(b), which can include assisting in the family member's
recovery, and an estimate of the frequency and duration of the required
leave.
(b) DOL has developed two optional forms (Form WH-380E and Form WH-
380F, as revised) for use in obtaining medical certification, including
second and third opinions, from health care providers that meets FMLA's
certification requirements. (See Appendix B to this Part 825.) Optional
form WH-380E is for use when the employee's need for leave is due to
the employee's own serious health condition. Optional form WH-380F is
for use when the employee needs leave to care for a family member with
a serious health condition. These optional forms reflect certification
requirements so as to permit the health care provider to furnish
appropriate medical information. Form WH-380E and WH-380F, 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 and
information received under those provisions may be considered in
determining the employee's entitlement to FMLA-protected leave.
Similarly, an employer may request additional information in accordance
with a paid leave policy or disability plan that requires greater
information to qualify for payments or benefits, provided that the
employer informs the employee that the additional information only
needs to be provided in connection with receipt of such payments or
benefits. Any information received pursuant to such policy or plan may
be considered in determining the employee's entitlement to FMLA-
protected leave. If the employee fails to provide the information
required for receipt of such
[[Page 68102]]
payments or benefits, such failure will not affect the employee's
entitlement to take unpaid FMLA leave. See Sec. 825.207(a).
(d) If an employee's serious health condition may also be a
disability within the meaning of the Americans with Disabilities Act
(ADA), as amended, the FMLA does not prevent the employer from
following the procedures for requesting medical information under the
ADA. Any information received pursuant to these procedures may be
considered in determining the employee's entitlement to FMLA-protected
leave.
(e) While an employee may choose to comply with the certification
requirement by providing the employer with an authorization, release,
or waiver allowing the employer to communicate directly with the health
care provider of the employee or his or her covered family member, the
employee may not be required to provide such an authorization, release,
or waiver. In all instances in which certification is requested, it is
the employee's responsibility to provide the employer with complete and
sufficient certification and failure to do so may result in the denial
of FMLA leave. See Sec. 825.305(d).
Sec. 825.307 Authentication and clarification of medical
certification for leave taken because of an employee's own serious
health condition or the serious health condition of a family member;
second and third opinions.
(a) Clarification and authentication. If an employee submits a
complete and sufficient certification signed by the health care
provider, the employer may not request additional information from the
health care provider. However, the employer may contact the health care
provider for purposes of clarification and authentication of the
medical certification (whether initial certification or
recertification) after the employer has given the employee an
opportunity to cure any deficiencies as set forth in Sec. 825.305(c).
To make such contact, the employer must use a health care provider, a
human resources professional, a leave administrator, or a management
official. Under no circumstances, however, may the employee's direct
supervisor contact the employee's health care provider. For purposes of
these regulations, ``authentication'' means providing the health care
provider with a copy of the certification and requesting verification
that the information contained on the certification form was completed
and/or authorized by the health care provider who signed the document;
no additional medical information may be requested. ``Clarification''
means contacting the health care provider to understand the handwriting
on the medical certification or to understand the meaning of a
response. Employers may not ask health care providers for additional
information beyond that required by the certification form. The
requirements of the Health Insurance Portability and Accountability Act
(``HIPAA'') Privacy Rule (see 45 CFR parts 160 and 164), which governs
the privacy of individually-identifiable health information created or
held by HIPAA-covered entities, must be satisfied when individually-
identifiable health information of an employee is shared with an
employer by a HIPAA-covered health care provider. If an employee
chooses not to provide the employer with authorization allowing the
employer to clarify the certification with the health care provider,
and does not otherwise clarify the certification, the employer may deny
the taking of FMLA leave if the certification is unclear. See Sec.
825.305(d). It is the employee's responsibility to provide the employer
with a complete and sufficient certification and to clarify the
certification if necessary.
(b) Second opinion. (1) An employer who has reason to doubt the
validity of a medical certification may require the employee to obtain
a second opinion at the employer's expense. Pending receipt of the
second (or third) medical opinion, the employee is provisionally
entitled to the benefits of the Act, including maintenance of group
health benefits. If the certifications do not ultimately establish the
employee's entitlement to FMLA leave, the leave shall not be designated
as FMLA leave and may be treated as paid or unpaid leave under the
employer's established leave policies. In addition, the consequences
set forth in Sec. 825.305(d) will apply if the employee or the
employee's family member fails to authorize his or her health care
provider to release all relevant medical information pertaining to the
serious health condition at issue if requested by the health care
provider designated to provide a second opinion in order to render a
sufficient and complete second opinion.
(2) The employer is permitted to designate the health care provider
to furnish the second opinion, but the selected health care provider
may not be employed on a regular basis by the employer. The employer
may not regularly contract with or otherwise regularly utilize the
services of the health care provider furnishing the second opinion
unless the employer is located in an area where access to health care
is extremely limited (e.g., a rural area where no more than one or two
doctors practice in the relevant specialty in the vicinity).
(c) Third opinion. If the opinions of the employee's and the
employer's designated health care providers differ, the employer may
require the employee to obtain certification from a third health care
provider, again at the employer's expense. This third opinion shall be
final and binding. The third health care provider must be designated or
approved jointly by the employer and the employee. The employer and the
employee must each act in good faith to attempt to reach agreement on
whom to select for the third opinion provider. If the employer does not
attempt in good faith to reach agreement, the employer will be bound by
the first certification. If the employee does not attempt in good faith
to reach agreement, the employee will be bound by the second
certification. For example, an employee who refuses to agree to see a
doctor in the specialty in question may be failing to act in good
faith. On the other hand, an employer that refuses to agree to any
doctor on a list of specialists in the appropriate field provided by
the employee and whom the employee has not previously consulted may be
failing to act in good faith. In addition, the consequences set forth
in Sec. 825.305(d) will apply if the employee or the employee's family
member fails to authorize his or her health care provider to release
all relevant medical information pertaining to the serious health
condition at issue if requested by the health care provider designated
to provide a third opinion in order to render a sufficient and complete
third opinion.
(d) Copies of opinions. The employer is required to provide the
employee with a copy of the second and third medical opinions, where
applicable, upon request by the employee. Requested copies are to be
provided within five business days unless extenuating circumstances
prevent such action.
(e) Travel expenses. If the employer requires the employee to
obtain either a second or third opinion the employer must reimburse an
employee or family member for any reasonable ``out of pocket'' travel
expenses incurred to obtain the second and third medical opinions. The
employer may not require the employee or family member to travel
outside normal commuting distance for purposes of obtaining the second
or third medical opinions except in very unusual circumstances.
(f) Medical certification abroad. In circumstances in which the
employee or
[[Page 68103]]
a family member is visiting in another country, or a family member
resides in another country, and a serious health condition develops,
the employer shall accept a medical certification as well as second and
third opinions from a health care provider who practices in that
country. Where a certification by a foreign health care provider is in
a language other than English, the employee must provide the employer
with a written translation of the certification upon request.
Sec. 825.308 Recertifications for leave taken because of an
employee's own serious health condition or the serious health condition
of a family member.
(a) 30-day rule. An employer may request recertification no more
often than every 30 days and only in connection with an absence by the
employee, unless paragraphs (b) or (c) of this section apply.
(b) More than 30 days. If the medical certification indicates that
the minimum duration of the condition is more than 30 days, an employer
must wait until that minimum duration expires before requesting a
recertification, unless paragraph (c) of this section applies. For
example, if the medical certification states that an employee will be
unable to work, whether continuously or on an intermittent basis, for
40 days, the employer must wait 40 days before requesting a
recertification. In all cases, an employer may request a
recertification of a medical condition every six months in connection
with an absence by the employee. Accordingly, even if the medical
certification indicates that the employee will need intermittent or
reduced schedule leave for a period in excess of six months (e.g., for
a lifetime condition), the employer would be permitted to request
recertification every six months in connection with an absence.
