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Thursday,
June 28, 2007
Part II
Department of Labor
Employment Standards Administration
Wage and Hour Division
29 CFR Part 825
Family and Medical Leave Act
Regulations: A Report on the Department
of Labor’s Request for Information;
Proposed Rule
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35550 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
DEPARTMENT OF LABOR when needed to care for family with better opportunities to balance
members. work and family needs. This landmark
Employment Standards Administration After nearly fourteen years legislation provided workers with basic
administering the law, two Department rights to job protection for absences due
Wage and Hour Division of Labor studies (1996, 2001) and to the birth or adoption of a child or for
several U.S. Supreme Court and lower a serious health condition of the worker
29 CFR Part 825 court rulings, the Employment or a family member.
Standards Administration’s Wage and For women dealing with difficult
RIN 1215–AB35
Hour Division issued a Request for pregnancies or deliveries, or parents
Family and Medical Leave Act Information (RFI) on December 1, 2006. celebrating the arrival of a newborn or
Regulations: A Report on the The RFI asked the public to comment adopted child, the FMLA provides the
Department of Labor’s Request for on their experiences with, and opportunity to participate fully in these
Information observations of, the Department’s significant life events. For other
administration of the law and the workers—especially those who struggle
AGENCY: Employment Standards effectiveness of the regulations. More with health problems or who are
Administration, Wage and Hour than 15,000 comments were received in primary caregivers to ill family
Division, Department of Labor. the next few months from workers, members—the FMLA has made it
ACTION: Report on comments from the family members, employers, academics, possible to deal with these serious
public. and other interested parties. This input challenges while holding on to jobs,
ranged from personal accounts, legal health insurance, and some measure of
SUMMARY: The Department of Labor’s reviews, industry and academic studies, economic security.
Employment Standards Administration/ surveys, and recommendations for Background: What the Law Covers
Wage and Hour Division undertook a regulatory and statutory changes to
review of the Family and Medical Leave address particular areas of concern. The Family and Medical Leave Act of
Act (‘‘FMLA’’ or the ‘‘Act’’) and its There is broad consensus that family 1993, Public Law 103–3, 107 Stat. 6 (29
regulations, and published a Request for and medical leave is good for workers U.S.C. 2601 et seq.) (the ‘‘FMLA’’ or the
Information (‘‘RFI’’) in the Federal and their families, is in the public ‘‘Act’’) was enacted on February 5, 1993
Register on December 1, 2006 (71 FR interest, and is good workplace policy. and became effective on August 5, 1993
69504). The RFI asked the public to There are differing views on whether for most covered employers. The FMLA
assist the Department by furnishing every provision of the law is being entitles eligible employees of covered
information about their experiences administered in accordance with the employers to take up to a total of twelve
with the Act and comments on the statute and with congressional intent. It weeks of unpaid leave during a twelve
effectiveness of the FMLA regulations. is also evident from the comments that month period for the birth of a child; for
More than 15,000 comments were the placement of a child for adoption or
the FMLA has produced some
submitted in response to the RFI. The foster care; to care for a newborn or
unanticipated consequences in the
following report summarizes comments newly-placed child; to care for a spouse,
workplace for both employees and
the Department received from its RFI. parent, son or daughter with a serious
employers.
health condition; or when the employee
ADDRESSES: A complete copy of this A report of this kind is a unique step.
is unable to work due to the employee’s
report is also available at http:// Normally, the organization of comments
own serious health condition. See 29
www.dol.gov/esa/whd/ received in response to a Departmental
U.S.C. 2612. The twelve weeks of leave
fmla2007report.htm. It may also be Request for Information would first be
may be taken in a block, or, under
obtained by writing to Richard M. seen accompanying proposed changes to
certain circumstances, intermittently or
Brennan, Senior Regulatory Officer, the rules. There are no proposals for
on a reduced leave schedule. Id. When
Wage and Hour Division, Employment regulatory changes being put forward by
taken intermittently, the Department’s
Standards Administration, U.S. the Department with this Report. Rather,
regulations provide that leave may be
Department of Labor, Room S–3502, 200 what we hope this Report does is
taken in the shortest increment of time
Constitution Avenue, NW., Washington, provide information for a fuller the employer’s payroll system uses to
DC 20210. discussion among all interested parties account for absences or use of leave,
FOR FURTHER INFORMATION CONTACT: and policymakers about how some of provided it is one hour or less. 29 CFR
Richard M. Brennan, Senior Regulatory the key FMLA regulatory provisions and 825.203(d).
Officer, Wage and Hour Division, their interpretations have played out in Employers covered by the law must
Employment Standards Administration, the workplace. maintain for the employee any
U.S. Department of Labor, Room S– Finally, our thanks to the thousands preexisting group health coverage
3502, 200 Constitution Avenue, NW., of employees, employers, and other during the leave period and, once the
Washington, DC 20210; telephone: (202) members of the public who participated leave period has concluded, reinstate
693–0066 (this is not a toll free number). in this information gathering by sharing the employee to the same or an
their views, their research, and, in some equivalent job with equivalent
SUPPLEMENTARY INFORMATION:
cases, very personal comments. We employment benefits, pay, and other
Foreword greatly value those insights. terms and conditions of employment.
No employment law matters more to Victoria A. Lipnic, See 29 U.S.C. 2614. If an employee
America’s caregiving workforce than the Assistant Secretary of Labor, believes that his or her FMLA rights
Family and Medical Leave Act (FMLA) Employment Standards Administration. have been violated, the employee may
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of 1993. Since its enactment, millions of June 2007. file a complaint with the Department of
American workers and their families Labor (‘‘Department’’) or file a private
have benefited from enhanced Executive Summary lawsuit in federal or state court. If the
opportunities for job-protected leave The Family and Medical Leave Act of employer has violated an employee’s
upon the birth or adoption of a child, to 1993 (FMLA) opened a new era for FMLA rights, the employee is entitled to
deal with their own serious illness, and American workers, providing employees reimbursement for any monetary loss
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35551
incurred, equitable relief as appropriate, detailed and substantive legal or here is different than the previous two
interest, attorneys’ fees, expert witness economic analyses responding to the Departmental reports because the RFI
fees, and court costs. Liquidated specific questions in the RFI and raising was a very different kind of information-
damages also may be awarded. See 29 other complex issues.4 gathering tool than the two previous
U.S.C. 2617. Twice before, the Department has surveys. Given the differences in data-
published reports about the FMLA and gathering approaches, the depth with
Who the Law Covers its use. The statute established a which the RFI looked at the regulations,
The law generally covers employers bipartisan Commission on Family and and, of course, the self-selection bias by
with 50 or more employees, and Medical Leave to study family and those who took the time to submit
employees must have worked for the medical leave policies. The Commission comments to the RFI, differences in the
employer for 12 months and have 1,250 surveyed workers and employers in outcomes should be expected. Care
hours of service during the previous 1995 and issued a report published by must be taken to avoid improper
year to be eligible for leave. Based on the Department in 1996, ‘‘A Workable comparisons of information collected in
2005 data, the latest year for which data Balance: Report to Congress on Family the RFI with data from the two surveys.
