WHD
Final Rules
The Family and Medical Leave Act
[ 2/6/2013]
[ PDF]
Federal Register, Volume 78 Issue 25 (Wednesday, February 6, 2013)
[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Rules and Regulations]
[Pages 8833-8947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02383]
[[Page 8833]]
Vol. 78
Wednesday,
No. 25
February 6, 2013
Part V
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; Final Rule
Federal Register / Vol. 78 , No. 25 / Wednesday, February 6, 2013 /
Rules and Regulations
[[Page 8834]]
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB76, RIN 1235-AA03
The Family and Medical Leave Act
AGENCY: Wage and Hour Division, Department of Labor.
ACTION: Final rule.
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SUMMARY: This Final Rule amends certain regulations of the Family and
Medical Leave Act of 1993 (the FMLA or the Act) to implement amendments
to the military leave provisions of the Act made by the National
Defense Authorization Act for Fiscal Year 2010, which extends the
availability of FMLA leave to family members of members of the Regular
Armed Forces for qualifying exigencies arising out of the
servicemember's deployment; defines those deployments covered under
these provisions; extends FMLA military caregiver leave for family
members of current servicemembers to include an injury or illness that
existed prior to service and was aggravated in the line of duty on
active duty; and extends FMLA military caregiver leave to family
members of certain veterans with serious injuries or illnesses. This
Final Rule also amends the regulations to implement the Airline Flight
Crew Technical Corrections Act, which establishes eligibility
requirements specifically for airline flight crewmembers and flight
attendants for FMLA leave and authorizes the Department to issue
regulations regarding the calculation of leave for such employees as
well as special recordkeeping requirements for their employers. In
addition, the Final Rule includes clarifying changes concerning the
calculation of intermittent or reduced schedule FMLA leave;
reorganization of certain sections to enhance clarity; the removal of
the forms from the regulations; and technical corrections to the
current regulations.
DATES: This Final Rule is effective March 8, 2013.
FOR FURTHER INFORMATION CONTACT: Mary Ziegler, Director of the Division
of Regulation, Legislation, and Interpretation, Wage and Hour Division,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone: (202) 693-0406 (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 (this is not a toll-free number). 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/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
Purpose of the Regulatory Action
This Final Rule amends certain regulations of the FMLA to implement
amendments to the military leave provisions of the Act made by the
National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA),
to implement amendments to the hours of service requirements made by
the Airline Flight Crew Technical Corrections Act (AFCTCA) and add new
leave calculation regulations for flight crew employees, and to clarify
existing regulatory provisions related to intermittent leave and make
other clarifying changes.
On November 17, 2008, the Department issued a Final Rule (2008
Final Rule) implementing amendments to the FMLA made by the National
Defense Authorization Act for Fiscal Year 2008 (FY 2008 NDAA). 73 FR
67934. The FY 2008 NDAA created two new categories of leave: qualifying
exigency leave and military caregiver leave. Under the FY 2008 NDAA's
qualifying exigency leave provision, eligible family members of members
of the National Guard and Reserves are entitled to take FMLA leave for
qualifying exigencies, as defined by the Secretary of Labor, arising
out of the military member's deployment in support of a contingency
operation. In the 2008 Final Rule, the Secretary defined qualifying
exigency using eight categories: 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 to which both the
employer and employee agree. Under the FY 2008 NDAA's military
caregiver leave provision, eligible family members of current
servicemembers are entitled to take up to 26 workweeks of military
caregiver leave in a single 12-month period to care for a current
servicemember who incurred a serious injury or illness in the line of
duty on active duty that renders the servicemember unable to perform
the duties of his or her office, grade, rank, or rating. The Secretary
implemented the FY 2008 amendments in the 2008 Final Rule.
The FY 2010 NDAA further amends the FMLA by expanding the
qualifying exigency leave provision to include leave for eligible
family members of members of the Regular Armed Forces and by adding a
foreign deployment requirement for both members of the Regular Armed
Forces and the National Guard and Reserves. The FY 2010 NDAA amendments
also expands military caregiver leave to cover injuries or illnesses
that existed prior to the servicemember's active duty and were
aggravated in the line of duty on active duty in the Armed Forces. 29
U.S.C. 2611(18)(A). It further expands the military caregiver leave
provision to provide leave to eligible family members of certain
veterans with a serious injury or illness who are receiving medical
treatment, recuperation, or therapy, if the veteran was a member of the
Armed Forces at any time during the period of five years preceding the
date of the medical treatment, recuperation, or therapy. 29 U.S.C.
2611(15)(B). The amendments define a serious injury or illness for a
veteran as a ``qualifying (as defined by the Secretary of Labor) injury
or illness that was incurred by the member in line of duty on active
duty in the Armed Forces (or existed before the beginning of the
member's active duty and was aggravated by service in line of duty on
active duty in the Armed Forces) and that manifested before or after
the member becomes a veteran.'' 29 U.S.C. 2611(18)(B).
The AFCTCA establishes special hours of service eligibility
requirements for airline flight crewmembers and flight attendants
(collectively referred to as airline flight crew employees) for FMLA
leave. The amendments provide that an airline flight crew employee
meets the hours of service requirement if during the previous 12-month
period, he or she (1) has worked or been paid for not less than 60
percent of the applicable total monthly guarantee (or the equivalent)
and (2) has worked or been paid for not less than 504 hours, not
including personal commute time or time spent on vacation, medical, or
sick leave. Congress authorized the Department to issue regulations
providing a method of calculating leave for airline flight crew
employees as well as regulations regarding employers' maintenance of
[[Page 8835]]
certain information specific to airline flight crew employees.
Finally, in this rulemaking, the Department also took the
opportunity to make organizational improvements and clarifying edits to
enhance the regulated community's understanding of the regulations.
Summary of the Major Provisions of the Final Rule
To implement the amendments made to the FMLA by the FY 2010 NDAA,
this Final Rule revises the FMLA regulations to reflect the expansion
of qualifying exigency leave to include eligible employees with family
members serving in the Regular Armed Forces and the addition of the
foreign deployment requirement. It also increases the length of time an
eligible family member may take for the qualifying exigency leave
reason of Rest and Recuperation from five days to up to a maximum of 15
days and creates a new qualifying exigency leave category for parental
care.
In military caregiver leave, the Final Rule expands the definition
of serious injury or illness to include pre-existing injuries or
illnesses of current service members that were aggravated in the line
of duty, and expands military caregiver leave to care for covered
veterans. It defines a covered veteran as an individual who is
undergoing medical treatment, recuperation, or therapy for a serious
injury or illness and who was discharged or released under conditions
other than dishonorable at any time during the five-year period prior
to the first date the eligible employee takes FMLA leave to care for
the covered veteran. The Final Rule interprets the five-year period of
eligibility for a covered veteran to exclude the period between the
enactment of the FY 2010 NDAA on October 28, 2009, and the effective
date of this Final Rule to protect the military caregiver leave
entitlement of family members of veterans whose five-year period has
either expired or has been diminished during that time. The Final Rule
defines a serious injury or illness of a covered veteran as: (i) A
continuation of a serious injury or illness that was incurred or
aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember unable to perform the duties of the
servicemember's office, grade, rank, or rating; (ii) a physical or
mental condition for which the covered veteran has received a U.S.
Department of Veterans Affairs Service Related Disability Rating
(VASRD) of 50 percent or higher, and such VASRD rating is based, in
whole or in part, on the condition precipitating the need for military
caregiver leave; (iii) a physical or mental condition that
substantially impairs the covered veteran's ability to secure or follow
a substantially gainful occupation by reason of a disability or
disabilities related to military service, or would do so absent
treatment; or (iv) an injury, including a psychological injury, on the
basis of which the covered veteran has been enrolled in the Department
of Veterans Affairs Program of Comprehensive Assistance for Family
Caregivers.
In addition to revising the regulations to reflect the statutory
amendments, the Final Rule also increases the length of time an
eligible family member make take for the qualifying exigency leave
reason of Rest and Recuperation from five days to up to a maximum of 15
days to match the military member's Rest and Recuperation leave orders,
and creates a new qualifying exigency leave category for parental care.
The Final Rule also expands the list of authorized health care
providers from whom an employee may obtain a certification of the
servicemember's serious injury or illness to include authorized health
care providers as defined by the regulations in Sec. 825.125. The
Final Rule permits an employer to request a second and third opinion
for medical certifications obtained from a health care provider who is
not affiliated with the Department of Defense (DOD), the Department of
Veterans Affairs (VA), or the TRICARE network.
This Final Rule also implements the amendments made to the FMLA by
the AFCTCA. The Final Rule relocates the special rules applicable only
to airline flight crew employees and their employers to revised Subpart
H--Special Rules Applicable to Airline Flight Crew Employees to provide
clarity to employees and employers and to emphasize the distinction
between the eligibility requirements and calculation of FMLA leave for
airline flight crew employees and all other employees. Additionally,
the Final Rule adopts a uniform entitlement for airline flight crew
employees of 72 days of leave for one or more of the FMLA-qualifying
reasons set forth in Sec. Sec. 825.112(a)(1)-(5) and 156 days of
military caregiver leave under Sec. 825.112(a)(6). The Final Rule
further provides that employers must account for an airline flight crew
employee's FMLA leave usage utilizing an increment no greater than one
day. As revised, Subpart H also includes special recordkeeping
requirements applicable to the employers of airline flight crew
employees.
The Final Rule also revises various regulatory sections the
Department revisited in the course of implementing the statutory
amendments described previously. For instance, the Department moves the
definitions section from current Sec. 825.800 to currently reserved
Sec. 825.102. These revisions also include clarifications to the rules
for calculation of intermittent or reduced schedule FMLA leave,
including clarifying regulatory language regarding increments of leave
and providing additional explanation of the physical impossibility
rule. The Department also made modifications to ensure consistency with
other statutes, such as amending references to the Uniformed Services
Employment and Reemployment Rights Act (USERRA) to more closely mirror
the USERRA regulations, and setting forth an employer's obligation to
comply with the confidentiality requirements of the Genetic Information
Nondiscrimination Act of 2008 (GINA).
Finally, the Final Rule updates the FMLA optional use forms (WH-
380, WH-381, WH-382, WH-384, and WH-385) to reflect the statutory
changes, creates a new optional use form for the certification of a
serious injury or illness for a veteran (WH-385-V), and removes the
forms from the regulations.
This Final Rule revises only some provisions of the existing
regulations and creates certain new provisions, but the Department is
republishing the entirety of the FMLA regulations (Part 825). The
Department is republishing the unchanged provisions along with the
revised provisions as a convenience to readers and to ensure readers
are provided the context for the changes made in the Final Rule.
Costs and Benefits
The Department estimates that 381,000 covered firms and government
agencies owning 1.2 million establishments and employing 91.1 million
workers will potentially be affected by the Final Rule changes. These
employers have an annual payroll of $5.0 trillion, estimated annual
revenues of $23.7 trillion, and estimated net income of $1.03 trillion.
See Table 3 in the Summary of Impacts.
Under the AFCTCA, the Department estimates that nearly 6,000 flight
attendants, pilots, co-pilots, and flight engineers will take new FMLA
leaves. The Department estimates that each individual will take 1.5
leaves, for a total of 8,930 leaves. Under the FY 2010 NDAA amendments,
the Department estimates that approximately 30,900 eligible employees
will take 926,000 days (7.4 million hours) of FMLA leave annually to
address qualifying exigencies; and, that nearly 7,000
[[Page 8836]]
eligible employees will take 385,000 days (3.1 million hours) of FMLA
leave annually to act as a caregiver for a veteran who is undergoing
treatment for a serious illness or injury. See Table ES-1.
Table ES-1--Summary of Leaves Taken as a Result of the Rule
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Covered
service- Number Number who Number of Days of leave Hours of leave
Leave taker members and eligible for will take FMLA leaves (1,000) (mil.)
veterans leave leave (1,000)
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Flight Crew [a]......................................... .............. 90,560 5,950 8.9 8.9 ..............
Pilots.................................................. .............. 41,470 2,070 3.1 3.1 ..............
Flight Attendants....................................... .............. 49,090 3,880 5.8 5.8 ..............
NDAA 2010 [b]........................................... 218,130 219,908 37,896 758 1,311 10.5
Qualifying Exigency..................................... 197,000 193,000 30,900 401 926 7.4
Military Caregiver...................................... 21,130 26,908 6,966 357 385 3.1
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[a] Number eligible for leave represents only those flight crew employees not currently covered by an FMLA-type provision under a CBA; thus, the number
of leaves equals new leaves as a result of this rule. The Department did not estimate the number of hours of leave for flight crew employees because
the rule establishes a bank of days of leave, to be used in full day increments.
[b] Number of days and hours of leave estimated based on leave profiles, see discussion for more detail.
The Department projects that the annualized cost of the rule will
average somewhat less than $43 million per year over 10 years. The rule
is expected to cost $53.9 million in the first year, and $41.3 million
per year in subsequent years. The amendment to extend FMLA provisions
to flight crew employees accounts for 0.7 percent of first year costs
and 0.9 percent in subsequent years, while military exigency and
caregiver leave account for 75.9 percent of first year costs and 99.1
percent of costs in subsequent years. Regulatory familiarization costs
account for 23.4 percent of first year costs. The costs related to the
provision of health benefits account for the largest share of costs,
about 44.0 percent of costs in the first year of the rule, and 57.5
percent of costs each in each of the following years. See Table ES-2.
Table ES-2--Summary of Impact of Changes to FMLA [a]
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Annualized ($ mil) [b]
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Component Year 1 ($ mil) Year 2 ($ mil) Real discount Real discount
rate 3% rate 7%
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Total........................................... $53.9 $41.3 $42.8 $43.0
Cost of Each Amendment:
Any FMLA regulatory revision................ 12.6 0.0 1.4 1.7
Flight Crew Technical Amendment............. 0.4 0.4 0.4 0.4
NDAA 2010................................... 41.0 41.0 41.0 41.0
NDAA Subtotal: Qualifying Exigency...... 25.8 25.8 25.8 25.8
NDAA Subtotal: Military Caregiver....... 15.1 15.1 15.1 15.1
Cost of Each Requirement:
Regulatory Familiarization.................. 12.6 0.0 1.4 1.7
Employer Notices............................ 17.1 17.1 17.1 17.1
Certifications.............................. 0.4 0.4 0.4 0.4
Health Benefits............................. 23.8 23.8 23.8 23.8
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[a] Columns may not sum due to rounding.
[b] Costs are annualized over 10 years.
The Department anticipates significant benefits resulting from the
Final Rule. For example, providing job-protected leave for caregivers
of covered veterans under the military caregiver provision is expected
to increase family involvement in the veteran's recovery, improve self-
reliance and access to resources for caregivers, and reduce negative
outcomes for covered veterans and their families. Also, the extension
of FMLA leave entitlement to flight crew employees will allow them to
enjoy all the benefits of FMLA coverage, and may also reduce employer
costs due to presenteeism (the loss of productivity due to employees
working while injured or ill) and a resulting increase in overall
productivity, workplace safety and employee wellness. The Department is
not able to quantify these benefits at this time due to lack of
suitable data.
II. Background
This regulatory action first appeared on the Department's Fall 2009
Regulatory Agenda where the Department stated its intent to review the
impact of the 2008 Final Rule on the regulated community. 77 FR 67934.
Subsequently, the FMLA was amended by the National Defense
Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), Public Law 111-
84, and the Airline Flight Crew Technical Corrections Act (AFCTCA),
Public Law 111-119. This rulemaking, therefore, makes regulatory
changes to implement these statutory amendments. It also makes various
clarifying revisions to existing regulations. The Department continues
to review the impact of regulatory revisions made in the FMLA 2008
Final Rule.
A. What the FMLA provides
The FMLA was enacted on February 5, 1993, and became effective for
most covered employers on August 5, 1993. As originally enacted, the
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
[[Page 8837]]
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 incapacitated due to the employee's own serious health condition.
The FMLA was amended in January 2008 with the enactment of the FY
2008 NDAA. Public Law 110-181. Section 585(a) of FY 2008 NDAA expanded
the FMLA to allow eligible employees of covered employers to take FMLA
leave because of any qualifying exigency (as determined by the
Secretary of Labor) when that employee's spouse, son, daughter, or
parent is a member of the National Guard or Reserves who is on, or has
been notified of an impending call or order to, active duty in the
Armed Forces in support of a contingency operation (referred to as
qualifying exigency leave). Additionally, the FY 2008 NDAA amendments
provided up to 26 workweeks of leave in a single 12-month period for an
eligible employee 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 covered servicemember (referred to as military
caregiver leave). These two leave entitlements are collectively
referred to as military family leave.
The FMLA was again amended in 2009 with the enactment of the FY
2010 NDAA on October 28, 2009, and the AFCTCA on December 21, 2009.
Section 565(a) of the FY 2010 NDAA amended the military family leave
provisions of the FMLA by extending qualifying exigency leave to
eligible family members of members of the Regular Armed Forces, and
military caregiver leave to include care provided to certain veterans.
The AFCTCA amended the FMLA to provide special hours of service
eligibility requirements for airline flight crew employees. Each of
these amendments is discussed in detail in the section-by-section
analysis that follows.
FMLA leave may be taken in a block, or under certain circumstances,
intermittently or on a reduced leave schedule. In addition to providing
job-protected family and medical leave, employers must also maintain
any pre-existing group health plan coverage for an employee on FMLA-
protected leave under the same conditions that would apply if the
employee had not taken leave. 29 U.S.C. 2614. Once the leave period is
concluded, the employer is required to restore the employee to the same
or an equivalent position with equivalent employment benefits, pay, and
other terms and conditions of employment. Id. If an employee believes
that his or her FMLA rights have been violated, the employee may file a
complaint with the Department or file a private lawsuit in Federal or
state court. If the employer has violated the 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. 29 U.S.C. 2617.
Title I of the FMLA is administered by the Department and applies
to private sector employers with 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 and certain employees covered by other Federal
leave systems. Title III established a temporary Commission on Leave to
conduct a study and report on existing and proposed policies on leave
and the costs, benefits, and impact on productivity of such policies.
Title IV contains provisions governing the effect of the FMLA on more
generous leave policies, other laws, and existing employment benefits.
Finally, Title V originally extended the leave provisions to certain
employees of the U.S. Senate and House of Representatives; however,
such coverage was repealed and replaced by the Congressional
Accountability Act of 1995. 2 U.S.C. 1301.
B. Who the Law Covers
The FMLA generally covers employers with 50 or more employees. To
be eligible to take FMLA leave, an employee must meet specified
criteria, including employment with a covered employer for at least 12
months, performance of a specified number of hours of service in the 12
months prior to the start of leave, and work at a location where there
are at least 50 employees within 75 miles.
C. Regulatory History
The FMLA required the Department to issue initial regulations to
implement Title I and Title IV of the FMLA within 120 days of the law's
enactment (by June 5, 1993) with an effective date of August 5, 1993.
The Department published a Notice of Proposed Rulemaking (NPRM) in the
Federal Register on March 10, 1993. 58 FR 13394. The Department
received comments from a wide variety of stakeholders, and after
considering these comments the Department issued an Interim Final Rule
on June 4, 1993, effective August 5, 1993. 58 FR 31794.
After publication, the Department invited further public comment on
the interim regulations. 58 FR 45433. During this comment period, the
Department received a significant number of substantive and editorial
comments on the interim regulations from a wide variety of
stakeholders. Based on this second round of public comments, the
Department published final regulations to implement the FMLA on January
6, 1995. 60 FR 2180. The regulations were amended February 3, 1995 (60
FR 6658) and 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 requesting public comment on
its experiences with and observations of the Department's
administration of the FMLA and the effectiveness of the regulations. 71
FR 69504. Comments were received from workers, family members,
employers, academics, and other interested parties, ranging from
personal accounts, surveys, and legal reviews to academic studies and
recommendations for regulatory and statutory changes to the FMLA. The
Department published its Report on the comments in the Federal Register
on June 28, 2007. 72 FR 35550.
The Department published an NPRM in the Federal Register on
February 11, 2008 proposing changes to the FMLA's regulations based on
the Department's experience administering the law, two Department of
Labor studies and reports on the FMLA issued in 1996 and 2001, several
U.S. Supreme Court and lower court rulings on the FMLA, and a review of
the comments received in response to the RFI. 73 FR 7876. Comments were
also sought on the FY 2008 NDAA military family leave statutory
provisions. In response to the NPRM, the Department received thousands
of comments from a wide variety of stakeholders. The Department issued
a Final Rule on November 17, 2008, which became effective on January
16, 2009. 73 FR 67934.
The Department commenced the current rulemaking by publishing an
NPRM in the Federal Register on February 15, 2012 (77 FR 8960),
inviting public comment for 60 days. On April 16, 2012, in response to
requests to extend the comment period, the Department published a
notice extending the original 60-day comment
[[Page 8838]]
period by 14 days. 77 FR 22519. The comment period closed on April 30,
2012; approximately 870 comments were received and are available for
review at the Federal eRulemaking Portal, www.regulations.gov, Docket
ID WHD-2012-0001. Comments were received from worker advocacy
organizations, military members, employers, employer associations,
human resource specialists, labor organizations, and private
individuals. Approximately 90 percent of the comments received were
identical or nearly identical form letters sent in response to a
comment campaign by members of the Society for Human Resource
Management (SHRM). The Department received one comment ``late''--after
the close of the comment period--from SHRM. Although SHRM accessed the
Federal eRulemaking Portal prior to the midnight deadline, it was
unable to submit its comment in a timely manner due to technical
difficulties. Since technical difficulties prevented SHRM from
complying with the deadline, the Department accepted SHRM's comment in
this rulemaking. Several of the comments received addressed issues that
are beyond the scope or authority of the proposed regulations including
expanding the coverage or benefits of the Act. However, many of the
comments centered on either the military amendments or the AFCTCA
amendments, with several offering comments on both amendments. Comments
on specific provisions are discussed in detail in the Summary of
Comments below.
D. Updates to the Military Family Leave Provisions
Section 565(a) of the FY 2010 NDAA, enacted on October 28, 2009,
amends the military family leave provisions of the FMLA. Public Law
111-84. The FY 2010 NDAA expands the availability of qualifying
exigency leave and military caregiver leave. Qualifying exigency leave,
which was made available to family members of the National Guard and
Reserve components under the FY 2008 NDAA, is expanded to include
family members of members of the Regular Armed Forces. The entitlement
to qualifying exigency leave is expanded by substituting the term
covered active duty for active duty and defining covered active duty
for a member of the Regular Armed Forces as ``duty during the
deployment of the member with the Armed Forces to a foreign country'',
and for a member of the Reserve components of the Armed Forces as
``duty during the deployment of the member with the Armed Forces to a
foreign country under a call or order to active duty under a provision
of law referred to in section 101(a)(13)(B) of title 10, United States
Code.'' 29 U.S.C. 2611(14).\1\ Prior to the FY 2010 NDAA amendments,
there was no requirement that members of the National Guard and
Reserves be deployed to a foreign country.
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\1\ As with the FY 2008 NDAA, the FY 2010 NDAA references 10
U.S.C. 101(a)(13)(B), which covers call ups of the National Guard
and Reserves and certain retired members of the Regular Armed Forces
and Reserves in support of contingency operations. 73 FR 67954-55.
For simplicity, the terms ``National Guard and Reserve'' and
``Reserve components'' are used interchangeably throughout this
document and refer to these categories of military members.
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The FY 2010 NDAA amendments expand the definition of a serious
injury or illness for military caregiver leave for current members of
the Armed Forces to include an injury or illness that existed prior to
service and was aggravated in the line of duty on active duty and that
renders the member medically unfit. 29 U.S.C. 2611(18)(A). These
amendments also expand the military caregiver leave provisions of the
FMLA to allow family members to take military caregiver leave to care
for certain veterans. The definition of a covered servicemember, which
is the term the Act uses to indicate the group of military members for
whom military caregiver leave may be taken, is broadened to include a
veteran with a serious injury or illness who is receiving medical
treatment, recuperation, or therapy, if the veteran was a member of the
Armed Forces at any time during the period of five years preceding the
date of the medical treatment, recuperation, or therapy. 29 U.S.C.
2611(15)(B). The amendments define a serious injury or illness for a
veteran as a ``qualifying (as defined by the Secretary of Labor) injury
or illness that was incurred by the member in line of duty on active
duty in the Armed Forces (or existed before the beginning of the
member's active duty and was aggravated by service in line of duty on
active duty in the Armed Forces) and that manifested itself before or
after the member became a veteran.'' 29 U.S.C. 2611(18)(B).
As was the case with the FY 2008 NDAA, the FY 2010 NDAA is silent
as to the effective date of the FMLA amendments. In the NPRM, the
Department stated its position that the qualifying exigency provision
of the FY 2010 NDAA was effective upon the law's enactment on October
28, 2009. 77 FR 8962. However, because the FY 2010 NDAA requires the
Secretary to define a serious injury or illness of a veteran, the
Department concluded that the military caregiver leave provision for
family members of certain veterans would not be effective until the
Department defined this term. 77 FR 8962. The Department stated that
employers were not required to provide employees with leave to care for
a covered veteran until the Department defined the term. Id. The
Department noted, however, that employers were not prohibited from
providing employees with leave to care for a veteran if employers chose
to do so before the Department defined this term through regulation,
but such leave, assuming it did not otherwise qualify as FMLA leave to
care for a family member with a serious health condition, would not be
FMLA-protected and would not count against employees' FMLA entitlement.
Id.
Although the Department did not request comments on its
interpretation of the effective date of the FY 2010 NDAA amendments, a
few commenters addressed the effective date of the military caregiver
leave provision providing care to certain veterans. SHRM and Senators
Harkin and Murray concurred with the Department's position that
military caregiver leave is not available to veterans' families until
the Department defines serious injury or illness of a veteran through
regulation. The Legal Aid Society--Employment Law Center (Legal Aid)
asserted that the Department's positions on the effective date of the
military caregiver leave provision in the FY 2008 NDAA and the FY 2010
NDAA were inconsistent. It urged the Department to treat the provision
providing military caregiver leave to care for veterans as effective on
the signing date of the FY 2010 NDAA in light of the critical needs of
veterans. It also urged the Department to state that if an employer
permitted an employee to take leave to care for a veteran before the
Department defined this term through regulation, such leave is
protected under the FMLA. The National Employment Lawyers Association
(NELA) commented that, from the date the law was enacted in 2009 until
the adoption of final regulations, employers could have permitted
employees to take leave to care for a veteran pursuant to 29 U.S.C.
2652(a), which authorizes employers to voluntarily provide leave rights
broader than those provided for under the FMLA, and asserted that such
leave would be FMLA protected. At the same time, however, NELA
supported the Department's position that any such leave taken before
final regulations are adopted should not count against an employee's
FMLA entitlement, and recommended that the regulations expressly
incorporate this requirement.
[[Page 8839]]
The Department disagrees with Legal Aid's suggestion that the
Department is being inconsistent in its position on the effective date
of the 2008 and 2010 amendments. In both the 2008 Final Rule and this
rulemaking, the Department determined that where the statute requires
the Secretary to define a term, that portion of the statute is not
effective until the Department defines the term through regulation;
where the statute does not require the Secretary to define any terms,
that portion of the statute is effective upon the statute's enactment.
In the FY 2008 NDAA, Congress directed the Secretary to define the term
qualifying exigency, and, therefore, the Department concluded that
qualifying exigency leave was not effective until the Department
defined this term in the 2008 Final Rule. 73 FR 7925. In the FY 2010
NDAA, Congress directed the Secretary to define what qualifies as a
serious injury or illness of a veteran, and, therefore, the Department
has taken the position that employers are not required to provide
military caregiver leave to care for a veteran until the Department
defines a serious injury or illness of a veteran through regulation.
Similarly, in the FY 2008 NDAA, Congress did not require the Secretary
to define any terms related to military caregiver leave, and therefore
the Department took the position that the military caregiver leave
provision was effective upon enactment. 73 FR 7925. In the FY 2010
NDAA, Congress did not require the Secretary to define any terms
related to the expansion of qualifying exigency leave, and therefore
Department has taken the position that the qualifying exigency leave
provision was effective upon enactment. As to the comments regarding
the treatment of leave to care for a veteran that is voluntarily
provided by an employer before the effective date of this Final Rule,
the Department disagrees with the commenters' assertions that such
leave is FMLA-protected. Because this provision of the FY 2010 NDAA is
not effective until the Department defines a qualifying serious injury
or illness of a veteran through regulation, there is no basis to treat
such leave, if voluntarily provided by an employer, as FMLA-protected.
There is likewise no basis to interpret 29 U.S.C. 2652(a) as requiring
that leave to care for a veteran voluntarily provided by an employer
prior to the effective date of this Final Rule be treated as protected
FMLA leave. Section 2652(a) states that the FMLA does not diminish an
employer's obligations to comply with the terms of any employment
benefit program or plan providing greater rights than the FMLA that the
employer has agreed to provide through a collective bargaining
agreement or otherwise voluntarily agreed to provide. This section does
not say that any benefit provided under such program or plan that
exceeds the rights provided under the FMLA is protected under the FMLA.
Nor does it say that the FMLA provides a mechanism for enforcement of
such benefits. Thus, the Department's position in this Final Rule is
the same as set out in the NPRM: the qualifying exigency leave
provision of the FY 2010 NDAA was effective on October 28, 2009; the
military caregiver leave provision to care for a covered veteran will
be effective on the effective date of this Final Rule; and any leave to
care for a veteran voluntarily provided by an employer before the
effective date of this Final Rule that does not otherwise qualify as
FMLA leave to care for a family member with a serious health condition
is not FMLA-protected and does not count against employees' FMLA
entitlement.
E. Amendments to Eligibility Criteria for Airline Flight Crewmembers
and Flight Attendants
On December 21, 2009, the AFCTCA was enacted, establishing a
special hours of service eligibility requirement for airline flight
crew employees. The AFCTCA provides that an airline flight crew
employee will meet the hours of service eligibility requirement if he
or she has worked or been paid for not less than 60 percent of the
applicable total monthly guarantee (or its equivalent) and has worked
or been paid for not less than 504 hours (not including personal
commute time or time spent on vacation, medical, or sick leave) during
the previous 12 months. Airline flight crew employees continue to be
subject to the FMLA's other eligibility requirements. The AFCTCA also
authorized the Department to issue regulations regarding the
calculation of FMLA leave for airline flight crew employees as well as
special recordkeeping requirements for the employers of such employees.
The AFCTCA is silent as to its effective date. The Department
concluded in the NPRM that the amendment became effective on the date
of enactment, December 21, 2009, because the AFCTCA is explicit about
how to calculate the hours of service requirement for airline flight
crew employees. 77 FR 8962. Although the AFCTCA authorizes the
Department to promulgate regulations regarding how to calculate the
FMLA leave entitlement for airline flight crew employees, and special
recordkeeping requirements, these authorizations are permissive and do
not require the Department to engage in rulemaking. The Department did
not request comments concerning the effective date of the AFCTCA and no
comments were received on the issue. The Department's position in this
Final Rule is the same as set out in the NPRM.
III. Summary of Comments
The Department received approximately 870 comments on the NRPM; of
those, almost 90 percent were identical or nearly identical form
letters from SHRM members which addressed concerns about the
Department's proposed elimination of the employer's ability to utilize
different increments of FMLA leave at different times of the day or
shift and the Department's consideration of whether the physical
impossibility provision should be removed from the regulations. The
Department also received comments that were general statements, and
comments addressing issues that are beyond the scope authority of the
proposed regulations. The remaining comments reflect a wide variety of
views primarily concerning proposals to implement the FY 2010 NDAA or
the AFCTCA. Many include substantive analyses of the proposed
revisions. Some commenters addressed both amendments and some addressed
other proposed changes as well. The Department 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. A number of other minor editorial changes have been made for
consistency in the regulatory text.
IV. Section-by-Section Analysis of Proposed Changes to the FMLA
Regulations
The following is a section-by-section analysis of the final
revisions to the FMLA regulations. As explained, this Final Rule
revises only certain provisions of the existing regulations and creates
certain new provisions, which are discussed below. The Department is
republishing, however, the entirety of the FMLA regulations, including
the unchanged regulatory provisions not discussed here.
The primary sections of the regulations with revisions to implement
the FY 2010 NDAA amendments are: Sec. 825.126 (Leave because of a
qualifying
[[Page 8840]]
exigency); Sec. 825.127 (Leave to care for a covered servicemember
with a serious injury or illness); Sec. 825.309 (Certification for
leave taken because of a qualifying exigency); and Sec. 825.310
(Certification for leave taken to care for a covered servicemember
(military caregiver leave)). Less substantive changes are made to Sec.
825.122 (Definitions of covered servicemember, spouse, parent, son or
daughter, next of kin of a covered servicemember, adoption, foster
care, son or daughter on covered active duty or call to covered active
duty status, son or daughter of a covered servicemember, and parent of
a covered servicemember) and Sec. 825.102 (Definitions) to reflect new
definitions related to military family leave (moved from Sec. 825.800
in the current regulations).
The sections of the regulations with final revisions to implement
the AFCTCA are located in revised Subpart H newly titled, Special Rules
Applicable to Airline Flight Crew Employees. This reorganization is
intended to enhance clarity and utility of the regulations, and to
prevent confusion about the applicability of the special rules for
airline flight crew employees to any other types of employees. Subpart
H includes the following sections: Sec. 825.800 (Special rules for
airline flight crew employees, general), Sec. 825.801 (Special rules
for airline flight crew employees, hours of service requirement); Sec.
825.802 (Special rules for airline flight crew employees, calculation
of leave); and Sec. 825.803 (Special rules for airline flight crew
employees, recordkeeping requirements). Additional changes to implement
the AFCTCA are made in Sec. 825.102 (Definitions).
In addition to changes to incorporate the statutory amendments, the
Department also made changes to clarify existing regulatory text and
for consistency with other statutes and regulations. Specifically, the
Department moved the definitions section of the regulations from Sec.
825.800 to Sec. 825.102, which is reserved in the current regulations,
and made certain substantive revisions to the definitions as discussed
later in this preamble. Other modified sections include Sec. 825.110
(Eligible employee), Sec. 825.205 (Increment of FMLA leave for
intermittent and reduced schedule leave), Sec. 825.500 (Recordkeeping
requirements), and Sec. 825.702 (Interaction with Federal and State
anti-discrimination laws).
The Department also removes the following optional-use forms and
notices from the regulations' Appendices: Forms WH-380-E (Certification
of Health Care Provider--Employee), WH-380-F (Certification of Health
Care Provider--Family Member), WH-384 (Certification of Qualifying
Exigency for Military Family Leave), and WH-385 (Certification for
Serious Injury or Illness of Covered Servicemember for Military Family
Leave) related to certification; and Forms WH-381 (Notice of
Eligibility and Rights & Responsibilities), WH-382 (Designation Notice
to Employee of FMLA Leave), and Notice to Employees of Rights under
FMLA (WH Publication 1420) related to notification. The Department
noted in the NPRM that the forms would continue to be available to the
public on the WHD Web site, and that the forms are separately subject
to the requirements of the Paperwork Reduction Act of 1995 (PRA), which
provides an opportunity for the public to comment on the forms and
their information collection requirements every three years. The
Department also advised that future substantive changes to the forms
would continue to require separate and additional rulemaking. 77 FR
8963.
The Department received several comments on this proposal. Aon
Hewitt and a self-described labor-employment attorney both supported
the Department's proposal to remove the forms from the regulations.
Legal Aid, the National Coalition to Protect Family Leave (Coalition),
and SHRM opposed the proposal. Legal Aid stated that removing the forms
from the regulations would eliminate an important source of information
for employers and employees. This commenter also stated that many
people lack access to the Internet, and even for those who do have
access, navigating the Internet and being certain that the most recent
form is being accessed is difficult. The Coalition expressed concern
that the PRA procedures would not produce the same amount of public
participation and awareness of future proposed changes to the forms.
This commenter further asserted that even the slightest changes to the
forms can result in a significant economic impact on an employer as
systems must be updated to accommodate the changes. The commenter also
stated that the forms are a critical part of the FMLA approval process,
and even the smallest proposed changes should receive careful
consideration. SHRM commented that the notice and comment process has
contributed to the improvement of these forms over time and that it
would be a mistake to remove the forms from this regulatory process. It
also commented that removal of the forms from the rulemaking process
would be contrary to the Administration's commitment to transparency
and open government, notwithstanding the Department's assertion that
the PRA review process would facilitate these goals.
The Department has carefully considered the concerns raised by the
commenters, and has decided to implement the provision as proposed. The
Department understands that, for many employers and employees,
compliance with the FMLA begins with notification and certification of
the employee's need for leave. The Department recognizes that its
optional-use FMLA forms, as well as employer forms requiring the same
information, play a key role in employers' compliance with the FMLA and
employees' ability to take FMLA-protected leave when needed. Therefore,
the Department believes it would be helpful to discuss the authority
for these information collections, briefly describe the PRA process,
and explain how the removal of the forms from the regulations will and
will not impact the regulated community.
The Department's authority for the collection of information and
the required disclosure of information under the FMLA stems from the
statute and/or the implementing regulations. The authority for an
employer requiring medical certification in support of an employee's
request for FMLA leave due to a serious health condition and for the
content of the certification are found in 29 U.S.C. 2613(a), 2614(c)(3)
and 29 CFR 825.100(d), 825.305-.308, 825.312. These provisions are the
basis for Forms WH-380-E and WH-380-F. The authority for requiring
certification in support of an employee's need for leave due to a
qualifying exigency arising from the deployment of the employee's
family member and the content of the information included in Form WH-
384 are found in 29 U.S.C. 2613(f) and Sec. 825.309. The authority for
requiring certification of a covered servicemember's serious injury or
illness and the content of Form WH-385 and new Form WH-385-V are found
in 29 U.S.C. 2613(a) and Sec. 825.310. The regulations, Sec.
825.300(b)-(c), set forth the authority and information requirements
for Form WH-381, Notice to Employee of FMLA Eligibility and Rights and
Responsibility. The authority for and content of Form WH-382, Notice to
Employees of FMLA Leave Designation is found in Sec. Sec.
825.300(c)-.301(a). In order to make any changes to the information
included in these forms, the Department must engage in
[[Page 8841]]
rulemaking because the content of the forms is determined by the
regulations.
Under the PRA process, the WHD publishes a notice in the Federal
Register notifying the public that the agency is seeking an extension
of approval from the Office of Management and Budget (OMB) for the
subject information collection, and that the Department is accepting
comments for 60-days on the extension of OMB approval of the
information collection. In this notice, WHD describes the information
collection, the estimated time needed to complete the information
collection, the cost of complying with the information collection, and
describes the changes, if any, to the information collection from the
previous clearance. Often they are programmatic to the information
collection requirements or format changes to the instruments. In such
cases the Agency merely updates number of responses or respondents, or
updating the cost of responding to account for items such as wage
increases as reported by the Department's Bureau of Labor Statistics or
increases in postage rates. The Federal Register notice provides the
public an opportunity to comment on those estimates and make
recommendations on how the agency might improve the information
collection in a way that would not necessarily require rulemaking.
After the 60 day comment period, the Department publishes a notice
informing the public of its intention to submit the information
collection to the OMB for an extension of approval. This notice informs
the public that they have 30 days to submit comments to OMB on the
extension of approval, a brief description of the information
collection, the estimated time needed to complete the information
collection, the cost of complying with the information collections, and
describes the changes, if any, to the information collection from the
previous clearance. The Department also provides OMB with a summary of
any comments received in response to the first notice and of the
agency's response to those comments. The public may seek additional
information about the forms from the WHD Web site at any time.
Information about specific information collections is also available at
www.reginfo.gov.
Removal of the forms from the regulations will allow the Department
to make non-regulatory changes to the forms in a more effective manner
while still offering the public an opportunity to comment on the
proposed changes. For example, the Department regularly receives
completed medical certification forms (Forms WH-380-E and WH-380-F)
from health care providers even though respondents are instructed not
to send the form to the Department of Labor. This results in the
employee's FMLA leave being delayed because the employer has not
received the medical certification supporting the employee's need for
leave. Through the PRA notice and review process, the Department could
modify the instructions for health care providers in Section III of the
form to include an instruction not to send the forms to the Department.
This type of change would not require a regulatory change but would
enhance the usability of the form and employers' compliance efforts.
As discussed, even with removal of the forms from the regulations,
the information collection requirements underlying the FMLA forms
continue to be subject to both the rulemaking process and the PRA
process. The FMLA regulations determine what substantive information is
collected on the forms and the PRA process requires that any Federal
government information collection be approved by OMB and re-authorized
every three years. Removing the forms from the regulations gives the
Department the ability to maintain one version of the FMLA forms,
thereby lessening the confusion among employees and employers currently
resulting from the existence of multiple versions of the forms. The
forms will continue to be available on the WHD Web site, and for those
individuals who lack Internet access, forms may be obtained from their
local WHD district office and, in some cases, from their employer.
Removal of the forms from the regulations does not alter the
Department's belief that the forms facilitate employer and employee
compliance with their respective obligations under the FMLA. Employers
are permitted to use forms other than those issued by the Department so
long as they do not require information beyond that specified in the
regulations. See 29 CFR 825.306, 825.309, 825.310. However, if an
employee provides sufficient certification regardless of format, no
additional information may be requested.
In response to SHRM's comment regarding transparency and open
government and the Coalition's concern that the Department does not
publicize the PRA process in the same manner that it publicizes
proposed changes to the regulations, the Department believes that the
PRA process is open, transparent, and well-publicized; however the
Department will take into consideration additional steps to alert the
regulated community that the FMLA forms are undergoing the PRA process.
Additionally, as stated previously, any changes to the information
collection requirements underlying the forms would still require full
notice and comment through the rulemaking process. Changes to the forms
would still require full notice and comment under the PRA process.
In the Final Rule, as proposed, the Department makes various minor
changes or corrections to the forms and regulations. Specifically, the
Department makes small modifications to the FMLA forms, and creates a
new form for certification of a serious injury or illness of a covered
veteran, to reflect the FY 2010 NDAA amendments and the AFCTCA, which
are discussed in the section-by-section analysis. In addition, minor
edits to more accurately reflect the new military family leave and
airline flight crew employee eligibility provisions or to delete
references to Appendices for prototype forms or notices are made at:
Sec. Sec. 825.100, 825.101, 825.107, 825.112, 825.200, 825.213,
825.300, 825.302, 825.303, and 825.306. Cross-references to the special
rules applicable only to airline flight crew employees and their
employers in revised Subpart H are included in Sec. Sec. 825.102,
825.110, 825.120, 825.121, 825.200, 825.205, 825.300, and 825.702.
Cross-references to the definitions section, which the Department
moves, as proposed, to Sec. 825.102, are updated throughout the
regulations. The Department also corrects inadvertent drafting errors
that were made in the 2008 Final Rule, including correcting the cross-
references in Sec. 825.200(f) and (g) and inserting the word
``spouse'' in the first lines of Sec. 825.202(b) and (b)(1).
Furthermore, the Department includes the word ``the'' in the statutory
phrase ``in line of duty'' where used in the regulations and updates
the URL for the WHD Web site in Sec. Sec. 825.300, 825.306, and
825.309 to link viewers directly to the WHD site. These minor editorial
changes are not addressed in the section-by-section analysis.
A. Revisions To Implement the FY 2010 NDAA Amendments
1. Section 825.122 Definitions of Covered Servicemember Spouse, Parent,
Son or Daughter, Next of Kin of a Covered Servicemember, Adoption,
Foster Care, Son or Daughter on Covered Active Duty or Call or Order to
Covered Active Duty Status, son or Daughter of a Covered Servicemember,
and Parent of a Covered Servicemember
The Department proposed to add a definition of covered
servicemember as
[[Page 8842]]
a new paragraph (a) in this section and to modify the definition in the
current regulations to reflect the addition of covered veterans as
covered servicemembers under the FY 2010 NDAA, and to redesignate the
paragraphs that follow. The Department also proposed to change the term
active duty to covered active duty in each place it appears in both the
title of this section and in current paragraph (g), and to update the
reference in this paragraph to proposed Sec. 825.126(a)(5).
The Department received several comments on the proposed definition
of covered servicemember, all of which are discussed below in
conjunction with Sec. 825.127(b)(2). For the reasons stated in the
discussion of Sec. 825.127(b)(2), the Final Rule modifies the
definition of covered servicemember in Sec. 825.122 in the same manner
that it modifies Sec. 825.127(b)(2), and makes additional minor word
changes to mirror the language used in Sec. 825.127(b)(2).
No comments were received on the other proposed changes to this
section. The Final Rule adopts these proposals without modification,
and updates cross-references throughout the regulations to the
definitions in this section that have been redesignated.
2. Section 825.126 Leave Because of a Qualifying Exigency
Section Sec. 825.126 sets forth the regulation allowing an
eligible employee whose spouse, parent, son, or daughter is on active
duty or has been notified of an impending call or order to active duty
to take FMLA leave for a qualifying exigency arising out of that active
duty or call to active duty. The FY 2008 NDAA defined active duty as a
call or order to active duty under a provision of law referred to in 10
U.S.C. 101(a)(13)(B). Public Law 110-181; Sec. 585(a). The provisions
referred to in 10 U.S.C. 101(a)(13)(B) are limited to duty by members
of the Reserve components, the National Guard, and certain retired
members of the Regular Armed Forces and retired Reserve. The FY 2008
NDAA thus limited the availability of qualifying exigency leave to
family members of members of the National Guard and Reserve components.
73 FR 67954-55.
The FY 2010 NDAA further amended the FMLA to permit an eligible
employee to take FMLA leave for any qualifying exigency arising out of
the fact that the employee's spouse, son, daughter, or parent is on
covered active duty, or has been notified of an impending call or order
to covered active duty in the Armed Forces. Public Law 111-84, Sec.
565(a)(1); see 29 U.S.C. 2611(14)(A), 2612(a)(1)(E). The FY 2010 NDAA
defined covered active duty to include duty by members of the Regular
Armed Forces during deployment to a foreign country, and duty by
members of the Reserve components during deployment to a foreign
country under a call or order to active duty under a provision of law
referred to in section 101(a)(13)(B) of title 10, United States Code.
29 U.S.C. 2611(14). Thus, the FY 2010 NDAA expanded the availability of
qualifying exigency leave to include family members of the Regular
Armed Forces during a foreign deployment, and added a foreign
deployment requirement to the type of call or order to active duty
required for the Reserve components of the Armed Forces.
The Department proposed to reverse the order in which the two parts
of this section appear, so that proposed paragraph (a) addressed an
employee's entitlement to qualifying exigency leave and proposed
paragraph (b) identified the specific circumstances under which
qualifying exigency leave may be taken. The Department also proposed to
substitute covered active duty for active duty in paragraph (a) (as
well as throughout the regulations wherever the term appeared) to
incorporate the FY 2010 NDAA statutory language. Additionally, because
the term covered military member was associated with the restrictive
nature of qualifying exigency leave under the FY 2008 NDAA, i.e., the
limitation of such leave to family members of Reserve component members
only, the Department proposed to delete references to a covered
military member and instead use the term member or military member to
refer to all military members on covered active duty as defined by the
statute.
In accordance with the FY 2010 NDAA, the Department proposed to
delete the statement in current Sec. 825.126(b)(i) that family members
of members of the Regular Armed Forces are not entitled to qualifying
exigency leave. The Department proposed in paragraph (a) to state than
an eligible employee may take FMLA leave for a qualifying exigency
while the employee's spouse, son, daughter, or parent is on covered
active duty or call to covered active duty status. The Department
proposed in Sec. 825.126(a)(1) to define covered active duty or call
to covered active duty status for a member of the Regular Armed Forces
as ``duty under a call or order to active duty (or notification of an
impending call or order to covered active duty) during the deployment
of the member with the Armed Forces to a foreign country,'' and to
state that the active duty orders will generally specify if the
member's deployment is to a foreign country. The Department proposed in
Sec. 825.126(a)(2) to define covered active duty or call to covered
active duty status for a member of the Reserve components as ``duty
under a call or order to active duty (or notification of an impending
call or order to active duty) during the deployment of the member with
the Armed Forces to a foreign country under a Federal call or order to
active duty in support of a contingency operation'' pursuant to the
provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The
Department also proposed to use the word Federal in proposed Sec.
825.126(a)(2) in describing the covered calls or orders to active duty
in order to make clear that only Federal calls to duty will meet the
definition of covered active duty. The Department proposed to move to
Sec. 825.126(a)(2)(i) the list of the specific Reserve components in
current Sec. 825.126(b)(2)(i). The Department proposed to move to
Sec. 825.126(a)(2)(ii) the statement in current Sec. 825.126(b)(3)
that the active duty orders of a member of the Reserve components will
generally specify if the covered active duty military member is serving
in support of a contingency operation by citing the relevant section of
Title 10 of the United States Code and/or by reference to the specific
name of the contingency operation, and to state also in Sec.
825.126(a)(2)(ii) that the active duty orders will generally specify
that the deployment is to a foreign country. The Department proposed in
Sec. 825.126(a)(3) to define deployment of the member with the Armed
Forces to a foreign country as deployment to areas outside of the
United States, the District of Columbia, or any Territory or possession
of the United States, including deployment in international waters. As
discussed in the NPRM, this definition was consistent with the
Department's understanding of the term deployment based on
consultations with the DOD. 77 FR 8965. The Department also sought
comment on the types of duty assignments for members of the Navy and
Coast Guard that would satisfy the definition of deployment. The
Department proposed to move to Sec. 825.126(a)(4) the provision
specifying that covered deployments are limited to Federal calls to
active duty, which is in current Sec. 825.126(b)(2)(ii). Finally, the
Department proposed to move the definition of son or daughter on active
duty or call to active duty status to Sec. 825.126(a)(5) from current
Sec. 825.126(b)(1).
No comments were received on the proposed changes regarding the
[[Page 8843]]
reorganization of the section, or the changes in proposed paragraph (a)
regarding the use of the term covered active duty rather than active
duty or the use of the term military member or member rather than
covered military member. Therefore, the Final Rule adopts these changes
as proposed.
Several commenters suggested additional language changes for
paragraph (a) of this section. Two commenters, the National Partnership
for Women and Families (Partnership) and the North Carolina Justice
Center, suggested that the term qualifying exigency may be confusing to
military families and that the Department should provide a general
explanation of what is meant by this term. NELA commented that the
definition of covered active duty or call to covered active duty status
is confusing because it seems to indicate that an impending call or
order to active duty must occur during deployment to a foreign country.
NELA suggested that the Department remove the phrase call or order to
active duty from proposed Sec. 825.126(a)(1) defining the term for
members of the Regular Armed Forces, noting that 29 U.S.C. 2611(14)(A)
does not use the phrase. NELA further suggested that the Department
include a definition of the Armed Forces in this subparagraph rather
than using the term Regular Armed Forces. NELA also commented that the
use of the term contingency operation in the proposed regulation at
Sec. 825.126(a)(2), discussing covered active duty, is confusing and
unnecessary in light of the fact that Congress deleted this term in the
FY 2010 NDAA. This commenter suggested that, because each of the listed
military duties in 10 U.S.C. 101(a)(13) is a type of contingency
operation, there is no reason to include the phrase in the final
regulations. In contrast, SHRM commented that the inclusion of the
language that the call or order to active duty must be in support of a
contingency operation will help clarify this entitlement. The Coalition
commented that the inclusion of the word Federal in Sec. 825.126(a)(2)
adds clarity and the reference to Title 10 of the United States Code in
subparagraph (2) is appropriate, but that this subparagraph should
provide explicit definitions or descriptions of the different types of
active duty under the various statutes listed in Title 10 because most
employers are not familiar with these statutory references.
The Partnership and the North Carolina Justice Center supported the
Department's proposed definition of deployment to a foreign country in
proposed Sec. 825.126(a)(3) to include international waters as
consistent with congressional intent. The Military Officers Association
of America also supported the inclusion of international waters in this
definition, but suggested that the Department ``encourage expansion of
the law'' to include family members of servicemembers assigned overseas
to remote areas and to servicemembers of all the uniformed services,
including the National Oceanic and Atmospheric Administration (NOAA)
and the U.S. Public Health Service Commissioned Corps.
The Department has carefully considered all of the comments
regarding the proposed changes to Sec. 825.126 and has adopted
paragraph (a) as proposed with a slight modification. The Department
removes from the proposed definition of covered active duty or call to
covered active duty status in the Final Rule the phrase ``under a call
or order to active duty (or notification of an impending call or order
to active duty)'' and inserts into the regulatory text preceding the
definition the phrase ``(or has been notified of an impending call or
order to covered active duty)''. The revised text is not intended to
change the meaning of Sec. 825.126(a), under which an eligible
employee may take qualifying exigency leave if that employee's spouse,
son, daughter, or parent is on covered active duty or call to covered
active duty status or has been notified of an impending call or order
to covered active duty, but instead to provide clarity and more closely
track the statutory language of the FY 2010 NDAA. With regard to
commenters' request that the Department provide a definition for the
term qualifying exigency, the Department notes that the 2008 Final Rule
defined qualifying exigency by providing clearly defined reasons for
which an eligible employee can take leave because of a qualifying
exigency. 73 FR 67957. Thus, the proposed rule provided, just as the
2008 Final Rule did, eight distinct categories that the Department has
determined to be qualifying exigencies that entitle eligible family
members to FMLA leave. The Department does not believe that any
additional explanation of the term qualifying exigency is necessary. In
response to the comment concerning whether the phrase covered active
duty or call to covered active duty limits qualifying exigency leave to
the period during the military member's deployment, the Department
notes that eligible employees who are family members of military
members of the Armed Forces are entitled to qualifying exigency leave
after notification of an impending deployment, during the deployment,
and post-deployment. As explained in the NPRM, the Department does not
believe that the FY 2010 NDAA altered the applicability of qualifying
exigency leave to the limited category of post-deployment activities,
the need for which immediately and foreseeably arise from the military
member's covered active duty. In response to the request to define
Armed Forces, the Department believes that the public has a common
understanding of the Armed Forces, and that further definition is not
necessary.
In response to the comments regarding the continued use of the term
contingency operation in the definition of covered active duty for
military members of the Reserve components, the Department declines to
modify the language in Sec. 825.126(a)(2) as suggested in light of the
complexity of the different designations for types of duties and
deployments within the military. The Department maintains its view, as
explained in the NPRM, that because Congress retained the reference to
29 U.S.C. 101(a)(13)(B) in the FY 2010 NDAA, and 29 U.S.C.
101(a)(13)(B) defines contingency operations, this reference continues
to require that members of the Reserve components be called to duty in
support of a contingency operation in order for their family members to
be entitled to qualifying exigency leave. 77 FR 8965. In response to
the request to provide descriptions of the different types of active
duty under the statutes listed in Title 10, the Department notes that
proposed Sec. 825.126(a)(2) provided, just as current Sec.