(c) Less than 30 days. An employer may request recertification in
less than 30 days if:
(1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification have
changed significantly (e.g., the duration or frequency of the absence,
the nature or severity of the illness, complications). For example, if
a medical certification stated that an employee would need leave for
one to two days when the employee suffered a migraine headache and the
employee's absences for his or her last two migraines lasted four days
each, then the increased duration of absence might constitute a
significant change in circumstances allowing the employer to request a
recertification in less than 30 days. Likewise, if an employee had a
pattern of using unscheduled FMLA leave for migraines in conjunction
with his or her scheduled days off, then the timing of the absences
also might constitute a significant change in circumstances sufficient
for an employer to request a recertification more frequently than every
30 days; or
(3) The employer receives information that casts doubt upon the
employee's stated reason for the absence or the continuing validity of
the certification. For example, if an employee is on FMLA leave for
four weeks due to the employee's knee surgery, including recuperation,
and the employee plays in company softball league games during the
employee's third week of FMLA leave, such information might be
sufficient to cast doubt upon the continuing validity of the
certification allowing the employer to request a recertification in
less than 30 days.
(d) Timing. The employee must provide the requested recertification
to the employer within the timeframe requested by the employer (which
must allow at least 15 calendar days after the employer's request),
unless it is not practicable under the particular circumstances to do
so despite the employee's diligent, good faith efforts.
(e) Content. The employer may ask for the same information when
obtaining recertification as that permitted for the original
certification as set forth in Sec. 825.306. The employee has the same
obligations to participate and cooperate (including providing a
complete and sufficient certification or adequate authorization to the
health care provider) in the recertification process as in the initial
certification process. See Sec. 825.305(d). As part of the information
allowed to be obtained on recertification for leave taken because of a
serious health condition, the employer may provide the health care
provider with a record of the employee's absence pattern and ask the
health care provider if the serious health condition and need for leave
is consistent with such a pattern.
(f) Any recertification requested by the employer shall be at the
employee's expense unless the employer provides otherwise. No second or
third opinion on recertification may be required.
Sec. 825.309 Certification for leave taken because of a qualifying
exigency.
(a) Active Duty Orders. The first time an employee requests leave
because of a qualifying exigency arising out of the active duty or call
to active duty status of a covered military member (as defined in Sec.
825.126(b)(2)), an employer may require the employee to provide a copy
of the covered military member's active duty orders or other
documentation issued by the military which indicates that the covered
military member is on active duty or call to active duty status in
support of a contingency operation, and the dates of the covered
military member's active duty service. This information need only be
provided to the employer once. A copy of new active duty orders or
other documentation issued by the military shall be provided to the
employer if the need for leave because of a qualifying exigency arises
out of a different active duty or call to active duty status of the
same or a different covered military member;
(b) Required information. An employer may require that leave for
any qualifying exigency specified in Sec. 825.126 be supported by a
certification from the employee that sets forth the following
information:
(1) A statement or description, signed by the employee, of
appropriate facts regarding the qualifying exigency for which FMLA
leave is requested. The facts must be sufficient to support the need
for leave. Such facts should include information on the type of
qualifying exigency for which leave is requested and any available
written documentation which supports the request for leave; such
documentation, for example, may include a copy of a meeting
announcement for informational briefings sponsored by the military, a
document confirming an appointment with a counselor or school official,
or a copy of a bill for services for the handling of legal or financial
affairs;
(2) The approximate date on which the qualifying exigency commenced
or will commence;
(3) If an employee requests leave because of a qualifying exigency
for a single, continuous period of time, the beginning and end dates
for such absence;
(4) If an employee requests leave because of a qualifying exigency
on an intermittent or reduced schedule basis, an estimate of the
frequency and duration of the qualifying exigency; and
(5) If the qualifying exigency involves meeting with a third party,
appropriate contact information for the individual or entity with whom
the employee is meeting (such as the name, title, organization,
address, telephone number, fax number, and e-mail address) and a brief
description of the purpose of the meeting.
(c) DOL has developed an optional form (Form WH-384) for employees'
use in obtaining a certification that meets
[[Page 68104]]
FMLA's certification requirements. (See Appendix G to this Part 825.)
This optional form reflects certification requirements so as to permit
the employee to furnish appropriate information to support his or her
request for leave because of a qualifying exigency. Form WH-384, or
another form containing the same basic information, may be used by the
employer; however, no information may be required beyond that specified
in this section.
(d) Verification. If an employee submits a complete and sufficient
certification to support his or her request for leave because of a
qualifying exigency, the employer may not request additional
information from the employee. However, if the qualifying exigency
involves meeting with a third party, the employer may contact the
individual or entity with whom the employee is meeting for purposes of
verifying a meeting or appointment schedule and the nature of the
meeting between the employee and the specified individual or entity.
The employee's permission is not required in order to verify meetings
or appointments with third parties, but no additional information may
be requested by the employer. An employer also may contact an
appropriate unit of the Department of Defense to request verification
that a covered military member is on active duty or call to active duty
status; no additional information may be requested and the employee's
permission is not required.
Sec. 825.310 Certification for leave taken to care for a covered
servicemember (military caregiver leave).
(a) Required information from health care provider. When leave is
taken to care for a covered servicemember with a serious injury or
illness, an employer may require an employee to obtain a certification
completed by an authorized health care provider of the covered
servicemember. For purposes of leave taken to care for a covered
servicemember, any one of the following health care providers may
complete such a certification:
(1) A United States Department of Defense (``DOD'') health care
provider;
(2) A United States Department of Veterans Affairs (``VA'') health
care provider;
(3) A DOD TRICARE network authorized private health care provider;
or
(4) A DOD non-network TRICARE authorized private health care
provider.
(b) If the authorized health care provider is unable to make
certain military-related determinations outlined below, the authorized
health care provider may rely on determinations from an authorized DOD
representative (such as a DOD recovery care coordinator). An employer
may request that the health care provider provide the following
information:
(1) The name, address, and appropriate contact information
(telephone number, fax number, and/or email address) of the health care
provider, the type of medical practice, the medical specialty, and
whether the health care provider is one of the following:
(i) A DOD health care provider;
(ii) A VA health care provider;
(iii) A DOD TRICARE network authorized private health care
provider; or
(iv) A DOD non-network TRICARE authorized private health care
provider.
(2) Whether the covered servicemember's injury or illness was
incurred in the line of duty on active duty;
(3) The approximate date on which the serious injury or illness
commenced, and its probable duration;
(4) A statement or description of appropriate medical facts
regarding the covered servicemember's health condition for which FMLA
leave is requested. The medical facts must be sufficient to support the
need for leave. Such medical facts must include information on whether
the injury or illness may render the covered servicemember medically
unfit to perform the duties of the servicemember's office, grade, rank,
or rating and whether the member is receiving medical treatment,
recuperation, or therapy;
(5) Information sufficient to establish that the covered
servicemember is in need of care, as described in Sec. 825.124, and
whether the covered servicemember will need care for a single
continuous period of time, including any time for treatment and
recovery, and an estimate as to the beginning and ending dates for this
period of time;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment appointments for the
covered servicemember, whether there is a medical necessity for the
covered servicemember to have such periodic care and an estimate of the
treatment schedule of such appointments;
(7) If an employee requests leave on an intermittent or reduced
schedule basis to care for a covered servicemember other than for
planned medical treatment (e.g., episodic flare-ups of a medical
condition), whether there is a medical necessity for the covered
servicemember to have such periodic care, which can include assisting
in the covered servicemember's recovery, and an estimate of the
frequency and duration of the periodic care.
(c) Required information from employee and/or covered
servicemember. In addition to the information that may be requested
under Sec. 825.310(b), an employer may also request that such
certification set forth the following information provided by an
employee and/or covered servicemember:
(1) The name and address of the employer of the employee requesting
leave to care for a covered servicemember, the name of the employee
requesting such leave, and the name of the covered servicemember for
whom the employee is requesting leave to care;
(2) The relationship of the employee to the covered servicemember
for whom the employee is requesting leave to care;
(3) Whether the covered servicemember is a current member of the
Armed Forces, the National Guard or Reserves, and the covered
servicemember's military branch, rank, and current unit assignment;
(4) Whether the covered servicemember is assigned to a military
medical facility as an outpatient or to a unit established for the
purpose of providing command and control of members of the Armed Forces
receiving medical care as outpatients (such as a medical hold or
warrior transition unit), and the name of the medical treatment
facility or unit;
(5) Whether the covered servicemember is on the temporary
disability retired list;
(6) A description of the care to be provided to the covered
servicemember and an estimate of the leave needed to provide the care.
(d) DOL has developed an optional form (WH-385) for employees' use
in obtaining certification that meets FMLA's certification
requirements. (See Appendix H to this Part 825.) This optional form
reflects certification requirements so as to permit the employee to
furnish appropriate information to support his or her request for leave
to care for a covered servicemember with a serious injury or illness.