was available the time the Request for and Medical Leave Policies.’’ In 1999,
the Department contracted with Westat, General Overview of the Report
Information was published, the
Department estimates that: Inc. to update the employee and Commenters consistently stated that
• There were an estimated 94.4 establishment surveys conducted in the FMLA is generally working well—at
million workers in establishments 1995. The Department published that least with respect to leave related to the
covered by the FMLA regulations, report, ‘‘Balancing the Needs of Families birth or adoption of a child or for
• There were about 76.1 million and Employers: Family and Medical indisputably ‘‘serious’’ health
workers in covered establishments who Leave Surveys, 2000 Update’’ in January conditions. Responses to the RFI
met the FMLA’s requirements for 2001.5 substantiate that many employees and
eligibility,1 and Never before has the Department employers are not having noteworthy
• Between 8.0 percent and 17.1 looked in such granular detail at the FMLA-related problems. However,
percent of covered and eligible workers legal developments surrounding the employees often expressed a desire for
(or between 6.1 million and 13.0 million FMLA and its implementing a greater leave entitlement, while
workers) took FMLA leave in 2005.2 regulations, as well as the practical employers voiced concern about their
• Nearly one-quarter of all employees consequences of such in the workplace. ability to manage business operations
who took FMLA leave took at least some The RFI’s questions and subject areas and attendance control issues,
of it intermittently. were derived from a series of particularly when unscheduled,
Recent information submitted to the stakeholder meetings the Department intermittent leave is needed for chronic
Department also suggests that FMLA conducted in 2002–2003, a number of health conditions. Indeed, the
awareness was higher in 2005 than in rulings of the U.S. Supreme Court and overwhelming majority of comments
prior years. This information supports other federal courts, the Department’s submitted in response to the RFI
the Department’s estimate of increased own experience administering the law, addressed three primary topics: (1)
FMLA usage since prior studies of information from Congressional Gratitude from employees who have
FMLA. hearings, and public comments filed used family and medical leave and
Request for Information and Prior with the Office of Management and descriptions of how it allowed them to
FMLA Reports Budget (OMB) as described by OMB in balance their work and family care
their three annual reports to Congress responsibilities, particularly when they
After nearly fourteen years of on the FMLA’s costs and benefits.6 had their own serious health condition
experience implementing and Unlike the 2000 Westat Report, the or were needed to care for a family
administering the new law, the Department’s Report on the RFI member; 7 (2) a desire for expanded
Department’s Employment Standards Comments is not an analysis or benefits—e.g., to provide more time off,
Administration/Wage and Hour comparison of one set of survey data to provide paid benefits, and to cover
Division undertook a review of the with another some years later. The RFI additional family members; 8 and (3)
FMLA regulations, culminating in the was not meant to be a substitute for frustration by employers about
publication of a Request for Information survey research about the leave needs of difficulties in maintaining necessary
(‘‘RFI’’) on December 1, 2006.3 The RFI the workforce and leave policies offered staffing levels and controlling
asked the public to assist the by employers. The record presented attendance problems in their
Department by furnishing information workplaces as a result of one particular
about their experiences with FMLA and 4 All comments are available for viewing via the
issue—unscheduled intermittent leave
comments on the effectiveness of the public docket of the Wage and Hour Division of the
Employment Standards Administration, U.S. used by employees who have chronic
current FMLA regulations. The RFI Department of Labor, 200 Constitution Avenue, health conditions.
generated a very heavy public response: NW., Washington, DC 20210. Many comments are Many employees offered powerful
More than 15,000 comments were also available on www.regulations.gov. The names
testimonials about the important role
submitted, many of which were brief of individual employees have been redacted from
the Report where any personal medical information the FMLA has played in allowing them
emails with very personal and, in some was shared. to continue working while addressing
cases, very moving accounts from 5 See ‘‘Balancing the Needs of Families and
their own medical needs or family
employees who had used family or Employers, Family and Medical Leave Surveys,
caregiving responsibilities. Chapter I,
medical leave; others were highly- 2000 Update,’’ Westat Inc., January 2001. See also
the description of the 2000 Westat Report in
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7 Many of these employee comments stated that
Chapter XI of this Report. See also 71 FR 69510.
1 Recent data submitted to the Department on the 6 The 2001 report may be found at: there were no problems with FMLA and there
size and scope of the FMLA’s reach support these www.whitehouse.gov/omb/inforeg/ should be no changes to the program.
estimates. See Chapter XI of this Report. costbenefitreport.pdf, the 2002 report at: 8 Because comments on the need for expanded
2 Recent data submitted to the Department
www.whitehouse.gov/omb/inforeg/ benefits concern matters outside the scope of the
support this estimate as well. See Chapter XI of this 2002_report_to_congress.pdf, and the 2004 report Department’s authority and the purposes of the RFI,
Report. at: www.whitehouse.gov/omb/inforeg/ these comments are not covered in any significant
3 71 FR 69504. 2004_cb_final.pdf. detail in this Report.
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35552 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
Employee Perspectives: Experiences in for part-time workers. Because these Department is cognizant that certain of
the Value of FMLA, is an important comments are beyond the Department’s its regulatory decisions and
representative example of how authority to address, we do not detail interpretations may have contributed to
meaningful the ability to use the Family them in the chapters that follow. this situation.
and Medical Leave Act has been for Finally, this Report is not a catalogue Certain types of industries and
employees. The Department could have of every comment received or every worksites and their workers appear to be
written an entire report based simply on suggestion made about every part of the more impacted by unscheduled
those comments. regulations. Nor is it a catalogue of intermittent FMLA leave-taking than
But, no regulatory scheme, every organization or group that others and there is considerable tension
particularly at the outset, is perfect. In submitted comments. We do believe between employers and employees over
1993, the FMLA was a brand-new that the comments selected for the use of this leave. The Department
employment standard and many of the discussion are representative and the heard, in particular, from employers,
concepts, particularly those that took chapters that follow accurately reflect and from the representatives of
effect in the final regulations, were the record according to the most employees who work with them, whose
borrowed from other areas of law or important subject matters presented— business operations have a highly time-
were completely new. Thus, it should many of which, but not all, follow and sensitive component, e.g., delivery,
come as no surprise that RFI detail the subjects and questions asked transportation, transit,
commenters continued to debate some in the RFI. The chapters are designed to telecommunications, health care,
of the choices made by the Department explain the questions asked in the RFI, assembly-line manufacturing, and
as it sought to implement the statute in provide background on the law where public safety sectors.