825.126(b)(2) does, brief descriptions of the types of active duty to
which each of the referenced statutes refers in addition to citing the
statutes referenced in 10 U.S.C. 101(a)(13)(B). The Department believes
that these descriptions are sufficient for employers and employees to
ascertain the types of deployments for which members of the National
Guard and Reserve components may be deployed which would entitle an
eligible family member to take qualifying exigency leave.
In response to the Military Officers Association of America's
comment suggesting expansion of the law to servicemembers assigned
overseas, the Department notes that military members of the Regular
Armed Forces who are assigned overseas to remote areas may be
considered on covered active duty if they are called or ordered to
active duty under a deployment and the remote area to which they are
deployed is an area outside of the United States, the District of
Columbia, or any Territory or possession of the United States,
including international waters. The
[[Page 8844]]
same is true of military members of the National Guard and Reserve
components as long as their foreign deployment is in support of a
contingency operation referenced in Sec. 825.126(a)(2). As to the
inclusion of servicemembers of all the uniformed services referenced by
the Military Officers Association of America, the Department notes that
the definition of covered active duty in the FY 2010 NDAA specifically
refers to the Armed Forces for members of both the Regular Armed Forces
and the National Guard and Reserve components. See 29 U.S.C. 2611 (14).
``[A]rmed [F]orces'' is defined in 10 U.S.C. 101(a)(4) as the ``Army,
Navy, Air Force, Marine Corps, and Coast Guard.'' While the NOAA
Commissioned Corps and the U.S. Public Health Service Commissioned
Corps are, part of the uniformed services as defined in 10 U.S.C.
101(a)(5), they are explicitly not part of the Armed Forces as defined
in 10 U.S.C. 101(a)(4) and the Department lacks the authority to expand
coverage for qualifying exigency leave as requested. Therefore, the
Department adopts paragraph (a) as proposed in the Final Rule without
modification.
Current Sec. 825.126(a) sets forth the list of reasons for which
an eligible employee may take qualifying exigency leave. The current
qualifying exigency leave categories are: (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. The Department proposed to move this list to
Sec. 825.126(b) without changing the subparagraph numbers that
correspond to categories of qualifying exigencies.
Proposed Sec. 825.126(b)(1) tracked current Sec. 825.126(a)(1),
which sets forth the requirements for short-notice deployment
qualifying exigency leave. In addition to redesignating this
subparagraph from (a)(1) to (b)(1), the proposal inserted the term
``covered active duty'' and deleted the reference to contingency
operations from this section. However, the Department requested comment
on whether the current seven-calendar-day period for short-notice
deployment qualifying exigency leave remained appropriate. The
Department received a few comments on this issue. The Coalition
commented that, based on feedback from its members, the current seven-
day period remains appropriate, and, along with SHRM, urged the
Department not to make any changes to this section. World at Work
conducted a survey (to which it received 94 responses) on issues raised
in the NPRM, and found that the majority of requests for short-notice
deployment qualifying exigency leave have not been for amounts of time
beyond the current allotment. In contrast, the National Association of
Letter Carriers (the Letter Carriers) suggested the period be expanded
to 15 days, stating its members have found that seven days is often
inadequate for dealing with all of the arrangements and adjustments
that family members must make when faced with short-notice deployment.
Twiga, an organization that advocates for workplace flexibility, also
suggested an expansion to 15 days, asserting that some military members
face difficulties in securing alternative childcare arrangements within
a seven-day period.
The Department acknowledges the concern that seven days may be
inadequate to address all issues arising from the short-notice
deployment of a military member. After this seven-day-period, however,
the employee remains entitled to qualifying exigency leave for any of
the other enumerated exigencies set forth in this section. For example,
an eligible employee would be able to take leave pursuant to Sec.
825.126(b)(3) to address childcare arrangement issues arising from the
military member's deployment subsequent to the seven-day short-notice
period. Likewise, the employee is entitled, pursuant to current Sec.
825.126(a)(8), to job-protected leave to address events arising out of
the military member's deployment that are not included in the list of
qualifying exigencies 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. Accordingly, the Final Rule adopts
the redesignation of Sec. 825.126(a)(1) to Sec. 825.126(b)(1) as
proposed and retains the seven-day period for short-notice deployment
qualifying exigency leave.
Proposed Sec. 825.126(b)(3), childcare and school activities,
tracked current Sec. 825.126(a)(3), which allows eligible employees to
take qualifying exigency leave to arrange childcare or attend certain
school activities for a military member's son or daughter. In addition
to redesignating this paragraph from (a)(3) to (b)(3), the Department
proposed to delete repetitive text throughout this paragraph
identifying the relationship between the child and the military member.
Proposed Sec. 825.126(b)(3) stated that, for purposes of the childcare
and school activities leave listed in Sec. 825.126(b)(3)(i) through
(iv), the child must be ``the military member's biological, adopted, or
foster child, stepchild, legal ward, or child for whom the military
member stands in loco parentis, who is either under 18 years of age or
18 years of age or older and incapable of self-care because of a mental
or physical disability at the time that FMLA leave is to commence'',
and also added language to clarify that, as with all instances of
qualifying exigency leave, the military member must be the spouse, son,
daughter, or parent of the employee requesting leave. As stated in the
NPRM, the Department believes this clarifying language is necessary
because of this section's unique relationship requirements. 77 FR 8966.
While the military member must be the spouse, parent, or son or
daughter of the eligible employee, the child for whom childcare leave
is sought need not be a child of the employee requesting leave.
Several commenters addressed the clarifying language in proposed
Sec. 825.126(b)(3) with respect to childcare and school activities
qualifying exigency leave. Legal Aid commended the Department for
including such language. In contrast, an individual commenter did not
support granting leave to military members' families to take leave for
school activities when non-military working parents do not receive this
benefit. Several commenters, including the Family Equality Council,
North Carolina Justice Center, the Partnership, and Twiga, urged the
Department to explicitly note that all FMLA regulations are interpreted
to include the children of persons standing in loco parentis to those
children. Twiga recommended the Department strike the requirement that
the military member must be the spouse, son, daughter, or parent of the
employee taking qualifying exigency leave and instead simply require
that the employee be the parent of, or stand in loco parentis to, the
military member's child for this category of qualifying exigency leave.
The Partnership, Twiga, and the Family Equality Council noted that the
Wage and Hour Administrator's Interpretation No. 2010-3, issued on June
22, 2010, stated that in loco parentis under the FMLA includes all
persons with day-to-day responsibility to care for or financially
support a child. For these reasons, Twiga suggested that the definition
of who may take qualifying exigency leave should be flexible enough to
account for relationships beyond the nuclear family.
A number of commenters, including Senators Harkin and Murray, and
the Partnership, suggested adding a new qualifying exigency leave
category to address issues regarding educational and related services
for a child with a disability under the Individuals with
[[Page 8845]]
Disabilities Education Act (IDEA) or section 504 of the Rehabilitation
Act of 1973, including attending meetings about eligibility, placement,
and services, or to develop, update, or revise the child's Individual
Education Plan under the IDEA. The North Carolina Justice Center also
suggested the Department indicate that other childcare needs, such as
the need to arrange for summer care and to attend medical appointments
for children, would be included.
In response to the comments regarding in loco parentis, the
Department reiterates its interpretation in Administrator's
Interpretation No. 2010-3 that either day-to-day care or financial
support may establish an in loco parentis relationship under the FMLA
where the adult intends to assume the responsibilities of a parent with
regard to a child. However, the statutory provisions of the FMLA with
respect to qualifying exigency leave are very specific that the
military member on covered active duty or call to covered active duty
status must be the spouse, parent, or son or daughter of the eligible
employee in order for the FMLA protections to apply. 29 U.S.C.
2612(a)(1)(E). Therefore, the fact that an employee may stand in loco
parentis to a child of a military member is not sufficient to satisfy
the statutorily-required relationship with the military member for
qualifying exigency leave. The statute requires that the employee,
whether or not he or she stands in loco parentis to the military
member's child, have the requisite relationship with the military
member. For example, the mother of a military member may be entitled to
childcare and school activities qualifying exigency leave for the
military member's child, but the military member's mother-in-law would
not be regardless of her relationship to the military member's child.
The Department notes, however, that any eligible employee who stands in
loco parentis to the child of a military member (or any other child) is
entitled to take FMLA leave if the child needs care due to a serious
health condition. In light of the confusion indicated in the comments
regarding the relationship requirements for qualifying exigency leave
for childcare and school activities, the Department believes that the
proposed clarification is beneficial.
In response to comments seeking the addition of a specific
qualifying exigency category for educational and related services for
disabled children, the Department notes that Sec. 825.126(b)(3) allows
qualifying exigency leave for a broad array of childcare and school
activities, which could include leave to enroll a child in summer day
camp or similar kind of summer day care at the end of the school year
if the need to do so arises out of the military member's covered active
duty or call to covered active duty. 73 FR 67959. Likewise, Sec.
825.126(b)(3)(iv) provides for qualifying exigency leave to attend
meetings with staff at a school or daycare facility, such as meetings
with school counselors, parent-teacher conferences, or meetings with
school officials regarding disciplinary matters, when such meetings are
necessary due to circumstances arising from the covered active duty or
call to covered active duty of a military member. The Department
believes the current regulation is sufficient to include attending
meetings about eligibility, placement, and services, or to develop,
update or revise a child's Individual Education Plan when those
meetings are necessary due to the covered active duty or call to
covered active duty of a military member. The Department does not
intend for this leave to be used to meet with staff at a school or
daycare facility for routine academic concerns, nor to be used for
routine educational and related services for a child with a disability
under the Individuals with Disabilities Education Act that are
unrelated to the military member's deployment. Therefore, no additional
clarification or additional categories of childcare and school
activities are added to the Final Rule. The Final Rule adopts the re-
designation of Sec. 825.126(a)(3) to Sec. 825.126(b)(3) and the other
proposed changes in Sec. 825.126(b)(3) without modification.
Proposed Sec. 825.126(b)(6), Rest and Recuperation, followed
current Sec. 825.126(a)(6), which allows an eligible employee to take
up to five days of leave to spend time with a military member on Rest
and Recuperation leave during a period of deployment. In addition to
re-designating this paragraph from (a)(6) to (b)(6) and capitalizing
Rest and Recuperation to correspond directly to the DOD's Rest and
Recuperation leave programs, the Department also proposed to expand the
maximum duration of Rest and Recuperation qualifying exigency leave
from five days to the duration of the military member's Rest and
Recuperation leave, up to a maximum of 15 days. As stated in the NPRM,
the DOD has advised the Department that the actual number of days of
Rest and Recuperation leave provided by the military varies, with some
military members receiving as many as 15 days, depending upon the
length of their deployment. 77 FR 8966. The Department proposed to
allow the amount of leave an employee may take for Rest and
Recuperation qualifying exigency leave to equal that provided to the
military member, up to a maximum of 15 days. The Department sought
comment on the expansion of Rest and Recuperation qualifying exigency
leave, and whether the proposed 15-day period would be sufficient in
all instances.
Several commenters, including World at Work, North Carolina Justice
Center, the Partnership, and the Military Officers Association of
America, supported the Department's proposal to expand Rest and
Recuperation leave up to a maximum of 15 days. The Military Officers
Association of America and the Partnership stated that it is
appropriate to grant employees time with their military family members
when the military member is home for a limited time from a foreign
deployment, as allowing for such leave positively impacts family
members at home and improves the morale of those serving abroad. SHRM
supported the expansion, but suggested that the leave be limited only
to the actual Rest and Recuperation time at home or some other
destination where the military member will take the Rest and
Recuperation leave. The Coalition agreed that an extension is
appropriate, but commented that 15 days is excessive and suggested a
10-day period instead. The Coalition commented that as written, the
proposal would allow an employee to take 15 days off of work,
potentially equating to three full five-day workweeks of leave, while
the military's leave programs allow up to 15 calendar days of leave,
which is meant to allow the military member two weeks at home. The
Letter Carriers commented that because the need for recuperation can
vary tremendously depending on the nature of the deployment, the leave
granted for this exigency should be equal to the amount of leave the
military has determined to be necessary and has granted for the
military member, up to a maximum of at least 30 days.
As stated in the NPRM, the Department believes it is appropriate to
make the availability of this type of qualifying exigency leave
consistent with the leave actually provided by the military to the
member on covered active duty. 77 FR 8966. Therefore, the Department
has decided to implement the regulation as proposed in the Final Rule,
providing for up to a maximum of 15 days for Rest and Recuperation
qualifying exigency leave, but has modified the language for clarity.
The Department has modified the language to delete the reference to
eligible
[[Page 8846]]
employees because the paragraph (b) makes it clear that all of the
subparagraphs under (b), including this one, apply only to eligible
employees. Further, in response to the comments, the Department has
modified the language to state that leave taken for this purpose can be
used for a period of 15 calendar days beginning on the date the
military member commences each instance of Rest and Recuperation leave.
This language is consistent with the Department's position for short-
notice deployment leave found in Sec. 825.126(b)(1). The Department
reiterates that, as noted in the NPRM, this allows an employee to take
Rest and Recuperation qualifying exigency leave for the same amount of
time as is provided to the military member for the member's Rest and
Recuperation leave, up to a maximum of 15 days. 77 FR 8966. The
Department further clarifies that the employee may choose to take the
leave in a continuous block of time or intermittently over the duration
of the military member's Rest and Recuperation leave, up to 15 calendar
days. Thus, the employee's leave does not need to be taken as a single
block of time. However, it must be taken during the period of time
indicated on the Rest and Recuperation orders.
Proposed Sec. 825.126(b)(7), Post-deployment activities tracked
current Sec. 825.126(a)(7). In addition to the redesignation of
paragraph from (a)(7) to (b)(7), the Department proposed to add
attending funeral services to redesignated paragraph (b)(7)(ii), which
permits an employee to take qualifying exigency leave to address issues
that arise from the death of a military member while on covered active
duty status, as an additional example of the activities that are
covered by such leave. Legal Aid supported this addition. SHRM endorsed
the Department's clarification, stating that according to SHRM survey
data, over 90 percent of all employers currently provide some form of
paid bereavement leave, and the availability of qualifying exigency
leave for this purpose ensures coverage for those who take such leave.
Accordingly, the Department implements the redesignation and Sec.
825.126(b)(7)(ii) as proposed.
The Department did not propose any new qualifying exigencies for
which FMLA leave may be taken, but invited comment on whether
additional qualifying exigencies should be added in light of the
extension of this leave entitlement to family members of members of the
Regular Armed Forces. The Department received one comment in response.
The Letter Carriers suggested adding an eldercare provision as an
additional qualifying exigency, stating that several of its members
have indicated that providing and making arrangements for eldercare is
as pressing a need for them as childcare is when they face military
deployment.
The Department agrees that the need to provide care to a military
member's parent is analogous to the need to provide care for a military
member's child and that such a need may arise when a military member is
called to covered active duty. Consistent with the purpose and intent
of the qualifying exigency leave provision in the FMLA, the Department
modifies the Final Rule to create a new provision for parental care
qualifying exigency leave. An eligible employee may take qualifying
exigency leave to care for the parent of a military member, or someone
who stood in loco parentis to the military member, when the parent is
incapable of self-care and the need for leave arises out of the
military member's covered active duty or call to covered active duty
status. In the 2008 Final Rule establishing qualifying exigency leave
for childcare and school activities, the Department stated that certain
childcare and school activities require attention because the military
member is on active duty or has been called to active duty status and
that qualifying exigency leave would be appropriate in such situations,
but that routine events that occur regularly for all children would not
warrant qualifying exigency leave. 73 FR 67959. This same standard
applies to qualifying exigency leave to care for a military member's
parent when the parent is incapable of self-care. Therefore, the
parental care qualifying exigency provision in the Final Rule tracks
the childcare provision in setting out the types of situations when
qualifying exigency leave is available. Thus, parental care qualifying
exigency leave may be used for: (i) Arranging for alternative care for
a parent of the military member when the parent is incapable of self-
care and the covered active duty or call to covered active duty status
of the military member necessitates a change in the existing care
arrangements; (ii) providing care for a parent of the military member
on an urgent, immediate need basis (but not on a routine, regular, or
everyday basis) when the parent is incapable of self-care and the need
to provide such care arises from the covered active duty or call to
covered active duty status of the military member; (iii) admitting or
transferring a parent of the military member to a care facility when
the admittance or transfer is necessitated by the covered active duty
or call to covered active duty status of the military member; and (iv)
attending meetings with staff at a care facility for the parent of the
military member, such as meeting with hospice or social service
providers, when such meetings are necessitated by the covered active
duty or call to covered active duty status of the military member (but
not for routine or regular meetings). For purposes of parental care
qualifying exigency leave, incapable of self-care means that the parent
requires active assistance or supervision to provide daily self-care in
three or more of the ``activities of daily living'' or ``instrumental
activities of daily living.'' Activities of daily living include, but
are not limited to, adaptive activities such as caring appropriately
for one's grooming and hygiene, bathing, dressing, and eating.
Instrumental activities of daily living include, but are not limited
to, cooking, cleaning, shopping, taking public transportation, paying
bills, maintaining a residence, using telephones and directories, using
a post office, etc. This definition of incapable of self-care is
adopted from Sec. 825.122(d)(1), where it is used as part of the
determination of whether a child 18 years of age or older is a son or
daughter under the FMLA. Thus, for example, if a military member's
parent is incapable of self-care and the parent was cared for by the
military member, an eligible employee may take parental care qualifying
exigency leave to arrange for the alternative care of the military
member's parent, such as hiring a home health care aide, or to provide,
on an urgent, immediate need basis, care that a home health care aide
would normally provide. In either event, however, the employee may not
take parental care qualifying exigency leave to provide such care to
the parent on a regular or routine basis, even if the military member
previously provided such regular or routine care. The Department
reiterates that as with all instances of qualifying exigency leave, the
military member must be the spouse, parent, son, or daughter of the
employee requesting qualifying exigency parental care leave. In the
case of parental care leave, the parent in need of care must be the
military member's parent or a person who stood in loco parentis to the
military member when the member was less than 18 years old.
Accordingly, the Department creates a new provision for parental care
leave at Sec. 825.126(b)(8), and redesignates additional activities
from current Sec. 825.126(a)(8) to Sec. 825.126(b)(9).
[[Page 8847]]
3. Section 825.127 Leave To Care for a Covered Servicemember With a
Serious Injury or Illness (Military Caregiver Leave)
Section 825.127 sets forth the regulation allowing an eligible
employee who is a covered servicemember's spouse, son, daughter,
parent, or next of kin to take up to 26 workweeks of leave during a
single 12-month period to care for a servicemember with a serious
injury or illness (military caregiver leave). Section 825.127
implemented Section 585(a) of the FY 2008 NDAA, which entitled an
eligible employee who is a spouse, parent, son, daughter, or next of
kin of a current servicemember with a serious injury or illness, to
take FMLA leave to provide care to that covered servicemember. Section
565(a) of the FY 2010 NDAA further expands military caregiver leave to
eligible employees caring for certain veterans with a qualifying (as
defined by the Secretary of Labor) injury or illness incurred in line
of duty on active duty or that existed before the member's active duty
and was aggravated in the line of duty on active duty. 29 U.S.C.
2611(15)(B). Section 565(a) also amends the FMLA by revising the
definition of a serious injury or illness for current servicemembers of
the Armed Forces to include conditions that existed before the current
servicemember's active duty and were aggravated by service in the line
of duty on active duty. 29 U.S.C. 2611(18)(A).
The Department proposed to reorganize Sec. 825.127 to incorporate
the substantive changes to the military caregiver leave provisions
pursuant to the FY 2010 NDAA amendments. The Department proposed to add
the term military caregiver leave to the title of this section for
clarity. The Department also proposed to move current Sec. 825.127(b),
which defines the family members qualified to take caregiver leave, to
proposed Sec. 825.127(d), current Sec. 825.127(c), which explains the
single 12-month period, to proposed Sec. 825.127(e), and current Sec.
825.127(d), which addresses circumstances when a husband and wife who
are both eligible for FMLA leave work for the same employer, to
proposed Sec. 825.127(f), as well as to update the internal cross-
references in the provision accordingly. The Department did not receive
any comments on the proposal to redesignate these three paragraphs or
to modify the title of this section. The Department adopts these
proposed changes in the Final Rule.
Consistent with the FY 2008 NDAA, under current Sec. 825.127(a),
an eligible employee may take FMLA leave to care for a current member
of the Armed Forces, including National Guard and Reserves members,
with a serious injury or illness incurred in the line of duty on active
duty for which the servicemember is undergoing medical treatment,
recuperation, or therapy, is otherwise in outpatient status, or is
otherwise on the temporary disability retired list. This paragraph
specifically excludes former members of the Regular Armed Forces,
former members of the National Guard and Reserves, and members on the
permanent disability list from the current definition of a covered
servicemember. In accordance with the FY 2010 NDAA, the Department
proposed to remove the statement that military caregiver leave does not
apply to former members of the military from proposed paragraph (a),
and to move the definitions in current paragraph (a)(1) to proposed
paragraph (c) and current paragraph (a)(2) into proposed paragraph (b).
The Department proposed in paragraph (a) to state simply that eligible
employees are entitled to take FMLA leave to care for a covered
servicemember with a serious injury or illness. The Department did not
receive any comments on proposed paragraph (a), and therefore, adopts
this paragraph without modification in the Final Rule.
The Department proposed in Sec. 825.127(b) to define a covered
servicemember for current members of the Armed Forces and for covered
veterans. Proposed Sec. 825.127(b)(1) defined covered servicemember
for current members of the Armed Forces, including members of the
Reserve components. The proposed definition mirrored the statutory
definition. 29 U.S.C. 2611(15)(A). The proposed definition also
incorporated the definition of outpatient status from current Sec.
825.127(a)(2), which applies only to current servicemembers. No
comments were received on this proposal. It is adopted without
modification in the Final Rule.
Proposed Sec. 825.127(b)(2) defined covered servicemember for
veterans as a covered veteran who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness. It further
defined a covered veteran as an individual who was discharged or
released under conditions other than dishonorable at any time during
the five-year period prior to the first date the eligible employee
takes FMLA leave to care for the covered veteran. See 29 U.S.C.
2611(15)(B) (defining a covered servicemember as a veteran ``who is
undergoing medical treatment, recuperation, or therapy for a serious
injury or illness'' and who was a member of the Armed Forces ``at any
time during the period of 5 years preceding the date of which the
veteran undergoes that medical treatment, recuperation, or therapy'');
29 U.S.C. 2611(19) (defining veteran as the term is defined in 38
U.S.C. 101). As discussed in the NPRM, the Department noted that
Congress extended FMLA leave to care for a particular subset of
veterans. 77 FR 8967. The Department noted that this interpretation may
exclude veterans of previous conflicts such as Gulf War veterans, as
well as certain veterans of the War in Afghanistan and Operation Iraqi
Freedom. Id. The proposal also indicated that an eligible employee must
commence leave to care for a covered veteran within five years of the
veteran's active duty service, but noted the single 12-month period
described in proposed paragraph (e)(1) may extend beyond the five-year
period. As explained in the NPRM, the Department proposed to measure
the five-year period from the date the employee first takes leave to
care for the veteran, and to permit an employee to continue leave begun
within the five-year period until the end of the applicable single 12-
month period. Id. Thus, if the leave commences within the five-year
period, the employee may continue leave for the applicable single 12-
month period even if it extends beyond the five-year period.
The Department received several comments on this definition. SHRM
commented that the definition failed to include the requirement that
the veteran was a member of the Armed Forces (including a member of the
National Guard or Reserves) that is part of the statutory definition at
29 U.S.C. 2611(15)(B). The Department had not included this phrase in
the proposed definition because the Department's understanding was that
all veterans were, by definition, members of the Armed Forces, and
therefore the Department believed that the inclusion of such language
was unnecessary. While this is still the Department's understanding, in
the interest of clarity, the Department modifies Sec. 825.127(b)(2),
as well as the corresponding definitions in Sec. Sec. 825.102 and
825.122, in the Final Rule to incorporate this statutory language.
The majority of the comments on this section were directed at the
Department's interpretation of the five-year period. The Partnership
and Twiga supported the Department's interpretation that an employee
who begins taking military caregiver leave during the five-year period
will be permitted to continue taking such leave after the five-year
period has expired.
[[Page 8848]]
Similarly, the North Carolina Justice Center approved of the
interpretation of the five-year period for veterans. Both the
Partnership and the North Carolina Justice Center noted, however, that
some veterans who would have been covered veterans under this
interpretation of the five-year period when the FY 2010 NDAA was
enacted on October 28, 2009 will have been discharged for more than
five years when these regulations become effective and, therefore, will
no longer be covered veterans for whom an employee may take military
caregiver leave. They urged the Department to provide for a special
exception for the calculation of the five-year period for such veterans
who have qualifying injuries or illnesses so that their family members
will be able to take caregiver leave to care for them. The Consortium
for Citizens with Disabilities (CCD) recognized that the five-year time
period is statutorily determined, but asked that the Department adopt
as broad a definition as possible. Senators Harkin and Murray suggested
that the time period between the date the law was enacted (October 28,
2009) and the effective date of these regulations should not count in
the five-year window. They provided an example of a scenario in which a
servicemember became a veteran on July 1, 2010 and the Department's
final regulations become effective on July 1, 2012--they asserted that
this servicemember's family should be eligible to take military
caregiver leave until June 30, 2017 rather than until June 30, 2015.
While the Department has taken and continues to take the position
that the military caregiver leave provision to care for veterans is not
effective until the effective date of this Final Rule, the Department
acknowledges that the time in which family members of veterans can take
military caregiver leave to care for veterans who were discharged or
released between October 28, 2009 and the effective date of this Final
Rule has been diminished. The comments highlighted that there are
veterans whose five-year period will have expired between October 28,
2009 and the effective date of this Final Rule but who will still have
serious injuries or illnesses and will still need caregiving from
family members when this Final Rule becomes effective. The comments
likewise highlighted that there are servicemembers who will have become
veterans between October 28, 2009 and the effective date of this Final
Rule and who will have a shortened period remaining in their five-year
window during which they may receive needed caregiving from family
members for a serious injury or illness when this Final Rule becomes
effective. Similarly, there may be servicemembers who became or will
become veterans between October 28, 2009 and the effective date of this
Final Rule and who will manifest a serious injury or illness that was
incurred or aggravated in the line of duty and will need caregiving
from family members for longer than the shortened period remaining in
their five-year window when this Final Rule becomes effective.
Therefore, after further consideration, the Department believes that it
would not be consistent with congressional intent to deprive the family
members of such veterans the complete amount of time that the family
members would have had to take military caregiver leave to care for
those servicemembers who became veterans between October 28, 2009 (the
date the FY 2010 NDAA was enacted) and the effective date of this Final
Rule. Therefore, the Department has modified Sec. 825.127(b)(2) in the
Final Rule to provide for a special method of calculating the five-year
period for this subset of veterans: for an individual who was a member
of the Armed Forces (including a member of the National Guard or
Reserves) and who was discharged or released under conditions other
than dishonorable prior to the effective date of this Final Rule, the
period between October 28, 2009 and the effective date of this Final
Rule shall not count towards the determination of the five-year period
for covered veteran status. This will protect the military caregiver
leave entitlement for the family members of veterans whose five-year
period either expired or was diminished between October 28, 2009 and
the effective date of this Final Rule. Thus, for a veteran whose five-
year period expired between October 28, 2009 and the effective date of
this Final Rule, the five-year period will be extended by the amount of
time that the veteran would have had if the provision had been
effective on October 28, 2009. For example, if, on October 28, 2009, a
veteran had one year remaining before the expiration of the five-year
period (i.e., the veteran was honorably discharged from the military on
October 28, 2005), the veteran's family member would have one year from
the effective date of this Final Rule during which he or she could, if
all other conditions were met, commence taking military caregiver
leave. Similarly, as suggested by Senators Harkin and Murray, for a
servicemember who became a veteran between October 28, 2009 and the
effective date of this Final Rule, the five-year period will be
extended by the amount of time between the veteran's date of discharge
and the effective date of this Final Rule. For example, if a
servicemember became a veteran two years before the date this Final
Rule becomes effective, the two years that elapsed between that date of
discharge and the effective date of this Final Rule would be excluded
from the calculation of the period in which the veteran's family
members could begin taking FMLA military caregiver leave. In such a
situation, two years would be added to the amount of time that the
veteran has remaining in his or her five-year window as of the date
that this Final Rule becomes effective. In all instances of military
caregiver leave, regardless of how the five-year period is calculated,
the veteran must have a qualifying serious injury or illness on the
date the family member seeks to take military caregiver leave. In
addition, this special provision for the subset of veterans described
above does not change the character of any leave to care for a veteran
that was voluntarily provided by an employer before the effective date
of this Final Rule and that was not otherwise qualified as FMLA-
protected leave. As discussed earlier in this preamble, if such leave
was provided before the effective date of this Final Rule, the leave is
not FMLA-protected leave and does not count against an employee's FMLA
entitlement.
The Department proposed in Sec. 825.127(c) to define a serious
injury or illness for both current members of the Armed Forces and
covered veterans. Proposed Sec. 825.127(c)(1) incorporated the
definition of a serious injury or illness for a current servicemember
from current Sec. 825.127(a)(1), and expanded the definition pursuant
to the FY 2010 NDAA amendments to include an illness or injury that
existed prior to the member's active duty and was aggravated by service
in the line of duty on active duty.
As the Department explained in the NPRM, for both current members
of the Armed Forces and covered veterans, a serious injury or illness
that existed before the beginning of the servicemember's active duty
and was aggravated by service in the line of duty on active duty
includes both conditions that were noted at the time of entrance into
active service and conditions that the military was unaware of at the
time of entrance into active service but that are later determined to
have existed at that time. 77 FR 8967. A preexisting injury or illness
would generally be considered to have been aggravated by service in the
line of duty on active duty where there is an increase in the
[[Page 8849]]
severity of such injury or illness during service, unless there is a
specific finding that the increase in severity is due to the natural
progression of the injury or illness. As stated in the NPRM, it was the
Department's understanding that individuals will not be accepted for
military service in the Regular or Reserve components unless they are:
(1) Free of contagious diseases that probably will endanger the health
of other personnel; (2) free of medical conditions or physical defects
that may require excessive time lost from duty for necessary treatment
or hospitalization, or probably will result in separation for medical
unfitness; (3) medically capable of satisfactorily completing required
training; (4) medically adaptable to the military environment without
the necessity of geographical area limitations; and (5) medically
capable of performing duties without aggravation of existing physical
defects or medical conditions. 77 FR 8967. In light of these standards,
the Department sought comments, particularly from military members and
their families, concerning types of injuries or illnesses that may
exist prior to service and be aggravated in the line of duty on active
duty to such an extent as to render the servicemember unable to perform
the duties of the member's office, grade, rank, or rating. The
Department did not receive any comments in response.
The Department received two comments that addressed proposed Sec.
825.127(c)(1) more generally. Senators Harkin and Murray and the CCD
suggested that the Department consider participation in or meeting the
eligibility requirements of the Department of Defense Special
Compensation for Assistance with Activities of Daily Living (SCAADL)
caregiver program as a method to establish the current servicemember's
serious injury or illness. The SCAADL program was authorized by the FY
2010 NDAA and implemented by the Department of Defense in August 2011.
See Public Law 111-84 and Department of Defense Instruction 1341.12.
The SCAADL program provides compensation to an eligible member of the
active or Reserve components of the military who has a permanent
catastrophic injury or illness that was incurred or aggravated in the
line of duty. The compensation is intended to offset the economic
burden borne by the servicemember's primary caregiver in providing such
caregiving. The criteria for participation in the SCAADL program
includes, in relevant part, certification by a licensed DOD or VA
physician that the servicemember has a permanent catastrophic injury or
illness and is in need of assistance from another person to perform the
personal functions required in everyday living and that, in the absence
of the provision of such assistance, the servicemember would require
hospitalization, nursing home care, or other residential institutional
care. 37 U.S.C. 439. The Department notes that the definition of
serious injury or illness for a current servicemember in Sec.
825.127(c)(1) reflects the statutory definition of the term. While the
Department does not believe that it would be appropriate to add
participation in the SCAADL program as a second definition for serious
injury or illness of a current servicemember, it does believe that a
current servicemember enrolled in the program may meet the requirement
of suffering a serious injury or illness that renders the servicemember
unable to perform the duties of his or her office, grade, rank, or
rating. As discussed in more detail in the discussion of Sec. 825.310
below, private health care providers may consider documentation
produced by the DOD, such as DD Form 2948, in assessing whether the
current servicemember has a serious injury or illness that may render
him or her medically unfit to perform the duties of his or her office,
grade, rank, or rating.
The FY 2010 NDAA requires the Department to define a qualifying
serious injury or illness for a veteran. Proposed Sec. 825.127(c)(2)
defined serious injury or illness for a covered veteran as an injury or
illness that was incurred in the line of duty on active duty or existed
before the beginning of active duty and was aggravated by service in
the line of duty on active duty and manifested before or after the
member became a veteran and satisfied one of three alternate
definitions set out in paragraphs (c)(2)(i), (c)(2)(ii), and
(c)(2)(iii). With these three proposed definitions, the Department
intended for there to be parity between the definition of a serious
injury or illness of a covered veteran and the statutory definition of
a serious injury or illness of a current servicemember. Because a
veteran no longer has a military office, grade, rank, or rating and may
participate in the civilian workforce, the standard for a serious
injury or illness for current members of the Armed Forces cannot be
directly applied to veterans. The three alternative definitions set out
in the proposal at (c)(2)(i), (ii), and (iii) were intended to achieve
this parity. As discussed later, the Department also requested comment
on adding enrollment in the Department of Veterans Affairs (VA) Program
of Comprehensive Assistance for Family Caregivers as a possible fourth
definition for establishing a qualifying serious injury or illness of a
covered veteran, and sought comment from veterans and caregivers on
whether inclusion of this program would be helpful. 77 FR 8969.
Proposed Sec. 825.127(c)(2)(i) defined a serious injury or illness
of a covered veteran as a serious injury or illness of a current
servicemember, as defined in proposed Sec. 825.127(c)(1), that
continues after the servicemember becomes a veteran. Thus, if a veteran
suffered a serious injury or illness when he or she was a current
member of the Armed Forces and that same injury or illness continues
after the member leaves the Armed Forces and becomes a veteran, the
injury or illness will continue to qualify as a serious injury or
illness warranting military caregiver leave. As stated in the NPRM, the
Department believes that allowing qualifying family members to take
leave to care for covered veterans who continue to suffer from these
serious injuries or illnesses is consistent with congressional intent,
as evidenced by the extension of military caregiver leave provisions
for veterans for a defined five-year period. 77 FR 8967. Senators
Harkin and Murray submitted the only comment on this definition, and
stated that the definition is clear and understandable. The Final Rule
incorporates this definition as proposed.
Proposed Sec. 825.127(c)(2)(ii) defined a serious injury or
illness for a covered veteran as a physical or mental condition for
which the covered veteran has received a VA Service Related Disability
Rating (VASRD) of 50 percent or greater, and the VASRD rating is based,
in whole or part, on the condition for which the caregiver leave is
needed. As discussed in the NPRM, the Department considered proposing a
VASRD rating of 60 percent, which is equal to the level at which the
veteran is considered ``totally disabled'', meaning that the veteran is
unable to secure or follow a substantially gainful occupation by reason
of a service-connected disability under the VA regulations. 77 FR 8968;
see 38 CFR 4.16. The Department was concerned, however, that veterans
may suffer from injuries and illnesses that do not result in a total
disability under the VASRD rating system, but which should qualify as a
serious injury or illness for military caregiver leave. The Department
also considered proposing a VASRD rating at a level less than 50
percent, but determined that a lower threshold might capture injuries
and illnesses that Congress did not intend to qualify as
[[Page 8850]]
serious injuries or illnesses for which employees would be entitled to
26 workweeks of FMLA leave. In addition, the Department believed that a
single threshold of an overall VASRD rating of 50 percent (based on a
single or multiple disabilities) was more appropriate to establish a
serious injury or illness for a covered veteran than the two-tiered
test used under VASRD determining total disability based on multiple
conditions. The Department sought comments on all aspects of this
proposed definition.
Several comments were received with respect to the second proposed
definition of a qualifying serious injury or illness for a veteran set
out in Sec. 825.127(c)(2)(ii). Senators Harkin and Murray stated that
the proposed 50 percent VASRD rating threshold is sufficient so long as
there are other avenues for the veteran to qualify as having a serious
injury or illness. The Partnership expressed concern that the 50
percent VASRD rating may not capture certain serious injuries and
illnesses. The Partnership pointed to traumatic brain injuries and post
traumatic stress disorder and suggested that these conditions may not
be captured by the 50 percent threshold. An individual commenter
expressed a similar concern regarding post traumatic stress disorder.
The CCD noted that while a 50 percent VASRD rating is likely to capture
the most significantly disabled veterans, a number of arguably serious
conditions may not be rated at a level of 50 percent or greater, and
cited a number of conditions that it asserted should be covered but
that might not be rated at a level of 50 percent or greater. Legal Aid
commented that the Department's decision to pick a certain VASRD rating
rather than allowing for the more fact-specific inquiry allowed for
under the definition of serious health condition seemed unnecessarily
rigid.
The Department has considered the comments, and continues to
believe that a VASRD rating of 50 percent or greater is most reflective
of congressional intent and is the rating at which injuries or
illnesses are on par with a serious injury or illness of a current
servicemember. In proposing a threshold of 50 percent, the Department
was attempting to ensure that disabilities or conditions that may
render the veteran substantially unable to work were captured, so as to
achieve parity with the definition of serious injury or illness for a
current servicemember. At the same time, the Department was attempting
to ensure that the threshold was great enough to preclude injuries or
illnesses that Congress did not intend to include in the definition of
a serious injury or illness. The Department's review indicates that a
VASRD disability rating of 50 percent or greater encompasses
disabilities or conditions such as amputations, severe burns, post
traumatic stress disorder, and severe traumatic brain injuries. While
these and other injuries and illnesses may not result in a total
disability under the VASRD rating system, the Department believes that
such conditions should qualify as a serious injury or illness for
military caregiver leave. Similarly, as noted in the NPRM, the
Department believes that a VASRD rating below 50 percent would fail to
reach the level of severity intended by Congress. 77 FR 8968. The
commenters who addressed this proposed definition did not suggest an
alternative VASRD rating that would better capture conditions that
should be considered a serious injury or illness. Therefore, in order
to achieve parity with the standard of a serious injury or illness for
a current member of the Armed Forces, the Department concludes that a
VASRD rating of 50 percent or greater is appropriate and most closely
approximates a condition that substantially impairs a veteran's ability
to work.
The Department is cognizant of the commenters' concern that many
veterans who will have a need for care arising out of an injury or
illness related to military service may not have received a VASRD
rating. The Department reiterates its intent that the VASRD rating be
only one alternative for establishing a qualifying serious injury or
illness of a covered veteran. In instances where the servicemember has
not yet received a VASRD rating, family members will still be able to
take leave if the veteran's condition is such that it constitutes a
serious illness or injury in accordance with any one of the other
definitions set forth in Sec. 825.127(c)(2). Therefore, the Department
adopts proposed Sec. 825.127(c)(2)(ii) without modification in the
Final Rule.
The Department proposed a third definition of serious injury or
illness for a covered veteran in Sec. 827.127(c)(2)(iii) as a physical
or mental condition that substantially impairs the veteran's ability to
secure or follow a substantially gainful occupation by reason of a
service-connected disability or would do so absent treatment. 77 FR
8968. This definition was intended to cover injuries and illnesses that
are similar in severity to the injuries and illnesses qualifying under
the proposed definitions in (c)(2)(i) and (ii), but for which the
veteran did not obtain certification as a serious injury or illness
when he or she was a current member of the military or had not received
a VASRD rating. In addition, the Department intended by this definition
to cover veterans who may need a family member to provide care for
injuries or illnesses that, absent treatment, would substantially
impair the veteran's ability to secure or follow a substantially
gainful occupation. 77 FR 8968. The Department explained that it
expected that, when making determinations of a serious injury or
illness under this proposed definition, health care providers would do
so in the same way they make similar determinations for Social Security
Disability and Workers' Compensation claims. Id. at 8969.
The Department sought comment specifically on whether this proposed
definition would be effective at capturing the serious injuries or
illnesses that covered veterans suffer for which caregiving is needed
by qualifying family members and which would not be covered under the
first two proposed definitions in paragraphs (c)(2)(i) and (c)(2)(ii).
The Department also sought comment on the ability of health care
providers to certify a serious injury or illness for a covered veteran
and the ability of employers to administer leave associated with a
serious injury or illness for a covered veteran under this proposed
definition. Finally, the Department sought comment on the types of
injuries and illnesses that typically manifest after the servicemember
becomes a veteran, whether a family member is needed to care for the
veteran for such injuries or illnesses, and, if so, whether the
proposed definition would cover such situations.
The Department received numerous comments on this proposed third
definition. The CCD generally supported this proposal (with specific
exceptions discussed below) given the length of time it may take to
receive a VASRD rating. Several commenters addressed the part of the
definition that requires the injury or illness to substantially impair
the veteran's ability to work or would do so absent treatment. SHRM
asked that the Department provide further guidance on the terms in the
definition. Legal Aid, Senators Harkin and Murray, and the Partnership
similarly expressed concern that this definition contained undefined
terms, which could cause confusion among military families or medical
professionals unfamiliar with this language. Twiga and an individual
commenter expressed support for the Department's recognition that a
veteran may be able to work while also needing assistance performing
other daily
[[Page 8851]]
activities. However, Aon Hewitt inquired why a family member would
still need FMLA leave if the veteran is able to work. This commenter
believed that this provision would lead to increased abuse of FMLA
leave. Senators Harkin and Murray expressed concern that the focus on a
veteran's ability to work might provide a disincentive for the veteran
to pursue employment. The Senators further asserted, along with the
Partnership, that making a family member's ability to take military
caregiver leave dependant on the veteran's inability to work imposes a
more stringent standard for leave to care for veterans with a serious
injury or illness than for non-veterans with a serious health
condition. These commenters recommended that the Department permit
military caregiver leave for family members of covered veterans who
have a serious health condition that was caused or aggravated in the
line of duty on active duty. In contrast, the CCD stated that while the
Department does not use a substantially gainful work standard for
others to qualify for leave related to a serious health condition, it
understood that the Department was attempting to set a higher standard
for the enhanced leave provision for family members of veterans. In
keeping with this standard, the CCD suggested that using the standard
for Social Security Disability Insurance (SSDI) for a healthcare
provider to determine if the injury or illness renders the veteran
substantially limited in the ability to work because many veterans with
significant service-connected disabilities receive an official
determination of SSDI before obtaining a VASRD rating. The commenter
suggested that an SSDI determination should qualify a covered veteran
under this section along with a medical opinion that the injury or
illness is at least related to military service. At the same time, the
commenter expressed concern that reliance on an SSDI or Workers'
Compensation standard could be unnecessarily restrictive. The CCD
suggested that the Department include as an alternative definition the
veteran's inability to perform a number of activities of daily living.
Senators Harkin and Murray similarly suggested as another option a
definition based on a veteran's inability to perform a number of
activities of daily living and instrumental activities of daily living.
Legal Aid asserted that the Department's statement that private health
care providers can make determinations of serious injuries or illnesses
in the same way they make similar determinations for Social Security
Disability and Workers' Compensation claims is unnecessarily
complicated as not all private healthcare providers make these types of
determinations and Workers' Compensation standards vary by state. This
commenter requested that this standard be removed, or if it is
retained, that the Department provide more guidance. Lastly, the CCD
and Senators Harkin and Murray suggested that the Department remove the
term service-connected disability and replace it with a disability that
is related to military service or a disability or disabilities eligible
for service connection because only the VA can officially determine
whether a disability is service-connected.
After carefully considering these comments, the Department has
decided to retain the proposed definition in Sec. 825.127(c)(2)(iii)
with one modification. In response to comments that only the VA can
determine if a disability is connected to the individual's military
service, the Department has removed the term service-connected
disability or disabilities and replaced it with the term a disability
or disabilities related to military service in the Final Rule. This
change is made to avoid any confusion as to whether a determination of
service connection from the VA is required for this definition; the
Department does not view this as a substantive change as the FY 2010
NDAA clearly requires that a covered veteran's serious injury or
illness have been incurred or aggravated in the line of duty on active
duty. As the Department stated in the NPRM, a certification of serious
injury or illness under this definition serves only to establish that
the veteran has a condition that entitles his or her family member to
military caregiver leave under the FMLA. 77 FR 8969. Such a
determination provides no basis for a determination of status, rights,
or benefits for the VA or other agencies. The VA is the sole agency
qualified to make any service-connected rating determination for
purposes of VA-related rights or benefits. The Department believes that
the modified phrasing in the Final Rule will prevent possible confusion
on this issue.
In response to the comments by the Partnership and Senators Harkin
and Murray that this definition links the ability of an employee to
take military caregiver leave to the veteran's inability to work, the
Department emphasizes that the definition includes a physical or mental
condition that would substantially impair a veteran's ability to work
absent treatment, and therefore does not preclude coverage of veterans
who are employed. The comments illustrate that further clarification of
this standard is needed. This definition would cover, for example, a
covered veteran with post traumatic stress disorder who is receiving
medical treatment and is able to work, but would not be able to do so
without treatment, and who needs care from an employee-family member
because of this treatment. Thus, this definition recognizes that while
a veteran may be able to work, he or she may have a continuing need for
treatment for his or her military related injury or illness that, if
not treated, would substantially impair his or her ability to secure or
follow a gainful occupation. It is the Department's position that in
such scenarios, the veteran's family member would be entitled to FMLA
caregiver leave to provide care for the veteran, such as driving the
veteran to medical appointments or assisting the veteran with basic
medical needs. See Sec. 825.124(a). The Department fully supports the
goal of returning veterans to the workforce, and does not believe that
this definition will undermine that goal.
In addition, in response to the comments urging the Department to
adopt the serious health condition standard as the definition of a
serious injury or illness of a veteran, the Department notes that an
eligible family member is entitled to take 26 workweeks of leave in a
single 12-month period under the FMLA military caregiver leave
provision. See 29 U.S.C. 2612(a)(3). As the CCD correctly noted, this
is an enhanced leave entitlement, as traditional FMLA only allows 12
workweeks of leave for an eligible employee. When Congress passed the
FY 2008 NDAA first creating this enhanced leave provision, it defined a
serious injury or illness of a current servicemember as an injury or
illness that was incurred by the covered servicemember in the line of
duty on active duty in the Armed Forces, and that may render the member
medically unfit to perform the duties of the member's office, grade,
rank, or rating. Public Law 110-181. Congress did not use the existing
statutory standard of serious health condition as defined in 29 U.S.C.
2611(11) as the basis for the military caregiver leave entitlement.
When Congress passed the FY 2010 NDAA, it required the Secretary to
define a serious injury or illness of a covered veteran. Public Law
111-84. Again, Congress did not use the statutory standard of serious
health condition as the basis of the entitlement. Because Congress
expressly added a new standard for military caregiver
[[Page 8852]]
leave for both current servicemembers and covered veterans instead of
referencing the existing serious health condition standard, the
Department's intent in defining serious injury or illness of a covered
veteran was to achieve parity between the definitions of a serious
injury or illness for current servicemembers and for covered veterans
for this enhanced leave entitlement. As the definition of a serious
injury or illness for a current servicemember is linked to the
servicemember's inability to perform the duties of his or her office,
grade, rank, or rating, and in light of the fact that veterans no
longer have an office, grade, rank, or rating to perform, the
Department proposed a definition that would link the veteran's injury
or illness to a condition that substantially impairs the veteran's
ability to secure or maintain a gainful occupation or would do so
absent treatment. For these reasons, the Department does not believe it
would be appropriate to define a serious injury or illness of a covered
veteran as a serious health condition. The Department notes that where
a veteran's injury or illness is not a serious injury or illness as
defined in this Final Rule, the veteran's family members would still be
able to take FMLA leave to care for the veteran if the condition is a
serious health condition and the other requirements for FMLA leave are
met.
While the Department acknowledges the comments that some of the
terms used in this definition are new to the FMLA, the Department
believes that health care providers will be able to make the
determination of whether an injury or illness substantially impairs the
veteran's ability to secure or follow a substantially gainful
occupation or would do so absent treatment. The Department declines to
further define these terms at this time, as it believes that such
determinations will be a fact-specific inquiry that the health care
provider will make based on his or her skills, expertise, and
experience. As the Department noted in the NPRM, health care providers
are currently called upon to make determinations about an individual's
ability to work for Social Security and Workers' Compensation claims,
and the Department believes that a health care provider can make
similar determinations for FMLA requests for military caregiver leave
as well. 77 FR 8969. In response to Legal Aid's comment regarding
Social Security Disability and Worker's Compensation, the Department
clarifies that it did not propose that private health care providers
use the established standards for Social Security Disability or
Worker's Compensation evaluations for making serious injury or illness
determinations under the proposed definition at Sec.
825.127(c)(2)(iii). Rather, the Department was attempting to illustrate
that health care providers already make similar types of determinations
regarding an individual's ability to work, and therefore, the
Department expects that they have the experience and expertise
permitting them to do so for military caregiver leave
certifications.\2\
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\2\ As discussed in Sec. 825.310, when an employee obtains a
certification for military caregiver leave from a private health
care provider that is not affiliated with DOD, VA, or TRICARE, if
the employer has reason to doubt the validity of the certification,
he or she may require the employee to obtain a second (or third
opinion) at the employer's expense. See Sec. Sec. 825.310(d);
825.307(b), (c).
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Lastly, the Department has decided not to adopt the CCD's
recommendation to use SSDI determinations as another means of
establishing a serious injury or illness. It is the Department's
understanding that the criteria upon which SSDI determinations are
based are distinct from the criteria upon which VASRD ratings are
based. In light of the fact that the definition in proposed Sec.
825.127(c)(2)(iii) was intended to mirror a 50 percent or greater VASRD
rating, relying on a SSDI determination would not necessarily be an
equivalent standard. The Department is concerned that if it were to use
SSDI determinations to establish a qualifying serious injury or illness
of a covered veteran, parity may not be achieved due to the different
criteria on which SSDI determinations are based. Moreover, the SSDI
determination does not address whether the veteran's injury or illness
was incurred or aggravated in the line of duty on active duty. However,
the Department believes that if a servicemember has an SSDI
determination, a private health care provider may consider the
determination in assessing whether a veteran has a qualifying serious
injury or illness.
In addition to the three definitions that the Department proposed
in the NPRM, the Department also discussed the VA's Program of
Comprehensive Assistance for Family Caregivers (see Caregivers and
Veterans Omnibus Health Services Act of 2010, Public Law 111-163; 38
CFR Part 71) as another possible means through which the severity of a
veteran's injury or illness may be assessed. 77 FR 8969. This program
is designed to provide health care, travel, training, and financial
benefits to certain eligible caregivers of veterans who are eligible
for the program. In general, a veteran or servicemember undergoing
medical discharge from the Armed Forces is eligible for VA's Program of
Comprehensive Assistance for Family Caregivers if the individual has
incurred or aggravated a serious injury (including traumatic brain
injuries, psychological trauma, or other mental disorders) in the line
of duty on or after September 11, 2001; the serious injury renders the
individual in need of a minimum of six continuous months of personal
care services based on a variety of clinical criteria listed under 38
CFR 71.20 (c)(1)-(4); and it is in the best interest of the individual
to participate in the program. See 38 CFR 71.20. According to the VA,
there are approximately 4,600 participants enrolled in the program, and
80 percent of these participants have a VASRD rating of 50 percent or
greater. Based on the eligibility requirements for VA's Program of
Comprehensive Assistance for Family Caregivers, the Department believed
that most veterans who qualify for the program meet the requirement of
having a serious injury or illness as defined in this proposal. The
Department invited comment on whether adding enrollment in the VA's
program as a fourth alternative to the definition of a serious injury
or illness of a covered veteran would be appropriate and would reduce
the burden placed on military and veterans' families in seeking FMLA
leave.
In response to the Department's inquiry, the CCD, Senators Harkin
and Murray, and the Coalition submitted comments in support of making
enrollment in the VA's Program of Comprehensive Assistance for Family
Caregivers part of the definition of serious injury or illness of a
veteran. Additionally, the CCD and Senators Harkin and Murray wrote
that the Department should also consider a veteran's eligibility for
the program as part of the definition for a serious injury or illness
even if the veteran is not enrolled. The Department did not receive any
responses that expressed opposition to this possible fourth definition.
Therefore, in the Final Rule at Sec. 825.127(c)(2)(iv), the Department
adopts a fourth definition of a serious injury or illness for a
veteran: an injury, including a psychological injury, on the basis of
which the covered veteran has been enrolled in the Department of
Veterans Affairs Program of Comprehensive Assistance for Family
Caregivers will be a qualifying serious injury or illness for military
caregiver
[[Page 8853]]
leave for a covered veteran. Only actual enrollment by covered veterans
in this program will be considered as establishing a qualifying serious
injury or illness under this definition. The employee seeking military
caregiver leave under this definition does not, however, have to be the
designated caregiver for the veteran under the VA's Program of
Comprehensive Assistance for Family Caregivers. As with the three other
definitions in paragraphs (c)(2)(i) to (iii), enrollment in VA's
Program of Comprehensive Assistance for Family Caregivers establishes
only that the veteran has a serious injury or illness, and does not
mean that the employee is automatically entitled to take FMLA leave.
The employee seeking to take FMLA military caregiver leave must qualify
as a family member and meet the other eligibility criteria under the
FMLA, and the veteran must meet the definition of a covered veteran in
Sec. 825.127(b)(2). The Department notes that the VA's Program of
Comprehensive Assistance for Family Caregivers is open to veterans who
were injured on or after September 11, 2001, while FMLA military
caregiver leave requires that a veteran have been discharged within
five years of the employee's requested leave.
The Department proposed to move the paragraph defining the family
members qualified to take military caregiver leave currently in
paragraph (b) to paragraph (d) (the numbering of the subparagraphs did
not change). No substantive changes were proposed for this paragraph.
The Department received several comments, including those submitted by
Legal Aid and the North Carolina Justice Center on the definition of
next of kin of a covered servicemember that appears in proposed Sec.
825.127(d)(3) urging the Department to expand the definition beyond
blood relatives. Two commenters, the Family Equality Council and the
Partnership, noted that the repeal of the military's ``Don't Ask, Don't
Tell'' policy means that gay and lesbian servicemembers may now serve
openly in the military and that these servicemembers would undoubtedly
prefer to be cared for by their same-sex partners or spouses. These
commenters suggested that, because the Defense of Marriage Act prevents
same-sex couples from being considered spouses for purposes of the
FMLA, the Department should expand the definition of next of kin of a
covered servicemember to include domestic partners. On a similar note,
Twiga stated that Congress intended to provide greater flexibility for
military caregiver leave to account for servicemembers relying on care
from people other than spouses, parents, or children. According to
Twiga, the requirement of consanguinity is outdated because kinship is
predicated on broader relationships, including partners and in-laws.