WH-385, or another form containing the same basic information, may be
used by the employer; however, no information may be required beyond
that specified in this section. In all instances the information on the
certification must relate only to the serious injury or illness for
which the current need for leave exists. An
[[Page 68105]]
employer may seek authentication and/or clarification of the
certification under Sec. 825.307. However, second and third opinions
under Sec. 825.307 are not permitted for leave to care for a covered
servicemember. Additionally, recertifications under Sec. 825.308 are
not permitted for leave to care for a covered servicemember. An
employer may require an employee to provide confirmation of covered
family relationship to the seriously injured or ill servicemember
pursuant to Sec. 825.122(j) of the FMLA.
(e) An employer requiring an employee to submit a certification for
leave to care for a covered servicemember must accept as sufficient
certification, in lieu of the Department's optional certification form
(WH-385) or an employer's own certification form, ``invitational travel
orders'' (``ITOs'') or ``invitational travel authorizations''
(``ITAs'') issued to any family member to join an injured or ill
servicemember at his or her bedside. An ITO or ITA is sufficient
certification for the duration of time specified in the ITO or ITA.
During that time period, an eligible employee may take leave to care
for the covered servicemember in a continuous block of time or on an
intermittent basis. An eligible employee who provides an ITO or ITA to
support his or her request for leave may not be required to provide any
additional or separate certification that leave taken on an
intermittent basis during the period of time specified in the ITO or
ITA is medically necessary. An ITO or ITA is sufficient certification
for an employee entitled to take FMLA leave to care for a covered
servicemember regardless of whether the employee is named in the order
or authorization.
(1) If an employee will need leave to care for a covered
servicemember beyond the expiration date specified in an ITO or ITA, an
employer may request that the employee have one of the authorized
health care providers listed under Sec. 825.310(a) complete the DOL
optional certification form (WH-385) or an employer's own form, as
requisite certification for the remainder of the employee's necessary
leave period.
(2) An employer may seek authentication and clarification of the
ITO or ITA under Sec. 825.307. An employer may not utilize the second
or third opinion process outlined in Sec. 825.307 or the
recertification process under Sec. 825.308 during the period of time
in which leave is supported by an ITO or ITA.
(3) An employer may require an employee to provide confirmation of
covered family relationship to the seriously injured or ill
servicemember pursuant to Sec. 825.122(j) when an employee supports
his or her request for FMLA leave with a copy of an ITO or ITA.
(f) In all instances in which certification is requested, it is the
employee's responsibility to provide the employer with complete and
sufficient certification and failure to do so may result in the denial
of FMLA leave. See Sec. 825.305(d).
Sec. 825.311 Intent to return to work.
(a) An employer may require an employee on FMLA leave to report
periodically on the employee's status and intent to return to work. The
employer's policy regarding such reports may not be discriminatory and
must take into account all of the relevant facts and circumstances
related to the individual employee's leave situation.
(b) If an employee gives unequivocal notice of intent not to return
to work, the employer's obligations under FMLA to maintain health
benefits (subject to COBRA requirements) and to restore the employee
cease. However, these obligations continue if an employee indicates he
or she may be unable to return to work but expresses a continuing
desire to do so.
(c) It may be necessary for an employee to take more leave than
originally anticipated. Conversely, an employee may discover after
beginning leave that the circumstances have changed and the amount of
leave originally anticipated is no longer necessary. An employee may
not be required to take more FMLA leave than necessary to resolve the
circumstance that precipitated the need for leave. In both of these
situations, the employer may require that the employee provide the
employer reasonable notice (i.e., within two business days) of the
changed circumstances where foreseeable. The employer may also obtain
information on such changed circumstances through requested status
reports.
Sec. 825.312 Fitness-for-duty certification.
(a) As a condition of restoring an employee whose FMLA leave was
occasioned by the employee's own serious health condition that made the
employee unable to perform the employee's job, an employer may have a
uniformly-applied policy or practice that requires all similarly-
situated employees (i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and present
certification from the employee's health care provider that the
employee is able to resume work. The employee has the same obligations
to participate and cooperate (including providing a complete and
sufficient certification or providing sufficient authorization to the
health care provider to provide the information directly to the
employer) in the fitness-for-duty certification process as in the
initial certification process. See Sec. 825.305(d).
(b) An employer may seek a fitness-for-duty certification only with
regard to the particular health condition that caused the employee's
need for FMLA leave. The certification from the employee's health care
provider must certify that the employee is able to resume work.
Additionally, an employer may require that the certification
specifically address the employee's ability to perform the essential
functions of the employee's job. In order to require such a
certification, an employer must provide an employee with a list of the
essential functions of the employee's job no later than with the
designation notice required by Sec. 825.300(d), and must indicate in
the designation notice that the certification must address the
employee's ability to perform those essential functions. If the
employer satisfies these requirements, the employee's health care
provider must certify that the employee can perform the identified
essential functions of his or her job. Following the procedures set
forth in Sec. 825.307(a), the employer may contact the employee's
health care provider for purposes of clarifying and authenticating the
fitness-for-duty certification. Clarification may be requested only for
the serious health condition for which FMLA leave was taken. The
employer may not delay the employee's return to work while contact with
the health care provider is being made. No second or third opinions on
a fitness-for-duty certification may be required.
(c) The cost of the certification shall be borne by the employee,
and the employee is not entitled to be paid for the time or travel
costs spent in acquiring the certification.
(d) The designation notice required in Sec. 825.300(d) shall
advise the employee if the employer will require a fitness-for-duty
certification to return to work and whether that fitness-for-duty
certification must address the employee's ability to perform the
essential functions of the employee's job.
(e) An employer may delay restoration to employment until an
employee submits a required fitness-for-duty certification unless the
employer has failed to provide the notice required in paragraph (d) of
this section. If an employer provides the notice required,
[[Page 68106]]
an employee who does not provide a fitness-for-duty certification or
request additional FMLA leave is no longer entitled to reinstatement
under the FMLA. See Sec. 825.313(d).
(f) An employer is not entitled to a certification of fitness to
return to duty for each absence taken on an intermittent or reduced
leave schedule. However, an employer is entitled to a certification of
fitness to return to duty for such absences up to once every 30 days if
reasonable safety concerns exist regarding the employee's ability to
perform his or her duties, based on the serious health condition for
which the employee took such leave. If an employer chooses to require a
fitness-for-duty certification under such circumstances, the employer
shall inform the employee at the same time it issues the designation
notice that for each subsequent instance of intermittent or reduced
schedule leave, the employee will be required to submit a fitness-for-
duty certification unless one has already been submitted within the
past 30 days. Alternatively, an employer can set a different interval
for requiring a fitness-for-duty certification as long as it does not
exceed once every 30 days and as long as the employer advises the
employee of the requirement in advance of the employee taking the
intermittent or reduced schedule leave. The employer may not terminate
the employment of the employee while awaiting such a certification of
fitness to return to duty for an intermittent or reduced schedule leave
absence. Reasonable safety concerns means a reasonable belief of
significant risk of harm to the individual employee or others. In
determining whether reasonable safety concerns exist, an employer
should consider the nature and severity of the potential harm and the
likelihood that potential harm will occur.
(g) If State or local law or the terms of a collective bargaining
agreement govern an employee's return to work, those provisions shall
be applied.
(h) Requirements under the Americans with Disabilities Act (ADA),
as amended, apply. After an employee returns from FMLA leave, the ADA
requires any medical examination at an employer's expense by the
employer's health care provider be job-related and consistent with
business necessity. For example, an attorney could not be required to
submit to a medical examination or inquiry just because her leg had
been amputated. The essential functions of an attorney's job do not
require use of both legs; therefore such an inquiry would not be job
related. An employer may require a warehouse laborer, whose back
impairment affects the ability to lift, to be examined by an
orthopedist, but may not require this employee to submit to an HIV test
where the test is not related to either the essential functions of his
or her job or to his/her impairment. If an employee's serious health
condition may also be a disability within the meaning of the ADA, the
FMLA does not prevent the employer from following the procedures for
requesting medical information under the ADA.
Sec. 825.313 Failure to provide certification.
(a) Foreseeable leave. In the case of foreseeable leave, if an
employee fails to provide certification in a timely manner as required
by Sec. 825.305, then an employer may deny FMLA coverage until the
required certification is provided. For example, if an employee has 15
days to provide a certification and does not provide the certification
for 45 days without sufficient reason for the delay, the employer can
deny FMLA protections for the 30-day period following the expiration of
the 15-day time period, if the employee takes leave during such period.