a manner consistent with Congressional needed, and detail the feedback about While many employer comments used
intent. the FMLA and the Department’s the words ‘‘abuse’’ and ‘‘misuse’’ to
As is evident from both the RFI record implementation of it as raised in describe employee use of unscheduled
and from many of the legal challenges comments from employees and intermittent leave, the Department
to regulatory provisions over the years, employers. cannot assess from the record how
the debate continues on whether the Given the detailed presentations in much leave taking is actual ‘‘abuse’’ and
Department successfully implemented many of the responses to the RFI, and how much is legitimate. In some cases,
the statutory requirements and when the comments are read and the use of unscheduled intermittent
Congressional intent, or struck the right studied in the aggregate, certain leave appears to be causing a backlash
balance in all places. That debate is observations about the record stand out. by employers who are looking for every
reflected in Chapters II–XI. In many Those observations follow in this means possible (e.g., repeatedly asking
instances, commenters expressed the Executive Summary or are found in for more information in the medical
view that a certain regulation was Chapter XI: ‘‘Data: FMLA Coverage, certifications, especially in cases of
‘‘exactly what Congress intended,’’ Usage, and Economic Impact’’. We chronic conditions) to reduce
while others said of the same regulation believe the observations included in this absenteeism.
that ‘‘it could not possibly be what Report are evident from a plain reading Another area that generated
Congress intended.’’ Because of that, in of the thousands of comments received significant comments is the current
order to provide context to the from both employers and employees. medical certification process. The
comments received, in many chapters Department recognizes that
The Department’s Observations communication about medical
legal background is provided and/or the
Regarding the Comments conditions is essential to the smooth
evolution of a particular regulatory
section is retraced through the The Department is pleased to observe functioning of the FMLA in workplaces.
rulemaking process. Indeed, many that, in the vast majority of cases, the However, none of the parties involved
commenters did the same thing. While FMLA is working as intended. For with the medical certification process—
this is in some cases done in great example, the FMLA has succeeded in employers, employees, and health care
detail, without that history it may be allowing working parents to take leave providers—are happy with the current
impossible to understand not just what for the birth or adoption of a child, and system. Employees are concerned about
suggestions are being offered, but why in allowing employees to care for family the time and cost of visits to health care
they are being offered. These historical members with serious health providers to obtain medical
summaries are not intended to endorse conditions. The FMLA also appears to certifications and the potential for
the legitimacy of any particular work well when employees require invasion of their privacy. Employers,
comment or suggestion. block or foreseeable intermittent leave especially when it comes to intermittent
As explained in the RFI, some of the because of their own truly serious leave use, seek predictability in
issues brought to the attention of the health condition. Absent the protections attendance and are frustrated with
Department in various forums over the of the FMLA, many of these workers medical certifications that do not
years are beyond the statutory authority might not otherwise be permitted to be provide meaningful guidance. Health
of the Department to address.9 absent from their jobs when they need care providers complain they cannot
Nonetheless, many commenters to be. predict how many times a flare-up of a
provided suggestions for statutory At the same time, a central defining particular condition will occur.
changes to expand the FMLA. Among theme in the comments involves an area Despite much work by the
others, and in no particular order, were that may not have been fully Department, it also appears that many
comments on: providing paid maternity anticipated: The prevalence with which employees still do not fully understand
leave, covering the care of additional unscheduled intermittent FMLA leave their rights under the law, or the
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family members (e.g., siblings), would be taken in certain workplaces or procedures they must follow when
changing the 75-mile eligibility test, work settings by individuals who have seeking FMLA leave. For example,
reducing the coverage threshold below chronic health conditions. This is the many employees are misinformed about
50 employees, and providing coverage single most serious area of friction the fact that paid leave can be
between employers and employees substituted for, and run concurrently
9 See 71 FR 69504. seeking to use FMLA leave. The with, an employee’s FMLA leave. Even
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35553
among employees who possess a general employee eligible for leave) and was that the regulatory definition of
awareness of the law, many do not 825.208(c) (relating to designation of serious health condition is vague and/or
know how the FMLA applies to their paid leave). Since Ragsdale, many confusing. Moreover, comments from
individual circumstances. In turn, this courts have applied equitable employer groups complained that there
failure in understanding may be estoppel 10 principles when employers is no real requirement that a health
contributing to some of the problems either fail to communicate required condition be ‘‘serious’’ in the regulatory
identified with the medical certification information or communicate incorrect definition of serious health condition.
process, and with employers’ ability to information. Many employee representatives felt
properly designate and administer Employers commented that all section 825.114(c) imposes no
FMLA leave. It is clear the Department categorical penalties should be removed independent limitation on the definition
has more work to do to further educate from the regulations and that employers of serious health condition and
employees and employers regarding should be permitted to designate leave therefore need not be changed. Other
their rights and responsibilities under as FMLA leave retroactively. Some commenters took the very opposite
the law. employers suggested that any penalty tack—that the objective test
should be tailored to the specific harm extinguished Congress’ intent to exclude
Summary of Chapters I–XI suffered by the employee or suggested minor illnesses and that the Department
Employee Perspective: Experiences in situations in which no penalty would be should breathe life into subsection (c)
the Value of the FMLA (Chapter I) appropriate. Employees supported the by making it more of a per se rule, as
current notice and designation it was initially interpreted by Wage and
Chapter I provides a representative requirements in the Department’s
sampling of comments received by the Hour Opinion Letter FMLA–57 (Apr. 7,
regulations, with many noting that they 1995).