This commenter also asserted that the definition would leave adopted
servicemembers, who have no literal blood relatives, with no next of
kin. It urged the Department to interpret the statute's blood relative
requirement to include caretakers with legal relationships or other
family members. Additionally, Twiga suggested that, in the special
circumstance of a servicemember who is at risk of suicide, fellow
servicemembers of that servicemember should be included in the
definition of next of kin of a covered servicemember. Lastly, this
commenter suggested that the definition take into account the
availability of a particular caregiver and, where the next of kin is
not available to provide caregiving, the next of kin of a covered
servicemember definition should default to a relative who is close in
terms of personal relationship and is available.
The Department cannot modify the definition as requested because
the Department is constrained by the statutory definition of next of
kin in the FMLA. The statute defines next of kin as ``the nearest blood
relative.'' 29 U.S.C. 2611(17). Based on this statutory definition, the
Department defined next of kin of a covered servicemember in the 2008
Final Rule as the nearest blood relative other than the covered
servicemember's spouse, parent, son, or daughter and then provided the
order of priority of blood relatives: those who have been granted legal
custody; brothers and sisters; grandparents; aunts and uncles; and
first cousins. 73 FR 67967-68. In addition, as an alternative to this
hierarchy of consanguinity, the 2008 Final Rule provided for the
servicemember to designate in writing another blood relative as the
nearest blood relative. Id. Thus, the 2008 Final Rule adhered to the
consanguinity (i.e., blood relationship) element of the statutory
definition even in interpreting ``nearest'' broadly to be based on
closeness of personal relationship as an alternative to closest in
consanguinity. 73 FR 67968. While a spouse is not a blood relative, the
inclusion of spouse among the relatives excluded from the definition of
next of kin of a covered servicemember was intended to make clear that
the next of kin was an additional family member beyond the covered
servicemember's spouse, parents, and children; it was not intended to
suggest that the next of kin could be someone unrelated by blood. Given
the specific language used in the statutory definition of next of kin
(i.e., ``blood relative''), there is no basis to include same-sex
partners or spouses, or fellow servicemembers, in the definition of
next of kin of a covered servicemember. In response to Twiga's concern
regarding adopted servicemembers, the Department notes that adoption
creates a parent-child relationship between the adopted child and the
adoptive parents with all the rights, privileges and responsibilities
that attach to that relationship. See Black's Law Dictionary (9th ed.
2009). Therefore, for purposes of military caregiver leave and the
definition of next of kin of a covered servicemember, adoption has the
legal effect of establishing the same consanguineous relationships with
family members that a non-adopted child has to that child's family
members. Lastly, the Department notes that in the 2008 Final Rule, it
considered but rejected the notion of incorporating a ``willing and
able'' concept into the definition because of the anticipated
difficulty in proving and verifying the relative's willingness and
ability to provide care. 73 FR 67967.
The Department also received two comments, from Senators Harkin and
Murray and the CCD, requesting that the Department clarify that each
caregiver who takes care of a covered servicemember is able to take the
full 26 weeks of leave individually, including situations when multiple
employees need leave simultaneously to care for a single covered
servicemember. In response to these comments, the Department notes that
the military caregiver leave entitlement belongs to the employee-family
member of the covered servicemember. Therefore, other than situations
when spouses are employed by the same employer, each employee family
member who is entitled to take up to 26 workweeks of military caregiver
leave in a single 12-month period can do so independently of whether
other caregivers are also taking leave to care for that same covered
servicemember. As stated in Sec. 825.124(b), ``[t]he employee may need
not be the only individual or family member available to care for the
family member or the covered servicemember.'' The Department does not
believe that further clarification is necessary. Therefore, the
Department adopts paragraph (d) in the Final Rule without modification.
The Department proposed to move the paragraph explaining the single
12-month period currently in paragraph (c) to paragraph (e) (the
numbering of the subparagraphs did not change). No substantive changes
were proposed for
[[Page 8854]]
this paragraph. The Department explained in the NPRM that, because the
FY 2010 NDAA establishes two distinct categories of covered
servicemembers (i.e., a current member of the Armed Forces and a
covered veteran) and because military caregiver leave is applied on a
per-covered servicemember per-injury basis, an eligible employee could
potentially take military caregiver leave to care for a covered
servicemember who is a current member of the Armed Forces and then, at
a later point when the same servicemember becomes a covered veteran,
could take a subsequent period of military caregiver leave based on the
same injury or illness. 77 FR 8969. The Department noted, however, that
all of the normal eligibility requirements, such as the hours of
service requirement, would apply in such a situation, and that an
employee may not take more than a combined total of 26 workweeks of
FMLA leave during a single 12-month period. Id. The Department sought
comment on this interpretation of the single 12-month period
limitation.
Two commenters addressed the Department's interpretation of the
single 12-month period. Legal Aid approved of the Department's
interpretation that employees may take leave for the same servicemember
when he or she is a current member of the Armed Forces and again when
he or she is a veteran. An individual expressed concern about this
interpretation of the single 12-month period, however. She stated that,
as she understood the proposed interpretation, it would permit an
employee to use two consecutive periods of 26 workweeks of leave (one
26 workweek period to care for a current servicemember, another 26
workweek period to care for a veteran), resulting in 52 consecutive
workweeks of leave for an employee. In response to this comment, the
Department reiterates that all of the normal eligibility requirements
apply. The employee in this commenter's scenario would likely not meet
the hours of service requirement in the preceding 12 months if that
employee had just taken 26 workweeks of leave to care for a current
servicemember. Additionally, an employee may not take more than a
combined 26 workweeks of FMLA leave during a single 12-month period.
The Department adopts paragraph (e) in the Final Rule without
modification.
4. Section 825.309 Certification Requirements for Leave Taken Because
of a Qualifying Exigency
Section 825.309 sets forth the certification process and the
elements of a complete certification for qualifying exigency leave.
Consistent with the proposed changes in Sec. 825.126, the Department
proposed in Sec. 825.309 to substitute covered active duty for active
duty and military member or member for covered military member wherever
it appears in this section. The Department proposed to delete the
phrase in support of a contingency operation from current Sec.
825.309(a) to reflect the expansion of qualifying exigency leave to
family of members of the Regular Armed Forces and the fact that this
requirement does not apply to members of the Regular Armed Forces. The
proposal revised the regulatory language at Sec. 825.309(a) to make it
clear that new active duty orders or documentation do not automatically
need to be provided if the need for leave because of a qualifying
exigency arises out of a different covered active duty or call to
covered active duty status of the same or a different military member;
rather, in such situations, new active duty orders or documentation
need only be provided upon request by the employer. As noted in the
NPRM, the proposed change is consistent with the general certification
process, which provides that an employer may require certification upon
receiving an employee request for qualifying exigency leave. 77 FR
8970. Proposed Sec. 825.309(a) tracked Sec. 825.309(a) in permitting
an employee to use either a copy of the military member's active duty
orders or other documentation issued by the military to establish that
the military member is on covered active duty or call to covered active
duty status. However, the Department explained in the NPRM that it had
received information from employees and employers indicating that
family members have experienced difficulty obtaining copies of active
duty orders or that the available documentation is insufficient to
comply with current certification requirements. 77 FR 8970. The
Department therefore sought comment on whether active duty orders of
members of the Regular and Reserve components of the Armed Forces
contain sufficient information to determine that the covered active
duty involves deployment to a foreign country (and, in the case of the
Reserve components, that the deployment is in support of a contingency
operation), and, if not, what other documentation would meet the
certification requirements. The Department also sought comment on
whether employees have experienced difficulty in obtaining copies of
active duty orders or other military documents establishing their
family member's covered service, and whether employers have experienced
difficulty in confirming covered service. Id.
The Partnership and SHRM commented that employees have experienced
difficulty obtaining copies of active duty orders, particularly when
the servicemember is a member of the Regular Armed Forces. The Letter
Carriers reported that a member contacted DOD on behalf of an employee
and was unable to secure active duty orders, with DOD citing concern
for national security. The Letter Carriers suggested that the
determination of whether a military member meets the covered active
duty requirement should be left up to the military. They proposed that
a standardized certification form could be issued by the appropriate
branch of the military or that a section indicating that the military
member is on covered active duty, to be signed by the appropriate
military official, could be added to the Form WH-384 (FMLA
Certification of Qualifying Exigency for Military Family leave) or an
equivalent form without requiring that further, sensitive information
about the deployment be disclosed. Several commenters, including
Senators Harkin and Murray and the North Carolina Justice Center,
suggested the regulations should clarify that acceptable ``other
documentation'' permitted under the regulation includes official
military correspondence indicating a foreign deployment, such as a
letter from the military member's commanding officer.
The Department considered the commenters' concerns that employees
experience difficulties in obtaining the active duty orders for members
of the Regular Armed Forces. Several factors weigh against adding a new
section to the Form WH-384 or creating a separate certification form
that a military member could present to the appropriate member of the
military member's command to utilize for verification of covered active
duty. Obtaining an official signature, especially if the military
member is already deployed, would present logistical challenges.
Electronic document transmission may not be available at remote
deployment locations and postal delays could result in undue delay for
the eligible employee. Additionally, the information contained on the
Form WH-384 concerning the specific reason for qualifying exigency
leave may be personal and raise privacy issues for the employee or the
military member. The Department also considered creating an additional
form, but believes doing so
[[Page 8855]]
could be confusing for employees and administratively burdensome for
employers. However, the Department believes that official military
correspondence such as a letter from a superior officer in the military
member's chain of command will be sufficient to establish that the
military member is on covered active duty or under a call to covered
active duty and will fulfill the requirements of Sec. 825.309(a).
Therefore, the Department adopts proposed Sec. 825.309(a) in the Final
Rule without modification.
Current Sec. 825.309(b) addresses information that may be required
to support a request for qualifying exigency leave. Consistent with the
proposed changes to Sec. 825.126(b)(6), Rest and Recuperation
qualifying exigency leave, the Department proposed a new paragraph at
Sec. 825.309(b)(6) to permit an employer to request a copy of the
military member's Rest and Recuperation orders, or other documentation
issued by the military indicating that the military member has been
granted Rest and Recuperation leave, and the dates of the leave, in
order to determine the employee's specific qualifying exigency leave
period available for Rest and Recuperation. 77 FR 8970. No other
changes were proposed to Sec. 825.309(b). SHRM endorsed the
Department's proposal. Twiga suggested that the Department and the DOD
should agree on a certification form that is easy for a civilian
employer to use to verify that the employee's requested period of
qualifying exigency leave corresponds with the military member's
allotted Rest and Recuperation orders. It is the Department's
understanding that the military's Rest and Recuperation orders clearly
state the member's dates of leave, and will therefore be sufficient to
establish that the employee's requested period of qualifying exigency
leave corresponds with the military member's allotted Rest and
Recuperation leave. The Department does not believe that it is
necessary to create another certification form specific for Rest and
Recuperation qualifying exigency leave. Accordingly, the Department
adopts Sec. 825.309(b)(6) as proposed.
Current Sec. 825.309(c) identifies optional-use Form WH-384, which
may be used by an employee when requesting qualifying exigency leave
and states that another form containing the same basic information may
be used by an employer as long as no information beyond that specified
is required. The Department proposed to make minor changes to this form
to reflect the FY 2010 NDAA amendments. As discussed above, the
Department proposed to delete the optional-use forms from the
Appendices to the regulations. Accordingly, the Department proposed to
delete the reference in Sec. 825.309(c) to Appendix G, and proposed to
add language explaining that Form WH-384 may be obtained from local WHD
offices or the WHD Web site. No other changes were proposed for Sec.
825.309(c). Several comments were received concerning the removal of
the forms from the Appendices. Those comments and the Department's
decision to remove the forms from the Appendices in the Final Rule are
discussed earlier in this preamble. No comments were received on the
proposed revisions to Form WH-384. The form is modified to refer to a
military member, use the term covered active duty, and contain the
requirement that the member be deployed to a foreign country. The Final
Rule implements Sec. 825.309(c) as proposed.
Current Sec. 825.309(d) indicates that where a complete and
sufficient certification is submitted in support of a request for
leave, an employer may not request additional information from an
employee. Where the qualifying exigency involves a third party,
employers may contact the individual or entity for purposes of
verifying the meeting or appointment and the nature of the meeting.
Employers may also contact the appropriate unit of the DOD to verify
that the military member is on active duty or call to active duty
status. The employee's permission is not required to conduct such
verifications. The employer may not, however, request any additional
information. The Department solicited information on how this provision
has been working for employers and employees, specifically whether any
privacy issues have arisen for employees and whether any employees have
been denied qualifying exigency leave because their employers have been
unable to verify their leave requests. The Department also sought
information on whether employers have encountered any difficulties in
making third-party verifications, and if so, why and whether they have
denied an employee leave as a result. 77 FR 8971. The Department
received several comments concerning third-party meeting verification
and privacy issues related to third-party verification. The National
Business Group on Health supported the provision that allows the
employer to contact the individual or third parties to verify meetings,
appointments, and the purpose of meetings for FMLA purposes and to
contact the appropriate unit of DOD to verify that military members are
on active duty or call to active duty status. SHRM commented that there
was nothing to justify any change to this provision. World at Work's
survey indicated that 18 of the 94 respondents reported that making
third-party verifications of qualifying exigency leave is one of their
top three challenges in administering qualifying exigency leave. Only
nine respondents listed ``concern about privacy issues surrounding
third-party verification of qualifying exigency leave'' as one of their
top three challenges in administering the FMLA. By contrast, Legal Aid
expressed privacy concerns and asserted that such contacts should occur
under very limited circumstances.
Although the commenters were divided on the issue of third-party
contact, the Department did not receive any comments addressing
administrative difficulties making third party contacts, nor did the
Department receive any specific comments from employees or employee
advocacy groups indicating that this provision has not been adhered to
or has been abused. Accordingly, the Department maintains that where
the qualifying exigency involves a third party, employers may contact
the third party to verify the meeting and the purpose of the meeting,
and may contact the appropriate unit of the DOD to verify that a
military member is on covered active duty or call to covered active
duty status. The Department makes no changes to Sec. 825.309(d) in the
Final Rule.
5. Section 825.310 Certification for Leave Taken To Care for a Covered
Servicemember (Military Caregiver Leave)
Section 825.310 sets forth the certification process and the
elements of a complete certification for military caregiver leave.
Current Sec. 825.310(a) permits an employer to require that a request
for leave to care for a covered servicemember with a serious injury or
illness be supported by a certification issued by an authorized health
care provider, defined as: (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. The Department proposed in Sec.
825.310(a)(5) to add health care providers, as defined by regulation in
Sec. 825.125, as a fifth component to the definition of an authorized
health care provider from whom medical certification can be obtained
for a serious injury or illness. The Department based this proposal on
its
[[Page 8856]]
understanding that in certain circumstances, such as when seeking
treatment for a mental health condition, some current servicemembers
may wish to seek care from a health care provider unaffiliated with the
DOD. As explained in the NPRM, the Department believes that a family
member of a current servicemember who is seeking treatment outside of
the military's health care network for an injury or illness that was
incurred or aggravated in the line of duty on active duty should be
eligible for FMLA leave under this provision. 77 FR 8971. The
Department noted that the proposed expansion of authorized health care
providers would apply to covered veterans as well because veterans may
use non-military-affiliated health care providers (private health care
providers) rather than DOD, VA, or TRICARE network health care
providers. Id. Additionally some veterans may no longer be entitled to
seek care through DOD or VA affiliated health care providers, or
veterans may also be covered by the private health care plans of a
spouse or parent and may utilize the services of private health care
providers through these plans. Whether it is because there is no VA
center in the area or due to other circumstances, the Department stated
that families of veterans should be able to rely upon the determination
of the veteran's own private health care provider, who otherwise meets
the definition of an FMLA health care provider at Sec. 825.125, in
determining if the treated condition is a qualifying serious injury or
illness. The Department also noted that expanding the pool of health
care providers would avoid increasing the administrative burdens on the
VA and DOD. Id.
The Department expressed concern, however, that private health care
providers would not have the specialized information available to DOD,
VA, and TRICARE network health care providers that is necessary to make
several of the military-related determinations. Therefore, the
Department sought public comment on the available processes for a
private health care provider to obtain information related to whether
an injury or illness was incurred in the line of duty while on active
duty or whether the covered servicemember's injury or illness existed
before beginning service and was aggravated by service in the line of
duty while on active duty. The Department also sought comment on
whether the covered servicemember will have a copy of medical records
from his or her military service, or whether the covered servicemember,
or family member, would be able to access medical records or other
documentation that would support the determination that an injury or
illness was incurred in the line of duty while on active duty, and the
types of documentation that may be available to the covered
servicemember or family member. Finally, the Department requested
comment on whether a veteran or family member has access to
documentation of a VASRD disability rating. Id.
Many of the comments, including those submitted by Senators Harkin
and Murray, the North Carolina Justice Center, and the National
Business Group on Health, expressed support for the proposal to expand
the list of medical providers in Sec. 827.310(a) to include health
care providers as defined by the FMLA regulation at Sec. 825.125. The
CCD stated that this expansion will reduce the administrative burden on
the DOD, VA, and TRICARE network health care providers, while also
providing some measure of confidentiality for those family members
concerned about the impact on a servicemember's military career of an
FMLA application based on certain mental health conditions. Twiga
stated that this expansion will make taking leave easier for families.
The Partnership affirmed the Department's belief that veterans are
frequently treated in private facilities and applauded the proposal.
Aon Hewitt supported permitting private health care providers to
certify serious injuries or illnesses as long as the Department retains
its proposal that employers are permitted to obtain second and third
opinions from such providers.
Several comments were received on the private health care
provider's ability to determine if a serious injury or illness is
related to the servicemember's military service. The Partnership, as
well as the National Business Group on Health and the Coalition,
requested additional guidance for private health care providers to
determine what constitutes a serious injury or illness since private
health care providers do not necessarily have experience in providing
medical certifications related to military service. Sedgwick Claims
Management Services requested that the Department provide private
health care providers with directions on how to evaluate whether a
caregiver situation applies and to provide such health care providers
with the resources to access information necessary to make this
determination. This commenter suggested that if private health care
providers do not have this necessary information, that they not be
added to the list of authorized health care providers. One individual
commenter opposed the proposal based on her belief that it could lead
to increased abuse of intermittent leave usage. She expressed concern
that a health care provider as defined by the FMLA regulations, is
likely to be a family health care provider who would not be able to
determine if the medical condition was incurred during or aggravated by
the covered servicemember's military duty, and who may be willing,
according to the commenter, to certify the frequency and duration of
absence requested by the patient. The CCD explained that all veterans
receive written notice from the VA of their disability rating, as do
servicemembers in the case of a service department disability rating.
The CCD further explained that for veterans who have filed claims for
disability compensation through the VA, but who have not yet received
an official determination of service-connection and a disability
rating, veterans or their veterans' service officers may be able to
provide documentation to assist the health care provider. It also
commented that if a veteran has not received a VASRD rating, and has
not received a medical opinion, then the health care provider could
make a determination that it is as likely as not that the disability is
service-connected, which should be sufficient for FMLA military
caregiver leave benefits. According to the CCD, health care providers
can also review service medical and administrative records that
veterans and their representatives can obtain from the National
Personnel Records Center (NPRC) in St. Louis, Missouri. These records
may be obtained by submitting a request through the NPRC Web site. The
Partnership recommended that the regulations permit the health care
provider to contact veteran service officers, with the veteran's
permission, since veteran service officers are familiar with the
veteran's service record and are often called upon to make similar
assessments about their veteran-clients.
With respect to the commenters' request that the Department provide
guidance for private health care providers on making medical
determinations related to military service, the Department believes
that health care providers will be able to make the determinations
necessary for a certification, without further regulatory instruction,
based on the information provided by the servicemember and any military
documentation that may be supplied by the servicemember. The Department
understands, based on
[[Page 8857]]
consultation with the DOD and VA, that current servicemembers and
veterans have access to their medical records for their time during
service through eBenefits, an electronic portal provided by the DOD and
VA. Veterans may also request their records through their local VA
medical facility. In addition, the commenters indicated that veterans
who have received a VASRD rating will possess documentation of their
disability ratings, which can be produced as part of the medical
certification process. While the servicemember is not required to
provide the health care provider with military records to complete a
certification, if the servicemember does so, the information in these
medical records and any other military documentation may aid a health
care provider in making a determination that a servicemember's injury
or illness is related to the individual's military service. Moreover,
private health care providers, while not necessarily familiar with
military related determinations, are frequently called upon in
conjunction with a patient's Worker's Compensation claim to determine
that the patient's medical condition was caused by the patient's work
even if the health care provider is not intimately familiar with that
patient's particular occupation. Based on their medical experience,
private health care providers are able to make such determinations. The
Department believes that private health care providers will similarly
be able to determine if the servicemember's injury or illness was
incurred in or aggravated in the line of duty on active duty. In
addition, as discussed in more detail below, if employers have reason
to question the certification provided by a private health care
provider, employers may seek a second, and if necessary, a third
medical opinion. For these reasons, Sec. 825.310(a)(5) is adopted as
proposed.
The Department proposed to modify portions of paragraph (b), which
sets forth the information an employer may request from the health care
provider in order to support the employee's request for leave. The
Department proposed to modify the language at the beginning of
paragraph (b) and in subparagraphs (1)-(4) to reflect the changes to
the statute to add preexisting conditions aggravated by service for
current servicemembers and to add leave to care for veterans. Proposed
Sec. 825.310(b) was modified to indicate that an authorized health
care provider may rely on military-related determinations from an
authorized VA representative in addition to an authorized DOD
representative. Consistent with the Department's proposal to allow
covered servicemembers to utilize any health care provider as defined
in Sec. 825.125, the Department proposed to add a new provision (v) to
paragraph (b)(1) clarifying that the medical certification may be
provided by any health care provider as defined in Sec. 825.125. The
Department proposed to add language to paragraph (b)(2) to allow an
employer to obtain information that specifies whether the covered
servicemember's injury or illness existed before beginning service and
was aggravated by service in the line of duty on active duty. The
Department sought comment on what processes are or may be used to
determine that an injury or illness existed prior to active duty
service and was aggravated by service in the line of duty on active
duty. Comment was also sought on the basis that a non-DOD or non-VA
health care provider would determine that an injury or illness is a
condition that existed before the military member's service and was
aggravated in the line of duty on active duty. Proposed paragraph
(b)(3) allowed an employer to request the approximate date on which the
serious injury or illness commenced or was aggravated and its probable
duration. The Department proposed to move the description of the
medical facts that must be included in the certification for a serious
injury or illness of a current servicemember from current Sec.
825.310(b)(4) to proposed Sec. 825.310(b)(4)(i), without any changes
in that subparagraph. The Department proposed to describe in Sec.
825.310(b)(4)(ii) the medical facts that must be included in the
certification for an injury or illness of a covered veteran, which
tracked the proposed definition of a serious injury or illness of a
covered veteran. In light of the Department's consideration of adding
enrollment in VA's Program of Comprehensive Assistance for Family
Caregivers as a fourth definition of serious injury or illness of a
veteran, the Department sought comment on whether the medical
documentation required for enrollment in that program provides
sufficient medical facts to support the need for FMLA leave. The
Department proposed no other changes to Sec. 825.310(b).
The National Business Group on Health generally supported the
proposal permitting employers to require this new information in the
certification supporting military caregiver leave. The Sedgwick
Management Group requested that the criteria for determining a pre-
existing condition be clearly stated in the regulation, and that the
FMLA forms contain questions to identify whether such a condition
exists in order to reduce potential ambiguity and employer burden in
having to make that determination. As noted in the discussion of Sec.
825.127(c)(1), the Department received two comments from Senators
Harkin and Murray and the CCD suggesting that the Department should
consider participation in or meeting the eligibility requirements of
the SCAADL Caregiver Program as establishing a current servicemember's
serious injury or illness. The SCAADL program is available to current
servicemembers who have a permanent catastrophic injury or illness that
was incurred or aggravated in the line of duty, as certified by a
licensed DOD or VA physician, and who need assistance from another
person to perform the personal functions required in everyday living.
See 37 U.S.C. 439(b); DODI 1341.12 (May 24, 2012). Twiga expressed
concern that requiring servicemembers to disclose medical information
could raise privacy issues and possibly deter a servicemember from
seeking medical treatment, particularly for mental health issues and
for conditions such as alcohol or drug dependence. To address these
concerns, Twiga suggested that the regulation make clear that the
certification need only describe whether a qualifying serious injury or
illness exists, but need not include a description of the specific
medical condition.
With respect to the commenters' request that the Department provide
guidance for health care providers on making medical determinations
regarding preexisting conditions, the Department believes that health
care providers will be able to make the determinations necessary for a
certification, without further regulatory instruction, based on the
information provided by the servicemember and any military medical
records the servicemember may provide. The Department believes that
documentation indicating a current servicemember's enrollment in the
SCAADL program may be considered by a health care provider in
determining whether the current servicemember has a serious injury or
illness that makes the current servicemember unable to perform the
duties of the member's office, grade, rank, or rating. Similarly, SSDI
determinations may be considered by private health care providers in
determining whether a veteran has a qualifying serious injury or
illness. To the extent that additional information is necessary to
establish a complete and
[[Page 8858]]
sufficient FMLA certification (e.g., information showing the
relationship of the employee to the covered servicemember for whom the
employee is requesting leave to care, that the injury or illness was
incurred or aggravated in military service, the probable duration of
the serious injury or illness, and the servicemember's need for care
and an estimate of the time period during which care will be needed),
the employee seeking leave will be responsible for providing the
employer with the additional information. The Final Rule adopts the
provision as proposed.
The privacy concerns raised by Twiga, while not directed at the new
information that can be required under the proposal, nonetheless merit
discussion. As an initial matter, the Department reiterates that the
certification of a serious injury or illness, both for a current
servicemember and a veteran, addresses only the serious illness or
injury related to military service for which the family member seeks
leave. Any medical information unrelated to that serious injury or
illness is not part of the certification process for FMLA leave. In
addition, the same standard applies to the amount of information
required for the certification of the serious illness or injury of a
covered servicemember as applies to the amount of information required
for the certification of serious health condition. As the Department
stated in the 2008 Final Rule in the preamble discussion of
certification of a serious health condition in Sec. 825.306:
[T]he 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.* * * [T]he
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.
73 FR 68014. Other than the information necessary to show that the
servicemember has a qualifying serious injury or illness, as well as
the other regulatory requirements (e.g., need for care, probable
duration), the certification does not require identification of the
servicemember's diagnosis. Inclusion of such information is left to the
discretion of the servicemember's health care provider. The Department
does not believe that further clarification is necessary.
As noted above in the discussion of Sec. 825.127(c)(2)(iii), the
Department removed the term service-connected disability or
disabilities in the third definition of a serious injury or illness of
a covered veteran and replaced it with the term a disability or
disabilities related to military service. This change was in response
to comments that only the VA can determine if a disability is service-
connected. For the reasons outlined in the discussion of Sec. 825.127
above, the Department makes the same modification to Sec.
825.310(b)(4)(ii)(C) by replacing the term service-connected disability
or disabilities with the term a disability or disabilities related to
military service.
The Department did not receive any comments in response to its
query on whether the medical documentation required for enrollment in
VA's Program of Comprehensive Assistance for Family Caregivers provides
sufficient medical facts to support the need for FMLA leave. As
discussed above in conjunction with Sec. 825.127(c)(2), the Department
has decided to add in the Final Rule at Sec. 825.127(c)(2)(iv), a
veteran's enrollment in the VA's Program of Comprehensive Assistance
for Family Caregivers as the fourth definition for establishing a
qualifying serious injury or illness for a covered veteran. The VA has
advised the Department that upon enrollment in VA's Program for
Comprehensive Assistance for Family Caregivers, the caregiver receives
a letter from the VA indicating that the caregiver has been designated
and approved as the caregiver for the veteran named in the letter.
Therefore, the Final Rule provides in Sec. 825.310(b)(4) that such
documentation may be produced as part of the certification process to
demonstrate that a covered veteran has a qualifying serious injury or
illness under the fourth definition of a serious injury or illness. The
Department noted in the NPRM that medical documentation prepared in
connection with the VA's Program of Comprehensive Assistance for Family
Caregivers may be submitted as part of the FMLA certification process
under the second and third alternative definitions of serious injury
and illness in Sec. 825.127(c)(2)(ii) and (c)(2)(iii). 77 FR 8972.
While that is still the case, documentation establishing enrollment in
the program will meet the definition of a serious injury or illness
under Sec. 825.127(c)(2)(iv) and therefore will not need to meet the
definition under (c)(2)(ii) or (iii). The Department notes that,
similar to the treatment of invitational travel orders and
international travel authorizations in Sec. 825.310(e), enrollment
documentation for the VA Program for Comprehensive Assistance for
Family Caregivers may be used by eligible employee family members other
than the designated VA caregiver to support a need for military
caregiver leave. However, as the Department explained in the NPRM, to
the extent that additional information is necessary to establish a
complete and sufficient FMLA certification (e.g., information showing
the relationship of the employee to the covered servicemember for whom
the employee is requesting leave, that the veteran is within five years
of discharge, the probable duration of the serious injury or illness,
and the servicemember's need for care and an estimate of the time
period during which care will be needed), the employee seeking leave is
responsible for providing the employer with the additional information.
Therefore, the Department adopts paragraph (b) in the Final Rule with
the addition of provision (D) to subparagraph (b)(4)(ii) to permit
documentation of enrollment in the VA Program for Comprehensive
Assistance for Family Caregivers program to show that the veteran has a
qualifying serious injury or illness as defined in Sec.
825.127(c)(2)(iv) of the Final Rule.
The Department proposed to modify portions of Sec. 825.310(c),
which sets forth the information an employer may request from the
employee or covered servicemember, by adding a new paragraph (c)(6) and
renumbering current paragraph (c)(6) as (c)(7). Proposed paragraph
(c)(6) permitted an employer to require that the employee or covered
servicemember indicate whether the member is a veteran, the date of
separation, and whether the separation was other than dishonorable. The
proposal also permitted the employer to request documentation
confirming this information. It indicated that an eligible employee may
provide a copy of the veteran's DD Form 214 (Report of Separation) or
other proof of veteran status to satisfy such documentation
requirement. Two commenters addressed this subparagraph. The
Partnership and the North Carolina Justice Center commented that the
Department should use the discharge date on DD Form 214 as the date
when the veteran officially transitioned from being active duty to
being a veteran. The Department's intention in referencing DD Form 214
in the proposal was to indicate that this form was one available method
of showing the veteran's discharge date. Therefore, the Department
adopts
[[Page 8859]]
paragraph (c) in the Final Rule without modification.
Current Sec. 825.310(d) identifies an optional-use form that may
be used to provide certification for military caregiver leave, Form WH-
385, Certification for Serious Injury or Illness of a Covered
Servicemember for Military Family Leave. The Department proposed to
make revisions to this form to implement the statutory amendments. 77
FR 8963. The Department stated in the NPRM that it was considering the
development of a new form for certification of military caregiver leave
for a covered veteran. 77 FR 8972. The Department sought comments on
whether it would be less confusing to develop a separate form or
whether adapting the current Form WH-385 would be preferable.
No comments were received on the Department's proposal to revise
Form WH-385 to reflect the statutory amendments concerning the
definition of a serious injury or illness for current servicemembers.
However, the Department received comments supporting the creation of a
new form, as well as comments urging the Department to adapt current
Form WH-385 to reflect the expansion of military caregiver leave to
covered veterans. Aon Hewitt supported the creation of a separate form
as this structure would mirror the separate forms available for FMLA
leave for a serious health condition for an employee and a family
member. Moreover, Aon Hewitt asserted that one form, combining both
current servicemembers and covered veterans, would be too cluttered,
too long, and harder to use. However, the North Carolina Justice Center
and the Partnership recommended that the Department adapt current Form
WH-385 for covered veterans in order to avoid confusion and unnecessary
complication. The Partnership stated that if the Department does adopt
a separate form for covered veterans, then an employee who has
previously submitted a form for military caregiver leave for a current
servicemember should not have to submit a new certification for leave
to care for that same servicemember when he or she becomes a covered
veteran.
The Department considered these comments and has decided to create
a new form for military caregiver leave for a covered veteran. The
Department believes that the addition of a separate form will
ultimately be less confusing for employees, employers, and health care
providers. Adding information related to the serious injury or illness
of a covered veteran to current WH-385 would increase the length and
complexity of the form. Two separate forms, one containing the
instructions and information germane to a current servicemember and one
containing the instructions and information germane to a covered
veteran, will lessen the administrative burden on health care
providers. Form WH-385 will continue to be the form for military
caregiver leave for current servicemembers, and the form for covered
veterans is marked WH-385-V for easy identification. While an eligible
family member may take military caregiver leave for a current
servicemember, and again for the same servicemember when he or she
becomes a covered veteran, the employee must submit a new certification
form for each leave request. However, the eligible family member,
assuming he or she is asserting that the covered veteran has a
qualifying serious injury or the first definition at Sec.
825.127(c)(2)(i), may attach the original certification with
appropriate veteran documentation attached as part of the certification
for leave to care for the covered veteran.
Form WHD-385 is updated to include injuries and illnesses that pre-
existed the servicemember's active duty but were aggravated in the line
of duty on active duty. The Department has also amended this form to
reflect that a health care provider as defined in Sec. 825.125 may
certify a serious injury or illness for a current servicemember and
that a serious injury or illness includes a condition that existed
before the member's military service and was aggravated by service in
the line of duty on active duty in the Armed Forces.
As discussed previously in this preamble, the Department has
decided to remove the forms from the Appendices. The forms for military
caregiver leave, like the other FMLA forms, are available on the WHD
Web site (www.dol.gov/whd) and at local WHD offices. Accordingly,
consistent with the proposal, in this Final Rule the reference to
Appendix H in paragraph (d) is deleted, and in its place language is
inserted stating that the applicable form may be obtained either from a
local WHD office or the WHD Web site.
In conjunction with the Department's proposal to allow family
members of covered servicemembers to rely upon certifications completed
by health care providers that are not affiliated with DOD, VA, or
TRICARE, the Department proposed in Sec. 825.310(d) to permit second
and third opinions in these instances. As discussed in the NPRM, when a
medical certification is completed by a private health care provider
unaffiliated with the DOD, VA, or TRICARE network system, the process
is more akin to the certification process for the serious health
condition of civilian family members. 77 FR 8972. Consequently, the
Department concluded that in such situations there is no basis to
prohibit employers from obtaining second and third opinions. For these
reasons, the Department proposed in Sec. 825.310(d) to state that
second and third opinions are not permitted when the certification has
been completed by a DOD health care provider, a VA health care
provider, a DOD TRICARE network authorized private health care
provider, or a DOD non-network TRICARE authorized private health care
provider (identified in Sec. 825.310(a)(1)-(4)), but are permitted
when the certification has been completed by a health care provider
that is not one of the types identified in Sec. 825.310(a)(1)-(4).
Aon Hewitt and the National Business Group on Health expressed
their support for permitting second and third opinions in cases of
military caregiver certifications completed by health care providers
who are not affiliated with the VA, DOD, or TRICARE. In contrast, the
CCD and Twiga opposed this provision. The CCD questioned the logic of
permitting second and third opinions, since the current regulation does
not permit second and third opinions even though a DOD non-network
TRICARE authorized provider could be almost any health care provider,
and recommended that the sufficiency of the certification be based on
the health care provider's expertise and not his or her affiliation.
Twiga expressed the view that second and third opinions are burdensome
on military families, especially if a specialist's care is necessary
because wait times to see a specialist can be long and additional
expenses may be incurred by family members.
After considering these comments, the Department has decided to
retain this provision without change in the Final Rule. In response to
the CCD's comment that DOD non-network TRICARE authorized providers may
be any health care provider, the Department continues to believe that
it is appropriate to distinguish between health care providers who are
affiliated in some way with DOD, VA, or TRICARE and health care
providers who have no such affiliation in permitting second and third
opinions on certifications for military caregiver leave. While
obtaining second and third opinions may be time consuming, the employee
remains provisionally entitled to FMLA leave while obtaining the second
(or third) opinion, and the costs associated with a second or third
opinion are the responsibility of the employer. See
[[Page 8860]]
Sec. 825.307(b). As the Department explained in the NPRM, permitting
authorized health care providers as defined in Sec. 825.125 to certify
military caregiver leave is more akin to the traditional FMLA
certification process for a serious health condition. Therefore, the
Department adopts the provision regarding second and third opinions
when the certification for military caregiver leave is provided by a
health care provider who is not affiliated with DOD, VA, or TRICARE in
Sec. 825.310(d) as proposed.
Other than to update internal references, the Department did not
propose any changes for Sec. 825.310(e), which addresses the use of
invitational travel orders (ITO) or invitational travel authorizations
(ITA) issued for medical purposes, in lieu of a certification form. The
Department sought comment on the effectiveness of the substitution of
ITOs and ITAs in support of a need for military caregiver leave, and no
comments were received. The Final Rule adopts Sec. 825.310(e) as
proposed.
In light of the modifications to Sec. 825.310(b)(4)(i) and (ii) to
permit documentation of a veteran's enrollment in the VA's Program for
Comprehensive Assistance for Family Caregivers to show that the veteran
has a qualifying serious injury or illness, the Department creates a
new paragraph (f) in the Final Rule to address such documentation.
Section 825.310(f) of the Final Rule requires an employer that is
requiring an employee to submit a certification for leave to care for a
covered servicemember to accept as sufficient certification of the
servicemember's serious injury or illness documentation indicating the
servicemember's enrollment in the VA's Program for Comprehensive
Assistance for Family Caregivers. This is similar to the provision in
paragraph (e) regarding ITOs and ITAs, except that the documentation
indicating the servicemember's enrollment in the VA's Program for
Comprehensive Assistance for Family Caregivers serves only to show that
the covered veteran has a serious injury or illness, but does not
necessarily establish the other requirements necessary for a complete
certification. The Final Rule further provides at Sec. 825.310(f) that
such documentation is sufficient certification of the servicemember's
serious injury or illness regardless of whether the employee is the
named caregiver in the enrollment documentation. As with ITOs and ITAs,
the Final Rule at Sec. 825.310(f)(1) permits an employer to seek
authentication and clarification of the documentation indicating the
servicemember's enrollment in the program under Sec. 825.307, but
indicates that an employer may not utilize the second or third opinion
process outlined in Sec. 825.307 or the recertification process under
Sec. 825.308 when the servicemember's serious injury or illness is
shown by documentation of enrollment in this program. Lastly, the Final
Rule at Sec. 825.310(f)(2) permits an employer to require that an
employee provide confirmation of covered family relationship to the
servicemember and documentation, such as a veteran's Form DD-214,
showing that the discharge was other than dishonorable and the date of
the veteran's discharge when an employee supports his or her request
for FMLA leave with documentation of enrollment in this program.
Section 825.310(f) currently states that it is the employee's
responsibility to provide the employer with a complete and sufficient
certification and describes the consequences of failing to do so. The
Department proposed to add text that clarified this requirement,
providing that ``an employee may not be held liable for administrative
delays in the issuance of military documents, despite the employee's
diligent, good-faith efforts to obtain such documents.'' While current
Sec. 825.305(b) states that employees who are unable to provide the
requested FMLA certification (including certification for military
caregiver leave) within 15 days despite their diligent, good faith
efforts must be provided with additional time, the Department believed
that it was important to reiterate this principle in Sec. 825.310(f).
The Department sought to clarify that employees may not be held
responsible for administrative delays in the issuance of military
documents where a good faith attempt is made by the employee to obtain
such documents. Two organizations provided comments on this proposal.
Legal Aid commended the Department for making this clarification in
Sec. 825.310(f). Twiga suggested that, in light of the burden on
military families of obtaining second and third opinions from a non-
military-affiliated health care provider, Sec. 825.310(f) should be
clarified to ``make clear that the extension also applies to second and
third opinions of non-military doctors.''
In response to Twiga's comment, the Department notes that the
current regulations do not prescribe a time frame for completion of
second or third opinions. Instead, Sec. 825.307(b) provides that when
an employer seeks a second (and third) opinion, the employee is
provisionally entitled to the benefits of the FMLA pending the receipt
of the second (and third) opinion. There is no prescribed time within
which an employee must obtain the second or third opinion. Therefore,
the Department believes that it is unnecessary to state in the
regulation that administrative delays in obtaining medical
certifications cannot be held against the employee in obtaining second
and third opinions. Because the Final Rule creates a new paragraph (f),
the Final Rule redesignates proposed Sec. 825.310(f) as Sec.
825.310(g) without modification to the text of the paragraph.
B. Revisions To Implement the AFCTCA Amendments Subpart H--Special
Rules Applicable to Airline Flight Crew Employees
1. Section 825.800 Special Rules for Airline Flight Crew Employees,
General
Current Sec. 825.800 contains the definitions of significant
terms, phrases, and acronyms used in the regulations. In the NPRM, the
Department proposed to move the definitions section of the regulations
to Sec. 825.102 to enhance the utility of the regulations. As
explained earlier in this preamble, the Department has made that
change, leaving Sec. 825.800 available for the use described here.
The AFCTCA established special rules for determining whether
airline flight crew employees meet the hours of service requirement for
FMLA eligibility, authorized the Department to issue regulations
providing a method of calculating leave for airline flight crew
employees, and authorized the Department to issue regulations regarding
employers' maintenance of certain information for airline flight crew
employees. In the NPRM, the Department proposed that the regulations
implementing these provisions of AFCTCA be incorporated by topic in
Sec. Sec. 825.110 (employee eligibility), 825.205 (calculation of
leave), and 825.500 (recordkeeping). In the Final Rule, the provisions
specific to airline flight crew employees are located in a separate,
newly titled subpart, Subpart H--Special Rules Applicable to Airline
Flight Crew Employees.
Accordingly, Sec. 825.800, Special rules for airline flight crew
employees, general, explains that airline flight crew employees are
subject to special rules for determining employee eligibility and
calculation of leave, and that special recordkeeping provisions also
apply. Section 825.800 also explains that, except as noted, the other
provisions of the FMLA regulations also apply to airline flight crew
employees. The proposed revisions concerning the hours of service
requirement for airline
[[Page 8861]]
flight crew employees are located in Sec. 825.801, Special rules for
airline flight crew employees, hours of service requirement; the
proposed additions regarding calculation of leave for airline flight
crew employees, as modified in response to comments, will be located in
Sec. 825.802, Special rules for airline flight crew employees,
calculation of leave; and the proposed addition discussing special
recordkeeping requirements for employers of airline flight crew
employees will be located in Sec. 825.803, Special rules for airline
flight crew employees, recordkeeping requirements. The Department
believes this reorganization will enhance the utility of the
regulations and minimize confusion regarding the rules applicable only
to airline flight crew employees. The Department emphasizes, and has
noted in the regulatory text, that except as otherwise provided in
Subpart H, airline flight crew employees and their employers continue
to be subject to all requirements of the FMLA as set forth in part 825,
subparts A, B, C, D, E, and G.
2. Section 825.801 Special Rules for Airline Flight Crew Employees,
Hours of Service Requirement
The AFCTCA established a special hours of service requirement for
airline flight crew employees. In the NPRM, the Department proposed to
insert into Sec. 825.110(c) language implementing this new
requirement. After considering the comments received, the Department
has adopted the regulation as proposed in Sec. 825.801.
Proposed Sec. 825.110(c)(2) provided that airline flight crew
employees are eligible for FMLA leave if they have worked or been paid
for not less than 60 percent of the applicable monthly guarantee and
for not less than 504 hours during the previous 12-month period.
Proposed paragraph (c)(2)(i) defined the applicable monthly
guarantee for airline flight crew employees on reserve and non-reserve
status. As required by the AFCTCA, the Department proposed to define
the applicable monthly guarantee for non-reserve airline flight crew
employees as the number of hours for which an employer has agreed to
schedule the employee for any given month. For airline flight crew
employees on reserve status, the applicable monthly guarantee would be
defined as the minimum number of hours for which an employer has agreed
to pay such employee for any given month. The Department proposed to
refer to airline flight crew employees who are not on reserve status as
``line holders'' in the definition of applicable monthly guarantee in
proposed Sec. 825.102.
In the first sentence of proposed Sec. 825.110(c)(2)(ii), the
Department provided that the number of hours that an airline flight
crew employee has worked would be the employee's duty hours during the
previous 12-month period. The Department noted its understanding that
while duty hours may not always reflect all hours that would be
considered hours worked under the FLSA, duty hours are closely tracked
in a similar manner by all employers in the industry. The Department
noted its understanding that the schedule for non-reserve employees is
based on duty hours, and that duty hours include the flight or block
hours as determined by the Federal Aviation Administration (FAA) as
well as additional time before and after the flight as determined by
employer policy or applicable collective bargaining agreement. The
Department sought comments on whether this was an accurate
interpretation of what comprises non-reserve employees' scheduled hours
or whether some other basis such as flight or block hours would be more
appropriate for this calculation.
The second sentence of proposed paragraph (c)(2)(ii) provided that
the hours for which an airline flight crew employee has been paid are
the number of hours for which the employee received wages. The
Department explained that airline flight crew employees are generally
paid on an hourly basis, and that these hours are routinely tracked by
each airline.
In the NPRM, the Department noted that airline flight crew
employees are eligible for FMLA leave if they meet either the hours
worked or hours paid requirement. It invited comments on whether the
proposed calculation methods are the most appropriate bases for
determining whether an airline flight crew employee has met the hours
of service requirement.
Finally, the Department proposed to add language to current Sec.
825.110(c)(3), which explains an employer's burden when it does not
maintain accurate records of hours worked for an employee, clarifying
the application of this rule to airline flight crew employees.
Few comments were received on the Department's implementation of
the AFCTCA eligibility requirements in proposed Sec. 825.110(c)(2) and
(c)(2)(i). Two employee associations, the Air Line Pilots Association
(ALPA) and the Association of Flight Attendants (AFA), suggested that
where an employer has determined that an employee meets the 504 hours
requirement and is prepared to confirm FMLA eligibility based upon that
criterion alone, the employer should not have to perform the
calculation for determining whether the employee has worked or been
paid for 60 percent of the applicable monthly guarantee. Similarly,
Airlines for America (A4A) \3\ commented that as a matter of
administrative efficiency, employers should not be required to look
beyond the 504 hours requirement where that criterion is met. A4A
suggested that there be a rebuttable presumption that airline flight
crew employees who have been paid for 504 hours have satisfied the
eligibility requirements.
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\3\ A4A is the principal trade and service organization of the
U.S. scheduled airline industry. Its members include: Alaska
Airlines, Inc.; American Airlines, Inc.; ASTAR Air Cargo, Inc.;
Atlas Air, Inc.; Delta Air Lines, Inc.; Evergreen International
Airlines, Inc.; Federal Express Corporation; Hawaiian Airlines;
JetBlue Airways Corp.; Southwest Airlines Co.; United Continental
Holdings; United Parcel Service Co.; and US Airways, Inc. In
addition, Air Canada is an A4A associate member, and ABX Air, Inc.,
Allegiant Air, LLC, Global Air Holdings, NetJets, Inc., and Virgin
America participated in A4A's Labor and Employment Council and
joined in its comment.
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With reference to the Department's implementation of the statutory
definition of applicable monthly guarantee for airline flight crew
employees on reserve and non-reserve status, both ALPA and the
International Association of Machinists and Aerospace Workers (IAM)
agreed that the Department appropriately defined the applicable monthly
guarantee. The ALPA further stated that the Department's
characterization of non-reserve employees as ``line holders'' reflects
common industry parlance. A4A stated that the distinction between line
holder and reserve employees has some validity ``insofar as the monthly
guarantee test for eligibility''.
The vast majority of commenters who addressed the Department's
proposal to use duty hours as the number of hours that an airline
flight crew employee has worked for purposes of meeting the hours of
service requirement supported the proposal. Employer and employee
groups, such as ALPA, AFA, APFA, IAM, United Steelworkers (USW), and US
Airline Pilots Association (USAPA), stated that duty hours provide the
most uniform basis for determining hours of service for FMLA
eligibility purposes, and most accurately represent the amount of time
an airline flight crew employee is working in any single day. Senators
Harkin and Murray also supported the Department's use of duty hours to
determine the hours an employee has worked for purposes of
[[Page 8862]]
determining the hours of service requirement, stating that they
understand that duty hours are tracked by all airlines, as required by
the FAA. In addition, several commenters, including ALPA,
Transportation Trades Department, AFL-CIO (TTD), IAM, and USAPA,
confirmed the Department's understanding that scheduled hours for line
holders encompass duty hours. ALPA, AFA, APFA, IAM, and TTD commented
that the term duty hours should also encompass time spent in mandatory
training such as ground school and simulator training or training for
new aircraft or services as required by the FAA and carriers. AFA
further commented that the Department should provide a definition for
duty hours in the regulations, explaining all of the duties that may be
encompassed within the term, including training time.
Two commenters opposed the Department's use of the term duty hours.
Legal Aid stated that hours of service should be measured by hours paid
rather than duty hours, arguing that there are many different
contractual definitions of on duty within the industry. RAA claimed
that defining eligibility as duty hours imposes an ``artificial and
undefined term upon the industry.'' RAA suggested that the Department
should instead utilize either the carrier's own minimum guarantee
components or an industry standard such as flight or block hours.
The Department received few, and only positive, comments regarding
its proposal to define hours paid to an airline flight crew employee as
the number of hours for which the employee received wages. ALPA stated
that the Department proposed an appropriate measure because airline
flight crew employees are generally paid on an hourly basis, and such
hours are regularly tracked by carriers. AFA agreed that the proposed
definition was ``appropriate and fair.''
Several commenters supported the Department's proposed revision to
the explanation of the employer's burden of proof in current Sec.
825.110(c)(3). ALPA, TTD, and IAM stated that the provision
appropriately places the burden of proving employee ineligibility if
the employer fails to keep accurate records of hours worked or paid,
and is consistent with application of the law for non-airline flight
crew employees.
After careful consideration of the comments received, the
Department has decided to adopt the provisions as proposed, with the
aforementioned relocation to Subpart H. Section 825.801(a) explains
that airline flight crew employees remain subject to the eligibility
requirements in Sec. 825.110 other than those regarding the hours of
service requirement. Section 825.801(b) contains the text that appeared
in proposed Sec. 825.110(c)(2). (Consistent with this change, the
Department has updated the cross references in the definitions of
airline flight crew employee and applicable monthly guarantee in Sec.
825.102 to refer to Sec. 825.801.) Section 825.801(c) explains the
exception to the special rules in paragraph (b) for absences from work
due to or necessitated by USERRA-covered service, consistent with Sec.
825.110(c)(2). Section 825.801(d) contains the proposed text regarding
the employer's burden of proof in the absence of accurate records.
The Department has adopted the definition of applicable monthly
guarantee as proposed because it received positive comment on this
portion of the proposal and the text conforms to the requirements of
the AFCTCA. With regard to commenters that requested that the
Department approve use of an abridged method for determining whether an
employee meets the hours of service requirement, basing eligibility
only on the 504-hour criterion, the Department notes that the AFCTCA
sets forth a two-part test for eligibility and the Department does not
have authority to alter its requirements. The AFCTCA requires that both
criteria be met, stating that an employee that has worked or been paid
for not less than 60 percent of the applicable monthly guarantee and
for not less than 504 hours (not including personal commute time or
time spent on vacation leave or sick or medical leave) during the
previous 12-month period meets the hours of service eligibility
requirement. The Department notes that consistent with the purpose and
intent of the FMLA, and the Department's longstanding policy, an
employer is not prohibited from providing a more generous leave policy
provided the employer complies with the FMLA. See Sec. 825.700(b)
(explaining that nothing in the Act is intended to discourage employers
from adopting or retaining more generous leave policies than are
required). Therefore, if an employer of airline flight crew employees
chooses to assume that all employees who meet the 504-hours requirement
also meet the 60 percent requirement, the employer may do so, provided
that they only deduct from employees' FMLA leave entitlements leave
that is covered under the Act.
Additionally, the Department notes that it continues to use the
term line holder in the definition of applicable monthly guarantee in
Sec. 825.102. Because comments confirmed that the industry uses the
term line holder to refer to an airline flight crew employee who is not
on reserve status, the Department believes use of this term is
appropriate.
The Final Rule will also, as proposed, define an airline flight
crew employee's hours worked as duty hours. The response to this
proposal was largely positive. As many industry commenters indicated,
an airline flight crew employee's typical day of work can include a
variety of support duties that begin before a plane takes flight and
end after it lands. In contrast to flight or block hours, duty hours
encompasses time spent performing these duties. Furthermore, the
inclusion of time worked beyond actual flight time is consistent with
the FAA's definition of duty period. See 14 CFR 121.467(a) (defining
duty period as ``the period of elapsed time between reporting for an
assignment involving flight time and release from that assignment'').
Furthermore, the Department did not find Legal Aid or RAA's comments
opposed to use of the term duty hours persuasive. Even if duty hours
are not always precisely or consistently defined by different air
carriers, they are, as other commenters noted, the most accurate
readily available measure of hours worked in the airline industry. As
explained, the alternative definition of hours worked considered by the
Department and suggested by RAA, flight or block hours, discounts
significant amounts of time when airline flight crew employees are
working. RAA's other suggestion, to define hours worked as the hours
used by each carrier to measure the applicable monthly guarantee, would
similarly undercount time spent working as to many airline flight crew
employees because, according to RAA itself, the guarantee is
``[t]ypically'' based on flight or block hours.
In light of the overwhelming response from commenters that the term
duty hours is recognized and widely utilized by carriers and employees
in the industry, the Department does not find it necessary to provide
further definition of the term in the regulatory text. Further, in
response to comments specifically requesting the inclusion of training
time in the definition of duty hours, the Department declines to alter
the proposed regulatory text but notes that some airline employers pay
for training time and to the extent airline flight crew employees are
paid for time spent in training, that time will be counted toward the
employee's hours of service requirement.
The Department adopts in Sec. 825.801(b)(2) its definition of
hours
[[Page 8863]]
paid to airline flight crew employees as proposed because, based on the
positive comments received, the Department believes that definition is
logical, easy to understand, and easy to administer. The Department
also inserts a new paragraph Sec. 825.801(c) to address the
application of USERRA covered service to airline flight crew employees.
This paragraph is consistent with the general provisions concerning
USERRA-covered service in determining employees' eligibility found at
Sec. 825.110(c)(2).
The Department also adopts the proposed language regarding an
employer's burden of proof. Placing the burden of proving employee
ineligibility on the employer if the employer does not maintain
accurate records of the employee's hours worked or paid is consistent
with application of the law to non-airline flight crew employees. This
statement, proposed as a revision to current Sec. 825.110(c)(3), is
located in Sec. 825.801(d), with some duplication of the text in
current Sec. 825.110(c)(3) to provide appropriate context.