(b) Unforeseeable leave. In the case of unforeseeable leave, an
employer may deny FMLA coverage for the requested leave if the employee
fails to provide a certification within 15 calendar days from receipt
of the request for certification unless not practicable due to
extenuating circumstances. For example, in the case of a medical
emergency, it may not be practicable for an employee to provide the
required certification within 15 calendar days. Absent such extenuating
circumstances, if the employee fails to timely return the
certification, the employer can deny FMLA protections for the leave
following the expiration of the 15-day time period until a sufficient
certification is provided. If the employee never produces the
certification, the leave is not FMLA leave.
(c) Recertification. An employee must provide recertification
within the time requested by the employer (which must allow at least 15
calendar days after the request) or as soon as practicable under the
particular facts and circumstances. If an employee fails to provide a
recertification within a reasonable time under the particular facts and
circumstances, then the employer may deny continuation of the FMLA
leave protections until the employee produces a sufficient
recertification. If the employee never produces the recertification,
the leave is not FMLA leave. Recertification does not apply to leave
taken for a qualifying exigency or to care for a covered servicemember.
(d) Fitness-for-duty certification. When requested by the employer
pursuant to a uniformly applied policy for similarly-situated
employees, the employee must provide medical certification, at the time
the employee seeks reinstatement at the end of FMLA leave taken for the
employee's serious health condition, that the employee is fit for duty
and able to return to work (see Sec. 825.312(a)) if the employer has
provided the required notice (see Sec. 825.300(e)); the employer may
delay restoration until the certification is provided. Unless the
employee provides either a fitness-for-duty certification or a new
medical certification for a serious health condition at the time FMLA
leave is concluded, the employee may be terminated. See also Sec.
825.213(a)(3).
Subpart D--Enforcement Mechanisms
Sec. 825.400 Enforcement, general rules.
(a) The employee has the choice of:
(1) Filing, or having another person file on his or her behalf, a
complaint with the Secretary of Labor, or
(2) Filing a private lawsuit pursuant to section 107 of FMLA.
(b) If the employee files a private lawsuit, it must be filed
within two years after the last action which the employee contends was
in violation of the Act, or three years if the violation was willful.
(c) If an employer has violated one or more provisions of FMLA, and
if justified by the facts of a particular case, an employee may receive
one or more of the following: Wages, employment benefits, or other
compensation denied or lost to such employee by reason of the
violation; or, where no such tangible loss has occurred, such as when
FMLA leave was unlawfully denied, any actual monetary loss sustained by
the employee as a direct result of the violation, such as the cost of
providing care, up to a sum equal to 26 weeks of wages for the employee
in a case involving leave to care for a covered servicemember or 12
weeks of wages for the employee in a case involving leave for any other
FMLA qualifying reason. In addition, the employee may be entitled to
interest on such sum, calculated at the prevailing rate. An amount
equaling the preceding sums may also be awarded as liquidated damages
unless such amount is reduced by the court because the violation was in
good faith and the employer had reasonable grounds for believing the
employer had not violated the Act. When appropriate, the employee may
also obtain appropriate equitable relief,
[[Page 68107]]
such as employment, reinstatement and promotion. When the employer is
found in violation, the employee may recover a reasonable attorney's
fee, reasonable expert witness fees, and other costs of the action from
the employer in addition to any judgment awarded by the court.
Sec. 825.401 Filing a complaint with the Federal Government.
(a) A complaint may be filed in person, by mail or by telephone,
with the Wage and Hour Division, Employment Standards Administration,
U.S. Department of Labor. A complaint may be filed at any local office
of the Wage and Hour Division; the address and telephone number of
local offices may be found in telephone directories or on the
Department's Web site.
(b) A complaint filed with the Secretary of Labor should be filed
within a reasonable time of when the employee discovers that his or her
FMLA rights have been violated. In no event may a complaint be filed
more than two years after the action which is alleged to be a violation
of FMLA occurred, or three years in the case of a willful violation.
(c) No particular form of complaint is required, except that a
complaint must be reduced to writing and should include a full
statement of the acts and/or omissions, with pertinent dates, which are
believed to constitute the violation.
Sec. 825.402 Violations of the posting requirement.
Section 825.300 describes the requirements for covered employers to
post a notice for employees that explains the Act's provisions. If a
representative of the Department of Labor determines that an employer
has committed a willful violation of this posting requirement, and that
the imposition of a civil money penalty for such violation is
appropriate, the representative may issue and serve a notice of penalty
on such employer in person or by certified mail. Where service by
certified mail is not accepted, notice shall be deemed received on the
date of attempted delivery. Where service is not accepted, the notice
may be served by regular mail.
Sec. 825.403 Appealing the assessment of a penalty for willful
violation of the posting requirement.
(a) An employer may obtain a review of the assessment of penalty
from the Wage and Hour Regional Administrator for the region in which
the alleged violation(s) occurred. If the employer does not seek such a
review or fails to do so in a timely manner, the notice of the penalty
constitutes the final ruling of the Secretary of Labor.
(b) To obtain review, an employer may file a petition with the Wage
and Hour Regional Administrator for the region in which the alleged
violations occurred. No particular form of petition for review is
required, except that the petition must be in writing, should contain
the legal and factual bases for the petition, and must be mailed to the
Regional Administrator within 15 days of receipt of the notice of
penalty. The employer may request an oral hearing which may be
conducted by telephone.
(c) The decision of the Regional Administrator constitutes the
final order of the Secretary.
Sec. 825.404 Consequences for an employer when not paying the penalty
assessment after a final order is issued.
The Regional Administrator may seek to recover the unpaid penalty
pursuant to the Debt Collection Act (DCA), 31 U.S.C. 3711 et seq., and,
in addition to seeking recovery of the unpaid final order, may seek
interest and penalties as provided under the DCA. The final order may
also be referred to the Solicitor of Labor for collection. The
Secretary may file suit in any court of competent jurisdiction to
recover the monies due as a result of the unpaid final order, interest,
and penalties.
Subpart E--Recordkeeping Requirements
Sec. 825.500 Recordkeeping requirements.
(a) FMLA provides that covered employers shall make, keep, and
preserve records pertaining to their obligations under the Act in
accordance with the recordkeeping requirements of section 11(c) of the
Fair Labor Standards Act (FLSA) and in accordance with these
regulations. FMLA also restricts the authority of the Department of
Labor to require any employer or plan, fund, or program to submit books
or records more than once during any 12-month period unless the
Department has reasonable cause to believe a violation of FMLA exists
or the Department is investigating a complaint. These regulations
establish no requirement for the submission of any records unless
specifically requested by a Departmental official.
(b) No particular order or form of records is required. These
regulations establish no requirement that any employer revise its
computerized payroll or personnel records systems to comply. However,
employers must keep the records specified by these regulations for no
less than three years and make them available for inspection, copying,
and transcription by representatives of the Department of Labor upon
request. The records may be maintained and preserved on microfilm or
other basic source document of an automated data processing memory
provided that adequate projection or viewing equipment is available,
that the reproductions are clear and identifiable by date or pay
period, and that extensions or transcriptions of the information
required herein can be and are made available upon request. Records
kept in computer form must be made available for transcription or
copying.
(c) Covered employers who have eligible employees must maintain
records that must disclose the following:
(1) Basic payroll and identifying employee data, including name,
address, and occupation; rate or basis of pay and terms of
compensation; daily and weekly hours worked per pay period; additions
to or deductions from wages; and total compensation paid.
(2) Dates FMLA leave is taken by FMLA eligible employees (e.g.,
available from time records, requests for leave, etc., if so
designated). Leave must be designated in records as FMLA leave; leave
so designated may not include leave required under State law or an
employer plan which is not also covered by FMLA.
(3) If FMLA leave is taken by eligible employees in increments of
less than one full day, the hours of the leave.
(4) Copies of employee notices of leave furnished to the employer
under FMLA, if in writing, and copies of all written notices given to
employees as required under FMLA and these regulations (see Sec.
825.300(b) through (c)). Copies may be maintained in employee personnel
files.
(5) Any documents (including written and electronic records)
describing employee benefits or employer policies and practices
regarding the taking of paid and unpaid leaves.
(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
[[Page 68108]]
must keep the records required by paragraph (c)(1) with respect to any
secondary employees.