Department regarding the ‘‘value’’ suffer hardships when they do not know
FMLA provides to employees. In Some employers offered to give
promptly whether the employer believes meaning to subsection (c) by changing
general, employees commented they they are entitled to FMLA-protected
were very happy to have the protections the period of incapacity in the objective
leave. Some employee commenters
afforded by the FMLA. Many test from ‘‘calendar’’ days to ‘‘business’’
suggested that employers be required to
commented that the Act prevented job days. Still other commenters suggested
provide annual notices to employees
loss, allowed them to spend time with that the Department maintain the
regarding their FMLA eligibility status
sick or injured family members, and, substantive language of both regulatory
and periodic reports regarding any
upon returning to work, encouraged a sections but explicitly adopt a recent
FMLA leave used. Employers expressed
greater sense of loyalty to their court interpretation of the regulations
concerns that without some clarification
employer. Some pointed out that their that the ‘‘treatment two or more times
they are unsure of their liabilities for
employers went above and beyond what by a health care provider’’ in section
failure to follow the notification
is required by the law. Many employers requirements. Both groups expressed a 825.114(a)(2)(i)(A) must occur during
also submitted comments that outlined need for the Department to clarify the the period of ‘‘more than three days’’
advantages to complying with the impact of Ragsdale on the notification incapacity. Some commenters suggested
FMLA and offering benefits beyond requirements in the current regulations. reconciling the two regulatory
what the law requires. provisions by simply tightening the
The value of the FMLA was Serious Health Condition (Chapter III) requirements for qualifying for a serious
particularly noted by employees caring The Department received many health condition under the objective test
for both children and parents with comments on the regulatory definition (e.g., increasing the number of days of
serious health conditions; this of serious health condition relating to a incapacity required).
observation was supported by employer period of incapacity of more than three Unscheduled Intermittent Leave
comments, many of whom noted that consecutive calendar days and (Chapter IV)
they increasingly receive FMLA leave treatment two or more times by a health
requests from employees with elder care care provider (sometimes called the Chapter IV of the Report discusses the
responsibilities. Many employees ‘‘objective test’’) contained at 29 CFR use of unscheduled intermittent leave
commented that the FMLA would be 825.114(a)(2)(i) and its interaction with under FMLA. Based on the comments
more useful if it provided paid leave, if 29 CFR 825.114(c) (which provides received, unscheduled intermittent
more time off was available, and if the examples of conditions that ordinarily FMLA leave is crucial to employees
program covered more types of family are not covered). Chapter III summarizes with chronic serious health conditions
members, such as siblings, these comments. Many of these resulting in sudden, unpredictable flare-
grandparents, etc. comments echoed (or had their origins ups. Conversely, it is precisely the use
in) earlier comments to the record the of unscheduled (or unforeseeable)
Ragsdale Decision/Penalties (Chapter II) intermittent leave for chronic conditions
Department received in 1993 when
This chapter discusses the impact of promulgating its current regulations. that presents the most serious
the Supreme Court’s decision in The Department received many difficulties for many employers in terms
Ragsdale v. Wolverine World Wide, Inc. comments from employees and of scheduling, attendance, productivity,
on the FMLA implementing regulations. employee groups who believe that the morale, and other concerns. With
Ragsdale invalidated the ‘‘categorical objective test is a good, clear test that is respect to employer comments, no other
penalty’’ in section 825.700(a) of the serving its intended purpose, consistent FMLA issue even comes close.
regulations, which provides that if an with the legislative history, while a The Act itself does not provide a
employer does not designate an common theme from many employers definition of ‘‘chronic’’ serious health
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employee’s leave as FMLA leave, it may conditions. During the 1993–1995
not count that leave against an 10 ‘‘Equitable estoppel’’ is a legal bar that prevents notice-and-comment rulemaking phase,
employee’s leave entitlement. Other one person from taking advantage of a second the Department filled in this gap, as the
person where the second party is injured by
courts have struck down similar reasonably relying on the misrepresentations (or
regulatory definition of ‘‘serious health
‘‘categorical penalty’’ rules in sections silence when there is a duty to speak) of the first condition’’ evolved in response to
825.110(d) (relating to deeming an person. public comments urging that this
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35554 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
definition specifically cover chronic condition, and the employer cannot unscheduled intermittent leave for
conditions. seek additional medical verification of chronic conditions seems to be causing
Regarding intermittent leave, the Act the need for the absence, the employer a backlash among some employers who
provides for the taking of leave in small cannot distinguish between employees refuse FMLA coverage for any absences
blocks, or intermittently, but does not who legitimately need FMLA leave and that exceed what is on the medical
specify the minimum increment. 29 employees who misuse the protections certification. Employees also expressed
U.S.C. 2612(b)(1). In its regulations, the of FMLA to excuse an otherwise concern that increased communication
Department rejected any minimum unexcused absence from work. between the employer and their health
limitations on intermittent leave, citing care providers could lead to an erosion
the statute, and stating a concern that Notice: Employee Rights and
Responsibilities (Chapter V) of their right to medical confidentiality.
such limits would cause employees to
take leave in greater amounts than Chapter V of the Report summarizes Finally, although the certification
necessary, and thus erode a worker’s 12- comments received regarding the FMLA requirement calls for an estimate of the
week leave entitlement. 60 FR 2236. The rights and responsibilities of employees. expected use of intermittent leave,
Department also predicted initially that The comments to the RFI indicate that health care providers commented that
incidents of unscheduled intermittent many employees are not knowledgeable often there is no way they can furnish
leave would be unusual. 58 FR 31801. about their rights and responsibilities a reliable estimate of the frequency or
The Act sets out a clear, 30-day notice under the FMLA. Even among severity of the flare ups and thus are
requirement for leave that is foreseeable, employees who possess a general unable to provide all the information
but for leave foreseeable less than 30 awareness of the law, many do not required in the certification. Based on
days in advance, the Act has a less clear, know how the FMLA applies to their the comments received, employers,
‘‘as soon as practicable’’ notice individual circumstances. This reported employees and health care providers
requirement. 29 U.S.C. 2612(e)(2)(B). lack of employee awareness may almost universally believe the
The Department, through its interpretive contribute to frustrations voiced by the Department’s model certification form
actions, has defined ‘‘as soon as employer community concerning WH–380 could be improved.