3. Section 825.802 Special Rules for Airline Flight Crew Employees,
Calculation of Leave
The current regulations contain no provision regarding the
calculation of FMLA leave specifically for airline flight crew
employees. The AFCTCA explicitly authorized the Department to
promulgate such regulations.
In the NPRM, the Department proposed to address FMLA leave
calculation for airline flight crew employees in Sec. 825.205(d).
Proposed Sec. 825.205(d)(1) provided the method for calculating leave
usage for airline flight crew employees who are line holders, i.e., who
are not on reserve status, based on principles established for the
calculation of FMLA leave for eligible employees who are not airline
flight crew employees. Specifically, the Department proposed that the
employee's scheduled workweek (defined as the number of scheduled duty
hours for that workweek) would serve as the basis for calculating FMLA
leave usage. The amount of FMLA leave used would be determined on a pro
rata or proportional basis.
Proposed Sec. 825.205(d)(2) provided the method for calculating
leave usage for airline flight crew employees on reserve status. For
those employees, an average of the greater of the applicable monthly
guarantee or actual duty hours worked in each of the prior 12 months
would be used to calculate the employee's average workweek. The amount
of FMLA leave used would be determined on a pro rata or proportional
basis. The Department proposed use of the calculation method described
for airline flight crew employees on reserve status for employees who
work as both line holders and on reserve status, as this method was
flexible enough to encompass both the applicable monthly guarantee and
duty hours.
The Department sought comment on these proposed methods of
calculation of leave. It also requested comment on industry practice in
this area, application of the FMLA regulations to employees who work on
both reserve and non-reserve status, and alternative FMLA leave
calculation methods. For the reasons stated below, the Department is
modifying the method for calculation of leave for airline flight crew
employees, and is implementing a uniform leave entitlement for such
employees at Sec. 825.802, Special rules for airline flight crew
employees, calculation of leave.
Comments from both employee and employer groups opposed the
Department's proposed methods of FMLA leave calculation for airline
flight crew employees. Almost uniformly, commenters representing air
carrier employers, flight crew employee organizations, and labor
organizations, such as TTD, A4A, IAM, and Senators Harkin and Murray,
asserted that due to the unique scheduling practices in the airline
industry, the proposed calculation of leave methods would be
complicated to administer, cause confusion, and lead to inequitable
deductions from employees' FMLA entitlements. Even commenters who
appreciated that the Department's proposal was an attempt to treat
airline flight crew employees similarly to other employees with
variable schedules, such as ALPA, nevertheless opposed the proposal
because of its complexity and variability.
The Department received two comments regarding the proposed
distinction between line holders and employees on reserve status for
leave calculation purposes, both of which were critical. RAA stated
that many line holders also work reserve days, while reserves are often
assigned lines during their reserve period. A4A cautioned that drawing
this distinction for calculation of leave purposes would be
inappropriate, because airline flight crew employees do not clearly fit
within the Department's proposed categories. Both RAA and A4A suggested
that by requiring air carriers to use the 12-month averaging option for
employees who worked as both line holders and reserves, the Department
was unnecessarily complicating FMLA leave calculation.
There was near consensus among commenters representing both
employers and employees in the airline industry regarding an
appropriate alternative method for calculating FMLA leave for airline
flight crew employees. Employer and employee groups, including IAM,
ALPA, TTD, APFA, A4A, AFA, and USAPA, supported the establishment of a
uniform FMLA leave entitlement for airline flight crew employees, with
a one-day increment for leave use. A4A noted that prior to the AFCTCA,
various air carriers had instituted internal FMLA programs, including
leave entitlement banks, which have proved to be successful. ALPA,
among other commenters, believed this approach would be easier for
airline flight crew employees to understand and for employers to
administer.
RAA opposed the Department's proposal but did not suggest the
establishment of a uniform leave entitlement. Rather, RAA suggested
that unique calculation provisions for airline flight crew employees
are unnecessary. RAA stated that the Department's two proposed
calculation methods are historical methods, long utilized to administer
FMLA leave, and that under the current regulations, airline carriers
should be able to make the proper distinction as to what method
(fractional workweek method versus 12-month averaging) to use based on
an individual employee's work schedule, regardless of reserve status.
Although commenters were nearly universally in favor of a uniform
FMLA leave entitlement or ``bank'' for airline flight crew employees,
there were several different suggestions regarding the appropriate size
of that entitlement. IAM noted that they had already negotiated an
entitlement bank of 90 days for flight attendant contracts, and stated
that a uniform bank of 84 days (7 days x 12 weeks) for all airline
flight crew employees would be a ``fair application'' of the FMLA
entitlement. APFA agreed that all airline flight crew employees should
be entitled to a uniform bank of 84 days, and explained that this 84-
day bank is currently used by American Airlines. TTD stated that while
an 84-day bank was ``ideal,'' a 72-day bank was the ``absolute minimum
benefit'' that should be considered. AFA also suggested a bank of 72
days, contending that this would be the ``simplest calculation'' for an
FMLA entitlement. USAPA and ALPA both supported a bank of 72 days.
These commenters explained that a 72-day bank was based on FAA
regulations mandating that airline flight crew employees have one 24-
hour period off
[[Page 8864]]
duty in any 7-day period, giving the employee a maximum possible 6-day
workweek. (6 days x 12 weeks = 72 days of FMLA leave.) A4A suggested
significantly smaller numbers, reasoning that for non-airline flight
crew employees, the FMLA entitlement represents 23 percent of the
average work year (52 weeks divided by 12 weeks) and therefore the
uniform entitlement for airline flight crew employees should consist of
a reasonable proxy for 23 percent of the average work year for a
typical airline flight crew employee. Because of each airline's unique
operations, schedules, policies, and collective bargaining agreements,
A4A suggested that each air carrier establish its own entitlement based
on the average days worked by its airline flight crew employees. A4A
provided the example that if a carrier's pilots averaged 200 work days
per year, then an allotment bank of 46 days would be the equivalent of
12 weeks (200 days x 23 percent = 46 days of FMLA leave).
Additionally, APFA urged the Department to provide a definition for
``day.'' APFA believed that a day should be defined as a single
scheduled duty period, which they noted is the approach utilized by
American Airlines for charging employees for the use of vacation days.
The Department has thoroughly considered the comments, and agrees
with the commenters that asserted the unique scheduling practices of
the airline industry could make administering FMLA leave as proposed
confusing and difficult for airline flight crew employees and their
employers. In particular, because of the constantly and widely
fluctuating workweeks of many airline flight crew employees, the
calculation of leave rules proposed would have created uncertainty
about how much intermittent or reduced schedule FMLA leave an employee
had used and/or had available. Further, the Department understands that
the proposed differentiation between line holders and reserves for
purposes of leave calculation is inconsistent with the realities of the
airline industry. Although the Department attempted to create a method
that was similar to the way other employers and employees calculate
FMLA leave, the Department is convinced by the many comments it
received that the airline industry is best served by a different
system.
The Department adopts in Sec. 825.802(a) a uniform entitlement,
expressed as a number of days, for eligible airline flight crew
employees taking leave for an FMLA-qualifying reason. The Department
believes that a uniform day entitlement of FMLA leave allows for clear
FMLA entitlement calculations for the airline industry. It also
reflects a consensus among commenters representing both airline flight
crew employees and their employers. The Department has considered RAA's
comment and acknowledges that the adopted method does not track
employees' actual workweeks as is required for FMLA leave usage for all
other types of employees. However, the Department was persuaded by the
majority of comments from the airline industry which made clear how
difficult the proposed methods of calculation of FMLA leave, from which
RAA's proposal would not significantly differ, would be to administer
and understand.
Additionally, the Department concludes that the appropriate size of
the uniform entitlement is 72 days of leave for one or more of the
FMLA-qualifying reasons set forth in Sec. Sec. 825.112(a)(1)-(5). This
number corresponds to the maximum 6-day workweek an airline flight crew
employee can work under FAA regulations. (6 days x 12 workweeks = 72
days of FMLA leave.) See, e.g., TTD, USAPA, AFA, ALPA; see also 14 CFR
121.471(d) (mandating that airline flight crew employees have one 24-
hour period off duty in any seven-day period). By the same method, the
Department concluded that airline flight crew employees are entitled to
156 days of military caregiver leave. (6 days x 26 workweeks = 156 days
of military caregiver leave.)
Section 825.802(b) explains that an employer must account for an
airline flight crew employee's intermittent or reduced schedule FMLA
leave usage utilizing an increment no greater than one day. In light of
the practical realities of the airline industry, the Department agrees
with the numerous commenters representing both airline flight crew
employees and their employers who agreed that one day is the most
suitable increment of FMLA leave. As stated in Sec. 825.802(b)(1), if
an airline flight crew employee needs to take FMLA leave for a two-hour
physical therapy appointment, the employer may require the employee to
use a full day of FMLA leave, during which the employee would not
return to work. The entire amount of leave actually taken (in this
example, one day) is designated as FMLA leave and would be deducted
from the employee's 72-day entitlement. Further, if the employee must
miss work for a physical therapy appointment for an FMLA-qualifying
reason once a week for eight weeks, the employer may subtract one day
each week from the employee's entitlement, provided that in each
instance of leave, the employer restores the employee to work the
following day. After eight weeks, if no other FMLA leave had been
taken, the employee would have used eight days of FMLA leave and have
64 days of FMLA leave remaining.
The Department emphasizes that the provisions set forth in Sec.
825.802 maintain an FMLA entitlement of 12 workweeks, as required by
statute, and assumes a uniform six-day workweek for airline flight crew
employees. For example, an airline flight crew employee who takes four
weeks of FMLA leave will use 24 days of FMLA leave regardless of how
many days he or she was scheduled to work, or for which he or she would
have been paid, during that week. (6 days x 4 workweeks = 24 days of
FMLA leave.) Where an airline flight crew employee takes two days of
intermittent FMLA leave in one workweek, he or she has taken leave for
two days of his or her six-day workweek regardless of the number of
days he or she was scheduled to work or for which he or she would have
been paid during that week and two days would be subtracted from the
employee's leave entitlement.
The Department further emphasizes that the rules set forth in Sec.
825.802, including the use of one-day increments, are applicable only
to airline flight crew employees. The AFCTCA specifically provided the
Department with authority to promulgate regulations regarding the
calculation of leave for airline flight crew employees. Congress
clearly contemplated that the general FMLA leave calculation provisions
might not be appropriate for flight crew employees. The Department has
determined that a special leave calculation rule is necessary in light
of the unique scheduling constraints of the airline industry. The one-
day increment in Sec. 825.802 applies only to airline flight crew
employees. All eligible employees who are not airline flight crew
employees, as defined in Sec. 825.102, are subject to the minimum
increment rules set forth in Sec. 825.205(a)(1), which, among other
requirements, permit the use of FMLA leave in increments no greater
than one hour.
Concerning APFA's comment addressing what constitutes a ``day,''
the Department understands a ``day'' to mean one calendar day,
consistent with other provisions of the Act. See Sec. Sec. 825.115;
825.120; 825.126; 825.213; 825.305; 825.308; 825.313. The Department is
concerned that accounting for days in any other manner would create
administrative difficulties.
[[Page 8865]]
Finally, as indicated in Sec. 825.800(b), except as otherwise
provided in this subpart, airline flight crew employees and their
employers continue to be subject to the requirements of the FMLA as set
forth in part 825. In particular, the Department emphasizes that two
broadly applicable rules about the calculation of FMLA leave continue
to apply to airline flight crew employees despite the special
calculation method set out in Sec. 825.802. First, the physical
impossibility provision set forth in Sec. 825.205(a)(2) applies to
airline flight crew employees. Section 825.802(c) makes this point by
explaining that Sec. 825.205, which sets forth rules for calculation
of intermittent or reduced schedule FMLA leave for all employees who
are not airline flight crew employees, does not apply to airline flight
crew employees except for paragraph (a)(2) of that section, the
physical impossibility provision. Second, as required by the Act, in
all cases, if an employer chooses to restore an employee to work on the
same day during which intermittent or reduced schedule FMLA leave is
taken, the employee's FMLA leave entitlement may not be reduced by more
than the amount of leave actually taken. See 29 U.S.C. 2612(b)(1).
4. Section 825.803 Special Rules for Airline Flight Crew Employees,
Recordkeeping Requirements
The current regulations do not contain recordkeeping requirements
that apply specifically to employers of airline flight crew employees.
In the NPRM, the Department proposed to add a new paragraph, Sec.
825.500(h), that described the statutory requirement, established by
AFCTCA, that employers of airline flight crew employees maintain
certain records ``on file with the Secretary.'' The Department
explained that proposed paragraph (h) provided that records are to be
maintained on file by the employer by making, keeping, and preserving
records in accordance with the requirements already delineated in Sec.
825.500, with no actual submission to the Secretary unless requested.
Proposed Sec. 825.500(h)(1) and (h)(2) outlined additional records
that employers of airline flight crew employees must maintain on file.
Paragraph (h)(1) required employers of airline flight crew employees to
make, keep, and preserve any records or documents that specify the
applicable monthly guarantee for each type of employee to whom the
guarantee applies, including any relevant collective bargaining
agreements or employer policy documents that establish the applicable
monthly guarantee. Proposed paragraph (h)(2) required employers of
airline flight crew employees to make, keep, and preserve records of
hours scheduled.
The Department received no substantive comments regarding proposed
Sec. 825.500(h). The Department adopts the text essentially as
proposed, but proposed Sec. 825.500(h) will be located in Sec.
825.803, Special rules for airline flight crew employees, recordkeeping
requirements.
In the Final Rule, Sec. 825.803(a) makes clear that the
requirements of Sec. 825.500 apply to employers of airline flight crew
employees. Section 825.803(b) describes, as proposed Sec.
825.500(h)(1) and (h)(2) did, the additional recordkeeping requirements
that apply to those employers. The Department has slightly modified
proposed paragraph (h)(2); the text of Sec. 825.803(b)(2) now
specifies, consistent with the AFCTCA, that employers of airline flight
crew employees must make, keep, and preserve records of hours worked
and hours paid, as those terms are defined in new Sec. 825.801(b)(2).
C. Proposed Revisions Definitions (Sec. 825.102), Employee Eligibility
(Sec. 825.110), Calculation of Leave (Sec. 825.205), and
Recordkeeping (Sec. 825.500)
1. Section 825.102 Definitions
In the NPRM, the Department proposed to move Sec. 825.800, which
currently contains the definitions of significant terms, phrases, and
acronyms used in part 825, to Sec. 825.102, which is currently
reserved. The Department intended the reorganization to enhance the
utility of the regulations by defining terms before they are used in
the substantive provisions. Additionally, the proposed change would
organize the regulations to be more consistent with other regulations
implementing statutes administered by the WHD.
The Department received comments from the Coalition and SHRM
addressing the proposed relocation of the definitions section, both of
which supported the change. Therefore, the Department adopts the
proposal, and the definitions section appears in the Final Rule as
Sec. 825.102.
Discussions of comments regarding the proposed substantive changes
to certain definitions, as well as modifications to those definitions,
appear in the parts of this preamble addressing each of the relevant
substantive regulatory sections to which those definitions correspond.
In the Final Rule, the Department modifies the definitions of the
terms covered servicemember, eligible employee, serious injury or
illness, and son or daughter on covered active duty or call to covered
active duty status in Sec. 825.102 to mirror the modifications to the
definitions of these terms that are made in the corresponding relevant
substantive regulatory sections. In addition, in the Final Rule, the
Department adds definitions for the new terms airline flight crew
employee, applicable monthly guarantee, covered active duty or call to
covered active duty status, and covered veteran to Sec. 825.102 to
mirror the addition of these terms and their definitions that are made
in the corresponding relevant substantive regulatory sections. The
Department also updated the cross-references that appear in the
definitions of contingency operation, next of kin of a covered
servicemember, parent of a covered servicemember, and son or daughter
of a covered servicemember in the Final Rule in Sec. 825.102. The
Department modified the definition of outpatient status in the Final
Rule in Sec. 825.102 to reflect the fact that this term is only
relevant to current servicemembers. The Department also proposed to
add, as an aid and service to the reader, definitions of the terms ITO
or ITA, key employee, military caregiver leave, reserve components of
the Armed Forces, and TRICARE, which are terms that are already used in
the regulations. The Final Rule adopts these definitions as proposed.
Lastly, the Department removes, as proposed, the terms active duty or
call to active duty status and covered military member from the Final
Rule because these terms are no longer relevant.
2. Section 825.110 Eligible Employee
Section 825.110 sets forth the eligibility standards an employee
must meet in order to take FMLA leave. To be eligible, an employee must
have been employed by the employer for at least 12 months, must have
been employed for at least 1,250 hours of service in the 12-month
period immediately preceding the commencement of the leave, and must be
employed at a worksite where 50 or more employees are employed by the
employer within 75 miles.
The Department proposed revisions to Sec. 825.110(a), (c) and (d)
to reflect the AFCTCA's special definition of the hours of service
requirement for airline flight crew employees. As explained earlier in
this preamble, the Department has decided to place the provisions
implementing the AFCTCA in new Subpart H--Special Rules Applicable to
Airline Flight Crew Employees.
[[Page 8866]]
Proposed Sec. 825.110(c)(2), as well as the proposed addition to Sec.
825.110(d) relevant to airline flight crew employees, are moved to
Sec. 825.801, Special rules for airline flight crew employees, hours
of service requirement, and comments on that topic are discussed in the
section of this preamble addressing Sec. 825.801. Because proposed
paragraph (c)(2) will now appear in Subpart H, the Department will not
implement its proposal to renumber current paragraphs (c)(2) and (c)(3)
and cross-references to Sec. 825.801 have replaced references to
proposed paragraph (c)(2) in current paragraphs (a)(2) and (c)(1) of
Sec. 825.110. Additionally, for accuracy where statements apply to
airline flight crew employees as well as other types of employees, the
Department has replaced references to 1,250 hours with the term ``hours
of service requirement'' in Sec. Sec. 825.110(c)(2) and (d),
825.300(b)(3), and 825.702(g). The Department has also inserted, after
the references to hours worked in Sec. Sec. 825.301(b)(2) and
825.702(g), clarification that, as required by AFCTCA and set forth in
Sec. 825.801(b), the relevant number for airline flight crew employees
only is of hours worked or paid. Corresponding updates are made to the
definition of eligible employee in Sec. 825.102.
The Department also proposed clarifying edits to Sec. Sec.
825.110(b), (c), and (d) that were not specific to airline flight crew
employees. Two of these changes were to references in the current
regulations to the Uniformed Services Employment and Reemployment Act
(USERRA). Current Sec. 825.110(b)(2)(i) concerns employee eligibility
when there is a break in service occasioned by the fulfillment of the
employee's National Guard or Reserve military service. The Department
proposed to modify the language in the first sentence of Sec.
825.110(b)(2)(i) to clarify that the protections afforded by USERRA
extend to all military members (active duty and reserve) returning from
USERRA-qualifying military service. Current Sec. 825.110(c)(2)
provides rules pursuant to USERRA for crediting an employee returning
from a National Guard or Reserve obligation with the hours of service
that would have been performed but for the military service when
evaluating whether the hours of service eligibility requirement has
been met. The Department proposed to modify the language in this
paragraph in recognition that USERRA rights may extend to certain
employees returning to civilian employment from service in the Regular
Armed Forces.
The Department received two comments regarding the proposed
references to USERRA in the regulations. The Coalition supported the
Department's proposed change to current Sec. 825.110(c)(2), stating
that the language properly aligns with the USERRA regulations. NELA
recommended clarification of current Sec. 825.110(c)(2), expressing
concern that the reference to the period of military service in the
regulatory text could be misconstrued as allowing an employer to count
only the amount of time spent performing military duty rather than--as
required by the USERRA regulation at 20 CFR 1002.210--the entire length
of absence due to or necessitated by military service. Accordingly,
NELA suggested that the Department replace the phrase ``the period of
military service'' with ``the period of absence from work due to or
necessitated by military service.'' NELA also suggested similar edits
to the definition of eligible employee in proposed Sec. 825.102. NELA
also commented that the current definition of eligible employee in
Sec. 825.800 includes only National Guard and Reserve service as
service that may be credited toward FMLA eligibility requirements, and
recommended that the phrase National Guard or Reserve military service
obligation in paragraph (1)(i) and the phrase National Guard or Reserve
military obligation in paragraph (2)(i) be replaced with USERRA-
protected military service obligation.
The Department has carefully considered the comments regarding the
proposed changes to the USERRA provisions and has decided to adopt the
proposed changes to Sec. 825.110(b)(2)(i) and (c)(2), with
modification, as well as corresponding modifications elsewhere in the
regulations, in response to comments and for consistency with USERRA
regulations. The Department believes the revised language clarifies
that these provisions refer to both active and reserve military
members. Additionally, the Department agrees that using the language of
the USERRA regulations provides consistency and should prevent any
misunderstanding concerning the impact of the employee's military
service on his or her entitlement to FMLA, and is therefore
implementing NELA's suggested revisions. The Department is also
referring to the protected services as USERRA-covered service
throughout the regulations to accurately reflect that these provisions
apply to an absence from work due to any service covered by USERRA.
Accordingly, the phrase the period of military service is replaced by
the period of absence from work due to or necessitated by USERRA-
covered service in paragraph (c)(2), and the Department makes
corresponding changes to language in Sec. 825.110(b)(2)(i), the
definition of eligible employee in Sec. 825.102, and Sec. 825.702(g),
which also addresses the interaction of USERRA and the FMLA. The
Department believes that these revisions will ensure that, consistent
with the USERRA regulations, the entire absence necessitated by USERRA-
protected service will be counted in computing a returning military
member's eligibility.
Finally, the Department also proposed, for purposes of clarity,
replacing the general reference to eligibility requirements in the
second sentence of Sec. 825.110(d) with a specific reference to the
12-month eligibility requirement. The Department did not receive any
comments regarding this proposed revision, and adopts Sec. 825.110(d)
as proposed.
3. Section 825.205 Increments of FMLA Leave for Intermittent or Reduced
Schedule Leave
In the NPRM, the Department proposed several changes to Sec.
825.205 to clarify the existing rules regarding intermittent or reduced
schedule FMLA leave and to implement the AFCTCA provisions regarding
calculation of FMLA leave for airline flight crew employees. The
Department also proposed removing the varying increments of leave rule
from this section and sought comment on whether the physical
impossibility rule should also be removed. The Department is adopting
most of the changes as proposed, declining to adopt others, and making
additional clarifying changes in response to comments. The Department
is revising the proposed provision regarding the calculation of FMLA
leave for airline flight crew employees, but because the Department has
relocated the relevant regulatory text to Sec. 825.802, those
revisions are discussed in that section of this preamble.
Minimum Increment
Current Sec. 825.205(a)(1) defines the permissible increment of
intermittent or reduced schedule FMLA leave as an increment no greater
than the shortest period of time that the employer uses to account for
other forms of leave, provided that it is not greater than one hour and
further provided that an employee's FMLA leave entitlement may not be
reduced by more than the amount of leave actually taken. This paragraph
also permits employers to utilize different increments of FMLA leave at
different times of the day or shift under certain circumstances, a
provision referred to in this preamble as
[[Page 8867]]
the ``varying increments rule.'' In the NPRM, the Department proposed
three clarifying changes and one substantive change to Sec.
825.205(a)(1). 77 FR 8974.
The Department's three proposed clarifying changes were intended to
more thoroughly explain concepts already set forth in the Act and in
paragraph (a)(1). First, the Department proposed re-inserting language
used in the 1995 regulation at Sec. 825.203(d) to clarify that an
employer may not require an employee to take more leave than is
necessary to address the circumstances that precipitated the need for
leave. Second, the Department proposed inserting an example to
illustrate that when an employer uses different increments to account
for different types of leave, the employer must use the smallest of the
increments to account for FMLA leave usage. Third, the Department
proposed adding language to emphasize that an employer may only reduce
an employee's FMLA entitlement by the amount of leave actually taken,
excluding any time after an employee has returned to work.
The Department received few comments addressing these three
proposed clarifications to paragraph (a)(1). Labor organizations, such
as the Brotherhood of Locomotive Engineers and Trainman (BLET) and
United Transportation Union (UTU), supported the proposed clarification
regarding the prohibition on requiring an employee to take more FMLA
leave than necessary, commenting that ``returning this language to the
regulations * * * is a needed reminder to employers.'' The Equal
Employment Advisory Council (EEAC), however, expressed concern that the
proposed clarification would result in additional confusion, because
``it could be read as requiring employers to return to counting
intermittent leave in the smallest increments that their payroll system
is capable of calculating.'' SHRM also opposed insertion of this
language because, SHRM believed, it is redundant and could cause
confusion. No commenters addressed the insertion of the example
regarding an employer's use of different increments for different types
of leave. As to the third clarification, regarding the prohibition on
reducing an employee's entitlement by more than the amount of leave
actually taken, the Coalition acknowledged that this requirement
appears in the statute but stated that ``[a]bsent a showing the current
language has somehow resulted in harm to affected employees, the
language should not be amended from its current form.'' In contrast,
one individual commenter thought that because this third proposed
addition is merely a clarification of an existing requirement, ``there
is no cogent reason not to include it.''
After careful consideration of the comments regarding the three
clarifying changes proposed in paragraph (a)(1), the Department adopts
the clarifying language as proposed, with one modification. The
Department adopts the proposed language stating that an employer may
not require an employee to take more leave than necessary. As explained
in the NPRM, the proposed language was reinserted as a clarification of
an employer's statutory obligation. The adopted regulatory text makes
clear that this principle does not alter an employer's obligation to
account for FMLA leave in an increment no greater than the smallest
increment the employer uses to account for other forms of leave so long
as it is not greater than one hour and the employee is not required to
take more leave than is necessary. For that reason, the Department
disagrees with the comments asserting that the language could be
understood to impose a requirement to use the smallest increment made
possible by a company's timekeeping system. In response to those
comments, the Department emphasizes that it is not creating a
requirement that employers track FMLA leave using the smallest
increment possible under their payroll timekeeping systems. Rather, as
explained in the 2008 Final Rule, the increment of FMLA leave is
determined by the increment of leave used by the employer for other
types of leave (subject to a one hour maximum). The regulatory text
further explains that the clarifying provision is subject to the
physical impossibility rule in paragraph (a)(2) and the special rules
for intermittent leave for school employees in Sec. Sec. 825.601 and
825.602. The Final Rule modifies the proposed language to make clear
that this provision is also subject to the unique increment of leave
rules for airline flight crew employees in Sec. 825.802.
The Department also adopts the proposed illustrative example
regarding an employer's use of different increments for different types
of leave. The Department received no comments addressing this
clarifying edit, and continues to believe the new example serves to
make Sec. 825.205(a)(1) more understandable.
Additionally, the Department adopts the proposed clarifying
language concerning an employer's obligation to deduct from an
employee's FMLA entitlement only the amount of leave actually taken. As
the Coalition acknowledged, the proposed regulatory text simply
restates a statutory requirement. See 29 U.S.C. 2612(b)(1).
Furthermore, the Department believes this clarification in the
regulatory text will aid employers and employees to better understand
the counting of FMLA leave usage when an employee returns to work after
intermittent or reduced schedule leave. Accordingly, where an employer
chooses to waive its increment of leave policy in order to return an
employee to work--for example, where an employee arrives a half hour
late to work due to an FMLA-qualifying condition and the employer
waives its normal one-hour increment of leave and puts the employee to
work immediately--only the amount of leave actually taken by the
employee may be counted against the FMLA entitlement.
In addition to proposing specific clarifying language for paragraph
(a)(1), the Department also proposed to remove the sentence stating
that 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. In the NPRM, the Department noted that its enforcement
experience indicated some confusion regarding this provision.
Specifically, the Department understands that some employers have
interpreted the varying increments rule to permit the use of a larger
increment of FMLA leave at certain points in a shift than the increment
used for other forms of leave in the same time period.
Employers and employer groups opposed the elimination of the
varying increments rule. The rule was one subject of the letter-writing
campaign by members of SHRM, and the Department therefore received
hundreds of comments stating that eliminating the rule would make
administration of FMLA leave more difficult, as the current provision
``is important for [] ease in implementing FMLA leave.'' In addition,
World at Work reported that employers have difficulty administering
intermittent FMLA leave, so the Department should ``maintain the
maximum amount of flexibility for employers'' by retaining the varying
increments rule. SHRM similarly noted that the varying increments rule
gives employers flexibility in administering intermittent or reduced
schedule FMLA leave. Furthermore, SHRM members and the Coalition
asserted that the varying increment rule discourages employees from
using intermittent FMLA leave as an excuse to avoid discipline for
arriving late to work. EEAC commented that no confusion
[[Page 8868]]
exists in the application of the rule and that employers understand
that ``they may only count as FMLA leave the shortest increment of time
available to all employees for other types of leave during that time
period.'' Sedgwick Claim Management Services, Inc. and SHRM suggested
that the Department clarify, rather than remove, the rule to eliminate
any confusion about its application. The Department did not receive any
comments in support of deleting the varying increments rule.
After reviewing the comments, the Department has decided to retain
the varying increments rule but to modify the regulatory text to
clarify the intended application of the rule. The Department did not
eliminate the provision because comments from employers, which were
universally opposed to that proposal, made clear that the varying
increments rule is helpful in administering FMLA leave, and there were
no comments supporting the Department's proposal to delete the rule.
The Department is concerned, however, that some employers have found
the provisions confusing and has therefore clarified the regulatory
text to emphasize that employers who use varying increments of other
types of leave may use varying increments of FMLA leave but may not
account for FMLA leave in a larger increment than the smallest
increment used for any other form of leave during the period in which
the FMLA leave is taken. This clarification is meant to better explain
that employers may not apply a varying increment of leave only to FMLA
leave, but instead must use the varying increment for all types of
leave. For example, if an employer usually accounts for all types of
leave in increments of 15 minutes, but accounts for all non-FMLA leave
for the first hour of the day in 30-minute increments, the employer may
also account for FMLA leave in an increment no greater than 30 minutes
only during the first hour of the day. This modified text is intended
as a clarification of the existing varying increment rule, not as a
substantive change to the current regulations.
Physical Impossibility
Section 825.205(a)(2) sets forth the physical impossibility
provision, which provides that where it is physically impossible for an
employee to commence or end work mid-way through a shift, the entire
period that the employee is forced to be absent is designated as FMLA
leave and counted against the employee's FMLA leave entitlement. The
Department revisited this provision in the proposed rule in connection
with the AFCTCA because of the impact of the physical impossibility
provision on the airline industry. In the NPRM, the Department proposed
adding language to Sec. 825.205(a)(2) clarifying that the period of
physical impossibility may not extend beyond the period during which
the employer is unable either to permit the employee to work prior to a
period of FMLA leave, or to return the employee to work after a period
of FMLA leave, because of physical impossibility. The proposed language
was intended to emphasize that the physical impossibility provision be
applied in only the most limited circumstances and only where it is, in
fact, physically impossible to allow the employee to leave his or her
shift early or to restore the employee to his or her same position or
to an equivalent position at the time the employee no longer needs FMLA
leave. The Department also noted that it was considering deleting the
physical impossibility provision in its entirety because of concern
that employers may be applying the provision where reinstatement was
possible but inconvenient and requested comments on whether the
provision should be retained.
Employers, employer groups, and industry organizations, a majority
of whom represented the airline and railroad industries, opposed the
removal of the physical impossibility provision and emphasized that the
airline and railroad industries rely on the exception. For example,
they stated that when a flight crew member or railroad employee uses
intermittent or reduced schedule FMLA leave at a time that causes him
or her to miss a flight or trip, the employer must find a replacement
employee to fill in for the employee for the duration of the trip,
which can sometimes span several days. Commenters including RAA also
asserted that for reasons including travel time and contractual
agreements, it is usually not possible, and where possible, it is
costly, to return the original worker to his or her scheduled trip.
Similarly, A4A argued that it is not always possible to assign the
original worker to a new trip the day after he or she returns from FMLA
leave because collective bargaining agreements often require that
employers prioritize giving assignments to employees based on factors
such as seniority, work rules on reserve staffing, and minimum and
maximum flight hours when making trips available. The Association of
American Railroads (AAR) raised analogous concerns.
A4A and AAR also contended that the provision prevents railroad and
airline employees from misusing FMLA leave, because allowing employees
to use only a small amount of intermittent or reduced schedule FMLA
leave in order to miss work over the entire duration of a trip may
create an incentive to manipulate the system. World at Work, as well as
the members of SHRM who submitted hundreds of form letters opposed to
deletion of the rule in response to the NPRM, emphasized that employers
understand the application of the provision is limited and the existing
regulation makes clear the provision is meant to apply narrowly. In
addition, both SHRM and the AAR noted they were unaware of any evidence
that the exception is being misused by employers, and asserted that the
provision protects employees because if FMLA protection does not cover
the full period during which reinstatement is physically impossible,
the employee may be subject to discipline based on the unprotected
portion of the leave.
A number of employee advocacy groups and labor organizations also
commented on the physically impossibility provision and generally
recommended that the Department remove the exception. These commenters,
including BLET and UTU, asserted that the railroad and airline
industries have used the exception to improperly diminish employees'
FMLA entitlements, because the provision allows employers to deduct
more time from an employee's FMLA entitlement than the employee has
asked to use. For example, TTD stated that a flight attendant who needs
only a single day of FMLA leave at the beginning of a scheduled five-
day trip could lose five days of her FMLA entitlement. Airline employee
groups asserted that the airline industry is not adversely affected by
employees' use of intermittent or reduced schedule FMLA leave, and
there is no need for the physical impossibility provision. ALPA and AFA
noted that flight crew members frequently take short-term leave for a
variety of reasons, often without advance notice, so the industry is
prepared to address such situations when they arise because of the use
of intermittent or reduced schedule FMLA leave.
Both employer and employee groups argued that the statute compels
their preferred result concerning this provision. AAR asserted that the
statute's requirement to calculate FMLA leave based on ``actual work
time'' mandates that employers be permitted to deduct from an
employee's FMLA entitlement the entire work period the employee missed
when the use of FMLA leave caused him or her to be
[[Page 8869]]
unavailable at the time a trip commences. In contrast, ALPA, TTD, and
BLET and UTU argued that because the FMLA provides that the use of
intermittent or reduced schedule leave ``shall not result in a
reduction in the total amount of leave to which the employee is
entitled * * * beyond the amount of leave actually taken,'' 29 U.S.C.
2612(b)(1), deductions from FMLA entitlements for more than the amount
of leave needed are prohibited.
Numerous comments addressed how the Department should clarify the
physical impossibility provision. SHRM opposed the Department's
proposed clarification, asserting that it is ``unnecessary and likely
to cause confusion'' and that the changes would ``[add] little if any
clarification.'' Specifically, SHRM contended that the Department's
proposed clarification concerning an ``equivalent position'' could be
misinterpreted to mean that an employer could transfer or reassign to a
new position an employee involved in a physical impossibility scenario.
Other employer organizations were concerned that the proposed
clarifying sentence was meant to indicate that when an employee returns
from intermittent or reduced schedule FMLA leave, his or her employer
must prioritize assignment to a new trip above the assignment of other
employees. For example, AAR asserted that treating FMLA leave users
differently by allowing them to jump to the top of the list of
employees waiting for assignments would violate the statute. The
Coalition also requested that the Department not require employers to
demonstrate that no equivalent position exists. Furthermore, some
employer groups, such as RAA, suggested that the definition of physical
impossibility should include contractual and other restrictions on an
employer's ability to return an employee to work, including
requirements in collective bargaining agreements to assign employees to
trips based on seniority. Employee groups, including BLET and UTU,
opposed any such expansion to the provision. AFA asked the Department
to clarify, should it maintain the provision, that for purposes of the
airline industry, an ``equivalent position'' to which an employee may
be assigned to allow the return to work after the use of intermittent
or reduced schedule FMLA leave includes equivalence regarding the type
of trip to which the employee is entitled due to seniority.
Commenters also offered suggestions regarding an employee's
obligation to make him or herself available for work after using
intermittent or reduced schedule FMLA leave. A4A suggested that the
Department add language to the provision clarifying that if the
employer finds an alternative trip that makes the employee's return to
work after the use of intermittent or reduced schedule FMLA leave
possible, the employee must make him or herself available for the trip
or accept that the full duration of the original trip will be deducted
from the employee's FMLA entitlement. IAM proposed that flight crew
members who miss the beginning of a trip be given two options: take the
entire duration of the trip as protected FMLA leave or take one day of
FMLA leave and agree to be available to work for the remaining days of
the trip, with no FMLA leave deduction for that remaining time if no
work assignment is forthcoming.
After careful consideration of the comments, the Department has
decided to retain the physical impossibility rule. The Department
recognizes the unique circumstances that can make it physically
impossible to immediately return employees to work when they need to
use intermittent or reduced schedule FMLA leave in certain industries.
Although employee groups supported the proposal to remove the rule,
they offered only general objections. In addition, the Department notes
that the physical impossibility rule is protective of employees who may
be subject to disciplinary action because they need to take leave
beyond that required for their FMLA condition to account for time not
worked due to the physical impossibility. In contrast, under the
provision, all of the leave taken due to physical impossibility is
counted as FMLA leave. Further, as explained in the 2008 Final Rule,
employers have an obligation not to discriminate between employees
taking FMLA leave and employees taking other forms of leave in
restoring employees or offering alternative work. See 73 FR 67978.
With regard to comments asserting that the Act itself mandates a
particular result, the Department rejects these contentions. As
explained in the 2008 Final Rule, 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 no FMLA
provision requires 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. See 73 FR 67977.
Furthermore, after consideration of the comments regarding
clarification to the physical impossibility rule, the Department is
adopting the clarifying language as proposed. The Department believes
that the clarification effectively responds to the concerns raised by
employee groups and labor organizations regarding misapplication of the
rule by emphasizing the Department's intent that the physical
impossibility rule apply solely to situations in which it is truly
physically impossible to return the employee to work. See 73 FR 67977.
The Department will not modify the clarifying language in
accordance with the suggestions of employer groups because the
Department does not consider contractual or other scheduling
restrictions to be appropriate reasons to delay an employee's return to
the same or an equivalent position. The FMLA regulations provide that
the rights established by the Act may not be diminished by any
employment benefit program or plan. The FMLA would supersede a
provision of a collective bargaining agreement that allows seniority to
take precedence over an employee's reinstatement to an equivalent
position. See Sec. 825.700(a). The physical impossibility provision is
intended to make a limited allowance for the practical realities of the
airline, railroad, and other industries with unique workplaces in which
it is physically impossible for employees to leave work early or start
work late.
The Department also will not modify the proposed regulatory text
referring to an ``equivalent position.'' In response to SHRM's comments
that the clarifying language concerning ``equivalent position'' may be
misinterpreted, the Department notes that Sec. 825.204 already
addresses the limited scenarios in which an employer may transfer or
reassign an employee during intermittent leave. Additionally, with
regard to comments requesting that the Department define ``equivalent
position'' and state that, in the case of airline flight crew
employees, an employee must be returned to the same type of trip, the
Department believes addressing this issue in the regulations is
unnecessary. The Department has already promulgated a general
``equivalent position'' regulation, see Sec. 825.215, and has further
clarified in this preamble that a contractual restriction is not an
appropriate reason to delay restoration.
Calculation of Leave
Section 825.205(b) addresses the rules concerning the calculation
of leave when FMLA leave is taken on an intermittent or reduced
schedule basis. The Department proposed only clarifying changes to this
paragraph.
[[Page 8870]]
The Department proposed to include in the regulatory text language from
the 2008 Final Rule preamble to reinforce the requirements that the
employee's total available entitlement is 12 workweeks (or 26 workweeks
in the case of military caregiver leave), that FMLA leave does not
accrue at any particular hourly rate, and that the specific number of
hours contained in the workweek is dependent upon the hours the
employee would have worked but for the taking of leave. The Department
also proposed minor edits making uniform the references to fractions
contained in this paragraph. The Department did not receive any
comments regarding these changes and adopts paragraph (b) essentially
as proposed. The Department makes one correction to the proposed
language, changing ``but for the FMLA leave'' to ``but for the use of
leave,'' to accurately reflect the method of calculating an employee's
workweek. In addition, because in the Final Rule, the calculation of
leave rules for airline flight crew employees appear in Sec. 825.802,
the Department has added to paragraph (b) a reference to that section.
Overtime
Section 825.205(c) addresses when overtime hours that are not
worked may be counted as FMLA leave. The Department proposed to change
the term ``serious health condition'' in the last sentence in paragraph
(c) to ``FMLA-qualifying reason.'' In the NPRM, the Department
explained that this change would be consistent with the language used
in the first sentence of the paragraph to more accurately reflect that
overtime hours missed by an employee may be due to any FMLA-qualifying
reason. The Department did not receive any comments concerning this
proposed change, and adopts the modification in the Final Rule.
Calculation of Leave for Airline Flight Crew Employees
Finally, the Department proposed adding a new paragraph (d) to
Sec. 825.205 that would provide the method for calculating FMLA leave
use for airline flight crew employees. As explained earlier in this
preamble, the Department has decided to place all of the regulatory
provisions implementing the AFCTCA in Subpart H--Special Rules
Applicable to Airline Flight Crew Employees. Accordingly, the Final
Rule does not include a paragraph (d) in Sec. 825.205, and the
discussion of calculation of FMLA leave for airline flight crew
employees appears in the section of this preamble addressing new Sec.
825.802, Special rules for airline flight crew employees, calculation
of leave.
4. Section 825.500 Recordkeeping requirements
Section 825.500 explains the recordkeeping requirements under the
FMLA. The Department proposed two changes to this section, both of
which it is adopting, although the second addition will appear in a
different regulatory section than proposed.
First, the Department proposed to add a new sentence at the end of
paragraph (g) setting forth the employer's obligation to comply with
the confidentiality requirements of the Genetic Information
Nondiscrimination Act of 2008 (GINA), Public Law 110-233. To the extent
that records and documents created for FMLA purposes contain family
medical history or genetic information as defined in GINA, employers
must maintain such records in accordance with the confidentiality
requirements of Title II of GINA. GINA permits genetic information,
including family medical history, obtained by the employer in FMLA
records and documents to be disclosed consistent with the requirements
of the FMLA.
The Department received two comments addressing this proposed
change. SHRM expressed agreement with this change. The Illinois Credit
Union League commented that because the Equal Employment Opportunity
Commission (EEOC) is the agency with authority from Congress to
administer GINA, the Department ``is not and should not be empowered to
exercise authority which it is not delegated to use.''
The Department adopts the proposed new sentence regarding GINA.
While the EEOC is the agency charged with administering GINA, as noted
in the NPRM, employers must maintain FMLA records in accordance with
the confidentiality requirements of Title II of GINA. The GINA
regulations provide a narrow exception to the limitations on disclosure
for genetic information obtained by the employer for records and
documents to be disclosed consistent with the requirements of the FMLA.
See 29 CFR 1635.9. The Department is acting within its authority to
require employers to maintain any relevant FMLA records in conformance
with applicable GINA confidentiality and disclosure requirements and
believes that this provision provides useful guidance to employers
regarding their confidentiality obligations in the FMLA process.
The Department also proposed to add paragraph (h), implementing the
AFCTCA statutory requirement that employers of airline flight crew
employees maintain certain records on file with the Secretary. The
substance of proposed Sec. 825.500(h) will be located in Sec.
825.803, Special rules for airline flight crew employees, recordkeeping
requirements. In the Final Rule, Sec. 825.500(h) provides a cross-
reference to Sec. 825.803. The discussion of the recordkeeping
requirements specific to employers of airline flight crew employees
appears with the section of this preamble addressing Subpart H.
VII. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
and its attendant regulations, 5 CFR part 1320, requires that the
Department consider the impact of paperwork and other information
collection burdens imposed on the public. Under the PRA, an agency may
not collect or sponsor the collection of information, nor may it impose
an information collection requirement unless it displays a currently
valid Office of Management and Budget (OMB) control number. See 5 CFR
1320.8(b)(3)(vi).
OMB has assigned control number 1235-0003 to the FMLA information
collections. In accordance with the PRA, the February 15, 2012 NPRM
solicited comments on the FMLA information collections. This paperwork
burden analysis estimates the burdens for the Final Rule. The Final
Rule implements amendments to the military leave provisions made by the
FY 2010 NDAA, which extends the availability of FMLA leave for
qualifying exigencies to employee-family members of members of the
Regular Armed Forces and defines the deployments covered by such leave,
and extends FMLA military caregiver leave to employee-family members of
certain veterans with a serious injury or illness and expands the
provision of such leave to cover serious injuries or illnesses that
existed prior to a covered servicemember's active duty and were
aggravated in the line of duty while on active duty. The Final Rule
also implements the AFCTCA, which establishes special hours of service
eligibility requirements for airline flight crew members and flight
attendants eligibility requirements for airline flight crew members and
flight attendants and authorizes the Department to promulgate
regulations regarding the calculation of leave for airline flight crew
employees as well as recordkeeping requirements for their employers.
Many of the estimates in the analysis of the paperwork requirements
derive from data developed for the Regulatory
[[Page 8871]]
Impact Analysis (RIA) under Executive Orders 13563 and 12866. However,
the specific needs that the PRA analysis and RIA are intended to meet
often require that the data undergo a different analysis to estimate
burdens imposed by the paperwork requirements from the analysis used in
estimating the effect the regulations will have on the economy. In
addition, for certain sections, a range of values is provided in the
RIA; the PRA uses the midpoint of those ranges. Consequently, the
differing assessment in the PRA analysis and the RIA of the regulatory
changes may lead to different results. For example, the PRA analysis
measures the additional burden of the information collection on those
who are providing information due to the regulatory changes; however,
the RIA measures the incremental changes expected to result in the
broader economy due to the regulatory changes. Thus, this PRA analysis
will calculate the additional paperwork burden in relation to the
existing FMLA information collection burden arising from this rule.
Conversely, the regulatory definition of collection of information for
PRA purposes specifically excludes the public disclosure of information
originally supplied by the Federal government to the recipient for the
purpose of disclosure to the public. 5 CFR 1320.3(c)(2). The RIA,
however, may need to consider the impact of any regulatory changes in
such notifications provided by the government. Finally, the PRA
definition of burden can exclude the time, effort, and financial
resources necessary to comply with a collection of information that
would be incurred by persons in the normal course of their activities
(e.g., in compiling and maintaining business records) if the agency
demonstrates that the reporting, recordkeeping, or disclosure
activities needed to comply are usual and customary. 5 CFR
1320.3(b)(2). The RIA, however, must consider the economic impact of
any changes in the Final Rule.
On December 31, 2011, the previous approval for the FMLA
information collections expired. Accordingly, the Department issued a
60-day notice on September 28, 2011, on the proposed extension of the
approval of information collection requirements (paperwork re-
clearance). The burden analyses that were calculated for the paperwork
re-clearance only accounted for the increased burdens stemming from the
expansion of qualifying exigency leave to the Regular Armed Forces,
pursuant to the 2010 NDAA, and the enactment of AFCTCA. The analyses
did not account for the increased burden resulting from the expansion
of military caregiver leave to care for covered veterans.\4\ OMB
approved the request for renewal of the FMLA information collection on
February 10, 2012, thereby extending the expiration date to February
28, 2015.
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\4\ As explained earlier in this preamble, it is the
Department's position that the expansion of qualifying exigency
leave to the Regular Armed Forces was effective on October 28, 2009,
the date the FY 2010 NDAA was enacted. It is also the Department's
position that the provisions of the AFCTCA were effective on the
date of its passage, December 9, 2009. However, the Department's
position is that the provision of the FY 2010 NDAA permitting
military caregiver leave to care for certain veterans is not
effective until the Department issues regulations defining a serious
injury or illness for a covered veteran as required by the statute.
---------------------------------------------------------------------------
On January 30, 2012, the Department announced that it would be
publishing the NPRM proposing changes to the regulations to implement
the FY 2010 NDAA and AFCTCA amendments to the FMLA. On February 15,
2012, the NPRM was published in the Federal Register. See 77 FR 8960.
In the NPRM, the Department specifically solicited comments on the
proposed changes to the FMLA information collections. The publication
of the NPRM subsequent to the approval of the paperwork re-clearance
package required the Department to re-conduct the paperwork analyses
for the Final Rule. The final burden analyses for this Final Rule are
based upon the most recently approved burdens by OMB for the FMLA
information collections. A copy of the NPRM was submitted to OMB and on
March 28, 2012 OMB requested that the Department resubmit the
information collection request upon promulgating the Final Rule and
after considering public comments on the FMLA NPRM. The Department did
receive one comment on the PRA, which is discussed later in this
section.
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 information collection
requirements contained in this Final Rule have been approved by OMB
under OMB control number 1235-0003 through February 28, 2015. A copy of
the information collection request can be obtained at www.reginfo.gov
or by contacting the WHD as shown in the FOR FURTHER INFORMATION
CONTACT section of this preamble.
Circumstances Necessitating Collection: The Family and Medical
Leave Act of 1993 (FMLA), 29 U.S.C. 2601, et seq., requires private
sector employers who employ 50 or more employees, all public and
private elementary schools, and all public agencies to provide up to 12
weeks of unpaid, job-protected leave during any 12-month period to
eligible employees for certain family and medical reasons (i.e., for
birth of a son or daughter and to care for the newborn child; for
placement with the employee of a son or daughter for adoption or foster
care; to care for the employee's spouse, son, daughter, or parent with
a serious health condition; because of a serious health condition that
makes the employee unable to perform the functions of the employee's
job; to address qualifying exigencies arising out of the deployment of
the employee's spouse, son, daughter, or parent to covered active duty
in the military), and up to 26 workweeks of unpaid, job-protected leave
during a single 12-month period to an eligible employee who is the
spouse, son, daughter, parent, or next of kin of a covered
servicemember for the employee to provide care for the covered
servicemember with a serious injury or illness. FMLA section 404
requires the Secretary of Labor to prescribe such regulations as
necessary to enforce this Act. 29 U.S.C. 2654. In addition, the FY 2010
NDAA amended the FMLA to expand qualifying exigency leave to employee-
family members of the Regular Armed Forces, and military caregiver
leave to employee-family members of certain veterans with a serious
injury or illness. Public Law 111-84. The FMLA was also amended by the
AFCTCA, which created special hours of service eligibility requirement
for airline flight crew employees. Public Law 111-119.
The Department's authority for the collection of information and
the required disclosure of information under the FMLA stems from the
statute and/or the implementing regulations. These third-party
disclosures ensure that both employers and employees are aware of and
can exercise their rights and meet their respective obligations under
FMLA. The required disclosures, which now also include the disclosure
of a serious injury or illness for a covered veteran, are listed below.
A. Employee Notice of Need for FMLA Leave [29 U.S.C. 2612(e); 29
CFR 825.100(d), 825.301(b), 825.302, 825.303]. An employee must provide
the employer at least 30 days advance notice before FMLA leave is to
begin if the need for the leave is foreseeable based on an expected
birth, placement for adoption or foster care, or planned medical
treatment for a serious health condition of the employee or of a family
member or planned medical treatment for a serious injury or illness of
a
[[Page 8872]]
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 under the facts and
circumstances of the particular case. When an employee seeks leave for
the first time for an FMLA-qualifying reason, the employee need not
expressly assert rights under the FMLA or even mention the FMLA. The
employee must, however, provide sufficient information that indicates
that leave is potentially FMLA-qualifying and the timing and
anticipated duration of the absence. Such information may include that
a condition renders the employee unable to perform the functions of the
job, or if the leave is to care 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 whether the employee or the employee's family member is
under the continuing care of a health care provider. Sufficient
information for leave due to a qualifying family member's call (or
impending call) to covered active duty status may include that the
military member is on or has been called to covered active duty and
that the requested leave is for one of the categories of qualifying
exigency leave. An employer, generally, may require an employee to
comply with its usual and customary notice and procedural requirements
for requesting leave.
B. Notice to Employee of FMLA Eligibility and Rights and
Responsibilities Notice [29 CFR 825.219-.300(b)]. When an employee
requests FMLA leave or when the employer acquires knowledge that an
employee's leave may be for an FMLA-qualifying reason, the employer
must notify the employee--within five business days, absent extenuating
circumstances--of the employee's eligibility to take FMLA leave and any
additional requirements for taking such leave. The eligibility notice
must provide information regarding the employee's eligibility for FMLA
leave, and, if the employee is determined not to meet the eligibility
criteria, provide at least one reason why the employee is not eligible.
The rights and responsibilities notice must detail the specific rights
and responsibilities of the employee, and explain any consequences of a
failure to meet these responsibilities. If an employee provides notice
of a subsequent need for FMLA leave during the applicable 12-month
period due to a different FMLA-qualifying reason, the employer does not
have to provide an additional eligibility notice if the employee's
eligibility status has not changed. If the employee's eligibility
status has changed, then the employer must notify the employee of the
change in eligibility status within five business days, absent
extenuating circumstances. The rights and responsibilities notice must
be provided to the employee each time the eligibility notice is
provided to the employee. Form WH-381 allows an employer to satisfy the
regulatory requirement to provide employees with specific information
concerning eligibility status and with written notice detailing
specific rights as well as expectations and obligations of the employee
and explaining any consequences of a failure to meet these obligations.
See Sec. 825.300(b) and (c).
C. Employee Certifications--Serious Health Condition of Employee or
Employee's Family Member, Recertification, Fitness for Duty, Leave for
a Qualifying Exigency, and Leave to Care for a Covered Servicemember.
1. Medical Certification and Recertification [29 U.S.C. 2613,
2614(c)(3); 29 CFR 825.100(d), 825.305-.308]. An employer may require
that an employee's leave due to the employee's own serious health
condition that makes the employee unable to perform one or more
essential functions of the employee's position or to care for the
employee's spouse, son, daughter, or parent with a serious health
condition, be supported by a certification issued by the health care
provider of the eligible employee or of the employee's family member.
In addition, an employer may request recertification under certain
conditions. The employer must provide the employee at least 15 calendar
days to provide the initial certification, and any subsequent
recertification, unless the employee is not able to do so despite his
or her diligent good faith efforts. An employer must advise an employee
whenever it finds a certification incomplete or insufficient and state
in writing what additional information is necessary to make the
certification complete and sufficient and must provide the employee
seven calendar days (unless not practicable under the particular
circumstances despite the employee's diligent good faith efforts) to
cure any identified deficiency. The employer may contact the employee's
health care provider for purposes of clarification and authentication
of the medical certification (whether initial certification or
recertification) after the employer has given the employee an
opportunity to cure any identified deficiencies. An employer, at its
own expense and subject to certain limitations, may also require an
employee to obtain a second and third medical opinion. Form WH-380-E
allows an employee requesting FMLA leave for his or her own serious
health condition to satisfy the statutory requirement to furnish, upon
the employer's request, appropriate certification (including a second
or third opinion and recertification) to support the need for leave for
the employee's own serious health condition. See Sec. 825.305(a). Form
WH-380-F allows an employee requesting FMLA leave for a family member's
serious health condition to satisfy the statutory requirement to
furnish, upon the employer's request, appropriate certification
(including a second or third opinion and recertification) to support
the need for leave for the family member's serious health condition.