(f) If FMLA-eligible employees are not subject to FLSA's
recordkeeping regulations for purposes of minimum wage or overtime
compliance (i.e., not covered by or exempt from FLSA), an employer need
not keep a record of actual hours worked (as otherwise required under
FLSA, 29 CFR 516.2(a)(7)), provided that:
(1) Eligibility for FMLA leave is presumed for any employee who has
been employed for at least 12 months; and
(2) With respect to employees who take FMLA leave intermittently or
on a reduced leave schedule, the employer and employee agree on the
employee's normal schedule or average hours worked each week and reduce
their agreement to a written record maintained in accordance with
paragraph (b) of this section.
(g) Records and documents relating to certifications,
recertifications or medical histories of employees or employees' family
members, created for purposes of FMLA, shall be maintained as
confidential medical records in separate files/records from the usual
personnel files, and if the ADA, as amended, is also applicable, such
records shall be maintained in conformance with ADA confidentiality
requirements (see 29 CFR 1630.14(c)(1)), except that:
(1) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of an employee and necessary
accommodations;
(2) First aid and safety personnel may be informed (when
appropriate) if the employee's physical or medical condition might
require emergency treatment; and
(3) Government officials investigating compliance with FMLA (or
other pertinent law) shall be provided relevant information upon
request.
Subpart F--Special Rules Applicable to Employees of Schools
Sec. 825.600 Special rules for school employees, definitions.
(a) Certain special rules apply to employees of ``local educational
agencies,'' including public school boards and elementary and secondary
schools under their jurisdiction, and private elementary and secondary
schools. The special rules do not apply to other kinds of educational
institutions, such as colleges and universities, trade schools, and
preschools.
(b) Educational institutions are covered by FMLA (and these special
rules) and the Act's 50-employee coverage test does not apply. The
usual requirements for employees to be ``eligible'' do apply, however,
including employment at a worksite where at least 50 employees are
employed within 75 miles. For example, employees of a rural school
would not be eligible for FMLA leave if the school has fewer than 50
employees and there are no other schools under the jurisdiction of the
same employer (usually, a school board) within 75 miles.
(c) The special rules affect the taking of intermittent leave or
leave on a reduced leave schedule, or leave near the end of an academic
term (semester), by instructional employees. ``Instructional
employees'' are those whose principal function is to teach and instruct
students in a class, a small group, or an individual setting. This term
includes not only teachers, but also athletic coaches, driving
instructors, and special education assistants such as signers for the
hearing impaired. It does not include, and the special rules do not
apply to, teacher assistants or aides who do not have as their
principal job actual teaching or instructing, nor does it include
auxiliary personnel such as counselors, psychologists, or curriculum
specialists. It also does not include cafeteria workers, maintenance
workers, or bus drivers.
(d) Special rules which apply to restoration to an equivalent
position apply to all employees of local educational agencies.
Sec. 825.601 Special rules for school employees, limitations on
intermittent leave.
(a) Leave taken for a period that ends with the school year and
begins the next semester is leave taken consecutively rather than
intermittently. The period during the summer vacation when the employee
would not have been required to report for duty is not counted against
the employee's FMLA leave entitlement. An instructional employee who is
on FMLA leave at the end of the school year must be provided with any
benefits over the summer vacation that employees would normally receive
if they had been working at the end of the school year.
(1) If an eligible instructional employee needs intermittent leave
or leave on a reduced leave schedule to care for a family member with a
serious health condition, to care for a covered servicemember, or for
the employee's own serious health condition, which is foreseeable based
on planned medical treatment, and the employee would be on leave for
more than 20 percent of the total number of working days over the
period the leave would extend, the employer may require the employee to
choose either to:
(i) Take leave for a period or periods of a particular duration,
not greater than the duration of the planned treatment; or
(ii) Transfer temporarily to an available alternative position for
which the employee is qualified, which has equivalent pay and benefits
and which better accommodates recurring periods of leave than does the
employee's regular position.
(2) These rules apply only to a leave involving more than 20
percent of the working days during the period over which the leave
extends. For example, if an instructional employee who normally works
five days each week needs to take two days of FMLA leave per week over
a period of several weeks, the special rules would apply. Employees
taking leave which constitutes 20 percent or less of the working days
during the leave period would not be subject to transfer to an
alternative position. ``Periods of a particular duration'' means a
block, or blocks, of time beginning no earlier than the first day for
which leave is needed and ending no later than the last day on which
leave is needed, and may include one uninterrupted period of leave.
(b) If an instructional employee does not give required notice of
foreseeable FMLA leave (see Sec. 825.302) to be taken intermittently
or on a reduced leave schedule, the employer may require the employee
to take leave of a particular duration, or to transfer temporarily to
an alternative position. Alternatively, the employer may require the
employee to delay the taking of leave until the notice provision is
met.
Sec. 825.602 Special rules for school employees, limitations on leave
near the end of an academic term.
(a) There are also different rules for instructional employees who
begin leave more than five weeks before the end of a term, less than
five weeks before the end of a term, and less than three weeks before
the end of a term. Regular rules apply except in circumstances when:
(1) An instructional employee begins leave more than five weeks
before the end of a term. The employer may require the employee to
continue taking leave until the end of the term if--
(i) The leave will last at least three weeks, and
(ii) The employee would return to work during the three-week period
before the end of the term.
(2) The employee begins leave during the five-week period before
the end of
[[Page 68109]]
a term because of the birth of a son or daughter; the placement of a
son or daughter for adoption or foster care; to care for a spouse, son,
daughter, or parent with a serious health condition; or to care for a
covered servicemember. The employer may require the employee to
continue taking leave until the end of the term if--
(i) The leave will last more than two weeks, and
(ii) The employee would return to work during the two-week period
before the end of the term.
(3) The employee begins leave during the three-week period before
the end of a term because of the birth of a son or daughter; the
placement of a son or daughter for adoption or foster care; to care for
a spouse, son, daughter, or parent with a serious health condition; or
to care for a covered servicemember. The employer may require the
employee to continue taking leave until the end of the term if the
leave will last more than five working days.
(b) For purposes of these provisions, ``academic term'' means the
school semester, which typically ends near the end of the calendar year
and the end of spring each school year. In no case may a school have
more than two academic terms or semesters each year for purposes of
FMLA. An example of leave falling within these provisions would be
where an employee plans two weeks of leave to care for a family member
which will begin three weeks before the end of the term. In that
situation, the employer could require the employee to stay out on leave
until the end of the term.
Sec. 825.603 Special rules for school employees, duration of FMLA
leave.
(a) If an employee chooses to take leave for ``periods of a
particular duration'' in the case of intermittent or reduced schedule
leave, the entire period of leave taken will count as FMLA leave.
(b) In the case of an employee who is required to take leave until
the end of an academic term, only the period of leave until the
employee is ready and able to return to work shall be charged against
the employee's FMLA leave entitlement. The employer has the option not
to require the employee to stay on leave until the end of the school
term. Therefore, any additional leave required by the employer to the
end of the school term is not counted as FMLA leave; however, the
employer shall be required to maintain the employee's group health
insurance and restore the employee to the same or equivalent job
including other benefits at the conclusion of the leave.
Sec. 825.604 Special rules for school employees, restoration to ``an
equivalent position.''
The determination of how an employee is to be restored to ``an
equivalent position'' upon return from FMLA leave will be made on the
basis of ``established school board policies and practices, private
school policies and practices, and collective bargaining agreements.''
The ``established policies'' and collective bargaining agreements used
as a basis for restoration must be in writing, must be made known to
the employee prior to the taking of FMLA leave, and must clearly
explain the employee's restoration rights upon return from leave. Any
established policy which is used as the basis for restoration of an
employee to ``an equivalent position'' must provide substantially the
same protections as provided in the Act for reinstated employees. See
Sec. 825.215. In other words, the policy or collective bargaining
agreement must provide for restoration to an ``equivalent position''
with equivalent employment benefits, pay, and other terms and
conditions of employment. For example, an employee may not be restored
to a position requiring additional licensure or certification.
Subpart G--Effect of Other Laws, Employer Practices, and Collective
Bargaining Agreements on Employee Rights Under FMLA
Sec. 825.700 Interaction with employer's policies.