practicable’’ to mean two working days employee notice of the need for FMLA Interplay Between the FMLA and the
after the need for leave becomes leave. Employers and their
Americans with Disabilities Act
known.11 representatives commented on
(Chapter VII)
Fourteen years later, the comments employees not providing notice of the
indicate that unscheduled intermittent need for leave in a timely fashion and A number of commenters discussed
FMLA leave for chronic conditions has receiving notice without sufficient the relationship between the FMLA and
become commonplace and it is difficult information to make a determination as the Americans with Disabilities Act
for employers to determine or monitor to whether or not the leave is FMLA- (‘‘ADA’’).12 Although the ADA also may
employees’ incapacity when the chronic qualifying. provide employees with job-protected
condition does not involve any active, medical leave, the legislative history of
The Medical Certification and
direct treatment or care by a health care the FMLA indicates that Congress
Verification Process (Chapter VI)
provider (i.e., self-treatment by intended for ‘‘the leave provisions of the
employees with chronic conditions such The Department received significant [FMLA to be] * ** wholly distinct from
as asthma, diabetes, migraine comments regarding the FMLA medical the reasonable accommodation
headaches, and chronic back pain). certification process. These comments obligations of employers covered under
Employers expressed frustration about are discussed in Chapter VI. Generally the [ADA].’’ 13 Nonetheless, the
what they perceive to be employees’ speaking, all parties involved in the Department borrowed several important
ability to avoid promptly alerting their certification process—employees, concepts from the ADA when finalizing
employers of their need to take employers and health care providers— the FMLA regulations. The practical
unscheduled leave in situations when it believed the current process needs to be realities of the workplace also mean that
is clearly practicable for them to do so. improved. employee requests for medical leave
A common example cited by employers Many employers commented that they
are frustrated with certifications that do often are covered by both statutes, thus
involves ignoring mandatory shift call- requiring employers to consider
in procedures even when the employee not provide meaningful guidance
regarding the employee’s expected use carefully the rights and responsibilities
is fully able to comply, and then later imposed by each statute. Chapter VII
reporting the absence as FMLA- of intermittent leave. They also noted
that the current regulatory framework summarizes the comments received by
qualifying after-the-fact. Thus, some the Department regarding the interplay
employers allege, employees may use provides them with limited options for
verifying that employees are using between FMLA and ADA.
FMLA: (1) As a pretext for tardiness or
to leave work early for reasons unrelated FMLA leave for legitimate reasons. Almost uniformly, employers and
to a serious health condition, (2) to Employers also stated they want to be their representatives urged the
obtain a preferred shift instead of the able to talk directly with the employee’s Department to consider implementing
one assigned by the employer, or (3) to health care provider (without using a more consistent procedures for handling
convert a full-time position to a health care provider of their own) and and approving medical leave requests
permanent part-time one. These feel that greater communication would under the FMLA and ADA. These
employers believe the Department’s allow decisions regarding FMLA commenters argued that, in many
regulatory interpretations have coverage to be made more quickly. instances—but particularly with respect
exacerbated this situation. Employees commented that to obtaining medical information—the
employers are not using the existing ADA and its implementing regulations
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Other commenters said that when an
employer is unable to verify that an FMLA procedures appropriately to provided a ‘‘much better model’’ and
employee’s unscheduled absence is in challenge medical certifications and are struck a more appropriate balance
fact caused by a chronic serious health instead simply refusing to accept between an employee’s right to take
certifications without seeking
11 See Wage and Hour Opinion Letter FMLA–101 clarification or a second opinion. Some 12 42 U.S.C. 12101–12117, 12201–12213.
(Jan. 15, 1999). employees also claimed that their use of 13 S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993).
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35555
reasonable leave for medical reasons basis for differentiating between commented that they are improperly
and the legitimate interests of foreseeable and unforeseeable need for required by employers to substitute paid
employers. Many of these commenters leave in this context. In fact, many leave, despite contrary language in
cited their own experience in employers reported that the underlying existing collective bargaining
administering the ADA as support for rationale for the transfer provision—to agreements providing employees with
the idea that additional limits imposed provide ‘‘greater staffing flexibility’’ the right to decide when to use their
by the FMLA were unnecessary, while maintaining the employee’s same leave.
particularly because both statutes pay and benefits—is best served where
Joint Employment (Chapter X)
require employers to review similar the employee’s need for leave is
types of medical information and make unforeseeable. Chapter X of the Report discusses
determinations about an employee’s comments regarding employer coverage
Substitution of Paid Leave (Chapter IX) under FMLA in cases in which a
ability to work based on that
information. These commenters also Chapter IX of the Report summarizes company utilizes the services of a
noted that, in many instances, the same comments regarding the substitution of Professional Employer Organization
human resources person reviews an paid leave for unpaid FMLA leave. (PEO). Unlike a staffing or placement
employee’s absences under both Under the statute, employees may agency, PEOs generally are service
statutes, thus further blurring the line substitute accrued paid leave for FMLA providers that handle payroll and other
between what an employer could leave under certain circumstances. If human resource work for the employer
permissibly do under each statute. employees forego the option to and which, under the current
Other commenters, including unions substitute paid leave, employers may regulations, may qualify in some
and other employee groups, argued that then require such substitution.14 The circumstances as a primary employer in
the differences between the two legislative history indicates that a joint employment arrangement.
statutory schemes were a direct result of Congress had two purposes in providing The comments indicated that PEOs
the distinctively different purposes of for the substitution of accrued paid generally are not responsible for
each law. These commenters noted that leave for unpaid FMLA leave. First, employment decisions like hiring,
the ADA is intended to ensure that Congress sought to clarify that where firing, supervision, etc. All of the
qualified individuals with disabilities employers provided paid leave for comments in this area supported the
are provided with equal opportunity to FMLA-covered reasons, they were only view that the primary ‘‘employer’’ in
work, while the FMLA’s purpose is to required to provide a total of 12 weeks these cases should be the client
provide reasonable leave from work for of FMLA-protected leave including the company that actually hires and uses
eligible employees. These commenters period of paid leave (i.e., employees the employees who are provided benefit
generally opposed implementing could not stack 12 weeks of unpaid services by the PEO. Thus, according to
procedures they viewed as placing FMLA leave on top of any accrued paid these comments, the client company,
additional limits on the availability of leave provided by the employer). The and not the PEO, should be responsible
FMLA leave, or increasing requirements second purpose of substitution of paid for the placement of employees
under the FMLA medical certification leave was to mitigate the financial returning from FMLA leave.
process. impact of income loss to the employee
due to family or medical leave. Data: FMLA Coverage, Usage, and
Transfer to an Alternative Position A major concern of the employer Economic Impact (Chapter XI)
(Chapter VIII) commenters was that when employees The Department received a significant
The RFI did not specifically ask any substitute paid vacation or personal number of comments on the usage and
questions about an employer’s ability to leave for unpaid FMLA leave, they are impact of the FMLA, including a variety
transfer an employee to an ‘‘alternative able to circumvent certain aspects of of national surveys and numerous data
position’’ but the Department received employers’ existing paid leave policies, on FMLA leave from individual
many comments on this topic. These such as notification requirements, companies or government and quasi-
comments are discussed in Chapter VIII minimum increments of leave, seniority, government agencies. This information,
of the Report. Under the FMLA, an or time of year restrictions. These when supplemented by the data from
employer may transfer an employee to commenters stated that employees the 2000 Westat Report (and despite its
an ‘‘alternative position’’ with substituting such paid leave for unpaid limitations), provides considerable
equivalent pay and benefits when the FMLA leave are, therefore, treated more insight and a far more detailed picture
employee needs to take intermittent or favorably than those employees who use of the workings of the FMLA, and the
reduced schedule leave ‘‘that is their accrued leave for other reasons. impact of intermittent leave, in
foreseeable based on planned medical Employee commenters noted that the particular. Chapter XI of this Report
treatment[.]’’ 29 U.S.C. 2612(b)(2). ability to substitute paid leave is a provides a full discussion of the data
Section 825.204 of the regulations critical factor in their ability to utilize received.