See Sec. 825.305(a).
2. Fitness-for-Duty Medical Certification [29 U.S.C. 2614(a)(4); 29
CFR 825.312]. As a condition of restoring an employee whose FMLA leave
was occasioned by the employee's own serious health condition that made
the employee unable to perform the employee's job, an employer may have
a uniformly applied policy or practice that requires all similarly
situated employees (i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and present
certification from the employee's health care provider that the
employee is able to resume work. The employee has the same obligations
to participate and cooperate in providing a complete and sufficient
certification to the employer in the fitness-for-duty certification
process as in the initial certification process. An employer may
require that the fitness-for-duty certification specifically address
the employee's essential job functions if the employer has provided the
employee with a list of those essential functions and notified the
employee of the need for a fitness-for-duty certification in the
designation notice. Certain managers for an employer, but not the
employee's immediate supervisor, may contact a health care provider for
purposes of clarifying and authenticating a fitness-for-duty
certification. An employer is not entitled to a fitness-for-duty
certification for each absence taken on an intermittent or reduced
leave schedule; however, an employee may be required to furnish a
fitness-for-duty certificate no more often than once every 30 days if
an employee has used
[[Page 8873]]
intermittent leave during that period and reasonable safety concerns
exist.
3. Certification for Leave for a Qualifying Exigency [29 CFR
825.309]. An employer may require an employee who requests FMLA leave
due to a qualifying exigency to certify the need for leave. In
addition, the first time an employee requests leave for a qualifying
exigency related to a qualifying family member's active duty status, an
employer may require the employee to provide a copy of the military
member's active duty orders or other documentation issued by the
military that indicates the military member is on covered active duty.
Optional form WH-384 allows an employee requesting FMLA leave based on
a qualifying exigency to satisfy the statutory requirement to furnish,
upon the employer's request, appropriate certification to support leave
for a qualifying exigency.
4. Certification for Leave to Care for Covered Servicemember [29
CFR 825.310]. An employee who requests FMLA leave to care for a covered
servicemember (either a current servicemember or a veteran) may be
required by his or her employer to certify the need for leave. An
employee requesting FMLA leave based on a covered servicemember's
serious injury or illness may satisfy the statutory requirement to
furnish, upon the employer's request, a medical certification from an
authorized health care provider with optional form WH-385 or WH-385-V.
An employer must accept as sufficient certification of leave to care
for a current servicemember an invitational travel order or
invitational travel authorization (ITO or ITA) issued to the employee
or to another family member in lieu of optional form WH-385 or the
employer's own form.
D. Notice to Employees of FMLA Designation [29 CFR
825.300(c)-.301(a)]. When the employer has enough information to
determine whether the leave qualifies as FMLA leave (after receiving a
medical certification, for example), the employer must notify the
employee within five business days of making such determination whether
the leave has or has not been designated as FMLA leave and the number
of hours, days or weeks that will be counted against the employee's
FMLA leave entitlement. If it is not possible to provide the hours,
days or weeks that will be counted against the employee's FMLA leave
entitlement (such as in the case of unforeseeable intermittent leave),
then such information must be provided upon request by the employee but
not more often than once every 30 days if leave is taken during the 30-
day period. If the employer requires paid leave to be substituted for
unpaid leave, or that paid leave taken under an existing leave plan be
counted as FMLA leave, this designation also must be made at the time
of the FMLA designation. In addition, if the employer will require the
employee to submit a fitness-for-duty certification, the employer must
provide notice of the requirement with the designation notice. Form WH-
382 allows an employer to meet its obligation to designate leave as
FMLA-qualifying. See 29 CFR Sec. 825.300(d).
E. Notice to Employees of Change of 12-Month Period for Determining
FMLA Entitlement [29 CFR 825.200(d)(1)]. An employer generally must
choose a single uniform method from four options available under the
regulations for determining the 12-month period for FMLA leave for
reasons other than care of a covered servicemember with a serious
injury or illness (which is subject to a set single 12-month period).
An employer wishing to change to another alternative is required to
give at least 60 days notice to all employees.
F. Key Employee Notification [29 U.S.C. Sec. 2614(b)(1)(B); 29 CFR
825.217-.219 and 825.300(c)(1)(v)]. An employer that believes that it
may deny reinstatement to a key employee must give written notice to
the employee at the time the employee gives notice of the need for FMLA
leave (or when FMLA leave commences, if earlier) that he or she
qualifies as a key employee. At the same time, the employer must also
fully inform the employee of the potential consequences with respect to
reinstatement and maintenance of health benefits if the employer should
determine that substantial and grievous economic injury to the
employer's operations would result if the employer were to reinstate
the employee from FMLA leave. If the employer cannot immediately give
such notice, because of the need to determine whether the employee is a
key employee, the employer must give the notice as soon as practicable
after receiving the employee's notice of a need for leave (or the
commencement of leave, if earlier). If an employer fails to provide
such timely notice it loses its right to deny restoration, even if
substantial and grievous economic injury will result from
reinstatement.
As soon as an employer makes a good faith determination--based on
the facts available--that substantial and grievous economic injury to
its operations will result if a key employee who has given notice of
the need for FMLA leave or is using FMLA leave is reinstated, the
employer must notify the employee in writing of its determination,
including that the employer cannot deny FMLA leave and that the
employer intends to deny restoration to employment on completion of the
FMLA leave. The employer must serve this notice either in person or by
certified mail. This notice must explain the basis for the employer's
finding that substantial and grievous economic injury will result, and,
if leave has commenced, must provide the employee a reasonable time in
which to return to work, taking into account the circumstances, such as
the length of the leave and the urgency of the need for the employee to
return.
An employee may still request reinstatement at the end of the leave
period, even if the employee did not return to work in response to the
employer's notice. The employer must then again determine whether there
will be substantial and grievous economic injury from reinstatement,
based on the facts at that time. If the employer determines that
substantial and grievous economic injury will result from reinstating
the employee, the employer must notify the employee in writing (in
person or by certified mail) of the denial of restoration.
G. Periodic Employee Status Reports [29 CFR 825.300(b)(4)]. An
employer may require an employee to provide periodic reports regarding
the employee's status and intent to return to work.
H. Notice to Employee of Pending Cancellation of Health Benefits
[29 CFR 825.212(a)]. Unless an employer establishes a policy providing
a longer grace period, an employer's obligation to maintain health
insurance coverage ceases under FMLA if an employee's premium payment
is more than 30 days late. In order to drop the coverage for an
employee whose premium payment is late, the employer must provide
written notice to the employee that the payment has not been received.
Such notice must be mailed to the employee at least 15 days before
coverage is to cease and advise the employee that coverage will be
dropped on a specified date at least 15 days after the date of the
letter unless the payment has been received by that date.
I. Documenting Family Relationship [29 CFR 825.122(k)]. An employer
may require an employee giving notice of the need for FMLA 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
[[Page 8874]]
is entitled to the return of the official document submitted for this
purpose.
J. General FMLA Recordkeeping [29 U.S.C. 2616; 29 CFR 825.500]. The
FMLA provides that employers shall make, keep, and preserve records
pertaining to the FMLA in accordance with the recordkeeping
requirements of Fair Labor Standards Act section 11(c), 29 U.S.C.
211(c), and regulations issued by the Secretary of Labor. This
statutory authority provides that no employer or plan, fund, or program
shall be required to submit books or records more than once during any
12-month period unless the Department has reasonable cause to believe a
violation of the FMLA exists or is investigating a complaint.
Covered employers who have eligible employees must maintain 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; total compensation paid; and dates FMLA leave is taken by FMLA
eligible employees (available from time records, requests for leave,
etc., if so designated). Leave must be designated in records as FMLA
leave and leave so designated may not include leave required under
State law or an employer plan which is not also covered by FMLA; if
FMLA leave is taken by eligible employees in increments of less than
one full day, the hours of the leave; copies of employee notices of
leave furnished to the employer under FMLA, if in writing, and copies
of all eligibility notices given to employees as required under FMLA
and these regulations; any documents (including written and electronic
records) describing employee benefits or employer policies and
practices regarding the taking of paid and unpaid leaves; premium
payments of employee benefits; records of any dispute between the
employer and an eligible employee regarding designation of leave as
FMLA leave, including any written statement from the employer or
employee of the reasons for the designation and for the disagreement.
Covered employers with no eligible employees must maintain the
basic payroll and identifying employee data already discussed. Covered
employers that jointly employ workers with other employers must keep
all the records required by the regulations with respect to any primary
employees, and must keep the basic payroll and identifying employee
data with respect to any secondary employees.
If FMLA-eligible employees are not subject to FLSA recordkeeping
regulations for purposes of minimum wage or overtime compliance (i.e.,
not covered by, or exempt from, FLSA), an employer need not keep a
record of actual hours worked (as otherwise required under FLSA, 29 CFR
516.2(a)(7)), provided that: eligibility for FMLA leave is presumed for
any employee who has been employed for at least 12 months; and with
respect to employees who take FMLA leave intermittently or on a reduced
leave schedule, the employer and employee agree on the employee's
normal schedule or average hours worked each week and reduce their
agreement to a written record.
Employers must maintain records and documents relating to any
medical certification, recertification or medical history of an
employee or employee's family member created for FMLA purposes as
confidential medical records in separate files/records from the usual
personnel files. Employers must also maintain such records in
conformance with any applicable Americans with Disabilities Act (ADA)
and GINA confidentiality requirements; except that: supervisors and
managers may be informed regarding necessary restrictions on the work
or duties of an employee and necessary accommodations; first aid and
safety personnel may be informed, when appropriate, if the employee's
physical or medical condition might require emergency treatment; and
government officials investigating compliance with the FMLA, or other
pertinent law, shall be provided relevant information upon request.
The FLSA recordkeeping requirements, contained in Regulations 29
CFR part 516, are currently approved under OMB control number 1215-
0018; consequently, this information collection does not duplicate
their burden, despite the fact that for the administrative ease of the
regulated community this information collection restates them.
Public Comments: On February 15, 2012, the Department published a
proposed rule and sought comments on the burdens imposed by the
information collections covered by the proposed regulations. 77 FR
8960. The same notice provided that comments could also be sent
directly to OMB, in accordance with provisions of 5 CFR 1320.11.
As part of the proposed rule, the Department sought public comment
regarding the burdens imposed by the information collection contained
in this Final Rule. The Department received one comment from an
individual identifying himself as a labor-employment attorney stating
that the agency's FMLA information collections are necessary for the
proper performance for the functions of the agency. This comment, along
with all of the comments relating to the other provisions of the NPRM
that were received, are a matter of public record, and posted without
change to http://www.regulations.gov, including any personal
information provided.
Burden Hours Estimates: The PRA section of the FMLA NPRM published
February 15, 2012 (77 FR 8960) used the 2008 analysis as the baseline
to determine the burden increase for this paperwork package, and
accounts for respondent and burden increases resulting from the
statutory amendments to the FMLA covering qualifying exigency leave,
military caregiver leave, and airline flight crew employee eligibility.
Subsequent to OMB's clearance of the NPRM, but before its publication
in the Federal Register, OMB approved the re-clearance of the existing
FMLA ICRs under the PRA. That re-clearance reflected increases in
respondents and burden stemming from the self-executing portions of the
FY 2010 NDAA (qualifying exigency leave for family members of members
of the Regular Armed Forces) and the Airline Flight Crew Technical
Corrections Act. The following burden analyses are based upon the 2012
reclearance issued on February 9, 2012, and reflect the increase in
respondents and burdens resulting from the extension of military
caregiver leave to covered veterans. Additionally, due to refinements
in the analysis conducted under E.O. 12866, the number of eligible
employees assumed to take leave to care for a covered veteran has
decreased.
Except as otherwise noted, the Department bases the following
burden estimates on the Regulatory Impact Analysis in the Final Rule
and the 2012 paperwork reclearance. The Department estimates that the
FMLA covers 91.1 million workers. The Department estimates 381,000
employers, comprised of 291,000 private businesses and 89,566
government entities, respond to the FMLA collections. For PRA purposes
89,499 employers are assumed to be state, local, or tribal governmental
entities and 67 are assumed to be Federal entities. The Department
assumes a proportional response burden between the employer entities
(74.033172415 percent private, 25.94333834 percent state, local, and
tribal governments, and 0.02348951 percent Federal). Within each
information collection, the respondents, responses, and burden
estimates are rounded to the nearest whole number.
[[Page 8875]]
In the interest of transparency, for each FMLA information collection
requirement this PRA discussion includes references to the incremental
burden changes that would be imposed by the rule, the burden imposed by
existing requirements, and the total burden after the rule takes
effect.
A. Employee Notice of Need for FMLA Leave. The Department estimates
that there are 26,908 employees who are newly eligible to take leave to
care for a covered veteran under the FY 2010 NDAA. Based on leave usage
patterns, 7,000 of these employees will take leave to care for a
covered veteran (26 percent of 26,908 employees).
Based on the leave patterns estimated by the Department in the PRIA
analysis, the Department estimates that there will be 357,000 employee
requests for military caregiver leave.
New burden: 357,000 employee respondent notices of leave x 2
minutes/60 minutes per hour = 11,900 hours.
Existing burden for this requirement: 13,829,680 responses and
460,990 hours.
Total estimated burden requested for this requirement: 14,186,680
responses and 472,890 hours.
B. Notice to Employee of FMLA Eligibility and Rights and
Responsibilities Notice. Based on the leave usage patterns for military
caregiver leave, the Department is assuming that all subsequent leave
requests will be for the same servicemember for whom the leave was
originally requested. The employee is required to notify the employer
in each instance of the need for leave. But the employer is not
required to provide the employee with a notice of eligibility or rights
and responsibilities unless the employee's eligibility status changes.
For military caregiver leave, 7,000 leave takers will provide 357,000
employee notices of their need for leave, but employers will only have
to issue 7,000 eligibility and rights and responsibilities notices.
New burden: 7,000 total responses (notices of eligibility and
rights and responsibilities) x 10 minutes/60 minutes per hour = 1,167
hours
Burden Disaggregation by Sector:
Private (74.03317215%): 5,182 responses x 10 minutes/60 minutes = 864
hours
State, local, tribal (25.943338%): 1,816 responses x 10 minutes/60
minutes = 303 hours
Federal (0.02348951%): 2 responses x 10 minutes/60 minutes = 0 hours
Existing burden requirement:
Private: 16,142,733 responses and 7,031,756 hours
State, local, tribal: 5,656,874 responses and 2,464,128 hours
Federal: 5,121 responses and 2,231 hours
Total estimated burden requested for this requirement:
Private: 16,147,915 responses and 7,032,619 hours
State, local, tribal: 5,658,690 responses and 2,464,431 hours
Federal: 5,123 responses and 2,231 hours
C. Employee Certifications: Employee Certifications-Serious Health
Condition Certification, Recertification, and Fitness-for-Duty
Certification; Documenting Call to Military Active Duty; Certification
of Qualifying Exigency Due to Call to Military Active Duty; Covered
Servicemember's Serious Injury or Illness Certification.
1. Medical Certification and Recertification. The Department
assumes that the number of employees who will obtain medical
certifications to care for a covered veteran from a health care
provider as defined in Sec. 825.125 will be very small as most
employees will obtain medical certifications from VA, DOD, TRICARE, or
DOD non-network TRICARE providers, which are not subject to second or
third opinions or recertifications. As such, the Department assumes
that five percent of employees will be asked to obtain a second or
third opinion/recertification. Utilizing these assumptions, 7,000
employees taking leave multiplied by 5% asked to provide medical
certification results in 350 employees requiring additional
certification.
New burden: 350 employees x 20 minutes/60 minutes per hour = 117
hours.
2. Fitness-for-Duty Medical Certification. No change from current
burden estimate.
3. Certification of Qualifying Exigency for Military Family Leave.
Although this Final Rule adds parental leave as a new qualifying
exigency for FMLA leave the Department did not update the burden
because it lacks any data on which to base an estimate of the number of
days of qualifying exigency leave that might be taken for parental
leave. Therefore, there is no change from the current burden estimate.
4. Certification for Leave Taken to Care for a Covered
Servicemember--Current Servicemember. Pursuant to the FY 2010 NDAA, an
eligible employee-family member may take FMLA leave to care for a
current servicemember who has a serious injury or illness that existed
before the member's active duty and was aggravated by service in the
line of duty while on active duty. At the NPRM stage the Department did
not have sufficient information to develop an estimate of employees who
will qualify for military caregiver leave for a covered servicemember
with a serious injury or illness that existed prior to the
servicemember's active duty and was aggravated in the line of duty on
active duty, and, thus, did not revise the current burden analysis for
certification of leave to care for a current servicemember. The
Department did not receive any comments in response to the NPRM
addressing this issue. Consequently, the Department still lacks
sufficient information to develop an estimate of employees who will
qualify for military caregiver leave for a covered servicemember with a
serious injury or illness that existed prior to the servicemember's
active duty and was aggravated in the line of duty on active duty.
However, as stated in the Regulatory Impact Analysis, the Department
believes that the number of servicemembers entering the military with
an injury or illness with the potential to be aggravated by service to
the point of rendering the servicemember unable to perform the duties
of his or her office, grade, rank, or rating is quite small due to the
selection process used by the Armed Forces.
5. Certification for Leave Taken to Care for a Covered
Servicemember--Covered Veteran. The FY 2010 NDAA provided FMLA leave
for eligible employees to care for a covered veteran with a serious
injury or illness that was incurred in the line of duty on active duty
(or existed before the member's active duty and was aggravated in the
line of duty on active duty) and manifested itself before or after the
member became a veteran. The Department estimates that 7,000 employees
will take leave to care for a covered veteran. The Department expects
that employers will request certification forms for this leave. The
Department estimates that it will take a Human Resources specialist 30
minutes to request, review, and verify the employee's certification
papers.
New burden: 7,000 responses (certification papers) x 30 minutes/60
minutes per hour = 3,500 hours.
All new certification and recertification requirements: 7,350
responses and 3,617 hours.
Existing total burden for this requirement: 12,118,019 responses
and 4,022,236 hours.
Total estimated burden for this requirement: 12,125,369 responses
and 4,025,853 hours.
D. Notice to Employees of FMLA Designation. The Department
estimates that each written FMLA designation
[[Page 8876]]
notice takes approximately ten minutes to complete.
New burden: 7,000 total responses (designation notices) x 10
minutes/60 minutes per hour = 1,167 hours.
Burden Disaggregation by Sector:
Private (74.03317215%): 5,182 responses x 10 minutes/60 minutes = 864
hours
State, local, tribal (25.943338%): 1,816 responses x 10 minutes/60
minutes = 303 hours
Federal (0.02348951%): 2 responses x 10 minutes/60 minutes = 0 hours
Existing total burden for this requirement:
Private: 12,898,914 responses and 3,479,716 hours
State, local, tribal: 4,520,148 responses and 1,219,392 hours
Federal: 4,092 responses and 1,104 hours
Total estimated burden requested for this requirement:
Private: 12,904,096 responses and 3,480,580 hours
State, local, tribal: 4,521,964 responses and 1,219,695 hours
Federal: 4,094 responses and 1,104 hours
E. Notice to Employees of Change of 12-month period of determining
FMLA eligibility. No change from current burden estimate.
Existing burden for this requirement:
Private: 7,099,082 respondents and 3,536 hours
State, local, tribal: 2,487,721 respondents and 1,239 hours
Federal: 2,351 respondents and 1 hour
Total estimated burden requested for this requirement:
Private: 7,099,082 respondents and 3,536 hours
State, local, tribal: 2,487,721 respondents and 1,239 hours
Federal: 2,351 respondents and 1 hour
F. Key Employee Notification. The Department assumes that a very
small percentage of employees taking leave to care for a covered
veteran will be determined key employees and even fewer of those
employees will receive notice from the employer that they intend to
exercise the option to not reinstate those employees. As such, the
Department does not associate a new burden hour estimate with this
particular provision for employees taking leave to care for a covered
veteran.
Existing burden for this requirement:
Private: 31,676 respondents and 2,640 hours
State, local, tribal: 11,100 respondents and 925 hours
Federal: 11 respondents and 1 hour
Total estimated burden requested for this requirement:
Private: 31,676 respondents and 2,640 hours
State, local, tribal: 11,100 respondents and 925 hours
Federal: 11 respondents and 1 hour
G. Periodic Employee Status Reports. The Department estimated in
the 2008 paperwork analysis that employers require periodic reports
from 25 percent of FMLA leave users, and since it has not received any
evidence to believe otherwise, it continues to estimate 25 percent
today. The Department also estimates a typical employee would normally
respond to an employer's request for a status report; however, to
account for any additional burden the regulations might impose, the
Department estimates that 10 percent of employees will respond to a
request only because of the regulatory requirement, imposing a burden
of two minutes per response. The Department also estimates that each
such employee provides two annual periodic status reports.
New burden: 7,000 leave takers x 25% x 10% = 175 employee
responses.
175 employee responses x 2 responses = 350 total responses.
350 responses x 2 minutes/60 minutes = 12 hours.
Existing burden for this requirement: 371,547 responses and 12,384
hours.
Total estimated burden for this requirement: 371,897 responses and
12,396 hours.
H. Documenting Family Relationships. The Department assumes that
under the military amendments all employees who take leave will be
doing so for a family-related reason. (7,000 leave takers). In the 2008
PRA analysis, the Department estimated that employers may require
additional documentation to support a family relationship in five
percent of these cases, and the additional documentation will take five
minutes.
New burden: 7,000 (employees taking leave for family-related
reasons) x 5% (additional documentation) = 350 employees required to
document family relationships. 350 employees x 5 minutes/60 minutes per
hour = 29 hours.
Existing burden for this requirement: 185,681 responses and 15,473
hours.
Total estimated burden requested for this requirement: 186,031
responses and 15,502 hours.
I. Notice to Employee of Pending Cancellation of Health Benefits.
The Department believes that most employees who take leave to care for
a covered veteran will be covered by the military member's health
benefits and not by his or her employer's health plan. As such, the
Department assumes that a very small percentage of employees taking
leave for a covered veteran will receive notification of the pending
cancellation of his or her health benefits. The Department does not
associate a new burden hour estimate with this provision.
Existing burden for this requirement:
Private: 105,585 responses and 8,799 hours
State, local, tribal: 37,000 responses and 3,083 hours
Federal: 34 responses and 3 hours
Total burden requested for this requirement:
Private: 105,585 responses and 8,799 hours
State, local, tribal: 37,000 responses and 3,083 hours
Federal: 34 responses and 3 hours
J. General Recordkeeping. No change from current burden estimate.
Existing burden for this requirement:
Private: 9,934,548 responses and 206,970 hours
State, local, tribal: 3,481,350 responses and 72,528 hours
Federal: 3,152 responses and 66 hours
Total burden requested for this requirement:
Private: 9,934,548 responses and 206,970 hours
State, local, tribal: 3,481,350 responses and 72,528 hours
Federal: 3,152 responses and 66 hours.
PRA Summary of Burden Increase Due to This Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Existing Increase in Existing Increase in Existing Increase in
Required disclosure respondents respondents responses responses burden hours burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Employee Notice of Need for FMLA Leave.................. 7,249,100 7,000 13,829,680 357,000 460,990 11,900
Notice to Employee of FMLA Eligibility and Rights and
Responsibilities Notice:
Private............................................. 211,170 5,182 16,142,733 5,182 7,031,756 864
[[Page 8877]]
State, local, tribal................................ 74,000 1,816 5,656,874 1,816 2,464.128 303
Federal............................................. 67 2 5,121 2 2,231 0
Employee Certifications................................. 5,461,097 7,350 12,118,019 7,350 4,022,236 3,617
Notice to Employees of FMLA Designation:
Private............................................. 211,170 5,182 12,898,914 5,182 3,479,716 864
State, local, tribal................................ 74,000 1,816 4,520,148 1,816 1,219,392 303
Federal............................................. 67 2 4,092 2 1,104 0
Notice to Employee of 12-month Period Change:
Private............................................. 21,117 0 7,099,082 0 3,536 0
State, local, tribal................................ 7,400 0 2,487,721 0 1,239 0
Federal............................................. 7 0 2,351 0 1 0
Key Employee Notification:
Private............................................. 21,117 0 31,676 0 2,640 0
State, local, tribal................................ 7,400 0 11,100 0 925 0
Federal............................................. 7 0 11 0 1 0
Periodic Employee Status Reports........................ 184,852 175 371,547 350 12,384 12
Documenting Family Relationships........................ 183,987 350 185,681 350 15,473 29
Notice to Employee of Pending Cancellation of Health
Benefits:
Private............................................. 105,585 0 105,585 0 8,799 0
State, local, tribal................................ 37,000 0 37,000 0 3,083 0
Federal............................................. 34 0 34 0 3 0
General Record Keeping:
Private............................................. 21,1170 0 9,934,548 0 206,970 0
State, local, tribal................................ 74,000 0 3,481,350 0 72,528 0
Federal............................................. 67 0 3,152 0 66 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grand Total Incremental Increase of Burden Hours = 17,892
Grand Total Annual Burden Hours = 19,027,093 Hours
Persons responding to the various FMLA information collections may
be employees of any of a wide variety of businesses. Absent specific
wage data regarding respondents, the Department used the median hourly
wage for a non-supervisory Human Resources Assistant (Except Payroll
and Timekeeping) for May 2010. The median hourly wage is $17.69 plus 40
percent in fringe benefits ($24.77). See BLS Occupational Employment
Statistics, Occupational Employment and Wages, May 2010 (http://www.bls.gov/oes/current/oes434161.htm). The Department estimates total
annual respondent costs for the value of their time to be $471,301,094
($24.77 x 19,027,093 total annual burden hours).
Other Respondent Cost Burdens (Maintenance and Operation): The
Department estimates that it will take approximately 20 minutes to
complete the certification for a covered veteran. Thus, the time would
equal the employee's time in obtaining the certification. The
Department used the median hourly wage for a physician's assistant of
$41.54 plus 40 percent in fringe benefits ($58.17) to compute a $19.39
cost for the certification of a serious health condition ($58.17 x 20
minutes/60 minutes per hour). See BLS Occupational Employment
Statistics, Occupational Employment and Wages, May 2010, http://www.bls.gov/oes/current/oes291071.htm.
New burden (covered veterans): 7,000 medical certifications for
covered veterans x $19.39 cost per certification = $135,730.
Existing maintenance and operations cost estimate for the existing
FMLA information collections: $163,332,185.
Grand total of maintenance and operations cost burden for
respondents = $163,467,915.
The total burden imposed by the FMLA information collections
(existing and new) is summarized as follows.
Agency: Wage and Hour Division.
Title of Collection: Family and Medical Leave Act, as Amended.
OMB Control Number: 1235-0003.
Affected Public: Individuals or Households; Private Sector--
Businesses or other for profits. Not for profit institutions, Farms:
State, Local, or Tribal Governments.
Total estimated number of respondents: 14,134,414.
Total estimated number of responses: 89,305,469.
Total estimated annual burden hours: 19,027,093.
Total estimated annual other cost burdens: $163,467,915.
VIII. Executive Order 12866; Executive Order 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action'' because, although not economically significant under section
3(f) of Executive Order 12866, it raises novel issues of law and
policy. Therefore, the rule was reviewed by OMB. The Family and Medical
Leave Act (FMLA or Act) is administered by the U.S. Department of
Labor, Wage and Hour Division (WHD). The FMLA provides a means for
employees to balance their work and family responsibilities by taking
unpaid leave for certain reasons. The Act is intended to promote the
stability and economic security of families as well as the nation's
interest in preserving the integrity of families.
The FMLA applies to any employer in the private sector engaged in
commerce
[[Page 8878]]
or in an industry or activity affecting commerce who employed 50 or
more employees each working day during at least 20 weeks in the current
or preceding calendar year; all public agencies and local education
agencies; and most Federal employees.\5\
---------------------------------------------------------------------------
\5\ Most Federal employees are covered under Title II of the
FMLA (incorporated in Title V, Chapter 63, Subchapter 5 of the U.S.
Code), which is administered by the Office of Personnel Management
under regulations set forth at 5 CFR part 630, subpart L.
---------------------------------------------------------------------------
To be eligible for leave, an individual must:
B. Be employed by a covered employer at a worksite that employs at
least 50 employees within 75 miles;
C. Have worked at least 12 months for the employer (not necessarily
consecutively); and
[ssquf] Have at least 1,250 hours of service during 12 months
preceding the beginning of the FMLA leave (as discussed herein, special
hours of service rules apply to airline flight crew employees).
The FMLA provides for job-protected, unpaid leave, which may be
continuous or intermittent, and allows for the substitution of paid
leave. Employees are entitled to:
[ssquf] A combined total of 12 workweeks of leave in a 12-month
period for:
[cir] birth and care of the employee's child (within one year);
[cir] placement with employee of a child for adoption or foster
care (within one year);
[cir] care of a spouse, child, or parent with serious health
condition;
[cir] the employee's own serious health condition; and
[cir] qualifying exigencies arising out of the fact that the
employee's spouse, son, daughter, or parent is a military member and is
on covered active duty or has been notified of an impending call or
order to covered active duty.
Employees are also entitled to 26 workweeks of leave in a single
12-month period 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.
A. Need for Regulation
The changes to the FMLA regulations are primarily to implement
statutory amendments to the FMLA's military family leave provisions and
separate statutory changes affecting the eligibility requirements for
airline flight crewmembers and flight attendants (collectively referred
to as airline flight crew employees). The military statutory amendments
are designed to make it easier for workers with family in military
service to balance their work and family lives during particularly
demanding times without the fear of losing their jobs. 73 FR 68070. The
amendments relating to the airline flight crew employees established a
special hours of service eligibility requirement in order to address
this industry's unique scheduling practices and expand access to FMLA-
protected leave for airline flight crew employees.
1. National Defense Authorization Act for Fiscal Year 2010 Amendments
On October 28, 2009, the President signed into law the National
Defense Authorization Act for FY 2010 (FY 2010 NDAA), Public Law 111-
84. Section 565(a) of the FY 2010 NDAA amends the FMLA. These
amendments expand the military family leave provisions added to the
FMLA in 2008, which provide qualifying exigency and military caregiver
leave for employees with family members who are covered military
members.
The FY 2010 NDAA amendments to the FMLA provide that an eligible
employee may take FMLA leave for any qualifying exigency arising out of
the fact that the employee's spouse, son, daughter, or parent is on (or
has been notified of an impending call to) covered active duty in the
Armed Forces. Covered active duty for members of a regular component of
the Armed Forces means duty during deployment of the member with the
Armed Forces to a foreign country. For members of the U.S. National
Guard and Reserves it means duty during deployment of the member with
the Armed Forces to a foreign country under a call or order to active
duty in a contingency operation as defined in section 101(a)(13)(B) of
title 10, United States Code. Prior to the FY 2010 NDAA amendments,
qualifying exigency leave did not apply to employees with family
members serving in a regular component of the Armed Forces.
The FY 2010 NDAA also expands the military caregiver leave
provisions of the FMLA. Military caregiver leave entitles an eligible
employee who is the spouse, son, daughter, parent, or next of kin of a
covered servicemember with a serious injury or illness, to take up to
26 workweeks of FMLA leave in a single 12-month period to care for the
covered servicemember. Under the FY 2010 NDAA amendments, the
definition of covered servicemember is expanded to include a veteran
``who is undergoing medical treatment, recuperation, or therapy for a
serious injury or illness'' if the veteran was a member of the Armed
Forces ``at any time during the period of 5 years preceding the date on
which the veteran undergoes that medical treatment, recuperation, or
therapy.'' Prior to the FY 2010 NDAA amendments, military caregiver
leave was limited to care for current members of the U.S. Armed Forces,
including members of the Regular Armed Forces and members of the
National Guard and Reserves.
In addition, the FY 2010 NDAA amends the FMLA's definition of a
serious injury or illness for a current member of the U.S. Armed
Forces, including National Guard or Reserves, to include not only a
serious injury or illness that was incurred by the member in the line
of duty on active duty but also one that ``existed before the beginning
of the member's active duty and was aggravated by service in line of
duty on active duty in the Armed Forces'' that may render the member
medically unfit to perform the duties of the member's office, grade,
rank, or rating. For covered veterans, the term is defined as ``a
qualifying (as defined by the Secretary of Labor) injury or illness
that was incurred by the member in line of duty on active duty in the
Armed Forces (or existed before the beginning of the member's active
duty and was aggravated by service in line of duty on active duty in
the Armed Forces) and that manifested itself before or after the member
became a veteran.''
2. Airline Flight Crew Technical Amendments
On December 21, 2009, the President signed into law the Airline
Flight Crew Technical Corrections Act (AFCTCA), Public Law 111-119.
This amendment to the FMLA establishes a special hours of service
eligibility provision for airline flight crew employees. This amendment
also permits the Secretary of Labor to provide by regulation a method
of calculating FMLA leave for airline flight crew employees. Airline
flight crew employees continue to be subject to the FMLA's other
eligibility requirements.
The amendment provides that an airline flight attendant or flight
crewmember meets the hours of service requirement if, during the
previous 12-month period, he or she has worked or been paid for:
[ssquf] Not less than 60 percent of the applicable total monthly
guarantee (or its equivalent), and
D. Not less than 504 hours, not including personal commute time, or
time spent on vacation, medical, or sick leave.
Prior to this amendment, many flight crew employees were not
eligible for FMLA leave because the nature of the airline industry,
including regulatory limits on the flying time, prevented
[[Page 8879]]
them from meeting the required 1,250 hours of service requirement.
Airline employees other than flight crew employees continue to be
subject to the 1,250 hours of service eligibility requirement with
hours of service determined according to principles established under
the FLSA for compensable work time (i.e., hours worked). See Sec.
825.110.
B. Summary of Public Comments
1. Additional Data
World at Work and Airlines for America (A4A) provided additional
data about FMLA usage and administration in their comments; these
comments were especially relevant to the data and assumptions used in
the economic analysis.
World at Work provided a summary of survey results from a recent
``Snapshot Survey'' of their members' opinions about issues raised by
the NPRM as well as an overview of insights from earlier surveys
related to more general FMLA issues. World at Work found that 65
percent of their members have received no requests for qualifying
exigency leave and that members must focus most of their time on
administration related to intermittent leaves for other FMLA-qualifying
reasons. While the most recent results presented in the World at Work
comment are derived from a fairly small sample size (93 responses),
they provide useful feedback on qualifying exigency leave that is
generally consistent with the estimates in the NPRM.
There were numerous general comments on the burden of tracking
intermittent FMLA leave; however, absent new data, the Department
continues to rely on its previous surveys as the best available data
for calculations regarding intermittent leave usage. The Department
notes that it is conducting a new survey of employers and employees to
obtain current representative data for FMLA leave usage.
A4A provided a detailed comment including information on trends of
usage of FMLA-type leave in the airline industry. In the comment, A4A
noted that on the enactment of the AFCTCA all airlines implemented the
new eligibility standard and there have been few reported disputes of
airline flight crew employee eligibility. Additionally, airline
experience implementing FMLA-type leave has shown that for airline
flight crew employees, intermittent leave is far more common than block
leave, likely due to the way this industry schedules work and provides
banks of paid leave for many workers. This commenter further stated
that when airline flight crew employees use FMLA leave, they ``almost
always request and are charged a minimum of one day usage or the hourly
equivalent of one paid day.'' The Department notes that this Final Rule
recognizes industry practice and establishes a bank of leave for
eligible airline flight crew employees and a minimum increment of one
day of leave.
The Department notes that the economic analysis of leave taken by
airline flight crew employees as a result of the rule may be an
underestimate, because such employees may take more short periods of
leave rather than fewer long periods of leave. However, the Department
received no data concerning how leave usage by airline flight crew
employees may vary from FMLA leave usage by non-airline employees or
from the assumption of FMLA leave use contained in the proposed rule:
that airline flight crew employees take approximately the same number
of FMLA leave periods as the rest of the population of eligible
employees. 77 FR 8997. As a result, the costs driven by number of
leaves (certifications, notices) may be underestimated; however, it is
likely that the underestimated costs are offset by an associated
overestimate of costs driven by leave length (maintenance of health
benefits).
2. Regulatory Familiarization
Two commenters, Aon Hewitt and the National Coalition to Protect
Family Leave, raised concerns about the Department's estimate of the
amount of time required for employers to familiarize themselves with
the rule. Specifically, both commenters felt that two hours was too low
and that it is unclear if this includes time for the employer to make
revisions based on its review of the rule. Aon Hewitt observed that its
clients usually involve staff in multiple roles to review and make
decisions, and that a more appropriate estimate of the time required
would be 20 hours for airline companies and 15 hours for all others.
The commenters did not provide justification for why employers
already administering FMLA leave should require a 10-fold increase in
the amount of time for regulatory familiarization. The Department notes
that this rulemaking builds upon changes made in the 2008 Final Rule.
Therefore, the Department believes that covered employers are already
familiar with the relevant provisions of the FMLA and merely have to
apply those provisions to additional groups of workers, or with slight
modification for particular types of employees. The Final Rule is
limited in scope and length, limiting the time required for
familiarization. Furthermore, the Department believes that most
employers will make use of guidance and educational materials from the
Department, industry trade groups, franchisers and other organizations
to help them review the regulations more efficiently. Accordingly, the
Department will leave the assumption as is.
3. Other Costs to Employers
Several individual commenters and the National Business Group on
Health raised concerns about the administrative burden to employers of
tracking FMLA leaves and rescheduling work. The National Business Group
on Health noted ``our members, many of whom are the human resources
professionals who administer FMLA leave, consistently confirm that
compliance with FMLA involves complex and costly processes.'' An
individual, identifying himself as an employment law attorney and human
resources professional, agreed with business concerns about the time-
consuming task of administering FMLA leave, but also noted that there
are creative approaches available to lessen this burden.
These commenters did not provide any additional data or
observations on which to base any revisions to the analysis. Based on
the survey results presented by World at Work, in 2005 respondents
indicated that processing a request for FMLA leave requires 30 minutes
to two hours of time, which is consistent with the time estimates used
in the economic analysis.
4. Costs to Employees
One commenter discussed the burden of certification costs to
employees, noting that for workers with multiple serious conditions the
cost of obtaining certifications (and recertifications) could become
quite expensive. This commenter noted that he typically pays $25 to $55
per certification to the health care provider, depending on specialty.
This range of costs per certification is consistent with the cost
the Department cites in the economic analysis. The Department has
proposed only minor revisions to the certifications to reflect the
statutory amendments under the FMLA but encourages employers to work
with employees with multiple conditions to reduce cost.
C. Summary of Impacts 6
---------------------------------------------------------------------------
\6\ On certain provisions, the Department provides a range of
estimates. Where the ranges provide a summary of information, the
midpoint of the range is represented.
---------------------------------------------------------------------------
The Department projects that the average annualized cost of the
rule will
[[Page 8880]]
be somewhat less than $43 million per year over 10 years. The rule is
expected to cost $53.9 million in the first year, and $41.3 million per
year in subsequent years. The amendment to extend FMLA provisions to
airline flight crew employees accounts for 0.7 percent of first year
costs and 0.9 percent in subsequent years, while qualifying exigency
and military caregiver leave account for 75.9 percent of first year
costs and 99.1 percent of costs in subsequent years. Regulatory
familiarization costs account for 23.4 percent of first year costs. The
costs related to the provision of health benefits account for the
largest share of costs, about 44.0 percent of costs in the first year
of the rule, and 57.5 percent of costs each in each of the following
years.
Table 1--Summary of Impact of Changes to FMLA \a\
----------------------------------------------------------------------------------------------------------------
Annualized ($1,000)\b\
Year 1 Year 2 -------------------------------
Component ($1,000) ($1,000) Real discount Real discount
rate 3% rate 7%
----------------------------------------------------------------------------------------------------------------
Total........................................... $53.9 $41.3 $42.8 $43.0
Cost of Each Amendment
Any FMLA regulatory revision................ 12.6 0 1.4 1.7
Flight Crew Technical Amendment............. 0.4 0.4 0.4 0.4
FY 2010 NDAA................................ 41.0 41.0 41.0 41.0
NDAA Subtotal Qualifying Exigency....... 25.8 25.8 25.8 25.8
NDAA Subtotal Military Caregiver.... 15.1 15.1 15.1 15.1
Cost of Each Requirement
Regulatory Familiarization.................. 12.6 0 1.4 1.7
Employer Notices............................ 17.1 17.1 17.1 17.1
Certifications.............................. 0.4 0.4 0.4 0.4
Health Benefits............................. 23.8 23.8 23.8 23.8
----------------------------------------------------------------------------------------------------------------
\a\ Columns may not sum due to rounding.
\b\ Costs are annualized over 10 years.
D. Industry Profile
The first step in the analysis is to estimate the number of firms,
establishments and employees in the public and private sectors that
will be impacted by the changes. The Department estimates that there
are a total of 7.9 million firms and government agencies with 10.6
million establishments in the U.S.\7\ These entities employ 133.4
million workers with an annual payroll of $5.9 trillion.\8\ Estimated
annual revenues equal $33.2 trillion and estimated net income is $1.1
trillion.\9\
---------------------------------------------------------------------------
\7\ Number of firms and establishments includes private
industry, farms, and governments.
\8\ The Department's analysis is based on: USDA 2007 Census of
Agriculture, available at: http://www.agcensus.usda.gov/Publications/2007/index.asp; 2007 Annual Survey of State and Local
Government Employment and Payroll, available at: http://www.census.gov/govs/estimate/; and Unpublished Special Tabulations
produced by the Bureau of Labor Statistics, Quarterly Census of
Employment and Wages (QCEW) Program. For more information on the
QCEW program, please see the Web site: http://www.bls.gov/cew/.
\9\ Estimated net income does not include net income for farms.
The Department's analysis is based on: U.S. Census Bureau,
Statistics of U.S. Businesses, ``Number of Firms, Number of
Establishments, Employment, Annual Payroll, and Receipts by
Employment Size of the Enterprise for the United States, All
Industries--2002''; Unpublished Special Tabulations, BLS; and, IRS,
2007 Statistics of Income, Returns of Active Corporations, Table 5--
Selected Balance Sheet, Income Statement, and Tax Items, by sector,
by Size of Business Receipts.
---------------------------------------------------------------------------
After identifying and excluding from the analysis those businesses
that are not covered by the FMLA, the Department estimates that there
are 381,000 covered firms and government agencies with 1.2 million
establishments. These firms employ 91.1 million workers that will
potentially be impacted by the Final Rule changes. These employers have
an annual payroll of $5.0 trillion, estimated annual revenues of $23.7
trillion, and estimated net income of $1.03 trillion.
Table 2 presents the estimated number of establishments, firms,
employment, annual wages, revenue, and net income for all employers;
Table 3 presents the same information for covered employers. The
following subsection describes in detail the methods and data sources
used to develop the industry profile.
Table 2--2008 Industry Profile: All Private and Public Sector Employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Estimated Estimated net
NAICS Industry Number of establishments Employment Annual payroll revenues ($ income ($
firms (1,000) (1,000) (1,000) ($ bil.) bil.) bil.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.............................. Agriculture, 86 93 1,084 $30 $192 $2.4
Forestry, Fishing
& Hunting.
11f............................. Farms.............. 2,208 2,205 843 0.02 284 \a\
21.............................. Mining............. 21 30 729 62 265 23.8
22.............................. Utilities.......... 7 16 561 47 589 28.5
23.............................. Construction....... 686 789 6,692 348 1,764 13.1
31-33........................... Manufacturing...... 285 347 12,992 727 5,042 220.0
42.............................. Wholesale Trade.... 341 588 5,901 366 5,217 34.9
44-45........................... Retail Trade....... 638 1,019 15,737 4,006 5,603 94.0
48-49........................... Transportation and 154 208 4,981 183 920 14.5
Warehousing \b\.
51.............................. Information........ 73 136 2,970 210 830 46.7
[[Page 8881]]
52.............................. Finance and 234 459 5,824 492 2,590 114.9
Insurance.
53.............................. Real Estate and 243 342 2,085 91 439 14.6
Rental and Leasing.
54.............................. Professional, 695 933 7,876 578 1,476 18.5
Scientific &
Technical Serv.
55.............................. Management of 35 48 1,896 179 466 57.0
Companies &
Enterprises.
56.............................. Admin, Support, 315 432 7,705 255 649 4.0
Waste Mgmt & Remed
Serv.
61.............................. Education Services-- 68 85 2,502 97 269 4.7
Total.
61a............................. Education Services-- 51 65 1,624 73 185 3.8
all others.
61e............................. Education Services-- 19 20 878 24 83 1.0
Elementary and
Secondary.
62.............................. Health Care and 594 748 15,911 655 1,750 14.4
Social Assistance.
71.............................. Arts, 99 116 1,816 62 194 3.0
Entertainment, and
Recreation.
72.............................. Accommodation and 447 592 11,218 189 560 4.2
Food Services.
81&95........................... Other Services & 455 1,112 4,466 128 544 3.3
Auxiliaries.
99.............................. Unclassified....... 101 140 190 7 30 0.8
All industries..... 7,786 10,438 113,978 5,108 29,672 717.3
Government......... 90 180 19,386 770 3,537 401.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Public and Private Sector Total...................... 7,876 10,618 133,364 5,878 33,209 1,118.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government
Finance; Census of Agriculture; IRS 2001 Statistics of Income.
\a\ Net income for farms is not available.
\b\ NAICS code 48-49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the final
rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management.
Table 3--2008 Industry Profile: Covered Employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Estimated Estimated net
NAICS Industry Number of establishments Employment Annual payroll revenues ($ income ($
firms (1,000) (1,000) (1,000) ($ bil.) bil.) bil.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.............................. Agriculture, 2.0 4.9 538 $9 $90 $1.3
Forestry, Fishing
& Hunting.
11f............................. Farms.............. \a\ \a\ \a\ \a\ \a\ \a\
21.............................. Mining............. 1.6 5.4 534 54 214 22.1
22.............................. Utilities.......... 0.9 6.4 473 48 504 26.1
23.............................. Construction....... 19.0 25.9 2,651 181 787 7.0
31-33........................... Manufacturing...... 34.9 63.9 10,272 638 4,435 211.7
42.............................. Wholesale Trade.... 21.3 78.0 3,057 291 2,863 21.1
44-45........................... Retail Trade....... 22.3 215.7 10,146 338 3,998 84.8
48-49........................... Transportation and 8.8 32.7 3,908 216 716 12.8
Warehousing b.
51.............................. Information........ 5.0 38.8 2,323 205 693 42.9
52.............................. Finance and 9.3 115.4 4,008 478 2,195 104.3
Insurance.
53.............................. Real Estate and 5.2 37.5 842 62 163 8.4
Rental and Leasing.
54.............................. Professional, 17.4 59.8 4,020 408 789 13.7
Scientific &
Technical Serv.
55.............................. Management of 24.3 22.2 1,650 188 334 40.9
Companies &
Enterprises.
56.............................. Admin, Support, 20.0 52.8 5,416 218 389 2.8
Waste Mgmt & Remed
Serv.
[[Page 8882]]
61.............................. Education Services-- .............. ................. .............. .............. .............. ..............
Total.
61a............................. Education Services-- 3.3 7.6 1,329 67 158 3.5
all others.
61e............................. Education Services-- 18.6 20.0 878 24 83 1.0
Elementary and
Secondary.
62.............................. Health Care and 34.3 114.7 11,364 524 1,202 12.7
Social Assistance.
71.............................. Arts, 5.8 10.3 1,135 39 116 2.1
Entertainment, and
Recreation.
72.............................. Accommodation and 27.6 105.2 5,956 150 285 3.0
Food Services.
81&95........................... Other Services & 9.5 51.0 1,260 59 171 1.7
Auxiliaries.
99.............................. Unclassified....... 0.0 0.0 1 0 0 0.0
All industries..... 291.2 1,068.2 71,761 4,199 20,187 623.7
Government......... 89.5 180.0 19,386 770 3,537 401.3
--------------------------------------------------------------------------------------------------
Total....................... ................... 380.7 1,248.1 91,147 4,969 23,723 1,025.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government
Finance; Census of Agriculture; IRS 2001 Statistics of Income.
\a\ Based on the 2007 Census of Agriculture, about 2% of all farms have more than 10 hired employees, suggesting that the number of covered farms is
likely very close to zero. Due to the seasonal nature of farm employment, it is similarly likely that few employees would be eligible for FMLA leave
even if the farm were covered.
\b\ NAICS code 48-49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the final
rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management.
1. Methods and Data Sources
The analysis draws on the methods used in the 2008 Final Rule to
estimate a profile of employers and employees who will be impacted by
the Final Rule. The foundation for the profile is a special tabulation
of data produced by the Bureau of Labor Statistics (BLS) Quarterly
Census of Employment and Wages (QCEW) Program. The tabulation describes
the distribution of establishments and employment by major industry
division (two-digit NAICS level) across nine employment size
categories. As explained more fully below, the analysis is based on
establishment-level data because employer coverage and employee
eligibility for the Final Rule is determined, in part, by establishment
size.
The number of establishments and employment for each two-digit
industry, as defined by the North American Industry Classification
System (NAICS), by employment size class, were obtained directly from
BLS Quarterly Census of Employment and Wages Business Employment
Dynamics (QCEW).\10\ The number of farms was obtained from the U.S.
Department of Agriculture 2007 Census of Agriculture. The number of
governments and number of government workers was obtained from the U.S.
Census of Governments.
---------------------------------------------------------------------------
\10\ Unpublished Special Tabulations, BLS.
---------------------------------------------------------------------------
The number of firms was determined by distributing the BLS QCEW
total number of firms at the two-digit industry level to each size
class using the proportion of firms in each size class calculated from
the Statistics of U.S. Businesses 2006. The Department used a similar
approach to determine the annual payroll within each industry. The
total annual payroll at the two-digit industry level was distributed to
each of the employment size classes using the proportion of payroll in
each size class calculated from the Statistics of U.S. Businesses
2006.\11\ Annual wages for government entities were obtained from the
U.S. Census of Governments.\12\
---------------------------------------------------------------------------
\11\ Statistics of U.S. Businesses, 2006 features a range of
size classes; in some cases these size classes were aggregated to
match the size classes available in the BLS Quarterly Census of
Employment and Wages Business Employment Dynamics data set.
\12\ 2007 Annual Survey of State and Local Government Employment
and Payroll, available at: http://www.census.gov/govs/estimate/.
---------------------------------------------------------------------------
In order to determine estimated 2008 revenues for each industry and
employment size class, the Department calculated the receipts per
employee in each size class from the 2007 Statistics of U.S. Business
by aggregating the 2007 size classes to match BLS size classes, then
dividing total receipts by the number of employees in each size class.
Then, the Department estimated the BLS worker output index and producer
price index for each two-digit sector as a weighted average of
industries composing that sector. For sectors where no indices were
available, the Department used the median value from those sectors with
indices. Finally, to obtain an estimate of 2008 revenues, the
Department multiplied receipts per employee in each size class by the
2008 number of employees in each size class, the worker output index
and the producer price index. Government revenues were directly
obtained from the 2007 Census of Government Finance.\13\
---------------------------------------------------------------------------
\13\ U.S. Census Bureau 2007 Census of Government Finance,
available at: http://www.census.gov/govs/estimate/index.html#state_local.
---------------------------------------------------------------------------
To determine estimated 2008 net income for each industry and
employment class size, the Department calculated the average revenues
per firm in each size class and calculated the ratio of net income to
total receipts using the 2007 IRS Statistics of Income.\14\ The
estimated average revenue per firm in each size class was used to
select an appropriate ``size of business receipts'' category from
[[Page 8883]]
Statistics of Income for a size class in a particular industry and to
generate the ratio of net income to total receipts for that category.
The 2007 ratio of net income to total receipts was multiplied by the
estimated 2008 revenues in each size class to calculate the estimated
2008 net income. Government net income was estimated by subtracting
expenditures from revenues.\15\
---------------------------------------------------------------------------
\14\ Internal Revenue Service, 2007 Statistics of Income,
Returns of Active Corporations, Table 5--Selected Balance Sheet,
Income Statement, and Tax Items, by Sector, by Size of Business
Receipts.
\15\ 2007 Census of Government Finance.
---------------------------------------------------------------------------
2. Covered Employers
The FMLA applies to any employer in the private sector engaged in
commerce or in an industry affecting commerce who employed 50 or more
employees each working day during at least 20 weeks in the current or
preceding calendar year; and all public agencies and local education
agencies. Most Federal employees are covered by Title II of the FMLA
which is administered by the Office of Personnel Management (OPM).
First, the Department dropped from the profile all establishments
in employment size classes of less than 50 employees (i.e., 0--49
employees) except for those in elementary and secondary education. For
the purpose of this analysis, all Federal government employers are
assumed to be covered by FMLA regulations as administered by the OPM
and, therefore, not subject to these revisions; state and local
government employees, as well as U.S. Postal Service employees, are
covered by this final rulemaking and are included in the profile of
covered workers. Additionally, based on estimates from the 2007 Census
of Agriculture, it is likely that very few farms employ more than 50
employees, and among those that do, very few of their employees are
eligible for FMLA as the seasonal nature of the work limits the total
number of hours employees work each year. As a result, this analysis
assumes that no farm employers are covered by FMLA.\16\ See Table 3 for
a summary of covered employers.
---------------------------------------------------------------------------
\16\ Based on the 2007 Census of Agriculture, about 2% of all
farms have more than 10 hired employees, suggesting that the number
of covered farms is likely very close to zero. Due to the seasonal
nature of farm employment, it is similarly likely that few employees
would be eligible for FMLA leave even if the farm were covered.
---------------------------------------------------------------------------
Additionally, the Department used Statistics of U.S. Business, 2006
at the six-digit NAICS level to identify the proportion of employers in
NAICS 61 ``Education Services'' who are categorized as ``Elementary and
Secondary Education.'' This proportion was used to calculate the number
of employers in each size class in NAICS 61 that are considered local
education agencies, and, therefore, covered by FMLA regardless of size.
These employers were subtracted from the broader category of education
services, and treated separately by the analysis; the remaining
employers in education services with fewer than 50 employees were
dropped from the profile.
Next, in the absence of reliable data on the geographic proximity
of establishments owned by the same firm, and employment at those
establishments, the Department calculated an adjustment factor to
account for establishments with fewer than 50 employees at a worksite
owned by a firm with more than 50 employees within 75 miles. This is
necessary to avoid underestimating the number of covered employers and
eligible employees affected by the Final Rule.
The Department calculated this adjustment factor as the midpoint of
a range defined by assumptions concerning the proximity of
establishments employing fewer than 50 workers owned by the same
company. To define one end of this range, the Department takes
employment in establishments with more than 50 employees according to
the U.S. County Business Patterns of 2007.\17\ This essentially assumes
that no establishments with fewer than 50 workers and owned by the same
company are located within 75 miles of each other, and therefore
excludes all employees in such establishments from the calculation. The
other end of this range is defined by taking all employment in firms
with greater than 50 employees according to the Statistics of U.S.