(a) An employer must observe any employment benefit program or plan
that provides greater family or medical leave rights to employees than
the rights established by the FMLA. Conversely, the rights established
by the Act may not be diminished by any employment benefit program or
plan. For example, a provision of a CBA which provides for
reinstatement to a position that is not equivalent because of seniority
(e.g., provides lesser pay) is superseded by FMLA. If an employer
provides greater unpaid family leave rights than are afforded by FMLA,
the employer is not required to extend additional rights afforded by
FMLA, such as maintenance of health benefits (other than through
COBRA), to the additional leave period not covered by FMLA.
(b) Nothing in this Act prevents an employer from amending existing
leave and employee benefit programs, provided they comply with FMLA.
However, nothing in the Act is intended to discourage employers from
adopting or retaining more generous leave policies.
Sec. 825.701 Interaction with State laws.
(a) Nothing in FMLA supersedes any provision of State or local law
that provides greater family or medical leave rights than those
provided by FMLA. The Department of Labor will not, however, enforce
State family or medical leave laws, and States may not enforce the
FMLA. Employees are not required to designate whether the leave they
are taking is FMLA leave or leave under State law, and an employer must
comply with the appropriate (applicable) provisions of both. An
employer covered by one law and not the other has to comply only with
the law under which it is covered. Similarly, an employee eligible
under only one law must receive benefits in accordance with that law.
If leave qualifies for FMLA leave and leave under State law, the leave
used counts against the employee's entitlement under both laws.
Examples of the interaction between FMLA and State laws include:
(1) If State law provides 16 weeks of leave entitlement over two
years, an employee needing leave due to his or her own serious health
condition would be entitled to take 16 weeks one year under State law
and 12 weeks the next year under FMLA. Health benefits maintenance
under FMLA would be applicable only to the first 12 weeks of leave
entitlement each year. If the employee took 12 weeks the first year,
the employee would be entitled to a maximum of 12 weeks the second year
under FMLA (not 16 weeks). An employee would not be entitled to 28
weeks in one year.
(2) If State law provides half-pay for employees temporarily
disabled because of pregnancy for six weeks, the employee would be
entitled to an additional six weeks of unpaid FMLA leave (or accrued
paid leave).
(3) If State law provides six weeks of leave, which may include
leave to care for a seriously-ill grandparent or a ``spouse
equivalent,'' and leave was used for that purpose, the employee is
still entitled to his or her full FMLA leave entitlement, as the leave
used was provided for a purpose not covered by FMLA. If FMLA leave is
used first for a purpose also provided under State law, and State leave
has thereby been exhausted, the employer would not be required to
provide additional leave to care for the grandparent or ``spouse
equivalent.''
(4) If State law prohibits mandatory leave beyond the actual period
of pregnancy disability, an instructional employee of an educational
agency subject to special FMLA rules may not be required to remain on
leave until the
[[Page 68110]]
end of the academic term, as permitted by FMLA under certain
circumstances. (See Subpart F of this part.)
(b) [Reserved]
Sec. 825.702 Interaction with Federal and State anti-discrimination
laws.
(a) Nothing in FMLA modifies or affects any Federal or State law
prohibiting discrimination on the basis of race, religion, color,
national origin, sex, age, or disability (e.g., Title VII of the Civil
Rights Act of 1964, as amended by the Pregnancy Discrimination Act).
FMLA's legislative history explains that FMLA is ``not intended to
modify or affect the Rehabilitation Act of 1973, as amended, the
regulations concerning employment which have been promulgated pursuant
to that statute, or the Americans with Disabilities Act of 1990 [as
amended] or the regulations issued under that act. Thus, the leave
provisions of the [FMLA] are wholly distinct from the reasonable
accommodation obligations of employers covered under the [ADA],
employers who receive Federal financial assistance, employers who
contract with the Federal government, or the Federal government itself.
The purpose of the FMLA is to make leave available to eligible
employees and employers within its coverage, and not to limit already
existing rights and protection.'' S. Rep. No. 103-3, at 38 (1993). An
employer must therefore provide leave under whichever statutory
provision provides the greater rights to employees. When an employer
violates both FMLA and a discrimination law, an employee may be able to
recover under either or both statutes (double relief may not be awarded
for the same loss; when remedies coincide a claimant may be allowed to
utilize whichever avenue of relief is desired (Laffey v. Northwest
Airlines, Inc., 567 F.2d 429, 445 (D.C. Cir. 1976), cert. denied, 434
U.S. 1086 (1978)).
(b) If an employee is a qualified individual with a disability
within the meaning of the ADA, the employer must make reasonable
accommodations, etc., barring undue hardship, in accordance with the
ADA. At the same time, the employer must afford an employee his or her
FMLA rights. ADA's ``disability'' and FMLA's ``serious health
condition'' are different concepts, and must be analyzed separately.
FMLA entitles eligible employees to 12 weeks of leave in any 12-month
period due to their own serious health condition, whereas the ADA
allows an indeterminate amount of leave, barring undue hardship, as a
reasonable accommodation. FMLA requires employers to maintain
employees' group health plan coverage during FMLA leave on the same
conditions as coverage would have been provided if the employee had
been continuously employed during the leave period, whereas ADA does
not require maintenance of health insurance unless other employees
receive health insurance during leave under the same circumstances.
(c)(1) A reasonable accommodation under the ADA might be
accomplished by providing an individual with a disability with a part-
time job with no health benefits, assuming the employer did not
ordinarily provide health insurance for part-time employees. However,
FMLA would permit an employee to work a reduced leave schedule until
the equivalent of 12 workweeks of leave were used, with group health
benefits maintained during this period. FMLA permits an employer to
temporarily transfer an employee who is taking leave intermittently or
on a reduced leave schedule for planned medical treatment to an
alternative position, whereas the ADA allows an accommodation of
reassignment to an equivalent, vacant position only if the employee
cannot perform the essential functions of the employee's present
position and an accommodation is not possible in the employee's present
position, or an accommodation in the employee's present position would
cause an undue hardship. The examples in the following paragraphs of
this section demonstrate how the two laws would interact with respect
to a qualified individual with a disability.
(2) A qualified individual with a disability who is also an
``eligible employee'' entitled to FMLA leave requests 10 weeks of
medical leave as a reasonable accommodation, which the employer grants
because it is not an undue hardship. The employer advises the employee
that the 10 weeks of leave is also being designated as FMLA leave and
will count towards the employee's FMLA leave entitlement. This
designation does not prevent the parties from also treating the leave
as a reasonable accommodation and reinstating the employee into the
same job, as required by the ADA, rather than an equivalent position
under FMLA, if that is the greater right available to the employee. At
the same time, the employee would be entitled under FMLA to have the
employer maintain group health plan coverage during the leave, as that
requirement provides the greater right to the employee.
(3) If the same employee needed to work part-time (a reduced leave
schedule) after returning to his or her same job, the employee would
still be entitled under FMLA to have group health plan coverage
maintained for the remainder of the two-week equivalent of FMLA leave
entitlement, notwithstanding an employer policy that part-time
employees do not receive health insurance. This employee would be
entitled under the ADA to reasonable accommodations to enable the
employee to perform the essential functions of the part-time position.
In addition, because the employee is working a part-time schedule as a
reasonable accommodation, the FMLA's provision for temporary assignment
to a different alternative position would not apply. Once the employee
has exhausted his or her remaining FMLA leave entitlement while working
the reduced (part-time) schedule, if the employee is a qualified
individual with a disability, and if the employee is unable to return
to the same full-time position at that time, the employee might
continue to work part-time as a reasonable accommodation, barring undue
hardship; the employee would then be entitled to only those employment
benefits ordinarily provided by the employer to part-time employees.
(4) At the end of the FMLA leave entitlement, an employer is
required under FMLA to reinstate the employee 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
[[Page 68111]]
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 (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., as
amended).
Active duty or call to active duty status means duty under a call
or order to active duty (or notification of an impending call or order
to active duty) in support of a contingency operation pursuant to
Section 688 of Title 10 of the United States Code, which authorizes
ordering to active duty retired members of the Regular Armed Forces and
members of the retired Reserve who retired after completing at least 20
years of active service; Section 12301(a) of Title 10 of the United
States Code, which authorizes ordering all reserve component members to
active duty in the case of war or national emergency; Section 12302 of
Title 10 of the United States Code, which authorizes ordering any unit
or unassigned member of the Ready Reserve to active duty; Section 12304
of Title 10 of the United States Code, which authorizes ordering any
unit or unassigned member of the Selected Reserve and certain members
of the Individual Ready Reserve to active duty; Section 12305 of Title
10 of the United States Code, which authorizes the suspension of
promotion, retirement or separation rules for certain Reserve
components; Section 12406 of Title 10 of the United States Code, which
authorizes calling the National Guard into federal service in certain
circumstances; chapter 15 of Title 10 of the United States Code, which
authorizes calling the National Guard and state military into federal
service in the case of insurrections and national emergencies; or any
other provision of law during a war or during a national emergency
declared by the President or Congress so long as it is in support of a
contingency operation. See also Sec. 825.126(b)(2).