explains more fully when an employer their FMLA entitlements, because many Several themes arose out of the data
may transfer an employee to an employees simply cannot afford to take comments submitted in response to the
alternative position in order to unpaid leave. RFI:
accommodate foreseeable intermittent The comments also identified a • The benefits of FMLA leave include
leave or a reduced leave schedule. number of other issues affected by retaining valuable human capital;
A significant number of employer substitution of paid leave. For example, having more productive employees at
commenters questioned why the employers questioned the wisdom of the work; lower long-run health care costs;
regulations only permit an employer to regulation forbidding substitution if lower turnover costs; lower
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transfer an employee when the employees are receiving payments from presenteeism costs; and lower public
employee’s need for leave is foreseeable a benefit plan such as workers’ assistance costs.
based on planned medical treatment as compensation or short-term disability • There are unquantifiable impacts on
opposed to a chronic need for plans. On the other hand, employees both sides. On the benefit side, the
unforeseeable (unscheduled) leave. value of FMLA leave is often
Many commenters saw no practical 14 29 U.S.C. 2612(d). immeasurable. On the cost side, there
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35556 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
can be a negative impact on customers workload, these workers may in turn treatment for chronic serious health
and the public when workers do not seek and need their own FMLA conditions, the Department has heard
show up for their shifts on time. certifications causing a ripple effect in significant concerns. These
• A significant number of workers, attendance and productivity. unanticipated facets of the FMLA are
especially for some facilities or Finally, the data indicate that if the source of considerable friction in the
workgroups, have medical certifications unscheduled intermittent FMLA leave is following areas:
on file for chronic health conditions, taken, most employers will be able to • How serious is ‘‘serious’’?
and the number is increasing. resolve these infrequent low cost events • What does ‘‘intermittent’’ leave
• Unscheduled intermittent FMLA on a case-by-case basis by using the mean and how long should it go on?
leave causes staffing problems for existing workforce (or possibly bringing • What are the rules surrounding
employers requiring them to overstaff in temporary help) to cover for the unforeseeable leave?
some positions and use mandatory absent worker, and likely will view • How much information can an
overtime to cover other positions. Both unscheduled intermittent FMLA leave employer require before approving
of these increase costs and prices. as an expected cost of business. On the leave?
• The lack of employee notification other hand, for those establishments and • What are an employee’s
can cause some positions to go workgroups with a high probability responsibilities under the Act?
temporarily understaffed resulting in (rate) of unscheduled intermittent leave • What workplace rules may an
service or production delays. This not and where the cost of such leave is high, employer actually enforce?
only increases costs in the short run but the comments suggest that none of the • How has other legislation,
also may potentially impact future measures that are typically used to including the ADA and HIPAA, affected
business. reduce the risk and costs associated the FMLA?
• Unscheduled intermittent FMLA with unscheduled intermittent FMLA Absent the protections of the FMLA,
leave can adversely impact the leave appear to work very well. These many workers with chronic conditions
workplace in a variety of ways, establishments, whose risk management might not otherwise be permitted to be
including missed holidays and time-off systems (e.g., absence control policies, absent from their jobs. This is
for other employees, lower morale, and overstaffing, mandatory overtime) unquestionably a valuable right. But it
added stress that can result in health appear to be overwhelmed, are likely is precisely the use of FMLA leave by
problems. the employers reporting that a subset of these workers—those seeking
Further, it appears that the intermittent FMLA leave has a moderate unscheduled intermittent leave for a
Department’s intermittent FMLA leave to large negative impact on their chronic condition—that appears to
estimates presented in the RFI—that productivity and profits (1.8 to 12.7 present the most serious difficulties for
about 1.5 million workers took percent of establishments according to many employers in terms of scheduling,
intermittent FMLA leave in 2005, and the 2000 Westat Report). In addition, attendance, productivity, morale, and
that about 700,000 of these workers took many of the traditional methods used to other concerns. As was clear from the
unscheduled intermittent FMLA leave— encourage good attendance or control record, these comments are not
may be too low. absenteeism (e.g., perfect attendance inconsistent with each other. These
While the percentage of FMLA awards or no fault attendance polices) things are true at the same time.
covered and eligible workers who take may not be used if they interfere with The success of the FMLA depends on
FMLA leave may appear to be low FMLA protected leave. These employers smooth communication among all
relative to the total workforce and the may try to make it more difficult for parties. To the extent that employees
percentage who take unscheduled their workers to take unscheduled and employers become more adversarial
intermittent leave may appear to be intermittent FMLA leave by repeatedly in their dealings with each other over
even smaller, the record shows that questioning the medical certifications or the use of FMLA leave, it may become
these workers can have a significant asking for recertifications—creating harder for workers to take leave when
impact on the operations of their tension in the workplace. they need it most.
employers and their workplaces for a The Department hopes that this
variety of reasons. First, as a number of Conclusion Report will further the discussion of
commenters pointed out, these workers In those sections of the FMLA dealing these important issues and is grateful to
can repeatedly take unscheduled with leave for the birth of a child, for all who participated in this information-
intermittent leave, over nine hours per the adoption of a child, and associated gathering process.