Businesses 2007 small employment size classes.\18\ This assumes that
all establishments with fewer than 50 workers owned by the same company
are located within 75 miles of each other and includes all such
employees in the calculation. The adjustment factor is the midpoint of
this range, that isthe Department calculated 50 percent of the
difference between the higher and lower number of employees to estimate
the number of workers at covered worksites of less than 50 employees in
2007. This estimate was then calculated as a percent of total
employment in each industry, and that percent multiplied by the total
employment in each industry in 2008 to estimate the number of workers
at covered worksites of less than 50 employees in 2008. The Department
did not attempt to distribute these workers to size classes. This
approach was repeated to estimate the number of establishments and
annual payroll for this category.\19\ The numbers presented in Table 3
are the Department's best estimates based on this methodology.
---------------------------------------------------------------------------
\17\ U.S. County Business Patterns of 2007, available at http://www.census.gov/econ/cbp/download/07_data/index.htm.
\18\ Statistics of U.S. Businesses, available at: http://www.census.gov/econ/susb/.
\19\ This is the same approach used in the 2007 ``Preliminary
Analysis of the Impacts of Prospective Revision to the Regulation
Implementing the FMLA of 1993 at 29 CFR 825'' (hereafter, ``the 2007
PRIA''). CONSAD Research Corporation, December 7, 2007, pp. 6-8.
---------------------------------------------------------------------------
E. FMLA Leave Profile
This section describes how, in light of the recent amendments, the
Department estimated the number of covered, eligible workers who may be
in a position to take qualifying exigency or military caregiver leave
and the number of leaves they may take, and the number of covered
eligible airline flight crew employees who may take FMLA leave and the
number of leaves they may take. Table 4 provides a summary of the
estimated leaves, a discussion of the methodology used to produce these
estimates follows.
Table 4--Summary of Leaves Taken as a Result of the Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Covered
service- Number Number who Number of Days of leave Hours of leave
Leave taker members and eligible for will take FMLA leaves (1,000) (1,000) (mil.)
veterans leave leave
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flight Crew \a\....................................... .............. 90,560 5,950 8.9 8.9 ..............
Pilots................................................ .............. 41,470 2,070 3.1 3.1 ..............
Flight Attendants..................................... .............. 49,090 3,880 5.8 5.8 ..............
NDAA 2010 \b\......................................... 218,130 219,908 37,896 758 1,311 10.5
Qualifying Exigency................................... 197,000 193,000 30,900 401 926 7.4
[[Page 8884]]
Military Caregiver.................................... 21,130 26,908 6,966 357 385 3.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Number eligible for leave represents only those flight crew employees not currently covered by an FMLA-type provision under a CBA; thus, the number
of leaves equals new leaves as a result of this rule. The Department did not estimate the number of hours of leave for flight crew employees because
the rule establishes a bank of days of leave, to be used in full day increments.
\b\ Number of days and hours of leave estimated based on leave profiles, see discussion for more detail.
1. Military Family Leave Under the FMLA
The changes to the military family leave provisions of the FMLA
impact a variety of employees and employers across the economy. While
these changes do not alter the conditions for employer coverage or
employee eligibility under the FMLA, they do change the circumstances
under which eligible employees who are family members of covered
servicemembers qualify for FMLA leave and, as a result, will affect the
number and frequency of FMLA leaves taken for those reasons.
In order to estimate the number of individuals who may take leave
under the qualifying exigency or military caregiver provisions as a
result of the changes, the Department estimated the number of
servicemembers or veterans covered by the amendments, completed an age
profile of those individuals and estimated the number of eligible
family members or potential caregivers likely to be associated with
each age range. This method is described in full detail in Appendix A.
a. Qualifying Exigency
The FY 2010 NDAA amendments to the FMLA provide that an eligible
employee may take FMLA leave for any qualifying exigency arising out of
the fact that the employee's spouse, son, daughter, or parent is on (or
has been notified of an impending call to) covered active duty in the
Armed Forces. For members of a regular component of the Armed Forces,
this means duty during deployment to a foreign country. For members of
the U.S. National Guard and Reserves, it means duty during deployment
to a foreign country under a call or order to active duty under a
provision of law referred to in section 101(a)(13)(B) of title 10,
United States Code.
To determine the number of eligible employees who may take FMLA
leave as a result of this amendment, the Department first estimated the
number of servicemembers on covered active duty and the number of
family members who may be eligible and employed at a covered employer
and then subtracted those servicemembers and family members already
entitled to take qualifying exigency leave prior to the FY 2010 NDAA
amendments. Clear, consistent data on the number of military personnel
deployed in any given year are difficult to find; many sources, for
example, do not adequately distinguish military personnel deployed
overseas from those stationed overseas. For example, the U.S.
Department of Defense publishes an annual report profiling the military
community including the distribution of geographic location of active
duty members, but without any designation of deployed versus stationed
status.\20\ In addition, estimates might vary significantly depending
on sources utilized.\21\ Furthermore, when deployments do occur, a
Congressional Research Service report showed that estimates of
personnel involved might vary significantly depending on definition and
source. Thus, estimates of ``boots on the ground'' in Iraq between 2003
and 2008 are only 30 percent to 60 percent of the total involved when
personnel outside Iraq are included.\22\ Therefore, the Department drew
on several data sources to determine the number of servicemembers
likely to be called to covered active duty in the Armed Forces
annually.
---------------------------------------------------------------------------
\20\ U.S. Department of Defense. Demographics: Profile of the
Military Community. Available for the years 2003 to 2010 at http://www.militaryhomefront.dod.mil/pls/psgprod/f?p=MHF:DETAIL0:0::::CID:20.20.60.70.0.0.0.0.0.
\21\ See, for example, the promisingly, but misleadingly,
titled: Kane, T. 2004. Global U.S. Troop Deployment, 1950-2003. The
Heritage Foundation. October 27. accessed at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on July 7, 2012.
\22\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars,
FY2001--FY2010: Cost and Other Potential Issues. Congressional
Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on July 7, 2012.
---------------------------------------------------------------------------
Table 5 provides a summary of deployments of the U.S. Armed Forces
from 1960 through 2007. Although composed of the best data found to
date, some estimates of personnel deployed appear to use more
restrictive definitions than would be covered by the Department's
definition of covered active duty. For example, the table shows
deployment of 1,200 personnel for operations in Lebanon from 1982
through 1984. However, this appears to include only those Marine Corps
troops that were on the ground in Lebanon, but excludes sailors on the
Navy support ships that were also deployed in this operation.\23\
---------------------------------------------------------------------------
\23\ For example, the U.S.S. New Jersey provided offshore fire
support during this operation; this ship alone has a crew of about
1,900. Thus, this source may use a ``boots on the ground''
definition.
Table 5--U.S. Deployments and Total Active Military Personnel, 1960-2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total active Deployed personnel Total deployed
Year military -------------------------------- as % of total Deployment
personnel \b\ Total \a\ Active active
--------------------------------------------------------------------------------------------------------------------------------------------------------
1960.............................. 2,490,000 900 900 0.1 Vietnam \c\
1961.............................. 2,550,000 3,000 3,000 0.1
1962.............................. 2,690,000 11,000 11,000 0.4
1963.............................. 2,700,000 16,000 16,000 0.6
1964.............................. 2,690,000 23,000 23,000 0.9
1965.............................. 2,720,000 184,000 184,000 6.8
1966.............................. 3,230,000 385,000 385,000 11.9
1967.............................. 3,410,000 486,000 486,000 14.3
[[Page 8885]]
1968.............................. 3,490,000 536,000 536,000 15.4
1969.............................. 3,450,000 475,000 475,000 13.8
1970.............................. 2,980,000 335,000 335,000 11.2
1971.............................. 2,630,000 157,000 157,000 6.0
1972.............................. 2,360,000 24,000 24,000 1.0
1973.............................. 2,230,000 50 50 0.0
1974.............................. 2,160,000 .............. .............. .............. ....................................................
1975.............................. 2,100,000 .............. .............. .............. ....................................................
1976.............................. 2,080,000 .............. .............. .............. ....................................................
1977.............................. 2,070,000 .............. .............. .............. ....................................................
1978.............................. 2,060,000 .............. .............. .............. ....................................................
1979.............................. 2,030,000 .............. .............. .............. ....................................................
1980.............................. 2,050,000 .............. .............. .............. ....................................................
1981.............................. 2,080,000 .............. .............. .............. ....................................................
1982.............................. 2,110,000 10,000 10,000 0.5 Lebanon \e\, Grenada \e\
1983.............................. 2,120,000 1,200 1,200 0.1 Lebanon \e\
1984.............................. 2,140,000 1,200 1,200 0.1
1985.............................. 2,150,000 .............. .............. .............. ....................................................
1986.............................. 2,170,000 .............. .............. .............. ....................................................
1987.............................. 2,170,000 .............. .............. .............. ....................................................
1988.............................. 2,140,000 .............. .............. .............. ....................................................
1989.............................. 2,130,000 27,000 27,000 1.3 Panama \e\
1990.............................. 2,050,000 .............. .............. .............. ....................................................
1991.............................. 1,990,000 560,000 476,000 28.1 Iraq (1) \f\
1992.............................. 1,810,000 25,800 25,800 1.4 Iraq OSW [f], Somalia \e\
1993.............................. 1,710,000 25,800 25,800 1.5
1994.............................. 1,610,000 26,500 26,500 1.7 Somalia \e\, Rwanda \e\, Haiti \e\
1995.............................. 1,520,000 12,200 12,200 0.8 Somalia \e\, Haiti \e\, Bosnia \e\
1996.............................. 1,470,000 9,300 9,300 0.6 Haiti \e\, Bosnia \e\
1997.............................. 1,440,000 1,400 1,400 0.1 Iraq ONW \f\
1998.............................. 1,410,000 .............. .............. .............. ....................................................
1999.............................. 1,390,000 37,100 37,100 2.7 Kosovo \f\
2000.............................. 1,380,000 .............. .............. .............. ....................................................
2001.............................. 1,390,000 83,400 83,400 6.0 Afghanistan \d\
2002.............................. 1,410,000 21,100 21,100 1.5
2003.............................. 1,430,000 237,600 178,200 16.6 Afghanistan [d], Iraq (2) \g\
2004.............................. 1,410,000 236,100 177,100 16.7
2005.............................. 1,380,000 258,900 194,200 18.8
2006.............................. 1,380,000 265,400 199,100 19.2
2007.............................. 1,380,000 285,700 214,300 20.7
Average........................... 2,102,000 99,200 90,800 4.7 Overall, 1960-2007
2,140,000 144,000 132,000 6.7 Deployment Years Only
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total deployed personnel is equal to the active personnel plus Reserve and/or National Guard personnel.
\b\ Kane, T. 2004. Global U.S. Troop Deployment, 1950-2003. The Heritage Foundation. October 27. Available at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on July 7, 2012.
\c\ American War Library. Vietnam War Allied Troop Levels 1960-73. Available at: http://www.americanwarlibrary.com/vietnam/vwatl.htm on July 7, 2012.
\d\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, FY2001-FY2010: Cost and Other Potential Issues. Congressional Research Service. July 2.
Available at http://www.fas.org/sgp/crs/natsec/R40682.pdf on July 7, 2012.
\e\ Sarafino, N.M. 1999. Military Interventions by U.S. Forces from Vietnam to Bosnia: Background, Outcomes, and ``Lessons learned'' for Kosovo.
Congressional Research Service. May 20.
\f\ U.S. Department of Defense, Deployment Health Clinical Center (DHCC): Deployments by Operation. Available at http://www.pdhealth.mil/dcs/deploy_op.asp on July 7, 2012.
\g\ ``Contingency Tracking System deployment file for Operation Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.'' Available at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
OSW (Operation Southern Watch) and ONW (Operation Northern Watch) refer to operations in support of the Iraqi no-fly zones.
According to the Department of Defense reports on active duty
military strengths, the number of troops (including Reserve and
National Guard) deployed as part of overseas contingency operations
deployments has steadily declined since 2007.\24\ As of December 31,
2008 there were 226,950 servicemembers deployed as part of an overseas
contingency operation; by September 30, 2012 there were 146,712 total
servicemembers deployed for such an operation.
---------------------------------------------------------------------------
\24\ Active Duty Military Personnel by Service by Region/
Country. United States Department of Defense. Retrieved January 24,
2013. Available at: http://siadapp.dmdc.osd.mil/personnel/MILITARY/miltop.htm.
---------------------------------------------------------------------------
Supplementing the deployment data with annual active military
personnel counts, the Department estimated the annual number and
percent of military personnel deployed on average over the 1960 to 2007
period.\25\ Over the entire 48-year period, each year the U.S. deployed
on average about 99,200 of its
[[Page 8886]]
2.1 million personnel active military force (4.7 percent) on operations
that meet the definition of covered active duty. The overall average
covers a wide variation in the timing, duration, and size of those
operations; of the 48 years included in Table 5, in:
---------------------------------------------------------------------------
\25\ For the years available in the U.S. Department of Defense
``Demographics'' reports, the numbers of ``Active Duty personnel''
are consistent with the numbers of ``Total Active Military
Personnel'' listed in Table 5.
---------------------------------------------------------------------------
[ssquf] 16 years, essentially no personnel were deployed (with the
exception of 50 servicemembers in Vietnam in 1973);
[ssquf] 18 years, 900 to 37,100 personnel were deployed, an average
of 15,400 per year (0.8 percent of active servicemembers);
[ssquf] 14 years (Vietnam and the two Iraq conflicts), deployments
ranged from 83,400 to 560,000 personnel, an average of 320,400 per year
(13.9 percent of active servicemembers).
Finally, with the exception of the Vietnam and second Iraq conflicts,
most of the conflicts listed in Table 5 were for two years or less.
Based on the information provided in Table 5, and acknowledging the
limitations of those data, the Department judged that the simple
average of 99,200 deployed personnel does not adequately represent the
typical number of service personnel on covered active duty in any given
year for projecting the costs associated with this rule. The Department
also calculated that, on average, 144,000 personnel per year were
deployed in the 33 years in which a deployment occurred. Using this
figure instead to represent average annual deployments on covered
active duty provides a 45 percent cushion to account for data
inconsistencies and omissions. Therefore, for the purposes of this
analysis, the Department assumes an average of 144,000 military
personnel are deployed per year on covered active duty.
Two additional adjustments to this estimate must be made:
[ssquf] Qualifying exigency leave for eligible family members of
National Guard and Reserve personnel was promulgated in 2008.
[ssquf] Military personnel may deploy more than once in any given
year; if their eligible family members use less than the entire
allotment of leave on the first deployment (12 weeks), they may use
some or all of the remaining leave on subsequent deployments that year.
Data on U.S. military deployments showed that 17 percent of
personnel deployed to Iraq in 1991 were Reserve units, while 28 percent
of personnel deployed to Iraq between 2003 and 2007 were Reserve or
National Guard units.\26\ Therefore, the Department adjusted the
estimated number of personnel downward by 15 percent for 1991, and 25
percent for 2003 through 2007. Thus, the Department estimates that on
average 132,000 active military personnel per year are deployed on
covered active duty.
---------------------------------------------------------------------------
\26\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars,
FY2001-FY2010: Cost and Other Potential Issues. Congressional
Research Service. July 2. Accessed at: http://www.fas.org/sgp/crs/natsec/R40682.pdf on July 7, 2012.
``Contingency Tracking System deployment file for Operation
Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.''
Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
---------------------------------------------------------------------------
The Department used a Department of Defense news release on typical
deployment lengths in the Iraq conflict by service (Army, one year;
Navy and Marines, six months; Air Force, three months) \27\ to estimate
the average number of deployments per person. This average was weighted
by the relative percent of active personnel by service deployed to Iraq
(Army, 61 percent; Navy and Marines, 28 percent; Air Force, 11 percent)
\28\ to determine that the military would use 1.49 deployments to
maintain one person in Iraq for one year. Thus, deployment of 132,000
personnel might require 197,000 actual deployments per year.
---------------------------------------------------------------------------
\27\ DOD News Briefing with Secretary Gates and Gen Pace from
the Pentagon. April 11, 2007. Available at: http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=3928. See also Powers, R.
2007. ``Joint Chiefs Continue to Examine Deployment Lengths.'' April
14. Accessed at: http://usmilitary.about.com/od/terrorism/a/deploylength.htm.
\28\ ``Contingency Tracking System deployment file for Operation
Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.''
Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
---------------------------------------------------------------------------
In the 2008 Final Rule, the Department estimated the joint
probability that a servicemember will have one or more family members
(parent, spouse, or adult child), that those family members will be
employed at an FMLA-covered establishment, and that they would be
eligible to take FMLA leave under the qualifying exigency provision
(see 2007 PRIA and Appendix A). Applying these joint probabilities to
the 197,000 annual deployments, the Department estimates approximately
193,000 family members will be eligible to take FMLA leave to address
qualifying exigencies. Military deployments represent a non-routine
departure from normal family life to potentially long-term exposure to
a high stress, high risk environment, often at relatively short notice.
Therefore, the Department assumes the rate at which eligible employees
take FMLA leave for this purpose will be twice the rate (about 16
percent) of those taking regular FMLA leave (7.9 percent). The
Department does not assert that only 16 percent of family members will
take leave for reasons related to the servicemember's deployment, but
that 16 percent will use leave designated as FMLA leave for qualifying
exigencies. Based on these assumptions, the Department estimates 30,900
family members will take FMLA leave annually to address qualifying
exigencies.
In the 2008 Final Rule, the Department developed a profile of the
``typical'' usage of qualifying exigency leave over the course of a 12-
month period for an eligible employee. 73 FR 68051. Under this leave
profile, the typical employee will take a one week block of leave upon
notification of the deployment of the servicemember, 10 days of
unforeseeable leave during deployment, one week of foreseeable leave to
join the servicemember while on rest and recuperation, and one week of
foreseeable leave post deployment to address qualifying exigencies. Id.
The revisions to the rule increase foreseeable leave to join a
servicemember while the servicemember is on Rest and Recuperation
leave. Table 6 summarizes the revised leave pattern.
Table 6--Profile of Qualifying Exigency Leave
------------------------------------------------------------------------
Reason Description Days Hours
------------------------------------------------------------------------
Notice of Deployment......... 1 week 5 40
unforeseeable.
During Deployment............ 10 days 10 80
unforeseeable.
During Deployment, ``Rest and 10 days 10 80
Recuperation''. foreseeable.
Post Deployment.............. 1 week 5 40
foreseeable.
-------------------------
Total.................... ............... 30 240
------------------------------------------------------------------------
[[Page 8887]]
For the purpose of this analysis, the Department is assuming that
the average employee will take 10 days of leave to be with their
servicemember during rest and recuperation leave. While the Department
proposed in the NPRM to increase the number of days of qualifying
exigency leave an employee may take for the servicemember's Rest and
Recuperation leave to coincide with the number of days provided the
servicemember, up to 15 days, the Department does not have a basis at
this time to estimate the percentage of servicemembers who would be
granted 15 days of Rest and Recuperation or the probability that their
family member(s) would join them for the entire Rest and Recuperation
leave. Therefore, the Department assumes for the purpose of this
analysis that a covered and eligible employee will take 10 days of
qualifying exigency leave for the servicemember's Rest and Recuperation
leave. The Department invited comment on the amount of Rest and
Recuperation leave provided to service personnel and the extent to
which employees would take an equal number of days of FMLA qualifying
exigency leave to be with their servicemember family member. Several
commenters, including the National Association of Letter Carriers, the
North Carolina Justice Center, the Partnership, the Military Officers
Association of America, Twiga, and the Coalition confirmed that
servicemembers are often granted 15 days of leave for Rest and
Recuperation and that family members should be allowed to take an
amount of leave that is equal to the amount granted to the
servicemember. None of these commenters were able to provide any
further information on the percent of servicemembers that are granted
five, 10, or 15 days of leave, or the frequency with which family
members join them or for how long; therefore, the Department will
continue to use the midpoint of 10 days for this analysis. Similarly,
because the Department has no data on which to base an estimate of the
number of days of qualifying exigency leave that might be taken for
parental care, it will continue to use 10 days of unforeseen leave
during deployment for this analysis.
Based on this profile, the Department estimates that 30,900
eligible employees will take 926,000 days (7.4 million hours) of FMLA
leave annually to address qualifying exigencies under the FY 2010 NDAA
amendments. These estimates may vary from 770,000 days (6.2 million
hours) if eligible employees average five days of leave to 1.1 million
days (8.7 million hours) if they average 15 days of leave when a
servicemember is on Rest and Recuperation leave.
The Department acknowledges that estimated qualifying exigency
leave also represents an average of periods with high levels of
deployment and active conflict and periods with low or minimal
deployments. Therefore, the Department supplements its analysis by
considering a ``heavy conflict'' scenario and a ``low conflict''
scenario to capture the range of leave usage that may be expected in
any given year in the future.
Drawing on the data in Table 5, for the purposes of these cost
estimates, the Department defines the low conflict scenario as a year
containing no deployment exceeding 40,000 servicemembers, while the
heavy conflict scenario is one in which deployments exceed 40,000
servicemembers. Applying this standard to the data in Table 5, the
average size of a deployment during the low conflict scenario is 15,400
troops, compared to 320,400 during a period of heavy conflict.
The Department applied the same probabilities of having eligible
family members and patterns of leave usage as were used for the average
analysis. Using this method, the Department estimates that 2,400
employees will take 72,000 days (576,500 hours) of leave for qualifying
exigencies under the low conflict scenario, while 50,100 employees will
take 1.5 million days (12 million hours) of leave during periods of
heavy conflict. See Table 7.
Table 7--Estimated Qualifying Exigency Leave Usage Under a Range of Conflict Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
Covered Number of
service- eligible Number of Days of leave Hours of leave Leave events
Leave type members or family or leave takers per year per year per year
veterans caregivers (1,000) (1,000) (1,000) (1,000)
(1,000) (1,000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low Conflict............................................ 15 15 2 72 576 31
Average Deployment...................................... 197 193 31 926 7,393 401
Heavy Conflict.......................................... 320 313 50 1,503 12,023 651
--------------------------------------------------------------------------------------------------------------------------------------------------------
b. Military Caregiver Leave
Military caregiver leave entitles an eligible employee who is the
spouse, son, daughter, parent, or next of kin of a covered
servicemember to take up to 26 workweeks of FMLA leave in a single 12-
month period to care for a covered servicemember with a serious injury
or illness. Under the FY 2010 NDAA amendments, the definition of
covered servicemember is expanded to include a veteran ``who is
undergoing medical treatment, recuperation, or therapy for a serious
injury or illness'' if the veteran was a member of the Armed Forces
``at any time during the period of 5 years preceding the date on which
the veteran undergoes that medical treatment, recuperation, or
therapy.'' The FY 2010 NDAA amendments define a serious injury or
illness for a covered veteran as ``a qualifying (as defined by the
Secretary of Labor) injury or illness that was incurred by the member
in line of duty on active duty in the Armed Forces (or existed before
the beginning of the member's active duty and was aggravated by service
in line of duty on active duty in the Armed Forces) and that manifested
itself before or after the member became a veteran.''
The amendments also expand the definition of serious illness or
injury to include an injury or illness of a current member of the
military that ``existed before the beginning of the member's active
duty and was aggravated by service in line of duty'' and that may cause
the servicemember to be unable to perform the duties of his or her
office, grade, rank, or rating. The Department does not attempt in this
analysis to estimate the number of additional current servicemembers
who may be covered under this expansion of the definition due to the
lack of data to support reasonable assumptions on the potential size of
this group. However, for the reasons discussed earlier in this
preamble, the Department believes it is reasonable to conclude that the
number of servicemembers entering the military with an injury or
illness with the potential to be aggravated by service to the point of
rendering the servicemember unable to perform the duties of his or her
office, grade, rank, or rating is quite small due to the
[[Page 8888]]
selection process used by the Armed Forces.
To determine the number of eligible employees that may take FMLA
leave as a result of the expansion of caregiver leave to family members
of covered veterans, the Department first estimated the number of
veterans likely to undergo medical treatment for a serious injury or
illness, and the number of family members who are employed by a covered
employer and who may be eligible to take FMLA leave to care for them.
The Department reviewed several summaries of injuries and illnesses
among military servicemembers to estimate the rate at which injuries
that are sufficiently severe as to require medical care after
separation from the military might occur.\29\ A number of data
limitations make the estimation of serious injury and illness rates
problematic:
---------------------------------------------------------------------------
\29\ The most useful of these sources were:
Dole, R. and D. Shalala. Serve, Support, and Simplify. Report of
the President's Commission on Care for America's Returning Wounded
Warriors. July, 2007.
Fischer, H. United States Military Casualty Statistics:
Operation Iraqi Freedom and Operation Enduring Freedom. CRS Report
for Congress. Congressional Research Service, March 25, 2009.
Tanielian, T. and L.H. Jaycox (eds.). Invisible Wounds: Mental
Health and Cognitive Care Needs of America's Returning Veterans.
Research Highlights. RAND Center for Military Health Policy
Research. 2008.
U.S. Department of Defense. DOD Military Injury Metrics Working
Group White Paper. December 2002.
---------------------------------------------------------------------------
[ssquf] The Department of Defense generally publishes data on the
number of servicemembers killed or wounded in action, but little about
non-combat injuries and illnesses.
[ssquf] Except for the most severe injuries (e.g., amputations,
severe burns, blindness), little is published about the nature or
severity of illnesses and injuries.
After determining the number of servicemembers with serious
injuries and illnesses separating from the military annually, the
Department adjusts the estimate to account for servicemembers that were
covered under the 2008 Final Rule and the percent of veterans likely to
seek medical care after separation. This baseline number of
servicemembers with serious injuries or illnesses differs from the
estimate used in the 2008 Final Rule for several reasons. First, the
definition of serious injury and illness has expanded to include
injuries or illnesses that existed prior to the servicemember joining
the military that were exacerbated by active duty and to reflect the
fact that injuries such as PTSD and TBI that manifest following
separation from the military have been badly underreported in the past.
Second, the analysis relies on improved data sources such as the
distribution of servicemembers by VASRD rating. No commenters submitted
data or alternative estimates of the numbers of servicemembers who will
incur such injuries or illness requiring treatment; the Department
reached this estimate based on the following information and analysis.
The Department first estimated the percent of servicemembers that
might receive an injury or illness requiring care while in the service
or after separation. In 2001, the Department of Veterans Affairs
undertook a survey that showed 24 percent of veterans who served during
the Gulf War era reported having a service-related disability
rating.\30\ Service-related disability ratings do not require that the
servicemember is totally disabled; the rating might be less than 30
percent (or even zero in the case of a service-related injury that
healed prior to separation) however, the mere fact that a servicemember
has a rating indicates that a service-related injury occurred.\31\
---------------------------------------------------------------------------
\30\ U.S. Department of Veterans Affairs. 2001 National Survey
of Veterans. Accessed at: http://www1.va.gov/VETDATA/docs/SurveysAndStudies/NSV_Final_Report.pdf.
\31\ Veterans Administration Service Related Disability Rating
(VASRD). Accessed at: http://myarmybenefits.us.army.mil/Home/Benefit_Library/Federal_Benefits_Page/Veterans_Affairs_Schedule_for_Rating_Disabilities_(VASRD).html.
---------------------------------------------------------------------------
The Department then examined deployment rates across different time
periods. Table 5 indicates that servicemembers deployed during the Gulf
War of 1991 account for about 28 percent of the total active military
at that time. The same table shows that servicemembers deployed in
Operations Enduring Freedom and Iraqi Freedom (Iraq (2)) comprise a
smaller percentage of the active military (roughly 20 percent).
However, the Department believes this is an underestimate; because the
second Iraq conflict lasted several years, it is likely that many in
the active military not deployed at the time of the snapshot were
deployed sometime during its duration; conversely, the first Iraq war
was relatively brief, and personnel had a smaller likelihood of
rotating into the war zone during its duration. Therefore, the
Department believes that the percent of active military personnel who
were deployed to Afghanistan or Iraq is higher than the calculations in
Table 5 show, and that the true percent is similar to the first Iraq
conflict: approximately 30 percent of active military personnel were
deployed. The Department also concludes that the percent of veterans
who received a service-connected disability rating from the first Gulf
War era is a reasonable proxy for veterans of the period 2003 through
2007, about 25 percent (rounded up from 24 percent). Thus, the
Department expects that at least 25 percent of active military
personnel in the post-9/11 era will separate from the military with a
disability rating.
Data provided by the Department of Veterans Affairs (VA) indicates
that among the population of current veterans with a disability rating,
41.3 percent have a rating of 50 percent or greater (Table 8). Assuming
the distribution of disability ratings among servicemembers who will
separate from the military in years to come is the same as the
distribution of disability ratings of current veterans, the Department
estimates that 10 percent (25 percent x 40 percent = 10 percent) of
separating servicemembers will have a disability rating of 50 percent
or greater.
Table 8--2011 Distribution of Current Veterans by Disability Rating (DR)
----------------------------------------------------------------------------------------------------------------
Cumulative
Number of Percent of percent of
Degree of disability (percent) current current current
veterans with veterans with veterans with
DR DR DR
----------------------------------------------------------------------------------------------------------------
0............................................................... 11,423 0.3 0.3
10.............................................................. 780,978 23.8 24.1
20.............................................................. 440,188 13.4 37.5
30.............................................................. 373,677 11.4 48.9
40.............................................................. 322,635 9.8 58.7
50.............................................................. 214,552 6.5 65.3
[[Page 8889]]
60.............................................................. 267,838 8.2 73.4
70.............................................................. 247,636 7.5 81.0
80.............................................................. 192,546 5.9 86.8
90.............................................................. 112,824 3.4 90.3
100............................................................. 320,059 9.7 100.0
----------------------------------------------------------------------------------------------------------------
Source: Department of Veterans Affairs.
However, it is possible that a servicemember may not manifest the
symptoms of a serious injury or illness at the time of his or her
separation, and therefore, not go through the VA disability rating
process prior to leaving the service. In 2008, the RAND organization
published a report entitled Invisible Wounds: Mental Health and
Cognitive Care Needs of America's Returning Veterans (Tanielian and
Jaycox, 2008) that summarized the results from a survey of
servicemembers,\32\ and found that among servicemembers who returned
from Operation Enduring Freedom and Operation Iraqi Freedom:
---------------------------------------------------------------------------
\32\ A more concise discussion of the findings is available in a
RAND research brief: Tanielian, T. et al. 2008 Invisible Wounds:
Mental Health and Cognitive Care Needs of America's Returning
Veterans. Pages 1-3. Accessed at: http://www.rand.org/pubs/research_briefs/RB9336.html.
---------------------------------------------------------------------------
11.2 percent met the criteria for post-traumatic stress
disorder (PTSD) or depression,
12.2 percent had likely experienced a traumatic brain
injury (TBI),
7.3 percent had experienced both a TBI and either PTSD or
a TBI and depression, and
Roughly 50 percent of these servicemembers sought
treatment for their symptoms within one year of returning from
overseas.
Furthermore, symptoms of such injuries may not appear until several
years after the injury was experienced, have traditionally been badly
underreported, and are not well understood. Due to the high visibility
research performed in this area, and recent initiatives undertaken by
the Department of Veterans Affairs,\33\ it is reasonable to assume a
much higher percentage of these types of injuries will be diagnosed and
reported than in previous cohorts of veterans.
---------------------------------------------------------------------------
\33\ See e.g., DeKosky, S.T., M.D. Ikonomovic, and S. Gandy.
2010. Traumatic Brain Injury--Football, Warfare, and Long-Term
Effects. The New England Journal of Medicine. 363:14. September 30.
U.S. Department of Veterans Affairs. 38 CFR Part 3. Post
Traumatic Stress Syndrome. Interim Final Rule. Federal Register,
Vol. 73, No. 210, p. 64208.
---------------------------------------------------------------------------
Consequently, the Department must also account for veterans who may
suffer a serious injury or illness that manifested after their
separation from the military. Evidence from the RAND report indicates
that approximately 30 percent of servicemembers who were deployed to
Afghanistan and Iraq experienced a TBI or met the criteria for PTSD or
depression. Data on deployment show that roughly 30 percent of active
military personnel were deployed to Afghanistan or Iraq. Assuming that
such injuries would result in the equivalent of a Veterans Affairs
Schedule for Rating Disabilities (VASRD) rating of at least 50 percent,
and did not manifest until after separation from the military, it is
reasonable to estimate that 10 percent (0.3 x 0.3 = 0.09, then rounding
up) of these veterans incurred such an injury or illness that
manifested after separation from the military. The Department added
this 10 percent of veterans who suffer a post-separation serious injury
or illness to the 10 percent of military members who separate from the
military with a VASRD rating. Therefore, the estimated percent of
veterans likely to have a service-related injury or illness that might
require treatment after separation is 20 percent.
In summary, for the purposes of this analysis, the Department
assumes that 20 percent of servicemembers may separate from the
military with an injury or illness requiring treatment. This may be an
overestimate. The Department assumes that of the additional 10 percent
of servicemembers who experience a serious injury or illness that might
not manifest until well after the event occurs (e.g., PTSD, TBI, or
depression), none go through the VA disability rating process. We also
assume that all eventually seek treatment within the five-year period
as defined in this Final Rule. Both of these assumptions are very
conservative, and therefore, likely overestimate the number of
servicemembers who may suffer a serious injury or illness as defined by
this rule.
This estimate suffers from a number of qualifications and
limitations:
This injury rate was based on data for military personnel
that had a high likelihood of experiencing active combat while in the
military; to the extent that future cohorts experience less combat, the
injury rate may well be significantly smaller.
It is not clear that all injuries included in this figure
will be severe enough to require treatment.
Even if the injury is severe, it is unclear that the
servicemember will seek treatment; it has long been known that the
treatment rate for mental health conditions such as depression amongst
the general population is less than 100 percent.
This estimate does not account for other injuries that
might require treatment; however, the Department could find little data
on which to base an estimate of such injuries.
This estimate abstracts from the requirement that
treatment must occur within five years of separation for the injury to
be eligible for FMLA caregiver leave. Thus, we implicitly assume 100
percent will seek treatment within the five-year period as defined in
this Final Rule.
The Department used projections of military personnel separations
for fiscal years 2010 through 2036 from the Department of Veterans
Affairs as the basis for the average number of personnel (208,000) who
might newly seek medical care in a given year, see Table 9.\34\ We did
not model a medical
[[Page 8890]]
care usage pattern for these servicemembers. Because we project this to
be an average annual ``stream'' of cohorts of separating
servicemembers, as long as we assume each year's cohort follows the
same usage pattern, the primary factor governing the number of
servicemembers requiring treatment is the total number in each cohort
that will seek treatment within the five year period as defined in this
Final Rule.\35\ Since not all veterans will seek medical treatment in
the first year following separation, a true time series representation
of the number of veterans seeking medical care would show a ``ramp-up''
over the first few years until the average annual steady state stream
comprised of overlapping multiple cohorts of veterans is reached. That
is, we model the steady state stream of veterans seeking medical care
as if it starts in year 1; by ignoring the ``ramp up'' we have over-
estimated the number of veterans seeking care and the number of family
members taking military caregiver leave in that year. If all cohorts of
separating servicemembers follow the same pattern of care usage, then
until the steady state is reached, this overestimate of leave usage is
mathematically equivalent to starting the program four years prior to
the promulgation date. By using the simplifying assumption of a steady
state stream of veterans using the program, we have implicitly already
included demand from prior cohorts in the analysis, including those
veterans who will benefit from the Final Rule's exclusion of the period
between the enactment of the FY 2010 NDAA amendments and the effective
date of this Final Rule in calculating the five year period post-
discharge.
---------------------------------------------------------------------------
\34\ U.S. Department of Veterans Affairs. 2008. Demographics:
Veteran Population Model 2007. Table 8S. January. Accessed at:
http://www1.va.gov/VETDATA/Demographics/Demographics.asp. As a
check, the FY2010 number of separations are similar to those in the
U.S. Department of Defense ``Demographics 2009'' report (see tables
2.66 and 4.68 for active and reserve separations, respectively).
Note: the average number of separations per year in Table 9 has
increased from the number reported in the NPRM because the
Department now includes Coast Guard separations in the calculation.
\35\ For example, compared to a single cohort separating from
the military over 5 years, modeling the separation of that same
cohort over 10 years will result in fewer servicemembers from that
cohort seeking treatment in any given year. However, modeling
separation over 10 years will result in servicemembers from more
cohorts seeking treatment in a given year. Thus, in a steady state,
the one effect will cancel out the other. Different models of
separation patterns will, however, result in different numbers of
treatments prior to reaching the steady state, and the net present
value of the stream of treatments.
Table 9--Military Separations 2010-2036 by Branch and Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
Separations by branch (1,000) \a\
------------------------------------------------------------------------------------
Fiscal year Reserve Coast Guard Grand
Army Navy Air Force Marines Forces \b\ \c\ total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2010............................................................... 77.8 46.9 37.1 28.9 48.3 4.4 243.4
2011............................................................... 78.4 46.8 37.0 28.8 28.1 4.5 223.6
2012............................................................... 78.8 46.6 36.9 28.7 18.1 4.6 213.7
2013............................................................... 79.6 46.7 37.0 28.7 8.0 4.8 204.8
2014............................................................... 80.0 47.0 37.2 28.8 8.1 4.8 205.7
2015............................................................... 79.5 46.7 36.9 28.6 8.0 4.8 204.5
2016............................................................... 79.2 46.5 36.8 28.5 8.0 4.8 203.8
2017............................................................... 79.6 46.7 37.0 28.6 8.0 4.8 204.8
2018............................................................... 80.1 47.0 37.2 28.8 8.1 4.8 205.9
2019............................................................... 80.2 47.1 37.3 28.8 8.1 4.8 206.3
2020............................................................... 80.2 47.1 37.3 28.8 8.1 4.8 206.2
2021............................................................... 80.3 47.2 37.4 28.8 8.1 4.8 206.6
2022............................................................... 81.0 47.6 37.7 29.0 8.1 4.9 208.3
2023............................................................... 81.0 47.5 37.7 29.0 8.1 4.9 208.3
2024............................................................... 80.4 47.2 37.5 28.8 8.1 4.8 206.8
2025............................................................... 79.5 46.7 37.1 28.4 8.0 4.8 204.4
2026............................................................... 79.6 46.7 37.1 28.5 8.0 4.8 204.7
2027............................................................... 80.0 46.9 37.3 28.6 8.0 4.8 205.5
2028............................................................... 79.9 46.9 37.3 28.5 8.0 4.8 205.3
2029............................................................... 79.5 46.6 37.1 28.4 8.0 4.8 204.3
2030............................................................... 79.9 46.9 37.3 28.5 8.0 4.8 205.5
2031............................................................... 80.1 47.0 37.4 28.6 8.0 4.8 206.0
2032............................................................... 80.0 46.9 37.3 28.5 8.0 4.8 205.5
2033............................................................... 79.9 46.8 37.3 28.4 8.0 4.8 205.2
2034............................................................... 79.9 46.9 37.3 28.5 8.0 4.8 205.4
2035............................................................... 79.9 46.8 37.3 28.4 8.0 4.8 205.2
2036............................................................... 79.9 46.8 37.3 28.4 8.0 4.8 205.2
------------------------------------------------------------------------------------
Average........................................................ ........... ........... ........... ........... ........... ........... 208.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes only separations from the five armed services; excludes separations from the Public Health Service (PHS) and National Oceanic and
Atmospheric Administration (NOAA).
\b\ Reserve Forces include only those who have had active Federal military service (other than for training) as a result of their membership in the
reserves or National Guard. Reserve forces with prior active military service in the regular military, are classified according to the branch (Army,
Navy, Air Force, Marines) in which they served while in the regular military, notwithstanding their subsequent service in the Reserve Forces.
\c\ Coast Guard separations estimated from VETDATA ``Non-Defense'' separations by determining the current proportion of non-defense personnel in the
Coast Guard (84.8%) versus NOAA and PHS.
Source: http://www.va.gov/VETDATA/Demographics/Demographics.asp.
The Department is defining a serious injury or illness of a veteran
as an injury or illness incurred in the line of duty on active duty (or
a pre-existing injury or illness aggravated by service in line of duty
on active duty) that manifests itself before or after the member became
a veteran and is either: a continuation of a serious injury or illness
that was incurred or aggravated when the covered veteran was a member
of the Armed Forces and rendered the servicemember unable to perform
the duties of the servicemember's office, grade, rank, or rating; a
physical or
[[Page 8891]]
mental condition for which the covered veteran has received a VASRD of
50 percent or greater and such VASRD rating is based, in whole or in
part, on the condition precipitating the need for military caregiver
leave; a condition that substantially impairs the veteran's ability to
secure or follow a substantially gainful occupation by reason of a
disability or disabilities related to military service, or would do so
absent treatment; an injury, including a psychological injury, on the
basis of which the covered veteran has been enrolled in the Department
of Veterans Affairs Program of Comprehensive Assistance for Family
Caregivers. Assuming an annual cohort of 208,000 personnel separate
from the military each year, and that about 20 percent of those
personnel incurred an injury or illness in service that manifests
before or after the servicemember became a veteran, the Department
estimates that approximately 42,260 military personnel separating from
the military (20.3 percent of 208,000) per year might have family
members who may take FMLA caregiver leave, if the regulatory
requirements are met. This estimate may be over-inclusive due to data
limitations on the severity of service-related injuries and illnesses.
Based on the RAND findings, the Department assumes that about 50
percent of servicemembers will seek treatment as a veteran (i.e., not
all the injuries will be severe enough to require treatment beyond
active service in the military). Thus, the number of injured
servicemembers separating from the military per year who may seek
treatment and with family that may be eligible for caregiver leave is
equal to 50 percent of 42,260, or 21,130 per year.\36\ Using the
previously described calculations of the joint probabilities that a
servicemember will have one or more family members eligible for FMLA
(see Appendix A), the Department estimates that those 21,130 veterans
and servicemembers will have 26,908 eligible family members who may
qualify for FMLA and act as caregivers.\37\ The Department assumes that
at least 26 percent of eligible employees, or an average of 7,000 per
year, will take FMLA leave to care for a veteran undergoing medical
treatment for a serious injury or illness. This assumption is based on
a survey of injured servicemembers concerning the impact of their needs
on their caregivers. The survey found that about 16 percent of working
caregivers used ``unpaid leave from their job'' and 10 percent ``cut
back their hours'' to care for the servicemember.\38\ However, the
Department is aware that it is not drawing from a more comprehensive
data source and acknowledges the limitations of its estimate.
Nevertheless, because the commenters provided no additional data in
response to the request for information about this issue in the NPRM,
the Department continues to use the best information available.
---------------------------------------------------------------------------
\36\ This number accounts for the 14,000 servicemembers whose
family members are expected to take military caregiver leave while
the servicemember is still in the military as well as the
approximately 3,700 participants in the Veterans Affairs Program of
Comprehensive Assistance for Family Caregivers. For reasons
discussed above, the Department now estimates that 42,260
servicemembers are likely to separate having had injuries or
illnesses that would make them eligible for military caregiver, not
just the 14,000 servicemembers per year who might require treatment
while still on active duty (as estimated in the 2008 rulemaking).
Under the proposed rule, the Department erroneously assumed that it
had to account for the additional caregiver leave that might have
occurred while on active duty due to the changed baseline estimate.
However, although the baseline estimate of eligible servicemembers
is now larger, this rule makes no change to caregiver leave while
those servicemembers are on active duty. In this rulemaking the
Department now only accounts for caregiver leave that occurs after
separation and therefore assumes 50 percent of separating
servicemembers will require care, instead of 1.5 times the number as
it did in the proposed rule. The Department believes that the
military's stringent screening procedures result in the intake of
few recruits with pre-existing injuries or illnesses that might be
aggravated by service. Absent any data on servicemembers with such
pre-existing conditions, the Department believes its conservative
assumptions used to estimate the number of eligible caregivers (and
the rounding up of those estimates) adequately accounts for these
servicemembers.
\37\ The Department made one modification to the joint
probabilities used for caregiver leave. In addition to family
members such as parents, spouses, and adult children, designated
``next of kin'' are also eligible to take military caregiver leave
under FMLA. The Department accounted for this difference by assuming
all servicemembers have at least one potential caregiver eligible
for FMLA leave.
\38\ Christensen et al. Economic Impact on Caregivers of the
Seriously Wounded, Ill, and Injured. CNA, April 2009. Available at:
http://www.cna.org/sites/default/files/research/D0019966.A2.pdf.
---------------------------------------------------------------------------
In the 2008 Final Rule, the Department developed a profile of the
``typical'' usage of military caregiver leave over the course of a 12-
month period for an eligible employee. Under this profile of leave, the
typical employee will take a block of four weeks of unforeseeable leave
upon notification of the serious injury or illness, a second block of
two weeks of unforeseeable leave following transfer of the covered
servicemember to a rehabilitation facility, two one-week blocks of
unforeseeable leave for unanticipated complications, and 40 individual
days of foreseeable leave to care for the covered servicemember. 73 FR
68051.
This profile is based on a typical leave pattern of an eligible
employee caring for an injured or ill servicemember on active duty; for
the purpose of this analysis, the profile was adjusted to capture a
likely leave pattern for employees taking leave to care for a covered
veteran. In this case, the nature of the serious injury or illness is
expected to be different from those encountered during active duty. The
Department assumes an injury to an active duty servicemember that
results in FMLA caregiver leave is likely to be a sudden, severe
injury, which necessitates a large block of leave for the employee to
travel to be at the bedside of the injured servicemember. Conversely,
ongoing treatment for an existing injury or diagnosis and then
treatment of an emerging injury or illness (e.g., PTSD, TBI) might call
for frequent but short periods of leave for the employee to take the
servicemember to appointments and provide other ongoing support.
Adjusting the leave profile to account for these differences generates
a leave pattern such as that summarized in Table 10.
Table 10--Profile of Military Caregiver Leave--Veterans
------------------------------------------------------------------------
Reason Description Days Hours
------------------------------------------------------------------------
Diagnosis, therapy, or 1 week 5 40
recuperation. unforeseeable.
Travel to appointments and 50 days 50 400
other errands. foreseeable.
------------------------------------------
Total.................... ............... 55 440
------------------------------------------------------------------------
[[Page 8892]]
Based on this profile, the Department estimates that 7,000 eligible
employees will take 385,000 days (3.1 million hours) of FMLA leave
annually to act as a caregiver for a veteran who is undergoing
treatment for a serious illness or injury. For comparative purposes, if
the definition of serious injury or illness was set more stringently to
include disability ratings of 60 percent or greater, then the
Department estimates that about 6,400 eligible employees would take
354,000 days (2.8 million hours) of FMLA leave; if the definition was
set more inclusively to include disability ratings of 30 percent or
greater, then 8,800 eligible employees would take 485,000 days (3.9
million hours) of FMLA leave. See Table 11.
Table 11--Estimated Military Caregiver Leave Usage Under Different Definitions of Serious Injury or Illness
----------------------------------------------------------------------------------------------------------------
Covered
service- Number of Number of Days of Hours of Leave
Leave type members or eligible leave leave per leave per events per
veterans family takers year year (mil.) year
(1,000) (1,000) (1,000) (1,000) (1,000)
----------------------------------------------------------------------------------------------------------------
SII VASRD 60%+.................... 19.4 24.7 6.4 354 2.8 328
SII VASRD 50%+.................... 21.1 26.9 7.0 385 3.1 357
SII VASRD 30%+.................... 26.6 33.9 8.8 485 3.9 450
----------------------------------------------------------------------------------------------------------------
2. Airline Flight Crew FMLA Leave
The changes to the FMLA eligibility requirements for airline flight
crew employees do not alter the number of covered employers in the
airline industry but increase the number of pilots, co-pilots, flight
attendants and flight engineers who are eligible to take FMLA leave,
and as a result, will likely increase the total number of FMLA leaves
taken by these employees in the airline industry.\39\ The amendment
changes eligibility such that an airline flight crew employee meets the
hours of service requirement if, during the previous 12-month period,
he or she has worked or been paid for not less than 60 percent of the
applicable total monthly guarantee (or its equivalent), and worked or
been paid for not less than 504 hours, not including personal commute
time, or time spent on vacation, medical, or sick leave. Additionally,
the rule establishes a bank of 72 days of FMLA leave (156 days for
military caregiver leave) for flight crew employees to use in full day
increments, and establishes new recordkeeping requirements for the
airline industry.
---------------------------------------------------------------------------
\39\ The FAA defines a flight crew member as ``A pilot, flight
engineer, or flight navigator assigned to duty in an aircraft during
flight time.'' Available at: http://www.faa-aircraft-certification.com/faa-definitions.html.
---------------------------------------------------------------------------
The Department estimated the profile of covered employers in the
``Air Transportation'' industry, the number of airline flight crew
employees who would be eligible for FMLA leave, and the number of
leaves they may take. The profile of covered employers, see Table 12
below, was developed by estimating the proportion of NAICS code 48
classified as ``Air Transportation'' (NAICS 481) in each size class
from the 2006 Statistics of U.S. Businesses at the 6-digit NAICS level.
This proportion was multiplied by the total number of establishments,
firms, employment and payroll in NAICS 48 according to the 2008 BLS
special tabulations. Next, employers with fewer than 50 employees were
dropped from the profile; as described below, the Department did not
attempt to make an adjustment for establishments with fewer than 50
employees that are owned by firms with more than 50 employees in a 75
mile area for this sub-industry.
Table 12--2008 Covered Employers in Air Transportation
----------------------------------------------------------------------------------------------------------------
Annual Estimated Estimated
Size class (employees) Firms Number of Employment payroll ($ revenues ($ net income
establishments mil.) mil.) ($ mil.)
----------------------------------------------------------------------------------------------------------------
50 to 99....................... 118 184 5,098 $266 $742 $4.2
100 to 499..................... 113 544 16,577 919 2,370 23.3
500+........................... 135 2,204 439,315 24,905 70,922 2,295
--------------------------------------------------------------------------------
Total...................... 366 2,932 460,990 26,090 74,033 2,323
----------------------------------------------------------------------------------------------------------------
Source: BLS Special Tabulations, 2008; and Statistics of U.S. Businesses, 2006
Based on conversations with experts in the airline industry, the
Department assumes that all potentially eligible airline flight crew
employees are employed at a covered worksite. In general, flight crew
members are scheduled for flights from a home base, or domicile. A
domicile would not only include the airline flight crew employees, but
the non-flight crew employees as well; therefore, the interviewees
observed that for most carriers it was very unlikely that airline
flight crew employees would be employed at a domicile with fewer than
50 total employees.\40\ Next, the Department determined the total
number of airline flight crew employees employed in air transportation
from the BLS Occupational Employment Statistics for 2008; in 2008 there
were about 162,200 airline flight crew employees. This includes pilots,
co-pilots, flight engineers, and flight attendants.
---------------------------------------------------------------------------
\40\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR
Conference (now A4A), Calvin Franz and Lauren Jankovic, both of ERG.
Janet Zweber. 2010. Interview with Janet Zweber of U.S. Airways
Pilots Association, Calvin Franz and Lauren Jankovic, both of ERG.
---------------------------------------------------------------------------
The next step was to determine the proportion of those airline
flight crew employees who will be eligible for FMLA leave. Crew members
who are paid for 50 to 60 hours per month will, over the course of a
12-month period, be paid for 600 to 720 hours and they will easily meet
the hours of service required
[[Page 8893]]
for eligibility under the AFCTCA. According to sample data provided by
the industry, about 80 percent of American Airlines flight attendants
are paid for 50 or more hours per month, and this is considered
reasonably representative of industry patterns.\41\ While a similar
distribution of paid hours for pilots is not available, the FAA
indicates that most pilots are paid for an average of 75 hours per
month; based on this observation, the Department assumes that a similar
proportion of pilots, 80 percent, would reach the hours of service
required for eligibility. Based on these estimates, about 129,760
airline flight crew employees may be eligible to take FMLA leave.
---------------------------------------------------------------------------
\41\ Table ``AA Flight Attendant Block Hours and Paid Hours''
provided by Interviewee. Rob DeLucia. 2010. Interview with Rob
DeLucia of AIR Conference (now A4A), Calvin Franz and Lauren
Jankovic, both of ERG. Table available at: http://www.aanegotiations.com/documents/AAFACharts_7.8.10.pdf; last
accessed on July 7, 2012.
---------------------------------------------------------------------------
Many airlines have already incorporated FMLA-type provisions in
collective bargaining agreements with pilots and flight attendants. In
terms of the costs associated with the number of leaves resulting from
the changes, it is important to consider the proportion of airline
flight crew employees already taking FMLA-type leave under collective
bargaining agreements. Based on a review of the current FMLA-type leave
policies in the labor contracts for 19 air carriers, the Department
finds that about 20 percent of pilots and 35 to 40 percent of flight
attendants are covered and eligible for FMLA-type leave policies.\42\
Assuming that 80 percent of pilots and 63 percent of flight attendants
are not currently covered by FMLA-type policies, the Department
estimates, as outlined in Table 13, that, of the 129,760 airline flight
crew employees that will be eligible, 90,560 are not already covered by
an FMLA-type leave policy under a collective bargaining agreement.
---------------------------------------------------------------------------
\42\ Based on a review of excerpts from the collective
bargaining agreements of 19 airlines transmitted to the Department
by Steve Schembs, Association of Flight Attendants--CWA, on January
19, 2010.
---------------------------------------------------------------------------
Because there is little information available on the FMLA-type
leave usage patterns of airline flight crew employees, the Department
assumes that flight attendants will use FMLA leave at a similar rate to
the rest of the population. Based on interviews with experts in the
airline industry, pilots (also co-pilots and flight engineers) tend to
use less FMLA-type leave due to different demographic needs and the
availability of other types of paid leave.\43\ The 2008 PRIA
extrapolated leave usage rates from surveys of FMLA leave usage to
estimate expected leave use among the general population for 2007; the
Department further extrapolated this number to estimate an expected
leave usage rate of 7.9 percent of eligible employees and applied this
rate to the number of eligible flight attendants not covered by a
collective bargaining agreement.\44\ Given that pilots use less FMLA-
type leave, the Department used a rate of five percent in its
calculation of the estimated number of eligible pilots not covered by a
collective bargaining agreement. Based on these estimates and
assumptions, just under 6,000 flight attendants, pilots, co-pilots, and
flight engineers will take new FMLA leaves under the changes. Assuming
that airline flight crew employees will take approximately the same
number of leaves per 12-month period as the general population, the
Department estimates that each individual will take 1.5 leaves, for a
total of 8,930 leaves.\45\ Table 13 summarizes the estimates developed
in this section.
---------------------------------------------------------------------------
\43\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR
Conference (now A4A), Calvin Franz and Lauren Jankovic, both of ERG.
Janet Zweber. 2010. Interview with Janet Zweber of U.S. Airways
Pilots Association, Calvin Franz and Lauren Jankovic, both of ERG.