ADA means the Americans With Disabilities Act (42 U.S.C. 12101 et
seq., as amended).
Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, U.S. Department of
Labor, and includes any official of the Wage and Hour Division
authorized to perform any of the functions of the Administrator under
this part.
COBRA means the continuation coverage requirements of Title X of
the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended
(Pub. L. 99-272, title X, section 10002; 100 Stat. 227; 29 U.S.C. 1161-
1168).
Commerce and industry or activity affecting commerce mean any
activity, business, or industry in commerce or in which a labor dispute
would hinder or obstruct commerce or the free flow of commerce, and
include ``commerce'' and any ``industry affecting commerce'' as defined
in sections 501(1) and 501(3) of the Labor Management Relations Act of
1947, 29 U.S.C. 142(1) and (3).
Contingency operation means a military operation that:
(1) Is designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(2) Results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12305, or 12406 of Title 10 of the United States Code,
chapter 15 of Title 10 of the United States Code, or any other
provision of law during a war or during a national emergency declared
by the President or Congress. See also Sec. 825.126(b)(3).
Continuing treatment by a health care provider means any one of the
following:
(1) Incapacity and treatment. A period of incapacity of more than
three consecutive, full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition, that also
involves:
(i) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider;
or
(ii) Treatment by a health care provider on at least one occasion,
which results in a regimen of continuing treatment under the
supervision of the health care provider.
(iii) The requirement in paragraphs (1)(i) and (ii) of this
definition for treatment by a health care provider means an in-person
visit to a health care provider. The first in-person treatment visit
must take place within seven days of the first day of incapacity.
(iv) Whether additional treatment visits or a regimen of continuing
[[Page 68112]]
treatment is necessary within the 30-day period shall be determined by
the health care provider.
(v) The term ``extenuating circumstances'' in paragraph (1)(i) of
this definition means circumstances beyond the employee's control that
prevent the follow-up visit from occurring as planned by the health
care provider. Whether a given set of circumstances are extenuating
depends on the facts. See also Sec. 825.115(a)(5).
(2) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(3) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(i) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(ii) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(iii) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(4) Permanent or long-term conditions. A period of incapacity which
is permanent or long-term due to a condition for which treatment may
not be effective. The employee or family member must be under the
continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(5) Conditions requiring multiple treatments. Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
for:
(i) Restorative surgery after an accident or other injury; or
(ii) A condition that would likely result in a period of incapacity
of more than three consecutive full calendar days in the absence of
medical intervention or treatment, such as cancer (chemotherapy,
radiation, etc.), severe arthritis (physical therapy), kidney disease
(dialysis).
(6) Absences attributable to incapacity under paragraphs (2) or (3)
of this definition qualify for FMLA leave even though the employee or
the covered family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three consecutive full calendar days. For example, an employee
with asthma may be unable to report for work due to the onset of an
asthma attack or because the employee's health care provider has
advised the employee to stay home when the pollen count exceeds a
certain level. An employee who is pregnant may be unable to report to
work because of severe morning sickness.
Covered military member means the employee's spouse, son, daughter,
or parent on active duty or call to active duty status. See also Sec.
825.126(b).
Covered servicemember means a current member of the Armed Forces,
including a member of the National Guard or Reserves, who is undergoing
medical treatment, recuperation, or therapy, is otherwise in outpatient
status, or is otherwise on the temporary disability retired list, for a
serious injury or illness incurred in the line of duty on active duty.
See also Sec. 825.127(a).
Eligible employee means:
(1) An employee who has been employed for a total of at least 12
months by the employer on the date on which any FMLA leave is to
commence, except that an employer need not consider any period of
previous employment that occurred more than seven years before the date
of the most recent hiring of the employee, unless:
(i) The break in service is occasioned by the fulfillment of the
employee's National Guard or Reserve military service obligation (the
time served performing the military service must be also counted in
determining whether the employee has been employed for at least 12
months by the employer, but this section does not provide any greater
entitlement to the employee than would be available under the Uniformed
Services Employment and Reemployment Rights Act (USERRA)); or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes); and
(2) Who, on the date on which any FMLA leave is to commence, has
been employed for at least 1,250-hours of service with such employer
during the previous 12-month period, except that:
(i) An employee returning from fulfilling his or her National Guard
or Reserve military obligation shall be credited with the hours-of-
service that would have been performed but for the period of military
service in determining whether the employee worked the 1,250 hours of
service (accordingly, a person reemployed following military service
has the hours that would have been worked for the employer added to any
hours actually worked during the previous 12-month period to meet the
1,250-hour requirement);
(ii) To determine the hours that would have been worked during the
period of military service, the employee's pre-service work schedule
can generally be used for calculations; and
(3) Who is employed in any State of the United States, the District
of Columbia or any Territories or possession of the United States.
(4) Excludes any Federal officer or employee covered under
subchapter V of chapter 63 of title 5, United States Code.
(5) Excludes any employee of the United States House of
Representatives or the United States Senate covered by the
Congressional Accountability Act of 1995, 2 U.S.C. 1301.
(6) Excludes any employee who is employed at a worksite at which
the employer employs fewer than 50 employees if the total number of
employees employed by that employer within 75 miles of that worksite is
also fewer than 50.
(7) Excludes any employee employed in any country other than the
United States or any Territory or possession of the United States.
Employ means to suffer or permit to work.
Employee has the meaning given the same term as defined in section
3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows:
(1) The term ``employee'' means any individual employed by an
employer;
(2) In the case of an individual employed by a public agency,
``employee'' means--
(i) Any individual employed by the Government of the United
States--
(A) As a civilian in the military departments (as defined in
section 102 of Title 5, United States Code),
(B) In any executive agency (as defined in section 105 of Title 5,
United States Code), excluding any Federal officer or employee covered
under subchapter V of chapter 63 of Title 5, United States Code,
(C) In any unit of the legislative or judicial branch of the
Government which has positions in the competitive service, excluding
any employee of the United States House of Representatives or the
United States Senate who is covered by the Congressional Accountability
Act of 1995,
(D) In a nonappropriated fund instrumentality under the
jurisdiction of the Armed Forces, or
[[Page 68113]]
(ii) Any individual employed by the United States Postal Service or
the Postal Regulatory Commission; and
(iii) Any individual employed by a State, political subdivision of
a State, or an interstate governmental agency, other than such an
individual--
(A) Who is not subject to the civil service laws of the State,
political subdivision, or agency which employs the employee; and
(B) Who--
(1) Holds a public elective office of that State, political
subdivision, or agency,
(2) Is selected by the holder of such an office to be a member of
his personal staff,
(3) Is appointed by such an officeholder to serve on a policymaking
level,
(4) Is an immediate adviser to such an officeholder with respect to
the constitutional or legal powers of the office of such officeholder,
or
(5) Is an employee in the legislative branch or legislative body of
that State, political subdivision, or agency and is not employed by the
legislative library of such State, political subdivision, or agency.
Employee employed in an instructional capacity. See the definition
of Teacher in this section.
Employer means any person engaged in commerce or in an industry or
activity affecting commerce who employs 50 or more employees for each
working day during each of 20 or more calendar workweeks in the current
or preceding calendar year, and includes--
(1) Any person who acts, directly or indirectly, in the interest of
an employer to any of the employees of such employer;
(2) Any successor in interest of an employer; and
(3) Any public agency.
Employment benefits means all benefits provided or made available
to employees by an employer, including group life insurance, health
insurance, disability insurance, sick leave, annual leave, educational
benefits, and pensions, regardless of whether such benefits are
provided by a practice or written policy of an employer or through an
``employee benefit plan'' as defined in section 3(3) of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term
does not include non-employment related obligations paid by employees
through voluntary deductions such as supplemental insurance coverage.
(See Sec. 825.209(a).)
FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.).