week, and still not exhaust their with health conditions that require
allocation of FMLA leave for the year blocks of leave and are undeniably I. Employee Perspective: Experiences in
(generally, 12 weeks × 40 hours/week = ‘‘serious’’ (e.g., cancer, Alzheimer’s, the Value of the FMLA
480 hours). Second, the record reveals heart attack), the law appears to be The chapters that follow in this
that workplaces with time-sensitive working as anticipated and intended, Report deal in large part with the
operations, such as assembly-line and working very successfully. When substantive comments from individual
manufacturing, transportation, transit, addressing these areas, there is near employers and employees, law firms,
and public health and safety unanimity in the comments—FMLA and groups representing employers and
occupations can be disproportionably leave is a valuable benefit to the employees, assessing what works or
impacted by just a few employees who employee, improves employee morale, does not work particularly well with
repeatedly take unscheduled improves the lives of America’s specific regulatory sections of the
intermittent leave. Third, the comments families, and, as a result, benefits FMLA. Because of that, it is easy to lose
indicate that if the morale or health of employers. These aspects of the FMLA perspective about the overall value of
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workers covering for the absent are fully supported by workers and their the workplace protections provided by
employees on FMLA leave begins to employers. the Act. That value is best shown in the
suffer, either because they believe the But to the extent that the use of FMLA comments submitted by individual
absent workers are misusing leave has continued to increase in employees and, in some instances their
unscheduled intermittent leave or from unanticipated ways, primarily in the employers or representatives. While it
the stress caused by an increased area of intermittent leave taken as self- would be impossible for the Department
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35557
to catalog every comment it received in days.’’ An Employee Comment, Doc. only time I know I am needed is when
response to the Request for Information FL9, at 1. Another employee said, ‘‘I [my wife] has an appointment with her
(‘‘RFI’’) about the value of the FMLA, * * * recently returned from taking a doctor. This is subject to change if she
this chapter provides a representative two week FML[A leave] to care for my is unable to go to the doctor due to
collection of comments recounting those elderly stepfather after open heart weakness.’’ Id. Similarly, an AT&T
personal experiences.1 These comments surgery. My family and I were employee commented that intermittent
also include some examples of best appreciative that because of the FML[A] leave under the Act makes it possible
practices of employers in carrying out I was able to request time to assist with for her to care for her mother, who has
the FMLA—practices that often create or his care and recuperation at home. We Alzheimer’s disease. ‘‘I only take an
strengthen good relationships between all have no doubt that my time was hour here and there as needed. I try to
employers and employees. These invaluable with his improvement once work doctor appointments and other
comments reflect the belief stated in the home.’’ An Employee Comment, Doc. things around my work schedule.
regulations that a ‘‘direct correlation 139, at 1. However, it is impossible to always do
exists between stability in the family Other commenters also noted the that. FMLA has been a life saver for me.
and productivity in the workplace’’ and value of FMLA when they needed leave Had I not had FMLA for this reason I
demonstrate that the underlying intent because of their own serious health don’t know what I would do.’’ An
of the Act ‘‘to allow employees to conditions. For example, one employee Employee Comment, Doc. 10046A, at 1.
balance their work and family life by said, ‘‘As a cancer survivor myself, I Many employees commented that the
taking reasonable unpaid leave’’ for cannot imagine how much more Act helped save their jobs. For example,
certain qualifying family and medical difficult those days of treatments and one employee, who commented that her
reasons is being fulfilled. 29 CFR frequent doctor appointments would’ve child’s health condition sometimes
825.101. been without FMLA. I did my best to be keeps her out of work for several days
Many employees were grateful that at work as much as possible, but at a time, said, ‘‘FMLA has
the Act existed and that they were able chemotherapy and radiation not only tremendously helped my family. I have
to utilize the leave entitlement in a time sap the body of energy, but also take a child born w/[asthma], allergies &
of need. Some employees specifically hours every day and every week in other medical issues. And, there are
commented that the Act helped them treatment rooms.’’ An Employee times I’m out of work for days[. I]f I
during difficult periods of caring for Comment, Doc. 5798, at 1. Another didn’t have FMLA I would have been
loved ones who were ill. For example, employee, who used FMLA leave on fired [a long] time ago. I’ve been able to
one employee wrote that she used several occasions for her own serious maintain my employment and keep my
FMLA leave twice, once to care for a health condition, stated that she was household from having to need
seriously ill child and again ‘‘when my ‘‘very thankful for the existence of the assistance from the commonwealth.’’ An
husband was injured in Afghanistan and Family and Medical Leave Act (FMLA). Employee Comment, Doc. 229, at 1.
needed assistance in his recovery[.]’’ An As a two-time survivor of breast cancer, Another employee said, ‘‘I returned
Employee Comment, Doc. 2666, at 1.2 I have taken FMLA leave both on a home after three months [of FMLA
She noted that ‘‘without this [FMLA] continuous and an intermittent basis— leave] to be told I no longer had a job.
protection, I probably would have lost continuous leave to recover from my I was told it would be unfair of me to
my job and all its benefits[.]’’ Id. surgeries (therapeutic and expect my coworkers to cover for me so
reconstructive) and intermittent for they were forced to hire a new employee
Another employee said he could not
doctors appointments, radiation * * * When I asked the manager about
have cared for his ill wife without
therapy, and chemotherapy treatments.’’ the previous assurances that my job
FMLA. An Employee Comment, Doc.
An Employee Comment, Doc. 234, at 1. would be held until I returned I wasn’t
FL18, at 1. ‘‘My wife * * * has a
Other employees specifically pointed given a direct answer. I invoked the
medical condition that is covered by the
out the value of the FMLA in allowing FMLA and was able to keep my job.’’ An
FMLA. I have used intermittent FMLA
them to focus completely on recovery. Employee Comment, Doc. 61, at 1. A
leave to take her to the doctor whose
For example, a correctional officer teacher stated, ‘‘Without [the FMLA], I
office is located approximately 4 hours
commented, ‘‘I was out of work for a couldn’t have cared for both of my
away by car from where we live. I have
short period of time due to a serious parents at different times in their lives
been doing this on average once a medical condition that was treatable. and kept my job * * * Because of the
month for approximately 3 years. I FMLA gives the employee the ability to act I was able to keep my parents out of
would not be able to do this without the tend to these concerns with their full nursing homes and still keep my job to
FMLA.’’ Id. attention, to recuperate without support them later. This is the best thing
One employee, whose comment sacrificing their career [or] their you can do for working families around
echoed the sentiment that the FMLA livelihood.’’ An Employee Comment, our country.’’ An Employee Comment,
allows employees to balance their work Doc. FL87, at 1. Doc. 1181, at 1.
obligations with the need to care for Several employees commented Similarly, an employee with a chronic
their loved ones, appreciated how his specifically about the value of serious health condition commented, ‘‘I
family benefited from FMLA leave. intermittent leave under the FMLA. A can get sick at any time and need brain
‘‘Presently, my sister is having to care railroad employee of thirty-six years surgery. This can put me out of
for our ailing mother while holding said he uses intermittent leave to care commission for a month or two. FMLA
down a job. The Family and Medical for his wife, who suffers from Multiple gives me the peace of mind that I cannot
Leave Act is very important to her as Sclerosis (‘‘MS’’). An Employee be fired after I have been in a job for a
well as her family in her continued Comment, Doc. FL115, at 1. year. I cannot stress how monumental
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effort to care for our mother in her final Acknowledging the sporadic need for that assurance is.’’ An Employee
leave, the commenter said, ‘‘Since MS is Comment, Doc. 159, at 1. Another
1 The Request for Information can be found at 71
an incurable disease without a schedule employee said, ‘‘Without the availability
FR 69,508 (December 1, 2006).