\44\ The extrapolation is used because the survey was performed
relatively soon after FMLA was enacted; over time, as employee
knowledge of FMLA provisions has grown, presumably so has FMLA
usage.
\45\ CONSAD Research Corporation, December 7, 2007
Table 13. Estimated FMLA Usage by Flight Crews
----------------------------------------------------------------------------------------------------------------
Eligible crew Eligible crew,
Number of Number of not covered by not covered by Number of
Flight crew crew \a\ eligible CBA FMLA-type CBA that will new FMLA
crew \b\ policy \c\ take leave \d\ leaves \e\
----------------------------------------------------------------------------------------------------------------
Pilots................................... 64,800 51,840 41,470 2,070 3,110
Flight Attendants........................ 97,400 77,920 49,090 3,880 5,820
----------------------------------------------------------------------
Total................................ 162,200 129,760 90,560 5,950 8,930
----------------------------------------------------------------------------------------------------------------
Sources: BLS Occupational Employment Statistics, May 2008, Scheduled Air Transportation; CONSAD Research
Corporation, December 7, 2007.
\a\ Number of pilots includes: pilots, co-pilots and flight engineers (532011); and commercial pilots (532012)
\b\ Eligibility based on estimated proportion of crew members (80%) meeting hours of service requirement.
\c\ Based on a sample of CBA for flight attendants about 35% to 40% are currently covered by an FMLA-type
provision such that most are eligible to take leave (we assumed a point estimate of 37% for the calculation);
for pilots about 20% are currently covered by an FMLA-type provision such that they are eligible to take
leave.
\d\ Flight attendants take leave at same rate as other industries (7.9%); pilots and other crew use slightly
less FMLA leave (5%).
\e\ Individuals taking FMLA leave average 1.5 leaves per year.
F. Costs
This section describes the costs associated with the changes to
FMLA, including: regulatory familiarization, employer and employee
notices, certifications, and other costs.
1. Regulatory Familiarization
In response to the changes to the FMLA, each employer will need to
review the changes and determine what revisions are necessary to their
policies, obtain copies of the revised FMLA poster and templates for
required notices and certifications, and update their handbooks or
other leave-related materials to incorporate the changes (see General
Notice below). This is a one-time cost to each employer, calculated as
two hours at the loaded hourly wage of a Human Resources (HR) staff
member in the airline industry and one hour in all other industries to
complete the tasks described above.\46\ Industries
[[Page 8894]]
other than the airline industry will need less time for this task
because there is no need for them to review the components of the rule
pertaining to flight crews and they are already familiar with the
requirements of the FMLA, including the FY 2008 NDAA amendments to the
FMLA that initially created the military family leave provisions. In
the 2008 Final Rule, the Department estimated the FY 2008 NDAA
amendments would involve two hours for regulatory familiarization. 73
FR 68047. Because the FY 2010 NDAA amendments are simply an expansion
of provisions with which the employers are already familiar, the
Department believes one hour is appropriate for that component. The
Department requested comment on the suitability of the assumption that
regulatory familiarization will require two hours for the airline
industry and one hour for all other industries but received few
comments on this issue and found no data to justify revising these
assumptions. See the Summary of Public Comments for a more detailed
discussion of the comments.
---------------------------------------------------------------------------
\46\ The loaded hourly wage is the regular hourly wage
multiplied by 1.3 to account for payroll taxes and any employee
benefits. For this analysis we used a loaded hourly wage of about
$27 per hour based on a comparison of two occupations: 43-4161 Human
Resources Assistant (loaded hourly wage $24), and 13-1078 Human
Resources Training and Labor Relations Specialists (loaded hourly
wage $36).
---------------------------------------------------------------------------
2. Employer Notices
Under the FMLA, as described in Sec. 825.300, employers are
required to provide certain types of notices to employees including
FMLA eligibility, employee rights and responsibilities, and employee
usage of leave. The estimated time to complete each notice is based on
the PRA contained in the 2008 Final Rule. 73 FR 68040.
a. General Notice. Every covered employer must provide general
notice of the FMLA provisions to all employees; this notice may be
provided in employee handbooks or other benefits and leave materials or
as a one-time notice to new employees. For the purpose of this
analysis, the cost associated with the changes will be a one-time cost
to each employer to update the notice provided and is included under
regulatory familiarization costs above.
b. Eligibility Notice and Rights and Responsibilities Notice. An
employer is required to notify an employee of his or her eligibility to
take FMLA leave when an employee requests FMLA leave or the employer
becomes aware that an employee's leave may be for an FMLA-qualifying
reason. The notice must state whether or not the employee is eligible
and, if not, the reason the employee is not eligible. Along with the
eligibility notice, the employer must include a discussion of employee
rights and obligations, that leave may be designated as FMLA, the
applicable 12-month period for leave, certification requirements, and
other key details. The cost of these combined notices is calculated as
10 minutes at the loaded hourly wage of an HR staff member to process
each notice.
c. Designation Notice. The employer is required to determine if
leave taken by the employee is for an FMLA-qualifying reason and will
be designated and counted as FMLA leave and provide written notice to
the employee of this determination. Notice must be provided even if the
employer determines that the leave will not be designated as FMLA, and
only one notice is required per FMLA reason per 12-month period. The
cost of this type of notice is calculated as 10 minutes at the loaded
hourly wage of an HR staff member to process each notice.
3. Certifications
Under the FMLA, as described in Sec. 825.305, employers are
allowed to request certification to support an employee's need for FMLA
leave due to his or her own or a family member's serious health
condition, the serious injury or illness of a covered servicemember, a
qualifying exigency, or to verify an employee's fitness for duty after
an absence due to the employee's own health condition.\47\ In addition,
an employer, at its own expense and subject to certain limitations, may
also require an employee to obtain a second and third medical opinion.
The costs associated with these certifications include: Employer cost
to request, review, and verify the certification and second and third
opinions, and employee cost to obtain the certification from the
designated authority.
---------------------------------------------------------------------------
\47\ An unknown percent of employers require employees to
periodically recertify their need for FMLA leave. The Department
does not have any data on the percent of employers that require
certification, and believe the percent of employers that require
recertification is a small percent of those that require
certification. Therefore the Department has not attempted to
estimate the number of employers that require recertification or the
costs associated with it; we expect that these costs are small.
---------------------------------------------------------------------------
a. Medical Certification. This type of certification may be
requested of employees who take FMLA leave for their own serious health
condition or that of a family member and is obtained from the health
care provider. This is a recurring cost to both the employee and the
employer for each FMLA leave event that is required to have medical
certification. The cost to the employee is calculated as the cost of
the visit to the health care provider completing the certification,
assumed to be approximately $50 per visit.\48\ The cost to the employer
is 30 minutes at the loaded hourly wage of an HR staff person to review
and verify each certification. The changes in this Final Rule will only
impact the usage of FMLA leave for the employee's own or the employee's
family member's serious health condition for airline flight crew
employees; therefore, for the purposes of this analysis, the additional
costs of the changes will only accrue to airline flight crew employees
and airline industry employers. (The cost for medical certification for
military caregiver leave is discussed below.)
---------------------------------------------------------------------------
\48\ CONSAD, December 2007.
---------------------------------------------------------------------------
Under the Final Rule the employer may seek a second or third
opinion for certification of a serious injury or illness of a covered
servicemember if the original certification was obtained from a health
care provider other than: A DOD health care provider, a VA health care
provider, a DOD TRICARE network authorized private health care
provider, or a DOD non-network TRICARE authorized private health care
provider. The number of employers able to seek additional opinions on
certifications under these circumstances is likely very close to zero,
as most current military members and recently separated veterans rely
on one of the aforementioned health care providers for care. As a
result, the Department did not estimate these costs, which are expected
to be minimal.
b. Qualifying Exigency. Employees taking FMLA leave for a
qualifying exigency may be asked to provide a copy of the relevant
military orders or other documentation, and a copy of Form WH-384
Certification of Qualifying Exigency to their employers to substantiate
their need for leave. This is a recurring cost to the employer for each
FMLA qualifying exigency leave for which the employer requires the
employee to provide certification. The cost is calculated as 20 minutes
at the loaded hourly wage of an HR staff person to review and verify
each certification.
c. Military Caregiver. Employees taking FMLA military caregiver
leave to care for a covered servicemember with a qualifying illness or
injury may be asked to provide medical certification of the condition
from an authorized health care provider. This is a recurring cost to
both the employee and the employer for each FMLA military caregiver
leave event for which the employer requires medical certification. The
cost to the employee is calculated as the cost of the visit to the
health care provider
[[Page 8895]]
completing the certification, assumed to be approximately $50 per
visit.\49\ The cost to the employer is 30 minutes at the loaded hourly
wage of an HR staff person to review and verify each certification. For
the purposes of this analysis, these costs accrue to employees taking
FMLA military caregiver leave to care for a covered veteran with a
qualifying illness or injury and their employers.
---------------------------------------------------------------------------
\49\ CONSAD, December 2007.
---------------------------------------------------------------------------
d. Fitness for Duty. For certain occupations, employers may desire
certification from a medical professional that an employee is well
enough to fulfill their duties following an FMLA leave for the
employee's own serious health condition. Under prescribed
circumstances, an employer may request a fitness-for-duty
certification. The cost to the employee is calculated as the cost of
the visit to the health care provider completing the certification,
assumed to be approximately $50 per visit.\50\ The cost to the employer
is 30 minutes at the loaded hourly wage of an HR staff person to review
and verify each certification. For the purposes of this analysis, the
additional costs of the changes will only accrue to airline flight crew
employees and airline industry employers.
---------------------------------------------------------------------------
\50\ CONSAD, December 2007.
---------------------------------------------------------------------------
4. Other Employer Costs
The FMLA includes employer recordkeeping requirements but those
costs are not addressed here. Employers must continue to keep and
maintain records under the Final Rule as they are required to do so
under the current regulations. Additionally, while the Final Rule
implements the statutory amendments that more broadly cover airline
flight crew employees, the Department expects that employers in the
airline industry have already been tracking hours to comply with the
FMLA. Prior to enactment of the AFCTCA, covered airlines were already
required to comply with FMLA with respect to employees, such as
ticketing agents, baggage handlers, and administrative personnel, as
well as some airline flight crew employees. Further, A4A noted that
prior to the AFCTCA, various air carriers had instituted internal FMLA
programs, including leave entitlement banks, and therefore had been
tracking flight crew employees' hours for internal business purposes as
well. As such, the Department expects the Final Rule will create
minimal additional recordkeeping burdens on airline employers.
a. Employee Health Benefits. Employers are required by the FMLA to
maintain employee health benefits during their absence on FMLA leave.
This is a recurring cost to each employer that is calculated as the
cost per hour to cover employee health benefits multiplied by the total
number of hours of FMLA leave taken.\51\ This cost results from
additional reasons an employee may take FMLA leave (qualifying
exigency, military caregiver), and additional employees entitled to
leave (airline flight crew employees). The Department estimated this
cost as part of the 2008 Final Rule and is using the same methodology
here, noting that ``the marginal costs related to workers taking * * *
military family leave * * * result from the cost of providing health
insurance during the period the worker is on leave * * * The Department
believes these * * * 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.'' 73 FR 68051. According to the BLS
``Employer Costs for Employee Compensation Survey'' of June 2008,
employers spend an average of $2.25 per employee per hour worked on
health insurance coverage.\52\ For the purpose of this analysis, for
leaves related to the NDAA the Department used the estimated hours of
leave taken, for flight crew leaves the Department assumed each leave
is eight hours in length.
---------------------------------------------------------------------------
\51\ The Department notes that this methodology overstates the
cost associated with this provision as not all employees who take
FMLA leave receive insurance from their employers.
\52\ BLS Employment Cost Trends, available at: http://www.bls.gov/ncs/ect/. Accessed on July 7, 2012.
---------------------------------------------------------------------------
b. Replacement Workers. In some businesses, employers are able to
redistribute work among other employees while an employee is absent on
FMLA leave but in other cases the employer may need to hire temporary
replacement workers. This process involves costs resulting from
recruitment of temporary workers with needed skill sets, training the
temporary workers, and lost or reduced productivity of these workers.
The cost to compensate the temporary workers is in most cases offset by
the amount of wages not paid to the employee absent on FMLA leave.
In the initial FMLA rulemaking in 1993, the Department drew upon
available research to suggest that the cost per employer to adjust for
workers who are on FMLA leave is fairly small. 58 FR 31810. As in
previous rulemakings, the Department requested information from
businesses on the impact of different strategies for compensating for
workers on leave, particularly the extent to which work is
redistributed among other workers, and the costs of recruiting and
training temporary workers. With no additional information forthcoming
from public comments, we will continue to assume that these costs are
fairly small for the purpose of this analysis. Furthermore, most
employers subject to this rule change have been implementing the FMLA
for some time and have already developed internal systems for work
redistribution and recruitment and training of temporary workers. The
air transportation industry, however, is an exception to this reasoning
and employers in this industry may face additional challenges with
respect to scheduling.
Due to the nature of the industry, airlines have varied and complex
approaches to scheduling airline flight crew employees for flights.\53\
Based on seniority, these employees may bid on their desired domicile
(i.e., primary airport), equipment (i.e., type of airplane), and flying
schedule (e.g., international, shuttle). Generally, the employees can
bid a ``line of flying'' or a ``block'' of flights or may bid on a
number of days on reserve. According to our interviewees, approximately
15 to 20 percent of employees may be on reserve at any point in time
and this amount fluctuates by airline and demand.\54\ There are
different types of reserve that are loosely based on the proximity of
the employee to the airport; an employee on ``short call'' may be
required to arrive at the domicile within 90 minutes, while an employee
on ``long call'' may be given nine hours notice to arrive at the
domicile for a flight.
---------------------------------------------------------------------------
\53\ This discussion is highly generalized and may not represent
the practices of a specific airline. The purpose of the discussion
is to provide context for understanding the impact of FMLA leave on
overall scheduling practices.
\54\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR
Conference (now A4A), Calvin Franz and Lauren Jankovic, both of ERG.
---------------------------------------------------------------------------
Overall, the scheduling is fairly flexible in order to manage
schedule changes; for example, ``block holders'' can be rescheduled to
cover additional flights, flight attendants can engage in ``trip
trading'' or volunteer for open flying time, and airlines can use
``dead heading'' to fly in a crew from another airport.
There are several key limitations to the flexibility of the system;
the primary one being regulatory limits on flying
[[Page 8896]]
time and equipment. This limitation is the most stringent for pilots
who have more restrictive limitations on flying time than other flight
crew members and who may only fly specific types of aircraft.
Additionally, schedule changes due to events such as severe weather can
impact scheduling; reserve flight crew members are utilized to make up
for cancelled and rescheduled flights.
Based on comments received from A4A and employers in the industry,
the Department does not expect the AFCTCA to impose a significant cost
on air transportation employers. The Department believes that the rule
will increase the number of flight crew leaves classified as, and thus
protected by, FMLA, but does not have data to quantify the amount of
any such increase.
G. Regulatory Impacts
This section draws on the estimates of potentially affected
employees, and the unit costs discussed above to determine the
anticipated impact of the final regulations in terms of total cost
across all industries as well as estimated cost per firm and per
employee.
1. Projected Regulatory Cost
The total estimated impact of the Final Rule is $53.9 million in
the first year with $41.3 million in recurring costs in subsequent
years. Table 14 summarizes the total estimated costs of the changes to
the FMLA by cost type (first year, recurring), amendment (flight crew,
military caregiver), and regulatory requirement (familiarization,
notices, certifications, benefits).
Table 14--Summary of Impact of Changes to the FMLA
------------------------------------------------------------------------
Year 1 ($ Year 2 ($
Component mil.) mil.)
------------------------------------------------------------------------
Total........................................ $53.9 $41.3
Cost of Each Amendment:
Any FMLA regulatory revision............. 12.6 0
Flight Crew Technical Amendment.......... 0.4 0.4
NDAA 2010................................ 41.0 41.0
NDAA Subtotal Qualifying Exigency.... 25.8 25.8
NDAA Subtotal Military Caregiver..... 15.1 15.1
Cost of Each Requirement:
Regulatory Familiarization............... 12.6 0
Employer Notices......................... 17.1 17.1
Certifications........................... 0.4 0.4
Health Benefits.......................... 23.8 23.8
------------------------------------------------------------------------
Note: Columns may not sum due to rounding.
All covered employers will incur costs of $12.6 million during the
first year for regulatory familiarization associated with any new FMLA
revision. Other than the initial regulatory familiarization costs that
occur only in the first year, all other costs are annual costs; they
occur in the first year, and in each subsequent year. Covered employers
in the air transportation industry who are not already providing family
and medical leave to flight crew employees will incur costs of about
$372,000 per year to implement the changes. Covered employers of
workers eligible for military family leave will incur costs of about
$41 million per year as a result of the changes. Looking at the key
requirements of the FMLA, most of the costs of the changes will stem
from generation of employer notices and maintenance of health benefits
in recurring years.
To facilitate the public's understanding of the impact of this
Final Rule, the Department provides some alternative assumptions on the
utilization of leave and corresponding costs.
The Department estimates the cost of the FY 2010 NDAA as $41.0
million, with qualifying exigency leave costing $25.8 million and
military caregiver leave costing $15.1 million. However, under
different scenarios, the cost of the FY 2010 NDAA may increase or
decrease. The cost of qualifying exigency leave will vary between $2.0
million and $41.9 million in times of low conflict and high conflict
with 10 days of Rest and Recuperation leave (see Table 7 for leave
estimates).\55\ As a result, the cost of the FY 2010 NDAA will vary
from $17.1 million in low conflict times and $57.0 million in high
conflict times. The cost of qualifying exigency leave will also change
depending on whether leave taken for Rest and Recuperation is closer to
five days or to 15 days. In an average conflict scenario, the cost of
qualifying exigency leave might range from $23.0 million to $31.4
million, and, thus, the total cost of the FY 2010 NDAA will range from
$38.2 million to $46.5 million. See Table 15.
---------------------------------------------------------------------------
\55\ In addition, no deployments take place in 16 of the 48
years of data examined (33.3 percent), and costs associated with
qualifying exigency leave for deployment would be zero in those
years. Low levels of conflict occurred in 18 of 48 years (37.5
percent) and high levels of conflict took place in 14 of 48 years
(29.2 percent).
---------------------------------------------------------------------------
Similarly, if the definition of serious injury or illness was set
only to include disability ratings of 60 percent or greater (i.e., was
more stringent), or alternatively to include more ratings of 30 percent
or greater (i.e., was more inclusive), then the cost of military
caregiver leave would range from $13.9 million to $19.1 million (see
Table 11 for leave estimates). As a result, the total cost of the NDAA
would vary between $39.7 million and $44.9 million. See Table 15.
[[Page 8897]]
Table 15--Cost of the NDAA Under Different Conflict Scenarios, Amounts of Time for Rest and Recuperation Leave,
and Definitions of Serious Injury or Illness
----------------------------------------------------------------------------------------------------------------
Covered Costs
service- Number of Number of -------------------------------
Leave type members or eligible leave takers
veterans employees (1,000) Leave type NDAA total ($
(1,000) (1,000) total ($ mil.) mil.)
----------------------------------------------------------------------------------------------------------------
Qualifying Exigency
Low Conflict, R&R 10 days....... 15.4 15.0 2.4 $2.0 $17.1
Average Deployment, R&R 10 days. 197.0 192.5 30.8 25.8 41.0
R&R 5 days.................. 197.0 192.5 30.8 23.0 38.2
R&R 15 Days................. 197.0 192.5 30.8 28.6 43.7
Heavy Conflict, R&R 10 days..... 320.4 313.1 50.1 41.9 57.0
Military Caregiver
SII VASRD 60%+.................. 44.0 56.1 14.6 13.9 39.7
SII VASRD 50%+.................. 49.1 62.5 16.3 15.1 41.0
SII VASRD 30%+.................. 65.5 83.5 21.7 19.1 44.9
----------------------------------------------------------------------------------------------------------------
Table 16 provides the total, net present value and average
annualized projected compliance costs over 10 years. Average annualized
costs take the entire stream of costs over 10 years, including both
first-year costs that are only incurred once, and recurring costs that
are incurred every year, and converts them into a stream of equal
annual payments with a net present value equal to the original stream
of time-varying costs at the specified real discount rate.
Calculating annualized costs allows the examination of an
appropriate measure of average costs (by accounting for the time-value
of money) over time without overestimating impacts by focusing on
initial costs, or underestimating impacts by focusing solely on
recurring costs. The OMB directs that the streams of costs and benefits
should be discounted using three and seven percent real discount rates.
Table 16--Average Annualized Costs by Amendment and Requirement
----------------------------------------------------------------------------------------------------------------
Annualized \a\
-------------------------------
Component Ten year total Real discount Real discount
($ mil.) rate 3% ($ rate 7% ($
mil.) mil.)
----------------------------------------------------------------------------------------------------------------
Total........................................................... $426 $42.8 $43.0
By Amendment:
Any FMLA revision........................................... 13 1.4 1.7
Flight Crew Technical Amendment............................. 4 0.4 0.4
FY 2010 NDAA................................................ 410 41.0 41.0
Qualifying Exigency..................................... 258 25.8 25.8
Military Caregiver...................................... 151 15.1 15.1
By Requirement:
Regulatory Familiarization.................................. 13 1.4 1.7
Employer Notices............................................ 171 17.1 17.1
Certifications.............................................. 4 0.4 0.4
Health Benefits............................................. 238 23.8 23.8
----------------------------------------------------------------------------------------------------------------
\a\ Columns may not sum due to rounding.
The results presented in the table show that the Final Rule is
projected to cost an average of $43 million per year over 10 years
using a seven percent real discount rate.
The military family leave provisions (FY 2010 NDAA) account for
about 96.2 percent of the rule's total annualized cost. In terms of
requirements of the rule employer notices and maintenance of health
benefits each account for about 40 and 56 percent of the total cost,
respectively.
2. Impacts of Projected Cost on Business Income
In this section we review the impact of projected regulatory costs
on business income. To avoid misrepresenting impacts, they are
presented in four different ways: first-year costs are the largest,
thus the ratio of first-year costs to income (business and worker)
represent the most severe impacts that might be incurred in any one
year; the ratio of recurring costs to income are more typical impacts--
those that can be expected in any year except the first year; finally,
average annualized costs, as described above, reflect the overall
average over 10 years. Table 17 presents aggregate projected costs,
projected costs per firm, and projected costs per firm as a percent of
firm revenue and payroll. Costs are also disaggregated by amendment and
regulatory requirement.
The projected first year costs of the Final Rule are about $142 per
firm, which is less than one-hundredth of a percent of average annual
revenues and payroll. For most firms, the military family leave
provisions account for the largest part of this impact, at $108 per
firm. With the exception of regulatory familiarization, first year
costs for employer notices, certifications, and the maintenance of
health benefits are identical to the amounts incurred in each
subsequent year. The cost of the flight crew technical amendments may
be a small portion of overall first year costs, but the impact will be
concentrated on the air transportation industry. As a result, the cost
per firm
[[Page 8898]]
is $1,070 ($1,016 for airline flight crew leave plus $54 for regulatory
familiarization), which is less than one-hundredth of a percent of
average annual revenues or payroll.
The impact of recurring costs will be about $109 per firm; the
military family leave provisions continue to be the driver of the size
of the impact due to the cost of employer notices and maintenance of
employee health benefits associated with the requirement.
Table 17--Impact of Compliance Costs on Firm Income
----------------------------------------------------------------------------------------------------------------
Costs Projected impacts
---------------------------------------------------
Cost per Cost per
Component Total cost Cost per firm as firm as
($ mil.) firm \a\ percent of percent of
revenues payroll
----------------------------------------------------------------------------------------------------------------
First Year Cost............................................. $53.9 $142 0.0002 0.0011
By Amendment:
Any FMLA revision....................................... 12.6 33 0.0001 0.0003
Flight Crew Technical Amendment......................... 0.4 1,016 0.0004 0.0014
FY 2010 NDAA............................................ 41.0 108 0.0002 0.0008
By Requirement:
Regulatory Familiarization.............................. 12.6 33 0.0001 0.0003
Employer Notices........................................ 17.1 45 0.0001 0.0003
Certifications.......................................... 0.4 1 0.0000 0.0000
Health Benefits......................................... 23.8 62 0.0001 0.0005
Recurring Cost.............................................. 41.3 109 0.0002 0.0008
By Amendment:
Any FMLA revision....................................... 0 0 0.0000 0.0000
Flight Crew Technical Amendment......................... 0.4 1,016 0.0004 0.0014
NDAA 2010............................................... 41.0 108 0.0002 0.0008
By Requirement:
Regulatory Familiarization.............................. 0 0 0.0000 0.0000
Employer Notices........................................ 17.1 45 0.0001 0.0003
Certifications.......................................... 0.4 1 0.0000 0.0000
Health Benefits......................................... 23.8 62 0.0001 0.0005
7% Real Discount Rate....................................... 43.0 113 0.0002 0.0009
By Amendment:
Any FMLA revision....................................... 1.7 4 0.0000 0.0000
Flight Crew Technical Amendment......................... 0.4 1,016 0.0004 0.0014
NDAA 2010............................................... 41.0 108 0.0002 0.0008
By Requirement:
Regulatory Familiarization.............................. 1.7 4 0.0000 0.0000
Employer Notices........................................ 17.1 45 0.0001 0.0003
Certifications.......................................... 0.4 1 0.0000 0.0000
Health Benefits......................................... 23.8 62 0.0001 0.0005
----------------------------------------------------------------------------------------------------------------
\a\ Calculated as total cost divided by the number of affected firms. For example, first year cost per firm for
the flight crew technical amendment is $372,000 divided by 366 firms.
Table 17 also presents the impact of projected costs on firm and
worker income for average annualized costs with a seven percent real
discount rate. The results demonstrate that the overall average
annualized cost of the rule is $43 million, or about $113 per firm
($1,016 per firm in the air transportation industry). Total cost per
firm is approximately two ten-thousandths of one percent of average
annual firm revenue. However, it is likely that some of these costs
will be borne by the firm and some by the workers; the exact incidence
of these impacts will depend on the relative bargaining strength of
firms and workers, which will vary by industry.
H. Benefits
The Department anticipates significant benefits resulting from the
revisions. Employers that have adopted flexible workplace practices
cite many economic benefits such as reduced worker absenteeism and
turnover, improvements in their ability to attract and retain workers,
and other positive changes that translate into increased worker
productivity. See ``Work-Life Balance and the Economics of Workplace
Flexibility'' at 16, Executive Office of the President, Council of
Economic Advisors (March 2010). However, quantifying the benefits is
challenging. Id. The Department does not attempt to quantify these
benefits in this analysis, but does, however, describe the expected
benefits of each major revision in the proceeding section.
1. Military Family Leave
The benefits stemming from improving access to military family
leave were described in the 2008 Final Rule as follows:
[T]he 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.
73 FR 68069. Based on the preceding analysis, and the availability of
recent research examining the impacts of service-connected injuries and
illnesses, the Department also anticipates additional benefits to
accrue to servicemembers and their families from the FY 2010 NDAA
amendments.
Providing job-protected leave for caregivers of covered veterans
under the military caregiver provision is expected to have several
benefits, including increased family involvement in recovery, improved
self-reliance and access to resources for caregivers, and a
[[Page 8899]]
reduction in negative outcomes for covered veterans and their families.
Recent research suggests that as many as 30 percent of returning
servicemembers may suffer from symptoms of PTSD, major depression, and/
or TBI. These individuals often suffer from:
E. Co-morbidities such as anxiety and mood disorders, and substance
abuse;
F. increased risk of suicidal ideation and attempts;
G. higher rates of unhealthy behaviors such as smoking, poor diet,
and unsafe sex;
H. higher rates of other health problems and mortality; and
I. decreased work productivity in the form of missed work days and
decreased performance at work.\56\
---------------------------------------------------------------------------
\56\ Tanielian, Terri and Lisa Jaycox. 2008. Invisible wounds of
war: psychological and cognitive injuries, their consequences, and
services to assist recovery. RAND. Available at: www.rand.org.
---------------------------------------------------------------------------
While this study focused on active servicemembers, these disorders
involve long timeframes for recovery and management of the symptoms, so
it is reasonable to conclude that these same issues would impact the
servicemember following separation from service. Furthermore, the
impact of these disorders, and other serious injuries or illnesses
incurred by covered servicemembers and veterans, extends to family
members as well. Common issues include marital discord and increased
likelihood of divorce, intimate partner violence, poor parenting skills
and poor child outcomes, and caregiver burden. In ``Economic Impact on
Caregivers of the Seriously Wounded, Ill, and Injured,'' the authors
describe the impact on caregivers as follows:
Family support is critical to patients' successful
rehabilitation. Especially in a prolonged recovery, it is family
members who make therapy appointments and ensure they are kept,
drive the servicemember to these appointments, pick up medications
and make sure they are taken, provide a wide range of personal care,
become the impassioned advocates, take care of the kids, pay the
bills and negotiate with the benefits offices, find suitable housing
for a family that includes a person with a disability, provide
emotional support, and, in short, find they have a full-time job--or
more--for which they never prepared. When family members give up
jobs to become caregivers, income can drop precipitously.\57\
---------------------------------------------------------------------------
\57\ Christensen, et. al., April 2009, Economic Impact on
Caregivers of the Seriously Wounded, Ill, and Injured, CNA, p. 8.
---------------------------------------------------------------------------
The support provided by caregivers plays a pivotal role in the
course of the servicemember's recovery, as noted in ``Invisible Wounds
of War'':
The likelihood that the condition will trigger a negative
cascade of consequences over time is greater if the initial symptoms
of the condition are more severe and the afflicted individual has
other sources of vulnerability * * * Early interventions are likely
to pay long-term dividends in improved outcomes for years to come;
so, it is critical to help servicemembers and veterans seek and
receive treatment.\58\
---------------------------------------------------------------------------
\58\ Tanielian and Jaycox, 2008.
Providing caregivers with job-protected FMLA leave to care for
their family member who is a covered veteran creates a window of
opportunity to interrupt the negative cascade of consequences
experienced by sufferers of PTSD, TBI and depression. Furthermore,
maintaining the flow of resources and self-sufficiency provided by a
secure employment situation ensures that the caregivers are able to
maintain their own mental and physical health during the veteran's
recovery process.\59\
---------------------------------------------------------------------------
\59\ Christensen, et. al., 2009, p.9.
---------------------------------------------------------------------------
At this point, there is not sufficient data to accurately estimate
the number of servicemembers suffering from these disorders or the
range of severity of symptoms; as a result, we are unable to quantify
the benefits of reduced rates of negative outcomes for affected
veterans and their families. However, in ``Invisible Wounds of War,''
RAND developed estimates of costs associated with PTSD, major
depression, and TBI stemming from the conflicts in Afghanistan and
Iraq. For example:
J. Servicemembers diagnosed with PTSD incur costs of $5,000--10,000
per servicemember during the first two years after returning home.\60\
---------------------------------------------------------------------------
\60\ RAND, 2008, p. xxiii. Variation due to severity and
inclusion, or not, of cost of lives lost to suicide. Costs do not
include costs due to substance abuse, domestic violence,
homelessness, or family strain.
---------------------------------------------------------------------------
K. Servicemembers diagnosed with major depression incur costs of
$15,000--25,000 per servicemember during the first two years after
returning home.\61\
---------------------------------------------------------------------------
\61\ RAND, 2008, p. xxiii. Costs associated with co-morbid PTSD
and depression are approximately $12,000 to 16,000.
---------------------------------------------------------------------------
L. Servicemembers diagnosed with TBI incur costs of $27,000--32,000
for a mild case and up to $268,000--408,000 for severe cases.\62\
---------------------------------------------------------------------------
\62\ RAND, 2008, p. xxiii. Costs presented in 2007 dollars.
---------------------------------------------------------------------------
The Final Rule will likely reduce these costs, and the costs
associated with other negative outcomes associated with these
diagnoses; but, at this point in time we do not have sufficient data to
estimate the reduction in costs.
2. Airline Industry FMLA Leave
As a result of the AFCTA, airline flight crew employees will enjoy
all the benefits of FMLA coverage that have been afforded to employees
in other industries. Additionally, as discussed in the 2008 Final Rule,
employers may see reduced ``presenteeism''--the loss of productivity
due to employees working while injured or ill--and a resultant increase
in overall productivity, workplace safety, and wellness among
employees. 73 FR 68071.
IX. Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires
agencies to evaluate the potential effects of their proposed and final
rules on small businesses, small organizations and small governmental
jurisdictions. See 5 U.S.C. 603-604. If the rule is not expected to
have a significant economic impact on a substantial number of small
entities, the RFA allows an agency to certify such, in lieu of
preparing an analysis. See 5 U.S.C. 605.
The Department certifies that this Final Rule will not have a
significant economic impact on a substantial number of small entities.
The FMLA covers private employers of 50 or more employees; employers
with fewer than 50 employees are exempt. Therefore, changes to the FMLA
regulations by definition will not impact small businesses with less
than 50 employees. The Department acknowledges that some small
employers that are within the SBA definition of small business (50-500
employees) will still have to comply with the regulation and incur
costs. However, based on the analysis in section VIII Executive Order
12866; Executive Order 13563, even if all businesses subject to this
Final Rule were considered to be small businesses, the economic impact
would not be significant. As discussed above, the initial and recurring
annual costs of the rule to all employers will be low. Further, as
shown in Table 17, the first year cost per firm is estimated to be $142
and the recurring cost per year per firm is estimated to be $109.
Therefore, the data and economic implications of the rule do not reveal
a significant economic impact on any small entities. The Department
also notes that no comments were received from businesses, small or
otherwise, regarding the cost of this Final Rule.
Appendix A: Military Family Leave Profile
In order to estimate the number of individuals who may take leave
under the qualifying exigency or military caregiver provisions as a
result of the amendments to the FMLA included in the FY 2010 NDAA, the
Department estimated (1) The number of active duty
[[Page 8900]]
servicemembers whose family members are entitled to qualifying exigency
leave and the number of veterans whose family members will be entitled
to caregiver leave, (2) the age profile of those servicemembers and
veterans, and (3) the ratio of the number of eligible family members or
caregivers associated with that age profile. The first estimate is
described in more detail in the text of the economic analysis. This
appendix provides an explanation of the method used to develop the age
profiles and eligible family members.
A. Overview of Approach
The Department replicated and updated the method used in the 2008
Final Rule to ensure consistency with previous estimates. In that
approach, the Department used data from the Defense Manpower Database,
the Current Population Survey, and the decennial Census of Population
to estimate the age distribution of servicemembers; the proportion of
servicemembers in each age category with living parents, a spouse, and
children (over 18 years of age); \63\ and the proportion of those
individuals who may be employed by a covered employer. The Department
used these estimates to determine the likely number of family members
eligible to take leave for a qualifying exigency or to act as a
caregiver for a covered veteran.
---------------------------------------------------------------------------
\63\ Under military caregiver leave a designated next of kin may
also take leave to care for a covered veteran. We accounted for
these individuals by assuming that every covered veteran has at
least one caregiver.
---------------------------------------------------------------------------
The first step is to apply the age profile of servicemembers to the
estimated number of servicemembers to distribute the number of
servicemembers to the age groups. Table A-1 presents the estimated
proportion of servicemembers by age range estimated for the 2008 Final
rule. The Department aggregated the age groups for this calculation.
For example, if the Final Rule was expected to affect 1000
servicemembers then this age profile would estimate that 469 of them
would be between the ages of 22 and 30 years old.
Table A-1--Age Profile of Servicemembers
------------------------------------------------------------------------
Average
estimated
proportion of
General military servicemember age range military
members
(percent)
------------------------------------------------------------------------
18-21................................................... 19.8
22-30................................................... 46.9
31-40................................................... 24.7
41-50................................................... 8.0
51-59................................................... 0.6
------------------------------------------------------------------------
The next step is to estimate the number of servicemembers in each
age group with 0, 1, 2, 3, 4, or 5 eligible family members. Table A-2
presents the estimated percent of servicemembers with the specified
number of eligible family members by age range of the servicemember.
For example, 44.1 percent of servicemembers aged 31-40 have at least
one eligible family member.
Table A-2--Proportion of Servicemembers With ``n'' Eligible Family Members
----------------------------------------------------------------------------------------------------------------
Number of eligible family members (in percent)
Age range -----------------------------------------------------------------------------
0 1 2 3 4 5
----------------------------------------------------------------------------------------------------------------
18-21............................. 29.3 49.5 21.0 0.2 0.0 0.0
22-30............................. 27.4 46.5 23.3 2.8 0.0 0.0
31-40............................. 31.1 44.1 21.1 3.6 0.2 0.2
41-50............................. 37.8 40.4 16.9 4.2 0.7 0.1
51-59............................. 45.3 35.4 14.6 3.9 0.7 0.1
----------------------------------------------------------------------------------------------------------------
Finally, the number of estimated eligible family members for each
age group of servicemembers is summed up by multiplying the number of
servicemembers in each column by the number of eligible family members.
First, the number of servicemembers in each age range is multiplied by
the percentage in each cell in that row to determine the number of
servicemembers with that number of eligible family members. For
example, if there are 1000 servicemembers aged 18-21 then about 293 of
them have no eligible family members, about 495 have one eligible
family member, about 210 have two eligible family members, and two have
three eligible family members.
Next, the number of servicemembers in each category is converted to
the total number of eligible family members and summed across the row
to determine the total number of family members for that age range. For
each row the calculation is ( * 0) + ( * 1) +
( * 2) + ( * 3) + ( * 4) + ( * 5)
where represents the number of service members and the
integers zero through five represent the number of eligible family
members per servicemembers. The equation is modified slightly for
estimating the number of eligible caregivers for military caregiver
leave; we assume that each servicemember has at least one eligible
caregiver and modify the equation to ( * 1) + ( * 1)
+ ( * 2) + ( * 3) + ( * 4) + ( * 5)
to reflect the fact that servicemembers with no available family
members may designate a next of kin to serve as their caregiver.
For example, the number of family members eligible for qualifying
exigency leave for 1000 servicemembers aged 18-21 is equal to (293 * 0)
+ (495 * 1) + (210 * 2) + (2 * 3) + (0 * 4) + (0 * 5); for 1000
servicemembers aged 18--21 there are 921 eligible family members. In
this example, the number of eligible caregivers for military caregiver
leave is equal to (293 * 1) + (495 * 1) + (210 * 2) + (2 * 3) + (0 * 4)
+ (0 * 5); for 1000 servicemembers aged 18-21 there are 1,214 eligible
caregivers. Finally, the total number of eligible family members or
caregivers is summed across the age groups to estimate the total number
of eligible family members or caregivers.
The next two tables present summary tables for a sample calculation
assuming 5,000 total servicemembers (Table A-3) and veterans (Table A-
4).
[[Page 8901]]
Table A-3--Example Calculation of Number of Eligible Family Members for 5000 Servicemembers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Example ERG's number of servicemen with n of eligible family members where
distribution n = Number of
General military service member age range of service- ------------------------------------------------------------------------------ family
members 0 1 2 3 4 5 members
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21........................................ 992.0 290.8 490.6 208.3 2.3 0.0 0.0 914.2
22-30........................................ 2,343.0 641.6 1,090.3 544.9 66.2 0.0 0.0 2,378.5
31-40........................................ 1,236.3 384.2 545.2 261.4 44.3 2.2 0.2 1,210.8
41-50........................................ 398.8 150.7 161.0 67.2 16.6 2.9 0.4 359.1
51-59........................................ 29.9 13.5 10.6 4.4 1.2 0.2 0.0 23.8
----------------------------------------------------------------------------------------------------------
Total.................................... 5,000 1,480.8 2,297.6 1,086.2 130.6 5.3 0.7 4,886.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table A-4--Example Calculation of Number of Eligible Family Members for 5000 Veterans
--------------------------------------------------------------------------------------------------------------------------------------------------------
ERG's number of servicemen with n of eligible family members where
Example n = Number of
General military service member age range distribution ------------------------------------------------------------------------------ family
of veterans 0 1 2 3 4 5 members
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21.......................................... 992.0 290.8 490.6 208.3 2.3 0.0 0.0 1,205.0
22-30.......................................... 2,343.0 641.6 1,090.3 544.9 66.2 0.0 0.0 3,020.1
31-40.......................................... 1,236.3 384.2 545.2 261.4 44.3 2.2 0.2 1,595.0
41-50.......................................... 398.8 150.7 161.0 67.2 16.6 2.9 0.4 509.8
51-59.......................................... 29.9 13.5 10.6 4.4 1.2 0.2 0.0 37.4
--------------------------------------------------------------------------------------------------------
Total...................................... 5,000 1,480.8 2,297.6 1,086.2 130.6 5.3 0.7 6,367.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
For the NPRM, the Department provided detailed tables illustrating
the calculation of the number of eligible family members and caregivers
for the Department's estimates of the number of covered servicemembers
for qualifying exigency leave, and the number of covered veterans who
might seek treatment for a serious injury or illness for military
caregiver leave. For the Final Rule, the Department has streamlined the
discussion of this method and provides a useful shortcut for developing
these estimates.
As long as the distribution of servicemembers with a specified
number of eligible family members or caregivers remains the same, see
Table A-2, then the number of eligible family members or caregivers for
any estimated number of servicemembers can be calculated through the
use of a ratio instead of performing the full calculation described
above. The Department calculated the ratio of eligible family members
or caregivers to covered servicemembers by dividing the estimated
number of eligible family members by the number of covered
servicemembers for qualifying exigency leave, and by dividing the
number of eligible caregivers by the number of veterans for military
caregiver leave. Per the examples above in Table A-3 and A-4, the
ratios are:
0.977 eligible family members per covered servicemember
for qualifying exigency leave (4.887/5,000).
1.273 eligible caregivers per veteran for military
caregiver leave (6,367/5,000).
Note, these ratios are primarily provided as a tool for those who
wish to replicate the Department's estimates in this economic analysis;
over time, the actual distribution of eligible family members per
servicemember by age group will fluctuate with changes in the
composition of the military, demographic patterns, and employment with
covered employers and will necessitate an updated profile.
X. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments as well as on the private sector. Under Section 202(a) of
UMRA, the Department must generally prepare a written statement,
including a cost-benefit analysis, for proposed and final regulations
that ``includes any Federal mandate that may result in the expenditure
by State, local, and tribal governments, in the aggregate or by the
private sector'' in excess of $100 million in any one year (equivalent
to $143 million in 2010 dollars after adjusting for inflation).
State, local, and tribal government entities are within the scope
of the regulated community for this regulation. The Department has
determined that this rule contains a Federal mandate that is unlikely
to result in expenditures of $143 million or more for State, local, and
tribal governments, in the aggregate, or the private sector in any one
year. Total costs to government entities do not exceed $15 million in
any single year of the rule. See Table 18. Total costs to the private
sector do not exceed $50 million in the first, most costly year of the
rule. See Table 18. The total first year cost of this rule is estimated
at $53.9 million to the private and public sectors combined. Thus, the
Final Rule is not expected to result in any expenditures of $143
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year.
[[Page 8902]]
Table 18--Compliance Costs by Business Size
----------------------------------------------------------------------------------------------------------------
First year ($ Recurring ($ Annualized ($
mil.) and mil.) and mil.) and
Industry percent of percent of percent of
total total total
----------------------------------------------------------------------------------------------------------------
Small:
Private..................................................... $30.2 56% $23.4 57% $24.3 57%
Government................................................. $7.9 15% $4.5 11% $5.0 12%
-----------------------------------------------
Subtotal............................................... $38.1 71% $28.0 68% $29.3 68%
Non Small:
Private.................................................... $10.1 19% $9.0 22% $9.1 21%
Government................................................. $5.8 11% $4.4 11% $4.6 11%
-----------------------------------------------
Subtotal............................................... $15.8 29% $13.4 32% $13.7 32%
Total:
Private.................................................... $40.2 75% $32.4 78% $33.5 78%
Government................................................. $13.7 25% $8.9 22% $9.6 22%
-----------------------------------------------
Total.................................................. $53.9 100% $41.3 100% $43.0 100%
----------------------------------------------------------------------------------------------------------------
XI. Executive Order 13132, Federalism
The rule does not have federalism implications as outlined in E.O.
13132. Although states are covered employers under the FMLA, the rule
does not have substantial direct effects on the states, on the
relationship between the Federal government and the states, or on the
distribution of power and responsibilities among the various levels of
government.
XII. Executive Order 13175, Indian Tribal Governments
This rule was reviewed under the terms of E.O. 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 has been prepared.
XIII. Effects on Families
The undersigned hereby certifies that this rule will not adversely
affect the well-being of families, as discussed under section 654 of
the Treasury and General Government Appropriations Act, 1999.
XIV. Executive Order 13045, Protection of Children
E.O. 13045 applies to any rule that (1) is determined to be
economically significant as defined in E.O. 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 E.O. 13045 because, although it 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.
XV. Environmental Impact Assessment
A review of 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,
indicates that this rule will not have a significant impact on the
quality of the human environment. There is, thus, no corresponding
environmental assessment or an environmental impact statement.
XVI. Executive Order 13211, Energy Supply
This rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution or use of
energy.
XVII. Executive Order 12630, Constitutionally Protected Property Rights
This rule is not subject to E.O. 12630, because it does not involve
implementation of a policy ``that has takings implications'' or that
could impose limitations on private property use.
XVIII. Executive Order 12988, Civil Justice Reform Analysis
This rule was drafted and reviewed in accordance with E.O. 12988
and will not unduly burden the Federal court system. The proposed rule
was: (1) Reviewed to eliminate drafting errors and ambiguities; (2)
written to minimize litigation; and (3) written to provide a clear
legal standard for affected conduct and to promote burden reduction.
List of Subjects in 29 CFR Part 825
Employee benefit plans, Health, Health insurance, Labor management
relations, Maternal and child health, Teachers.
Signed at Washington, DC, this 30th day of January 2013.
Mary Beth Maxwell
Acting Deputy Administrator, Wage and Hour Division.
For the reasons set out in the preamble, the Department of Labor
amends Chapter V of Title 29, by revising part 825 of the Code of
Federal Regulations as follows:
PART 825--THE FAMILY AND MEDICAL LEAVE ACT OF 1993
Subpart A--Coverage Under the Family and Medical Leave Act
Sec.
825.100 The Family and Medical Leave Act.
825.101 Purpose of the Act.
825.102 Definitions.
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.
[[Page 8903]]
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 covered servicemember, spouse, parent, son or
daughter, next of kin of a covered servicemember, adoption, foster
care, son or daughter on covered active duty or call to covered
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 (military caregiver leave).
Subpart B[m,dash]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.
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--Recordkeeping Requirements
825.500 Recordkeeping requirements.
Subpart F--Special Rules Applicable to Employees of Schools
825.600 Special rules for school employees, definitions.
825.601 Special rules for school employees, limitations on
intermittent leave.
825.602 Special rules for school employees, limitations on leave
near the end of an academic term.
825.603 Special rules for school employees, duration of FMLA leave.
825.604 Special rules for school employees, restoration to ``an
equivalent position.''
Subpart G--Effect of Other Laws, Employer Practices, and Collective
Bargaining Agreements on Employee Rights Under FMLA
825.700 Interaction with employer's policies.
825.701 Interaction with State laws.
825.702 Interaction with Federal and State anti-discrimination laws.
Subpart H--Definitions Special Rules Applicable to Airline Flight Crew
Employees
825.800 Definitions. Special rules for airline flight crew
employees, general.
825.801 Special rules for airline flight crew employees, hours of
service requirement.
825.802 Special rules for airline flight crew employees, calculation
of leave.
825.803 Special rules for airline flight crew employees,
recordkeeping requirements.
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 military
member on active duty or call to covered active duty status (or has
been notified of an impending call or order to covered active duty). 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. 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
[[Page 8904]]
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 a military member on covered active duty or
call to covered active duty status. 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 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 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).
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, 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.
Airline flight crew employee means an airline flight crewmember or
flight attendant as those terms are defined in regulations of the
Federal Aviation Administration. See also Sec. 825.800(a).
Applicable monthly guarantee means:
(1) For an airline flight crew employee who is not on reserve
status (line holder), the minimum number of hours for which an employer
has agreed to schedule such employee for any given month; and
(2) For an airline flight crew employee who is on reserve status,
the number of hours for which an employer has agreed to pay the
employee for any given month. See also Sec. 825.801(b)(1).
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(a)(2).
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 (i) and (ii) of this definition
for treatment by a health care provider means an in-person visit to a
health care provider. The first in-person treatment visit must take
place within seven days of the first day of incapacity.
(iv) Whether additional treatment visits or a regimen of continuing
treatment is necessary within the 30-day period shall be determined by
the health care provider.
(v) The term ``extenuating circumstances'' in paragraph (i) 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).
[[Page 8905]]
(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 active duty or call to covered active duty status means:
(1) In the case of a member of the Regular Armed Forces, duty
during the deployment of the member with the Armed Forces to a foreign
country; and,
(2) In the case of a member of the Reserve components of the Armed
Forces, duty during the deployment of the member with the Armed Forces
to a foreign country under a Federal 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 10 U.S.C. 101(a)(13)(B). See also Sec.
825.126(a).
Covered servicemember means:
(1) 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, or
(2) A covered veteran who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness.
Covered veteran means an individual who was a member of the Armed
Forces (including a member of the National Guard or Reserves), and was
discharged or released under conditions other than dishonorable at any
time during the five-year period prior to the first date the eligible
employee takes FMLA leave to care for the covered veteran. See Sec.
825.127(b)(2).
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 Uniformed Services Employment and Reemployment Rights Act
(USERRA), 38 U.S.C. 4301, et seq., covered service obligation (the
period of absence from work due to or necessitated by USERRA-covered
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 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
met the hours of service requirement by having been employed for at
least 1,250 hours of service with such employer during the previous 12-
month period, or for an airline flight crew employee, in the previous
12 months, having worked or been paid for not less than 60 percent of
the applicable total monthly guarantee and having worked or been paid
for not less than 504 hours, not counting personal commute time, or
vacation, medical or sick leave (see Sec. 825.801(b)), except that:
(i) An employee returning from fulfilling his or her USERRA-covered
service obligation shall be credited with the hours of service that
would have been performed but for the period of absence from work due
to or necessitated by USERRA-covered service in determining whether the
employee met the hours of service requirement (accordingly, a person
reemployed following absence from work due to or necessitated by
USERRA-covered service has the hours that would have been worked for
the employer (or, for an airline flight crew employee, would have been
worked for or paid by the employer) added to any hours actually worked
(or, for an airline
[[Page 8906]]
flight crew employee, actually worked or paid) during the previous 12-
month period to meet the hours of service requirement); and
(ii) To determine the hours that would have been worked (or, for an
airline flight crew employee, would have been worked or paid) during
the period of absence from work due to or necessitated by USERRA-
covered service, the employee's pre-service work schedule can generally
be used for calculations; and
(3) Who is employed in any State of the United States, the District
of Columbia or any Territories or possession of the United States.
(4) Excludes any Federal officer or employee covered under
subchapter V of chapter 63 of title 5, United States Code.
(5) Excludes any employee of the United States House of
Representatives or the United States Senate covered by the
Congressional Accountability Act of 1995, 2 U.S.C. 1301.
(6) Excludes any employee who is employed at a worksite at which
the employer employs fewer than 50 employees if the total number of
employees employed by that employer within 75 miles of that worksite is
also fewer than 50.
(7) Excludes any employee employed in any country other than the
United States or any Territory or possession of the United States.
Employ means to suffer or permit to work.
Employee has the meaning given the same term as defined in section
3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows:
(1) The term employee means any individual employed by an employer;
(2) In the case of an individual employed by a public agency,
employee means--
(i) Any individual employed by the Government of the United
States--
(A) As a civilian in the military departments (as defined in
section 102 of Title 5, United States Code),
(B) In any executive agency (as defined in section 105 of Title 5,
United States Code), excluding any Federal officer or employee covered
under subchapter V of chapter 63 of Title 5, United States Code,
(C) In any unit of the legislative or judicial branch of the
Government which has positions in the competitive service, excluding
any employee of the United States House of Representatives or the
United States Senate who is covered by the Congressional Accountability
Act of 1995,
(D) In a nonappropriated fund instrumentality under the
jurisdiction of the Armed Forces, or
(ii) Any individual employed by the United States Postal Service or
the Postal Regulatory Commission; and
(iii) Any individual employed by a State, political subdivision of
a State, or an interstate governmental agency, other than such an
individual--
(A) Who is not subject to the civil service laws of the State,
political subdivision, or agency which employs the employee; and
(B) Who--
(1) Holds a public elective office of that State, political
subdivision, or agency,
(2) Is selected by the holder of such an office to be a member of
his personal staff,
(3) Is appointed by such an officeholder to serve on a policymaking
level,
(4) Is an immediate adviser to such an officeholder with respect to
the constitutional or legal powers of the office of such officeholder,
or
(5) Is an employee in the legislative branch or legislative body of
that State, political subdivision, or agency and is not employed by the
legislative library of such State, political subdivision, or agency.
Employee employed in an instructional capacity. See the definition
of Teacher in this section.
Employer means any person engaged in commerce or in an industry or
activity affecting commerce who employs 50 or more employees for each
working day during each of 20 or more calendar workweeks in the current
or preceding calendar year, and includes--
(1) Any person who acts, directly or indirectly, in the interest of
an employer to any of the employees of such employer;
(2) Any successor in interest of an employer; and
(3) Any public agency.
Employment benefits means all benefits provided or made available
to employees by an employer, including group life insurance, health
insurance, disability insurance, sick leave, annual leave, educational
benefits, and pensions, regardless of whether such benefits are
provided by a practice or written policy of an employer or through an
employee benefit plan as defined in section 3(3) of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term
does not include non-employment related obligations paid by employees
through voluntary deductions such as supplemental insurance coverage.
See also 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
[[Page 8907]]
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.
Invitational travel authorization (ITA) or Invitational travel
order (ITO) are orders issued by the Armed Forces to a family member to
join an injured or ill servicemember at his or her bedside. See also
Sec. 825.310(e).
Key employee means 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. See also Sec.
825.217.
Mental disability: See the definition of Physical or mental
disability in this section.
Military caregiver leave means leave taken to care for a covered
servicemember with a serious injury or illness under the Family and
Medical Leave Act of 1993. See also Sec. 825.127.
Next of kin of a covered servicemember means the nearest blood
relative other than the covered servicemember's spouse, parent, son, or
daughter, in the following order of priority: blood relatives who have
been granted legal custody of the covered servicemember by court decree
or statutory provisions, brothers and sisters, grandparents, aunts and
uncles, and first cousins, unless the covered servicemember has
specifically designated in writing another blood relative as his or her
nearest blood relative for purposes of military caregiver leave under
the FMLA. When no such designation is made, and there are multiple
family members with the same level of relationship to the covered
servicemember, all such family members shall be considered the covered
servicemember's next of kin and may take FMLA leave to provide care to
the covered servicemember, either consecutively or simultaneously. When
such designation has been made, the designated individual shall be
deemed to be the covered servicemember's only next of kin. See also
Sec. 825.127(d)(3).