Group health plan means any plan of, or contributed to by, an
employer (including a self-insured plan) to provide health care
(directly or otherwise) to the employer's employees, former employees,
or the families of such employees or former employees. For purposes of
FMLA the term ``group health plan'' shall not include an insurance
program providing health coverage under which employees purchase
individual policies from insurers provided that:
(1) No contributions are made by the employer;
(2) Participation in the program is completely voluntary for
employees;
(3) The sole functions of the employer with respect to the program
are, without endorsing the program, to permit the insurer to publicize
the program to employees, to collect premiums through payroll
deductions and to remit them to the insurer;
(4) The employer receives no consideration in the form of cash or
otherwise in connection with the program, other than reasonable
compensation, excluding any profit, for administrative services
actually rendered in connection with payroll deduction; and,
(5) The premium charged with respect to such coverage does not
increase in the event the employment relationship terminates.
Health care provider means:
(1) The Act defines ``health care provider'' as:
(i) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery (as appropriate) by the State in which the
doctor practices; or
(ii) Any other person determined by the Secretary to be capable of
providing health care services.
(2) Others ``capable of providing health care services'' include
only:
(i) Podiatrists, dentists, clinical psychologists, optometrists,
and chiropractors (limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by
X-ray to exist) authorized to practice in the State and performing
within the scope of their practice as defined under State law;
(ii) Nurse practitioners, nurse-midwives, clinical social workers
and physician assistants who are authorized to practice under State law
and who are performing within the scope of their practice as defined
under State law;
(iii) Christian Science Practitioners listed with the First Church
of Christ, Scientist in Boston, Massachusetts. Where an employee or
family member is receiving treatment from a Christian Science
practitioner, an employee may not object to any requirement from an
employer that the employee or family member submit to examination
(though not treatment) to obtain a second or third certification from a
health care provider other than a Christian Science practitioner except
as otherwise provided under applicable State or local law or collective
bargaining agreement.
(iv) Any health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits; and
(v) A health care provider listed above who practices in a country
other than the United States, who is authorized to practice in
accordance with the law of that country, and who is performing within
the scope of his or her practice as defined under such law.
(3) The phrase ``authorized to practice in the State'' as used in
this section means that the provider must be authorized to diagnose and
treat physical or mental health conditions.
Incapable of self-care means that the individual requires active
assistance or supervision to provide daily self-care in several of the
``activities of daily living'' (ADLs) or ``instrumental activities of
daily living'' (IADLs). Activities of daily living include adaptive
activities such as caring appropriately for one's grooming and hygiene,
bathing, dressing and eating. Instrumental activities of daily living
include cooking, cleaning, shopping, taking public transportation,
paying bills, maintaining a residence, using telephones and
directories, using a post office, etc.
Instructional employee: See the definition of Teacher in this
section.
Intermittent leave means leave taken in separate periods of time
due to a single illness or injury, rather than for one continuous
period of time, and may include leave of periods from an hour or more
to several weeks. Examples of intermittent leave would include leave
taken on an occasional basis for medical appointments, or leave taken
several days at a time spread over a period of six months, such as for
chemotherapy.
Mental disability: See the definition of Physical or mental
disability in this section.
Next of kin of a covered servicemember means the nearest blood
relative other than the covered servicemember's spouse, parent, son, or
daughter, in the following order of priority: Blood relatives who have
been granted legal custody of the covered servicemember by court decree
or statutory provisions, brothers and sisters, grandparents, aunts and
uncles, and first cousins, unless the covered servicemember has
specifically designated in writing another blood
[[Page 68114]]
relative as his or her nearest blood relative for purposes of military
caregiver leave under the FMLA. When no such designation is made, and
there are multiple family members with the same level of relationship
to the covered servicemember, all such family members shall be
considered the covered servicemember's next of kin and may take FMLA
leave to provide care to the covered servicemember, either
consecutively or simultaneously. When such designation has been made,
the designated individual shall be deemed to be the covered
servicemember's only next of kin. See also Sec. 825.127(b)(3).
Outpatient status means, with respect to a covered servicemember,
the status of a member of the Armed Forces assigned to either a
military medical treatment facility as an outpatient; or a unit
established for the purpose of providing command and control of members
of the Armed Forces receiving medical care as outpatients. See also
Sec. 825.127(a)(2).
Parent means a biological, adoptive, step or foster father or
mother, or any other individual who stood in loco parentis to the
employee when the employee was a son or daughter as defined below. This
term does not include parents ``in law.''
Parent of a covered servicemember means a covered servicemember's
biological, adoptive, step or foster father or mother, or any other
individual who stood in loco parentis to the covered servicemember.
This term does not include parents ``in law.'' See also Sec.
825.127(b)(2).
Person means an individual, partnership, association, corporation,
business trust, legal representative, or any organized group of
persons, and includes a public agency for purposes of this part.
Physical or mental disability means a physical or mental impairment
that substantially limits one or more of the major life activities of
an individual. Regulations at 29 CFR part 1630, issued by the Equal
Employment Opportunity Commission under the Americans with Disabilities
Act (ADA), 42 U.S.C. 12101 et seq., as amended, define these terms.
Public agency means the government of the United States; the
government of a State or political subdivision thereof; any agency of
the United States (including the United States Postal Service and
Postal Regulatory Commission), a State, or a political subdivision of a
State, or any interstate governmental agency. Under section 101(5)(B)
of the Act, a public agency is considered to be a ``person'' engaged in
commerce or in an industry or activity affecting commerce within the
meaning of the Act.
Reduced leave schedule means a leave schedule that reduces the
usual number of hours per workweek, or hours per workday, of an
employee.
Secretary means the Secretary of Labor or authorized
representative.
Serious health condition means an illness, injury, impairment or
physical or mental condition that involves inpatient care as defined in
Sec. 825.114 or continuing treatment by a health care provider as
defined in Sec. 825.115. Conditions for which cosmetic treatments are
administered (such as most treatments for acne or plastic surgery) are
not ``serious health conditions'' unless inpatient hospital care is
required or unless complications develop. Restorative dental or plastic
surgery after an injury or removal of cancerous growths are serious
health conditions provided all the other conditions of this regulation
are met. Mental illness or allergies may be serious health conditions,
but only if all the conditions of Sec. 825.113 are met.
Serious injury or illness means an injury or illness incurred by a
covered servicemember in the line of duty on active duty that may
render the servicemember medically unfit to perform the duties of the
member's office, grade, rank, or rating. See also Sec. 825.127(a)(1).
Son or daughter means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is either under age 18, or age 18 or older and
``incapable of self-care because of a mental or physical disability''
at the time that FMLA leave is to commence.
Son or daughter of a covered servicemember means a covered
servicemember's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the covered servicemember stood in loco
parentis, and who is of any age. See also Sec. 825.127(b)(1).
Son or daughter on active duty or call to active duty status means
the employee's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the employee stood in loco parentis, who is
on active duty or call to active duty status, and who is of any age.
See also Sec. 825.126(b)(1).
Spouse means a husband or wife as defined or recognized under State
law for purposes of marriage in the State where the employee resides,
including common law marriage in States where it is recognized.
State means any State of the United States or the District of
Columbia or any Territory or possession of the United States.
Teacher (or employee employed in an instructional capacity, or
instructional employee) means an employee employed principally in an
instructional capacity by an educational agency or school whose
principal function is to teach and instruct students in a class, a
small group, or an individual setting, and includes athletic coaches,
driving instructors, and special education assistants such as signers
for the hearing impaired. The term does not include teacher assistants
or aides who do not have as their principal function actual teaching or
instructing, nor auxiliary personnel such as counselors, psychologists,
curriculum specialists, cafeteria workers, maintenance workers, bus
drivers, or other primarily noninstructional employees.
BILLING CODE 4510-27-P
Appendix A to Part 825--Index [Reserved]
Appendix B to Part 825--Certification of Health Care Provider (Forms
WH-380E & WH-380F)
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Appendix D to Part 825--Notice of Eligibility and Rights &
Responsibilities (Form WH-381)
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Appendix E to Part 825--Designation Notice to Employee of FMLA Leave
(Form WH-382)
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Appendix F to Part 825--[Reserved]
Appendix G to Part 825--Certification of Qualifying Exigency for
Military Family Leave (Form WH-384)
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Appendix H to Part 825--Certification for Serious Injury or Illness of
Covered Servicemenber for Military Family Leave (Form WH-385)
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[FR Doc. E8-26577 Filed 11-14-08; 8:45 am]
BILLING CODE 4510-27-C