Outpatient status means, with respect to a covered servicemember
who is a current member of the Armed Forces, 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(b)(1).
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(d)(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.
Reserve components of the Armed Forces, for purposes of qualifying
exigency leave, include the 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, and
retired members of the Regular Armed Forces or Reserves who are called
up in support of a contingency operation. See also Sec.
825.126(a)(2)(i).
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: (1) In the case of a current
member of the Armed Forces, including a member of the National Guard or
Reserves, an injury or illness that was incurred by the covered
servicemember in the line
[[Page 8908]]
of duty on active duty in the Armed Forces or that existed before the
beginning of the member's active duty and was aggravated by service in
the line of duty on active duty in the Armed Forces and that may render
the servicemember medically unfit to perform the duties of the member's
office, grade, rank, or rating; and
(2) In the case of a covered veteran, an injury or illness that was
incurred by the member in the line of duty on active duty in the Armed
Forces (or existed before the beginning of the member's active duty and
was aggravated by service in the line of duty on active duty in the
Armed Forces) and manifested itself before or after the member became a
veteran, and is:
(i) A continuation of a serious injury or illness that was incurred
or aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember unable to perform the duties of the
servicemember's office, grade, rank, or rating; or
(ii) A physical or mental condition for which the covered veteran
has received a U.S. Department of Veterans Affairs Service-Related
Disability Rating (VASRD) of 50 percent or greater, and such VASRD
rating is based, in whole or in part, on the condition precipitating
the need for military caregiver leave; or
(iii) A physical or mental condition that substantially impairs the
covered veteran's ability to secure or follow a substantially gainful
occupation by reason of a disability or disabilities related to
military service, or would do so absent treatment; or
(iv) An injury, including a psychological injury, on the basis of
which the covered veteran has been enrolled in the Department of
Veterans Affairs Program of Comprehensive Assistance for Family
Caregivers. See also Sec. 825.127(c).
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(d)(1).
Son or daughter on covered active duty or call to covered 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 covered active duty or call to covered active duty
status, and who is of any age. See also Sec. 825.126(a)(5).
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.
TRICARE is the health care program serving active duty
servicemembers, National Guard and Reserve members, retirees, their
families, survivors, and certain former spouses worldwide.
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
[[Page 8909]]
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 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.
[[Page 8910]]
(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 of service with the predecessor for purposes of determining
employee eligibility for FMLA leave.
Sec. 825.108 Public agency coverage.
(a) An employer under FMLA includes any public agency, as defined
in section 3(x) of the Fair Labor Standards Act, 29 U.S.C. 203(x).
Section 3(x) of the FLSA defines public agency as the government of the
United States; the government of a State or political subdivision of a
State; or an agency of the United States, a State, or a political
subdivision of a State, or any interstate governmental agency. State is
further defined in Section 3(c) of the FLSA to include any State of the
United States, the District of Columbia, or any Territory or possession
of the United States.
(b) The determination of whether an entity is a public agency, as
distinguished from a private employer, is determined by whether the
agency has taxing authority, or whether the chief administrative
officer or board, etc., is elected by the voters-at-large or their
appointment is subject to approval by an elected official.
(c)(1) A State or a political subdivision of a State constitutes a
single public agency and, therefore, a single employer for purposes of
determining employee eligibility. For example, a State is a single
employer; a county is a single employer; a city or town is a single
employer. 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 five-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 these regulations include:
(1) Employees of the Postal Service;
(2) Employees of the Postal Regulatory Commission;
(3) A part-time employee who does not have an established regular
tour of duty during the administrative workweek; and,
(4) An employee serving under an intermittent appointment or
temporary appointment with a time limitation of one year or less.
(c) Employees of other Federal executive agencies are also covered
by
[[Page 8911]]
these regulations if they are not covered by Title II of FMLA.
(d) Employees of the judicial branch of the United States are
covered by these regulations only if they are employed in a unit which
has employees in the competitive service. For example, employees of the
U.S. Tax Court are covered by these regulations.
(e) For employees covered by these regulations, the U.S. Government
constitutes a single employer for purposes of determining employee
eligibility. These employees must meet all of the requirements for
eligibility, including the requirement that the Federal Government
employ 50 employees at the worksite or within 75 miles.
Sec. 825.110 Eligible employee.
(a) An eligible employee is an employee of a covered employer who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during
the 12-month period immediately preceding the commencement of the leave
(see Sec. 825.801 for special hours of service requirements for
airline flight crew employees), 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 Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., covered
service obligation. The period of absence from work due to or
necessitated by USERRA-covered 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
USERRA; or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes).
(3) If an employee is maintained on the payroll for any part of a
week, including any periods of paid or unpaid leave (sick, vacation)
during which other benefits or compensation are provided by the
employer (e.g., workers' compensation, group health plan benefits,
etc.), the week counts as a week of employment. For purposes of
determining whether intermittent/occasional/casual employment qualifies
as at least 12 months, 52 weeks is deemed to be equal to 12 months.
(4) Nothing in this section prevents employers from considering
employment prior to a continuous break in service of more than 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 and
in Sec. 825.801 containing the special hours of service requirement
for airline flight crew employees, whether an employee has worked the
minimum 1,250 hours of service is determined according to the
principles established under the Fair Labor Standards Act (FLSA) for
determining compensable hours of work. See 29 CFR part 785. The
determining factor is the number of hours an employee has worked for
the employer within the meaning of the FLSA. The determination is not
limited by methods of recordkeeping, or by compensation agreements that
do not accurately reflect all of the hours an employee has worked for
or been in service to the employer. Any accurate accounting of actual
hours worked under FLSA's principles may be used.
(2) An employee returning from USERRA-covered service shall be
credited with the hours of service that would have been performed but
for the period of absence from work due to or necessitated by USERRA-
covered service in determining the employee's eligibility for FMLA-
qualifying leave. Accordingly, a person reemployed following USERRA-
covered 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 hours of service requirement. In order to
determine the hours that would have been worked during the period of
absence from work due to or necessitated by USERRA-covered service, the
employee's pre-service work schedule can generally be used for
calculations. See Sec. 825.801(c) for special rules applicable to
airline flight crew employees.
(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. 825.102 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. See Sec. 825.801(d) for special rules applicable to
airline flight crew employees.
(d) The determination of whether an employee meets the hours of
service requirement 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 12-month eligibility requirement, 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
[[Page 8912]]
employees will drop to 40 in December, the employer must grant FMLA
benefits to an otherwise eligible employee who gives notice of the need
for leave in August for a period of leave to begin in December.
Sec. 825.111 Determining whether 50 employees are employed within 75
miles.
(a) Generally, a worksite can refer to either a single location or
a group of contiguous locations. Structures which form a campus or
industrial park, or separate facilities in proximity with one another,
may be considered a single site of employment. On the other hand, there
may be several single sites of employment within a single building,
such as an office building, if separate employers conduct activities
within the building. For example, an office building with 50 different
businesses as tenants will contain 50 sites of employment. The offices
of each employer will be considered separate sites of employment for
purposes of FMLA. An employee's worksite under FMLA will ordinarily be
the site the employee reports to or, if none, from which the employee's
work is assigned.
(1) Separate buildings or areas which are not directly connected or
in immediate proximity are a single worksite if they are in reasonable
geographic proximity, are used for the same purpose, and share the same
staff and equipment. For example, if an employer manages a number of
warehouses in a metropolitan area but regularly shifts or rotates the
same employees from one building to another, the multiple warehouses
would be a single worksite.
(2) For employees with no fixed worksite, e.g., construction
workers, transportation workers (e.g., truck drivers, seamen, pilots),
salespersons, etc., the worksite is the site to which they are assigned
as their home base, from which their work is assigned, or to which they
report. For example, if a construction company headquartered in New
Jersey opened a construction site in Ohio, and set up a mobile trailer
on the construction site as the company's on-site office, the
construction site in Ohio would be the worksite for any employees hired
locally who report to the mobile trailer/company office daily for work
assignments, etc. If that construction company also sent personnel such
as job superintendents, foremen, engineers, an office manager, etc.,
from New Jersey to the job site in Ohio, those workers sent from New
Jersey continue to have the headquarters in New Jersey as their
worksite. The workers who have New Jersey as their worksite would not
be counted in determining eligibility of employees whose home base is
the Ohio worksite, but would be counted in determining eligibility of
employees whose home base is New Jersey. For transportation employees,
their worksite is the terminal to which they are assigned, report for
work, depart, and return after completion of a work assignment. For
example, an airline pilot may work for an airline with headquarters in
New York, but the pilot regularly reports for duty and originates or
begins flights from the company's facilities located in an airport in
Chicago and returns to Chicago at the completion of one or more flights
to go off duty. The pilot's worksite is the facility in Chicago. An
employee's personal residence is not a worksite in the case of
employees, such as salespersons, who travel a sales territory and who
generally leave to work and return from work to their personal
residence, or employees who work at home, as under the concept of
flexiplace or telecommuting. Rather, their worksite is the office to
which they report and from which assignments are made.
(3) For purposes of determining that employee's eligibility, when
an employee is jointly employed by two or more employers (see Sec.
825.106), the employee's worksite is the primary employer's office from
which the employee is assigned or reports, unless the employee has
physically worked for at least one year at a facility of a secondary
employer, in which case the employee's worksite is that location. The
employee is also counted by the secondary employer to determine
eligibility for the secondary employer's full-time or permanent
employees.
(b) The 75-mile distance is measured by surface miles, using
surface transportation over public streets, roads, highways and
waterways, by the shortest route from the facility where the 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 military member on
covered active duty (or has been notified of an impending call or order
to covered active duty status (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 covered 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
[[Page 8913]]
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 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
[[Page 8914]]
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 six weeks of leave to
care for a healthy, newborn child, each could use an additional six
weeks due to his or her own serious health condition or to care for a
child with a serious health condition. Note, too, that many State
pregnancy disability laws specify a period of disability either before
or after the birth of a child; such periods would also be considered
FMLA leave for a serious health condition of the mother, and would not
be subject to the combined limit.
(4) The mother is entitled to FMLA leave for incapacity due to
pregnancy, for prenatal care, or for her own serious health condition
following the birth of the child. Circumstances may require that FMLA
leave begin before the actual date of birth of a child. An expectant
mother may take FMLA leave before the birth of the child for prenatal
care or if her condition makes her unable to work. The mother is
entitled to leave for incapacity due to pregnancy even though she does
not receive treatment from a health care provider during the absence,
and even if the absence does not last for more than three consecutive
calendar days. For example, a pregnant employee may be unable to report
to work because of severe morning sickness.
(5) The 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(d) 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--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. See Sec. 825.802 for special rules applicable to
airline flight crew employees.
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
[[Page 8915]]
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 six weeks of leave to
care for a healthy, newly placed child, each could use an additional
six 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(d) 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. 825.202-825.205 for general
rules governing the use of intermittent and reduced schedule leave. See
Sec. 825.120 for general rules governing leave for pregnancy and birth
of a child. See Sec. 825.601 for special rules applicable to
instructional employees of schools. See Sec. 825.802 for special rules
applicable to airline flight crew employees.
Sec. 825.122 Definitions of covered servicemember, spouse, parent,
son or daughter, next of kin of a covered servicemember, adoption,
foster care, son or daughter on covered active duty or call to covered
active duty status, son or daughter of a covered servicemember, and
parent of a covered servicemember.
(a) Covered servicemember means: (1) 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; or
(2) A covered veteran who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness. Covered
veteran means an individual who was a member of the Armed Forces
(including a member of the National Guard or Reserves), and was
discharged or released under conditions other than dishonorable at any
time during the five-year period prior to the first date the eligible
employee takes FMLA leave to care for the covered veteran. See Sec.
825.127(b)(2).
(b) 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.
(c) 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 (d) of this section. This term does not include parents ``in
law.''
(d) 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.
(e) 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
[[Page 8916]]
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(d)(3).
(f) 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.
(g) Foster care means 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.
(h) Son or daughter on covered active duty or call to covered
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 covered active duty or call to covered active
duty status, and who is of any age. See Sec. 825.126(a)(5).
(i) 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. See Sec. 825.127(d)(1).
(j) 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(d)(2).
(k) 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 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. 825.202-825.205
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
[[Page 8917]]
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 for a qualifying
exigency while the employee's spouse, son, daughter, or parent (the
military member or member) is on covered active duty or call to covered
active duty status (or has been notified of an impending call or order
to covered active duty).
(1) Covered active duty or call to covered active duty status in
the case of a member of the Regular Armed Forces means duty during the
deployment of the member with the Armed Forces to a foreign country.
The active duty orders of a member of the Regular components of the
Armed Forces will generally specify if the member is deployed to a
foreign country.
(2) Covered active duty or call to covered active duty status in
the case of a member of the Reserve components of the Armed Forces
means duty during the deployment of the member with the Armed Forces to
a foreign country under a Federal 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 10 U.S.C. 101(a)(13)(B).
(i) For purposes of covered active duty or call to covered active
duty status, the Reserve components of the Armed Forces include the
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, and retired members of the
Regular Armed Forces or Reserves who are called up in support of a
contingency operation pursuant to one of the provisions of law
identified in paragraph (a)(2).
(ii) The active duty orders of a member of the Reserve components
will generally specify if the 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 and will specify that the deployment is to a
foreign country.
(3) Deployment of the member with the Armed Forces to a foreign
country means deployment to areas outside of the United States, the
District of Columbia, or any Territory or possession of the United
States, including international waters.
(4) A call to covered 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 (a)(2) of this section.
(5) Son or daughter on covered active duty or call to covered
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 covered active duty or call to covered active
duty status, and who is of any age.
(b) An eligible employee may take FMLA leave for one or more of the
following qualifying exigencies:
(1) Short-notice deployment. (i) To address any issue that arises
from the fact that the military member is notified of an impending call
or order to covered active duty 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 the military member is notified of
an impending call or order to covered active duty;
(2) Military events and related activities. (i) To attend any
official ceremony, program, or event sponsored by the military that is
related to the covered active duty or call to covered active duty
status of the 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 covered active duty or call to covered active duty status of the
military member;
(3) Childcare and school activities. For the purposes of leave for
childcare and school activities listed in (i) through (iv) of this
paragraph, a child of the military member must be the military member's
biological, adopted, or foster child, stepchild, legal ward, or child
for whom the military member stands in loco parentis, who is either
under 18 years of age or 18 years of age or older and incapable of
self-care because of a mental or physical disability at the time that
FMLA leave is to commence. As with all instances of qualifying exigency
leave, the military member must be the spouse, son, daughter, or parent
of the employee requesting qualifying exigency leave.
(i) To arrange for alternative childcare for a child of the
military member when the covered active duty or call to covered active
duty status of the military member necessitates a change in the
existing childcare arrangement;
(ii) To provide childcare for a child of the military member 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
covered active duty or call to covered active duty status of the
military member;
(iii) To enroll in or transfer to a new school or day care facility
a child of the military member when enrollment or transfer is
necessitated by the covered active duty or call to covered active duty
status of the military member; and
[[Page 8918]]
(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 child of the military member, when such meetings are
necessary due to circumstances arising from the covered active duty or
call to covered active duty status of the military member;
(4) Financial and legal arrangements. (i) To make or update
financial or legal arrangements to address the military member's
absence while on covered active duty or call to covered 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 military member's representative before a
federal, state, or local agency for purposes of obtaining, arranging,
or appealing military service benefits while the military member is on
covered active duty or call to covered active duty status, and for a
period of 90 days following the termination of the military member's
covered active duty status;
(5) Counseling. To attend counseling provided by someone other than
a health care provider, for oneself, for the military member, or for
the biological, adopted, or foster child, a stepchild, or a legal ward
of the military member, or a child for whom the 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 covered active duty or call to covered
active duty status of the military member;
(6) Rest and Recuperation. (i) To spend time with the military
member who is on short-term, temporary, Rest and Recuperation leave
during the period of deployment;
(ii) Leave taken for this purpose can be used for a period of 15
calendar days beginning on the date the military member commences each
instance of Rest and Recuperation leave;
(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 military member's covered active duty status; and
(ii) To address issues that arise from the death of the military
member while on covered active duty status, such as meeting and
recovering the body of the military member, making funeral
arrangements, and attending funeral services;
(8) Parental care. For purposes of leave for parental care listed
in (i) through (iv) of this paragraph, the parent of the military
member must be incapable of self-care and must be the military member's
biological, adoptive, step, or foster father or mother, or any other
individual who stood in loco parentis to the military member when the
member was under 18 years of age. A parent who is incapable of self-
care means that the parent requires active assistance or supervision to
provide daily self-care in three or more of the activities of daily
living or instrumental activities of daily living. 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. As with all
instances of qualifying exigency leave, the military member must be the
spouse, son, daughter, or parent of the employee requesting qualifying
exigency leave.
(i) To arrange for alternative care for a parent of the military
member when the parent is incapable of self-care and the covered active
duty or call to covered active duty status of the military member
necessitates a change in the existing care arrangement for the parent;
(ii) To provide care for a parent of the military member on an
urgent, immediate need basis (but not on a routine, regular, or
everyday basis) when the parent is incapable of self-care and the need
to provide such care arises from the covered active duty or call to
covered active duty status of the military member;
(iii) To admit to or transfer to a care facility a parent of the
military member when admittance or transfer is necessitated by the
covered active duty or call to covered active duty status of the
military member; and
(iv) To attend meetings with staff at a care facility, such as
meetings with hospice or social service providers for a parent of the
military member, when such meetings are necessary due to circumstances
arising from the covered active duty or call to covered active duty
status of the military member but not for routine or regular meetings;
(9) Additional activities. To address other events which arise out
of the military member's covered active duty or call to covered 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.
Sec. 825.127 Leave to care for a covered servicemember with a serious
injury or illness (military caregiver leave).
(a) Eligible employees are entitled to FMLA leave to care for a
covered servicemember with a serious illness or injury.
(b) Covered servicemember means:
(1) 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. Outpatient status 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.
(2) A covered veteran who is undergoing medical treatment,
recuperation or therapy for a serious injury or illness. Covered
veteran means an individual who was a member of the Armed Forces
(including a member of the National Guard or Reserves), and was
discharged or released under conditions other than dishonorable at any
time during the five-year period prior to the first date the eligible
employee takes FMLA leave to care for the covered veteran. An eligible
employee must commence leave to care for a covered veteran within five
years of the veteran's active duty service, but the single 12-month
period described in paragraph (e)(1) of this section may extend beyond
the five-year period.
(i) For an individual who was a member of the Armed Forces
(including a member of the National Guard or Reserves) and who was
discharged or released under conditions other than dishonorable prior
to the effective date of this Final Rule, the period between October
28, 2009 and the effective date of this Final Rule shall not count
towards the determination of the five-year period for covered veteran
status.
(c) A serious injury or illness means:
(1) In the case of a current member of the Armed Forces, including
a member of the National Guard or Reserves, means an injury or illness
that was incurred by the covered servicemember in the line of duty on
active duty in the
[[Page 8919]]
Armed Forces or that existed before the beginning of the member's
active duty and was aggravated by service in the line of duty on active
duty in the Armed Forces, and that may render the member medically
unfit to perform the duties of the member's office, grade, rank or
rating; and,
(2) In the case of a covered veteran, means an injury or illness
that was incurred by the member in the line of duty on active duty in
the Armed Forces (or existed before the beginning of the member's
active duty and was aggravated by service in the line of duty on active
duty in the Armed Forces) and manifested itself before or after the
member became a veteran, and is:
(i) a continuation of a serious injury or illness that was incurred
or aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember unable to perform the duties of the
servicemember's office, grade, rank, or rating; or
(ii) a physical or mental condition for which the covered veteran
has received a U.S. Department of Veterans Affairs Service-Related
Disability Rating (VASRD) of 50 percent or greater, and such VASRD
rating is based, in whole or in part, on the condition precipitating
the need for military caregiver leave; or
(iii) a physical or mental condition that substantially impairs the
covered veteran's ability to secure or follow a substantially gainful
occupation by reason of a disability or disabilities related to
military service, or would do so absent treatment; or
(iv) an injury, including a psychological injury, on the basis of
which the covered veteran has been enrolled in the Department of
Veterans Affairs Program of Comprehensive Assistance for Family
Caregivers.
(d) 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) 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) 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) 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 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(k).
(e) 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 (e) 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 (e) 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 (e) of this section, provided that
the employee is entitled to no more than 12 workweeks 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 workweeks of FMLA leave to care for a covered servicemember and
10 workweeks 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 workweeks 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
[[Page 8920]]
period described in paragraph (e) 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 (e) 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).
(f) 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 (e) 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 military member on
covered active duty status (or has been notified of an impending call
or order to covered active duty).
(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
[[Page 8921]]
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 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(e)(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(e)(3).
(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. See Sec. 825.802 for special calculation of leave rules
applicable to airline flight crew employees.
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(c) 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 six weeks of leave to care for a parent,
each could use an additional six 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 spouse, 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 spouse, 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
[[Page 8922]]
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.
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. An employer may not require an
employee to take more leave than is necessary to address the
circumstances that precipitated the need for the leave, provided that
the leave is counted using the shortest increment of leave used to
account for any other type of leave. See also Sec. 825.205(a)(2) for
the physical impossibility exception, Sec. Sec. 825.600 and 825.601
for special rules applicable to employees of schools, and Sec. 825.802
for special rules applicable to airline flight crew employees. If an
employer uses different increments to account for different types of
leave, the employer must account for FMLA leave in the smallest
increment used to account for any other type of leave. For example, if
an employer accounts for the use of annual leave in increments of one
hour and the use of sick leave in increments of one-half hour, then
FMLA leave use must be accounted for using increments no larger than
one-half hour. If an employer accounts for use of leave in varying
increments at different times of the day or shift, the employer may
also account for FMLA leave in varying increments, provided that the
increment used for FMLA leave is no greater than the smallest increment
used for any other type of 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
[[Page 8923]]
considered to be the shortest period used to account for other forms of
leave or the use of FMLA leave in other circumstances. In all cases,
employees may not be charged FMLA leave for periods during which they
are working.
(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 and no equivalent position is
available, the entire period that the employee is forced to be absent
is designated as FMLA leave and counts against the employee's FMLA
entitlement. The period of the physical impossibility is limited to the
period during which the employer is unable to permit the employee to
work prior to a period of FMLA leave or return the employee to the same
or equivalent position due to the physical impossibility after a period
of FMLA leave. See Sec. 825.214.
(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 eight
hours, the employee would use one-fifth (\1/5\) of a week of FMLA
leave. Similarly, if a full-time employee who would otherwise work
eight hour days works four-hour days under a reduced leave schedule,
the employee would use one-half (\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. 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 10 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 employee's total normally scheduled hours. An employee does not
accrue FMLA-protected leave at any particular hourly rate. An eligible
employee is entitled to up to a total of 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 the employee would have worked but for the use of leave.
See also Sec. Sec. 825.601 and 825.602, special rules for schools and
Sec. 825.802, special rules for airline flight crew employees.
(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, or one-sixth (\1/6\)
of a week of FMLA leave. Voluntary overtime hours that an employee does
not work due to an FMLA-qualifying reason 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 workweek
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
[[Page 8924]]
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 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 through 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
[[Page 8925]]
endorsing the program, to permit the insurer to publicize the program
to employees, to collect premiums through payroll deductions and to
remit them to the insurer;
(4) The employer receives no consideration in the form of cash or
otherwise in connection with the program, other than reasonable
compensation, excluding any profit, for administrative services
actually rendered in connection with payroll deduction; and,
(5) The premium charged with respect to such coverage does not
increase in the event the employment relationship terminates.
(b) The same group health plan benefits provided to an employee
prior to taking FMLA leave must be maintained during the FMLA leave.
For example, if family member coverage is provided to an employee,
family member coverage must be maintained during the FMLA leave.
Similarly, benefit coverage during FMLA leave for medical care,
surgical care, hospital care, dental care, eye care, mental health
counseling, substance abuse treatment, etc., must be maintained during
leave if provided in an employer's group health plan, including a
supplement to a group health plan, whether or not provided through a
flexible spending account or other component of a cafeteria plan.
(c) If an employer provides a new health plan or benefits or
changes health benefits or plans while an employee is on FMLA leave,
the employee is entitled to the new or changed plan/benefits to the
same extent as if the employee were not on leave. For example, if an
employer changes a group health plan so that dental care becomes
covered under the plan, an employee on FMLA leave must be given the
same opportunity as other employees to receive (or obtain) the dental
care coverage. Any other plan changes (e.g., in coverage, premiums,
deductibles, etc.) which apply to all employees of the workforce would
also apply to an employee on FMLA leave.
(d) Notice of any opportunity to change plans or benefits must also
be given to an employee on FMLA leave. If the group health plan permits
an employee to change from single to family coverage upon the birth of
a child or otherwise add new family members, such a change in benefits
must be made available while an employee is on FMLA leave. If the
employee requests the changed coverage it must be provided by the
employer.
(e) An employee may choose not to retain group health plan coverage
during FMLA leave. However, when an employee returns from leave, the
employee is entitled to be reinstated on the same terms as prior to
taking the leave, including family or dependent coverages, without any
qualifying period, physical examination, exclusion of pre-existing
conditions, etc. See Sec. 825.212(c).
(f) Except as required by the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA) and for key employees (as discussed
below), an employer's obligation to maintain health benefits during
leave (and to restore the employee to the same or equivalent
employment) under FMLA ceases if and when the employment relationship
would have terminated if the employee had not taken FMLA leave (e.g.,
if the employee's position is eliminated as part of a nondiscriminatory
reduction in force and the employee would not have been transferred to
another position); an employee informs the employer of his or her
intent not to return from leave (including before starting the leave if
the employer is so informed before the leave starts); or the employee
fails to return from leave or continues on leave after exhausting his
or her FMLA leave entitlement in the 12-month period.
(g) If a key employee (see Sec. 825.218) does not return from
leave when notified by the employer that substantial or grievous
economic injury will result from his or her reinstatement, the
employee's entitlement to group health plan benefits continues unless
and until the employee advises the employer that the employee does not
desire restoration to employment at the end of the leave period, or 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).
[[Page 8926]]
Sec. 825.211 Maintenance of benefits under multi-employer health
plans.
(a) A multi-employer health plan is a plan to which more than one
employer is required to contribute, and which is maintained pursuant to
one or more collective bargaining agreements between employee
organization(s) and the employers.
(b) An employer under a multi-employer plan must continue to make
contributions on behalf of an employee using FMLA leave as though the
employee had been continuously employed, unless the plan contains an
explicit FMLA provision for maintaining coverage such as through pooled
contributions by all employers party to the plan.
(c) During the duration of an employee's FMLA leave, coverage by
the group health plan, and benefits provided pursuant to the plan, must
be maintained at the level of coverage and benefits which were
applicable to the employee at the time FMLA leave commenced.
(d) An employee using FMLA leave cannot be required to use banked
hours or pay a greater premium than the employee would have been
required to pay if the employee had been continuously employed.
(e) As provided in Sec. 825.209(f) of this part, group health plan
coverage must be maintained for an employee on FMLA leave until:
(1) The employee's FMLA leave entitlement is exhausted;
(2) The employer can show that the employee would have been laid
off and the employment relationship terminated; or,
(3) The employee provides unequivocal notice of intent not to
return to work.
Sec. 825.212 Employee failure to pay health plan premium payments.
(a)(1) In the absence of an established employer policy providing a
longer grace period, an employer's obligations to maintain health
insurance coverage cease under FMLA if an employee's premium payment is
more than 30 days late. In order to drop the coverage for an employee
whose premium payment is late, the employer must provide written notice
to the employee that the payment has not been received. Such notice
must be mailed to the employee at least 15 days before coverage is to
cease, advising that coverage will be dropped on a specified date at
least 15 days after the date of the letter unless the payment has been
received by that date. If the employer has established policies
regarding other forms of unpaid leave that provide for the employer to
cease coverage retroactively to the date the unpaid premium payment was
due, the employer may drop the employee from coverage retroactively in
accordance with that policy, provided the 15-day notice was given. In
the absence of such a policy, coverage for the employee may be
terminated at the end of the 30-day grace period, where the required
15-day notice has been provided.
(2) An employer has no obligation regarding the maintenance of a
health insurance policy which is not a group health plan. See Sec.
825.209(a).
(3) All other obligations of an employer under FMLA would continue;
for example, the employer continues to have an obligation to reinstate
an employee upon return from leave.
(b) The employer may recover the employee's share of any premium
payments missed by the employee for any FMLA leave period during which
the employer maintains health coverage by paying the employee's share
after the premium payment is missed.
(c) If coverage lapses because an employee has not made required
premium payments, upon the employee's return from FMLA leave the
employer must still restore the employee to coverage/benefits
equivalent to those the employee would have had if leave had not been
taken and the premium payment(s) had not been missed, including family
or dependent coverage. See Sec. 825.215(d)(1)-(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
[[Page 8927]]
purposes. See Sec. Sec. 825.306(b), 825.310(c)-(d). 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 percent 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 two percent fee for
administrative costs.
(f) When an employee fails to return to work, any health and non-
health benefit premiums which this section of the regulations permits
an employer to recover are a debt owed by the non-returning employee to
the employer. The existence of this debt caused by the employee's
failure to return to work does not alter the employer's
responsibilities for health benefit coverage and, under a self-
insurance plan, payment of claims incurred during the period of FMLA
leave. To the extent recovery is allowed, the employer may recover the
costs through deduction from any sums due to the employee (e.g., unpaid
wages, vacation pay, profit sharing, etc.), provided such deductions do
not otherwise violate applicable Federal or State wage payment or other
laws. Alternatively, the employer may initiate legal action against the
employee to recover such costs.
Sec. 825.214 Employee right to reinstatement.
General rule. On return from FMLA leave, an employee is entitled to
be returned to the same position the employee held when leave
commenced, or to an equivalent position with equivalent benefits, pay,
and other terms and conditions of employment. An employee is entitled
to such reinstatement even if the employee has been replaced or his or
her position has been restructured to accommodate the employee's
absence. See also Sec. 825.106(e) for the obligations of joint
employers.
Sec. 825.215 Equivalent position.
(a) Equivalent position. An equivalent position is one that is
virtually identical to the employee's former position in terms of pay,
benefits and working conditions, including privileges, perquisites and
status. It must involve the same or substantially similar duties and
responsibilities, which must entail substantially equivalent skill,
effort, responsibility, and authority.
(b) Conditions to qualify. If an employee is no longer qualified
for the position because of the employee's inability to attend a
necessary course, renew a license, fly a minimum number of hours, etc.,
as a result of the leave, the employee shall be given a reasonable
opportunity to fulfill those conditions upon return to work.
(c) Equivalent pay. (1) An employee is entitled to any
unconditional pay increases which may have occurred during the FMLA
leave period, such as cost of living increases. Pay increases
conditioned upon seniority, length of service, or work performed 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
[[Page 8928]]
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 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
[[Page 8929]]
employees employed by the employer within 75 miles of the employee's
worksite.
(b) The term salaried means paid on a salary basis, as defined in
29 CFR 541.602. This is the Department of Labor regulation defining
employees who may qualify as exempt from the minimum wage and overtime
requirements of the FLSA as executive, administrative, professional,
and computer employees.
(c) A key employee must be among the highest paid 10 percent of all
the employees--both salaried and non-salaried, eligible and
ineligible--who are employed by the employer within 75 miles of the
worksite.
(1) In determining which employees are among the highest paid 10
percent, year-to-date earnings are divided by weeks worked by the
employee (including weeks in which paid leave was taken). Earnings
include wages, premium pay, incentive pay, and non-discretionary and
discretionary bonuses. Earnings do not include incentives whose value
is determined at some future date, e.g., stock options, or benefits or
perquisites.
(2) The determination of whether a salaried employee is among the
highest paid 10 percent shall be made at the time the employee gives
notice of the need for leave. No more than 10 percent of the employer's
employees within 75 miles of the worksite may be key employees.
Sec. 825.218 Substantial and grievous economic injury.
(a) In order to deny restoration to a key employee, an employer
must determine that the restoration of the employee to employment will
cause substantial and grievous economic injury to the operations of the
employer, not whether the absence of the employee will cause such
substantial and grievous injury.
(b) An employer may take into account its ability to replace on a
temporary basis (or temporarily do without) the employee on FMLA leave.
If permanent replacement is unavoidable, the cost of then reinstating
the employee can be considered in evaluating whether substantial and
grievous economic injury will occur from restoration; in other words,
the effect on the operations of the company of reinstating the employee
in an equivalent position.
(c) A precise test cannot be set for the level of hardship or
injury to the employer which must be sustained. If the reinstatement of
a key employee threatens the economic viability of the firm, that would
constitute substantial and grievous economic injury. A lesser injury
which causes substantial, long-term economic injury would also be
sufficient. Minor inconveniences and costs that the employer would
experience in the normal course of doing business would certainly not
constitute substantial and grievous economic injury.
(d) FMLA's substantial and grievous economic injury standard is
different from and more stringent than the undue hardship test under
the ADA. See also Sec. 825.702.
Sec. 825.219 Rights of a key employee.
(a) An employer who believes that reinstatement may be denied to a
key employee, must give written notice to the employee at the time the
employee gives notice of the need for FMLA leave (or when FMLA leave
commences, if earlier) that he or she qualifies as a key employee. At
the same time, the employer must also fully inform the employee of the
potential consequences with respect to reinstatement and maintenance of
health benefits if the employer should determine that substantial and
grievous economic injury to the employer's operations will result if
the employee is reinstated from FMLA leave. If such notice cannot be
given immediately because of the need to determine whether the employee
is a key employee, it shall be given as soon as practicable after being
notified of a need for leave (or the commencement of leave, if
earlier). It is expected that in most circumstances there will be no
desire that an employee be denied restoration after FMLA leave and,
therefore, there would be no need to provide such notice. However, an
employer who fails to provide such timely notice will lose its right to
deny restoration even if substantial and grievous economic injury will
result from reinstatement.
(b) As soon as an employer makes a good faith determination, based
on the facts available, that substantial and grievous economic injury
to its operations will result if a key employee who has given notice of
the need for FMLA leave or is using FMLA leave is reinstated, the
employer shall notify the employee in writing of its determination,
that it cannot deny FMLA leave, and that it intends to deny restoration
to employment on completion of the FMLA leave. It is anticipated that
an employer will ordinarily be able to give such notice prior to the
employee starting leave. The employer must serve this notice either in
person or by certified mail. This notice must explain the basis for the
employer's finding that substantial and grievous economic injury will
result, and, if leave has commenced, must provide the employee a
reasonable time in which to return to work, taking into account the
circumstances, such as the length of the leave and the urgency of the
need for the employee to return.
(c) If an employee on leave does not return to work in response to
the employer's notification of intent to deny restoration, the employee
continues to be entitled to maintenance of health benefits and the
employer may not recover its cost of health benefit premiums. A key
employee's rights under FMLA continue unless and until the employee
either gives notice that he or she no longer wishes to return to work,
or the employer actually denies reinstatement at the conclusion of the
leave period.
(d) After notice to an employee has been given that substantial and
grievous economic injury will result if the employee is reinstated to
employment, an employee is still entitled to request reinstatement at
the end of the leave period even if the employee did not return to work
in response to the employer's notice. The employer must then again
determine whether there will be substantial and grievous economic
injury from reinstatement, based on the facts at that time. If it is
determined that substantial and grievous economic injury will result,
the employer shall notify the employee in writing (in person or by
certified mail) of the denial of restoration.
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;
[[Page 8930]]
(ii) Given, or is about to give, any information in connection with
an inquiry or proceeding relating to a right under this Act;
(iii) Testified, or is about to testify, in any inquiry or
proceeding relating to a right under this Act.
(b) Any violations of the Act or of these regulations constitute
interfering with, restraining, or denying the exercise of rights
provided by the Act. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered. See Sec. 825.400(c). Interfering with the exercise of an
employee's rights would include, for example, not only refusing to
authorize FMLA leave, but discouraging an employee from using such
leave. It would also include manipulation by a covered employer to
avoid responsibilities under FMLA, for example:
(1) Transferring employees from one worksite to another for the
purpose of reducing worksites, or to keep worksites, below the 50-
employee threshold for employee eligibility under the Act;
(2) Changing the essential functions of the job in order to
preclude the taking of leave;
(3) Reducing hours available to work in order to avoid employee
eligibility.
(c) The Act's prohibition against interference prohibits an
employer from discriminating or retaliating against an employee or
prospective employee for having exercised or attempted to exercise FMLA
rights. For example, if an employee on leave without pay would
otherwise be entitled to full benefits (other than health benefits),
the same benefits would be required to be provided to an employee on
unpaid FMLA leave. By the same token, employers cannot use the taking
of FMLA leave as a negative factor in employment actions, such as
hiring, promotions or disciplinary actions; nor can FMLA leave be
counted under no fault attendance policies. See Sec. 825.215.
(d) Employees cannot waive, nor may employers induce employees to
waive, their prospective rights under FMLA. For example, employees (or
their collective bargaining representatives) cannot trade off the right
to take FMLA leave against some other benefit offered by the employer.
This does not prevent 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 Department's prototype notice
(WHD Publication 1420) 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 www.dol.gov/whd. 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 and Sec. 825.801 for special hours
of service eligibility requirements for airline flight crews. 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. 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 hours of
service with 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 optional
Form WH-381 (Notice of Eligibility and Rights and Responsibility) to
provide such notification to employees. Prototypes are available from
the nearest office of the Wage and Hour Division or on the Internet at
www.dol.gov/whd. The employer is obligated to translate this
[[Page 8931]]
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 not met the hours of service requirement 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 covered active duty or call to covered 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 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 may be
obtained from local offices of the Wage and Hour Division or from the
Internet at www.dol.gov/whd. 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 may be obtained from local offices of the Wage and
Hour Division or from the Internet at www.dol.gov/whd. If the leave is
not designated as FMLA leave because it does not meet the requirements
of the Act, the notice to
[[Page 8932]]
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 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,
[[Page 8933]]
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 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 military member is on covered active duty
or call to covered active duty status (or has been notified of an
impending call or order to covered active duty), and that the requested
leave is for one of the reasons listed in Sec. 825.126(b); 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.
[[Page 8934]]
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 military member is
on covered active duty or call to covered active duty status (or has
been notified of an impending call or order to covered active duty),
that the requested leave is for one of the reasons listed in Sec.
825.126(b), 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 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).
[[Page 8935]]
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 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
[[Page 8936]]
(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. 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-380-E and WH-380-F, 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. Prototype forms WH-380-E and WH-380-F
may be obtained from local offices of the Wage and Hour Division or
from the Internet at www.dol.gov/whd.
(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 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
[[Page 8937]]
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 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 time frame requested by the employer (which
must allow at least 15 calendar days after the employer's request),
unless it is not practicable under the particular circumstances to do
so despite the employee`s diligent, good faith efforts.
(e) Content. The employer may ask for the same information when
obtaining recertification as that permitted for the original
certification as set forth in Sec. 825.306. The employee has the same
obligations to participate and cooperate (including providing a
complete and sufficient certification or adequate authorization to the
health care provider) in the recertification process as in the initial
certification process. See Sec. 825.305(d). As part of the information
allowed to be obtained on recertification 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
[[Page 8938]]
a qualifying exigency arising out of the covered active duty or call to
covered active duty status (or notification of an impending call or
order to covered active duty)of a military member (see Sec.
825.126(a)), an employer may require the employee to provide a copy of
the military member's active duty orders or other documentation issued
by the military which indicates that the military member is on covered
active duty or call to covered active duty status, and the dates of the
military member's covered 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 may be required by the
employer if the need for leave because of a qualifying exigency arises
out of a different covered active duty or call to covered active duty
status (or notification of an impending call or order to covered active
duty) of the same or a different 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;
(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 email address) and a brief
description of the purpose of the meeting; and
(6) If the qualifying exigency involves Rest and Recuperation
leave, a copy of the military member's Rest and Recuperation orders, or
other documentation issued by the military which indicates that the
military member has been granted Rest and Recuperation leave, and the
dates of the military member's Rest and Recuperation leave.
(c) DOL has developed an optional form (Form WH-384) for employees'
use in obtaining a certification that meets FMLA's certification
requirements. Form WH-384 may be obtained from local offices of the
Wage and Hour Division or from the Internet at www.dol.gov/whd. 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 military member is on covered active duty or call to covered
active duty status (or has been notified of an impending call or order
to covered active duty); 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;
(4) A DOD non-network TRICARE authorized private health care
provider; or
(5) Any health care provider as defined in Sec. 825.125.
(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) or an
authorized VA representative. 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;
(iv) A DOD non-network TRICARE authorized private health care
provider; or
(v) A health care provider as defined in Sec. 825.125.
(2) Whether the covered servicemember's injury or illness was
incurred in the line of duty on active duty or, if not, whether the
covered servicemember's injury or illness existed before the beginning
of the servicemember's active duty and was aggravated by service in the
line of duty on active duty;
(3) The approximate date on which the serious injury or illness
commenced, or was aggravated, 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.
(i) In the case of a current member of the Armed Forces, such
medical facts
[[Page 8939]]
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.
(ii) In the case of a covered veteran, such medical facts must
include:
(A) Information on whether the veteran is receiving medical
treatment, recuperation, or therapy for an injury or illness that is
the continuation of an injury or illness that was incurred or
aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember medically unfit to perform the duties of
the servicemember's office, grade, rank, or rating; or
(B) Information on whether the veteran is receiving medical
treatment, recuperation, or therapy for an injury or illness that is a
physical or mental condition for which the covered veteran has received
a U.S. Department of Veterans Affairs Service-Related Disability Rating
(VASRD) of 50 percent or greater, and that such VASRD rating is based,
in whole or in part, on the condition precipitating the need for
military caregiver leave; or
(C) Information on whether the veteran is receiving medical
treatment, recuperation, or therapy for an injury or illness that is a
physical or mental condition that substantially impairs the covered
veteran's ability to secure or follow a substantially gainful
occupation by reason of a disability or disabilities related to
military service, or would do so absent treatment; or
(D) Documentation of enrollment in the Department of Veterans
Affairs Program of Comprehensive Assistance for Family Caregivers.
(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) Whether the covered servicemember is a veteran, the date of
separation from military service, and whether the separation was other
than dishonorable. The employer may require the employee to provide
documentation issued by the military which indicates that the covered
servicemember is a veteran, the date of separation, and that the
separation is other than dishonorable. Where an employer requires such
documentation, an employee may provide a copy of the veteran's
Certificate of Release or Discharge from Active Duty issued by the U.S.
Department of Defense (DD Form 214) or other proof of veteran status.
See Sec. 825.127(c)(2).
(7) 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 optional forms (WH-385, WH-385-V) for
employees' use in obtaining certification that meets FMLA's
certification requirements, which may be obtained from local offices of
the Wage and Hour Division or on the Internet at www.dol.gov/whd. These
optional forms reflect 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, WH-385-V, 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 employer may seek authentication and/or clarification of the
certification under Sec. 825.307. Second and third opinions under
Sec. 825.307 are not permitted for leave to care for a covered
servicemember when the certification has been completed by one of the
types of health care providers identified in Sec. 825.310(a)(1)-(4).
However, second and third opinions under Sec. 825.307 are permitted
when the certification has been completed by a health care provider as
defined in Sec. 825.125 that is not one of the types identified in
Sec. 825.310(a)(1)-(4). 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(k) 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 forms
(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
[[Page 8940]]
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(k) when an employee supports
his or her request for FMLA leave with a copy of an ITO or ITA.
(f) An employer requiring an employee to submit a certification for
leave to care for a covered servicemember must accept as sufficient
certification of the servicemember's serious injury or illness
documentation indicating the servicemember's enrollment in the
Department of Veterans Affairs Program of Comprehensive Assistance for
Family Caregivers. Such documentation is sufficient certification of
the servicemember's serious injury or illness to support the employee's
request for military caregiver leave regardless of whether the employee
is the named caregiver in the enrollment documentation.
(1) An employer may seek authentication and clarification of the
documentation indicating the servicemember's enrollment in the
Department of Veterans Affairs Program of Comprehensive Assistance for
Family Caregivers 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 when the servicemember's
serious injury or illness is shown by documentation of enrollment in
this program.
(2) 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(k) when an employee supports
his or her request for FMLA leave with a copy of such enrollment
documentation. An employer may also require an employee to provide
documentation, such as a veteran's Form DD-214, showing that the
discharge was other than dishonorable and the date of the veteran's
discharge.
(g) Where medical certification is requested by an employer, an
employee may not be held liable for administrative delays in the
issuance of military documents, despite the employee's diligent, good-
faith efforts to obtain such documents. See Sec. 825.305(b). 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
[[Page 8941]]
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, 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
[[Page 8942]]
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, 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)-(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.
[[Page 8943]]
(6) Premium payments of employee benefits.
(7) Records of any dispute between the employer and an eligible
employee regarding designation of leave as FMLA leave, including any
written statement from the employer or employee of the reasons for the
designation and for the disagreement.
(d) Covered employers with no eligible employees must maintain the
records set forth in paragraph (c)(1) of this section.
(e) Covered employers in a joint employment situation (see Sec.
825.106) must keep all the records required by paragraph (c) of this
section with respect to any primary employees, and must keep the
records required by paragraph (c)(1) with respect to any secondary
employees.
(f) If FMLA-eligible employees are not subject to FLSA's
recordkeeping regulations for purposes of minimum wage or overtime
compliance (i.e., not covered by or exempt from FLSA), an employer need
not keep a record of actual hours worked (as otherwise required under
FLSA, 29 CFR 516.2(a)(7)), provided that:
(1) Eligibility for FMLA leave is presumed for any employee who has
been employed for at least 12 months; and
(2) With respect to employees who take FMLA leave intermittently or
on a reduced leave schedule, the employer and employee agree on the
employee's normal schedule or average hours worked each week and reduce
their agreement to a written record maintained in accordance with
paragraph (b) of this section.
(g) Records and documents relating to 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. If the Genetic Information Nondiscrimination Act of
2008 (GINA) is applicable, records and documents created for purposes
of FMLA containing family medical history or genetic information as
defined in GINA shall be maintained in accordance with the
confidentiality requirements of Title II of GINA (see 29 CFR 1635.9),
which permit such information to be disclosed consistent with the
requirements of FMLA. 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.
(h) Special rules regarding recordkeeping apply to employers of
airline flight crew employees. See Sec. 825.803.
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.
[[Page 8944]]
(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 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
[[Page 8945]]
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 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
[[Page 8946]]
in the same or an equivalent position, with equivalent pay and
benefits, to that which the employee held when leave commenced. The
employer's FMLA obligations would be satisfied if the employer offered
the employee an equivalent full-time position. If the employee were
unable to perform the essential functions of that equivalent position
even with reasonable accommodation, because of a disability, the ADA
may require the employer to make a reasonable accommodation at that
time by allowing the employee to work part-time or by reassigning the
employee to a vacant position, barring undue hardship.
(d)(1) If FMLA entitles an employee to leave, an employer may not,
in lieu of FMLA leave entitlement, require an employee to take a job
with a reasonable accommodation. However, ADA may require that an
employer offer an employee the opportunity to take such a position. An
employer may not change the essential functions of the job in order to
deny FMLA leave. See Sec. 825.220(b).
(2) An employee may be on a workers' compensation absence due to an
on-the-job injury or illness which also qualifies as a serious health
condition under FMLA. The workers' compensation absence and FMLA leave
may run concurrently (subject to proper notice and designation by the
employer). At some point the health care provider providing medical
care pursuant to the workers' compensation injury may certify the
employee is able to return to work in a light duty position. If the
employer offers such a position, the employee is permitted but not
required to accept the position. See Sec. 825.220(d). As a result, the
employee may no longer qualify for payments from the workers'
compensation benefit plan, but the employee is entitled to continue on
unpaid FMLA leave either until the employee is able to return to the
same or equivalent job the employee left or until the 12-week FMLA
leave entitlement is exhausted. See Sec. 825.207(e). If the employee
returning from the workers' compensation injury is a qualified
individual with a disability, he or she will have rights under the ADA.
(e) If an employer requires certifications of an employee's fitness
for duty to return to work, as permitted by FMLA under a uniform
policy, it must comply with the ADA requirement that a fitness for duty
physical be job-related and consistent with business necessity.
(f) Under Title VII of the Civil Rights Act of 1964, as amended by
the Pregnancy Discrimination Act, an employer should provide the same
benefits for women who are pregnant as the employer provides to other
employees with short-term disabilities. Because Title VII does not
require employees to be employed for a certain period of time to be
protected, an employee employed for less than 12 months by the employer
(and, therefore, not an eligible employee under FMLA) may not be denied
maternity leave if the employer normally provides short-term disability
benefits to employees with the same tenure who are experiencing other
short-term disabilities.
(g) Under the Uniformed Services Employment and Reemployment Rights
Act (USERRA), 38 U.S.C. 4301, et seq., 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 servicemember would be eligible for FMLA leave if the months
and hours that he or she would have worked (or, for airline flight crew
employees, would have worked or been paid) for the civilian employer
during the period of absence due to or necessitated by USERRA-covered
service, combined with the months employed and the hours actually
worked (or, for airline flight crew employees, actually worked or
paid), meet the FMLA eligibility threshold of 12 months of employment
and the hours of service requirement. See Sec. Sec. 825.110(b)(2)(i)
and (c)(2) and 825802(c).
(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--Special Rules Applicable to Airline Flight Crew
Employees
Sec. 825.800 Special rules for airline flight crew employees,
general.
(a) Certain special rules apply only to airline flight crew
employees as defined in Sec. 825.102. These special rules affect the
hours of service requirement for determining the eligibility of airline
flight crew employees, the calculation of leave for those employees,
and the recordkeeping requirements for employers of those employees,
and are issued pursuant to the Airline Flight Crew Technical
Corrections Act (AFCTCA), Public Law 111-119.
(b) Except as otherwise provided in this subpart, FMLA leave for
airline flight crew employees is subject to the requirements of the
FMLA as set forth in Part 825, Subparts A through E, and G.
Sec. 825.801 Special rules for airline flight crew employees, hours
of service requirement.
(a) An airline flight crew employee's eligibility for FMLA leave is
to be determined in accordance with Sec. 825.110 except that whether
an airline flight crew employee meets the hours of service requirement
is to be determined as provided below.
(b) Except as provided in paragraph (c) of this section, whether an
airline flight crew employee meets the hours of service requirement is
determined by assessing the number of hours the employee has worked or
been paid over the previous 12 months. An airline flight crew employee
will meet the hours of service requirement during the previous 12-month
period if he or she has worked or been paid for not less than 60
percent of the employee's applicable monthly guarantee and has worked
or been paid for not less than 504 hours.
(1) The applicable monthly guarantee for an airline flight crew
employee who is not on reserve status is the minimum number of hours
for which an employer has agreed to schedule such employee for any
given month. The applicable monthly guarantee for an airline flight
crew employee who is on reserve status is the number of hours for which
an employer has agreed to pay the employee for any given month.
(2) The hours an airline flight crew employee has worked for
purposes of the hours of service requirement is the employee's duty
hours during the previous 12-month period. The hours an airline flight
crew employee has been paid is the number of hours for which an
employee received wages during the previous 12-month period. The 504
hours do not include personal commute time or time spent on vacation,
medical, or sick leave.
(c) An airline flight crew employee returning from USERRA-covered
service shall be credited with the hours of service that would have
been performed but for the period of absence from work due to or
necessitated by USERRA-covered service in determining the employee's
eligibility for FMLA-qualifying leave. Accordingly, an airline flight
crew employee re-employed following USERRA-covered service has the
hours that would have been worked for or paid by the employer added to
any hours actually worked or paid during the previous 12-month period
to meet the hours of service requirement. In order to determine the
hours that would have been worked or paid during the period of absence
from work due to or necessitated by USERRA-covered service, the
employee's pre-service work
[[Page 8947]]
schedule can generally be used for calculations.
(d) In the event an employer of airline flight crew employees does
not maintain an accurate record of hours worked or hours paid, the
employer has the burden of showing that the employee has not worked or
been paid for the requisite hours. Specifically, an employer must be
able to clearly demonstrate that an airline flight crew employee has
not worked or been paid for 60 percent of his or her applicable monthly
guarantee or for 504 hours during the previous 12 months in order to
claim that the airline flight crew employee is not eligible for FMLA
leave.
Sec. 825.802 Special rules for airline flight crew employees,
calculation of leave.
(a) Amount of leave. (1) An eligible airline flight crew employee
is entitled to 72 days of FMLA leave during any 12-month period for
one, or more, of the FMLA-qualifying reasons set forth in Sec. Sec.
825.112(a)(1)-(5). This entitlement is based on a uniform six-day
workweek for all airline flight crew employees, regardless of time
actually worked or paid, multiplied by the statutory 12-workweek
entitlement for FMLA leave. For example, if an employee took six weeks
of leave for an FMLA-qualifying reason, the employee would use 36 days
(6 days x 6 weeks) of the employee's 72-day entitlement.
(2) An eligible airline flight crew employee is entitled to 156
days of military caregiver leave during a single 12-month period to
care for a covered servicemember with a serious injury or illness under
Sec. 825.112(a)(6). This entitlement is based on a uniform six-day
workweek for all airline flight crew employees, regardless of time
actually worked or paid, multiplied by the statutory 26-workweek
entitlement for military caregiver leave.
(b) Increments of FMLA leave for intermittent or reduced schedule
leave. When an airline flight crew employee takes FMLA leave on an
intermittent or reduced schedule basis, the employer must account for
the leave using an increment no greater than one day. For example, if
an airline flight crew employee needs to take FMLA leave for a two-hour
physical therapy appointment, the employer may require the employee to
use a full day of FMLA leave. The entire amount of leave actually taken
(in this example, one day) is designated as FMLA leave and counts
against the employee's FMLA entitlement.
(c) Application of Sec. 825.205. The rules governing calculation
of intermittent or reduced schedule FMLA leave set forth in Sec.
825.205 do not apply to airline flight crew employees except that
airline flight crew employees are subject to Sec. 825.205(a)(2), the
physical impossibility provision.
Sec. 825.803 Special rules for airline flight crew employees,
recordkeeping requirements.
(a) Employers of eligible airline flight crew employees shall make,
keep, and preserve records in accordance with the requirements of
Subpart E of this Part (Sec. 825.500).
(b) Covered employers of airline flight crew employees are required
to maintain certain additional records ``on file with the Secretary.''
To comply with this requirement, those employers shall maintain:
(1) Records and documents containing information specifying the
applicable monthly guarantee with respect to each category of employee
to whom such guarantee applies, including copies of any relevant
collective bargaining agreements or employer policy documents; and
(2) Records of hours worked and hours paid, as those terms are
defined in Sec. 825.801(b)(2).
[FR Doc. 2013-02383 Filed 2-5-13; 8:45 am]
BILLING CODE 4510-27-P
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