2 The names of individual employees have been or any way of knowing when an episode of FMLA I’m not certain of what would
redacted from the Report where any personal or is going to [occur], I cannot always have happened to my family when my
medical information was provided. foresee when I am needed at home. The husband was diagnosed with ALS 5
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35558 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
years ago. Thankfully it was there, so I FMLA is growing for this key group of since I was her primary caregiver. I was
could be with him as he was dying.’’ An employees and their employers. As one able to be with her when she took her
Employee Comment, Doc. 4332, at 1. A commenter put it, ‘‘In most families, last breath and was grateful for the time
union steward, using FMLA leave for since both parents have to work to I was able to [spend] with her until her
his own serious health condition, support themselves and their children death.’’
commented that ‘‘FMLA not only allows and perhaps their older parents, the Id. at 46–59.
me to take time off for * * * therapy/ more a company provides pay and good Similarly, the Communications
medical appointments but also allows will towards a family[’s] caretaking Workers of America submitted several
[me] to take time off as needed when I abilities, the more that employee will be hundred examples of their members’
have sporadic episodes in which the loyal to the company.’’ An Employee personal experiences with FMLA ‘‘to
medicine does not work, needs to be Comment, Doc. 5521, at 1. illustrate the continued importance of
fine tuned or changed which is essential In addition to these individual the FMLA[.]’’ Doc. R346A, at 16. A
to my well-being.’’ An Employee employee and employer comments, the representative sample of those
Comment, Doc. 4619, at 1. He further American Federation of Labor and experiences follows:
commented, ‘‘Without FMLA I would Congress of Industrial Organizations • ‘‘A Cingular employee with a good
have been fired long ago[.] * * * FMLA (‘‘AFL–CIO’’) conducted an ‘‘online work record has Lupus which causes
saved my job and I also believe saved survey among members of Working periodic flare-ups that prevent her from
my life, and to this day gives me a sense America, the Federation’s community- working and require weekly therapy and
of security against any discipline or based affiliate in response to the RFI. regular doctor visits. FMLA has allowed
termination based on my legitimate Within a period of two weeks, over
her to remain stress-free * * * because
medical needs.’’ Id. 1,660 members responded.’’ Doc.
she does not need to worry about losing
The FMLA appears to be particularly R329A, at 6. As a result of their survey,
her job.’’
valued by employees caring for both several hundred personal experiences
• ‘‘A Pacific Bell Telephone
children and parents with serious health were included in an Appendix to the
employee with chronic lower back pain
conditions. A telephone company AFL–CIO’s comment—a sampling of
that prevents sitting or walking when it
employee providing care for her which is provided here:
• ‘‘My daughter was mauled by a dog. flairs up has been able to take FMLA
asthmatic son and for her 84-year-old
I had to take 2 months of leave leave when these symptoms occur
mother commented: ‘‘I am part of what
(permitted under FMLA). Had FMLA without facing discipline for absence
is known as the ‘‘Sandwich
Generation’’[.] * * * I have had several not been in place, I would have lost my issues. As a result, this employee
occasions to use FMLA[.] * * * job for sure.’’ remains a productive and committed
Without FMLA protection I would have • ‘‘FMLA has made a big difference to employee.’’
lost my job.’’ An Employee Comment, me. I have a chronic health condition • ‘‘A [Communications Workers of
Doc. R133, at 1. Another employee along with being a single mother and America] member reports that in 1995
described taking leave for a three-month have my aging mother living with me. his late wife was diagnosed with colon
period for the birth of her child, then I can’t imagine not being able to use this cancer. After she was operated on, she
needing leave intermittently to care for so that I know that my job will still be needed extensive chemotherapy. His
her father ‘‘for a few days after each there whether I have a [reoccurrence] of employer allowed him to substitute paid
hospitalization’’ for his chronic heart my health condition or like when my 4 leave for unpaid FMLA leave whenever
disease. An Employee Comment, Doc. year old broke his leg.’’ he needed to go with his wife to
6311, at 1. According to this commenter, • ‘‘My step mother had a debilitating chemotherapy treatments since she was
‘‘Knowing that I was protected meant I stroke. Since I work in social services, unable to drive herself to or from these
didn’t have to choose between my I was [the] best person in the family to appointments. This made a big
Father’s health and my job.’’ Id. at 1. assist her with setting up her benefits. difference especially because some of
In a similar vein, one commenter who My direct supervisor did not like it, but the medical care was not covered by the
administers FMLA leave for her my request could not be denied. Human employee’s insurance.’’
employer noted, ‘‘What I am seeing with Resources was more than helpful in • ‘‘An employee of AT&T has used
increasing regularity are FMLA requests telling me how much vacation and sick FMLA leave to care for her husband, her
for employees to care for an elderly time I had accrued. It was required that son, her elderly mother and for her own
parent who is ill and not able to afford I use that up while I was on FMLA. I serious health condition. She reports
a caregiver to attend to his/her needs. was paid for all but a week and a half that she learned about the availability of
These are usually for intermittent leaves of my leave. Without FMLA, I could not FMLA leave from her union and the
that will allow the employee to chauffer have taken the 5 weeks off work.’’ union representatives were very helpful
their parent to the doctor [or] attend to • When my mother was diagnosed to her in trying to understand
their parent post surgery. As our with lung cancer, my brother and I complicated FMLA application forms
working population ages, [the need for decided I would be the one to take her and other related documents sent to her
leave related to] caring for elderly to all her appointments and therapy. I in connection with these leaves.’’
parent(s) will increase.’’ Doreen would have lost my job or had to leave • ‘‘An employee of AT&T used FMLA
Stratton, Doc. 696 at 1. An employee it without FMLA. It was difficult for the leave five years ago when her father
agreed: ‘‘There are multiple factors people I worked with because it put a developed a brain tumor that ultimately
putting stress on the American family, strain on the office, however, they were, took his life. She states that ‘it was
making the FMLA a good thing for for the most part, emotionally devastating to our family, but I am so
families with children. Also, millions of supportive as well.’’ grateful that, with the FMLA I was able
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baby-boomers are getting old, many of • ‘‘My mother was diagnosed with to help care for him in our home and
them without adequate retirement cancer and she had a stroke that left her was by his side when he passed. This
funds—so we will be seeing more family paralyzed and wheelchair bound. With is how life and death should be. Losing
caregivers, not fewer.’’ An Employee the help of the FMLA, I was able to take the protections of FMLA would force us
Comment, Doc. 5473, at 1. As these her to her appointments and tell the to have strangers care for our [loved]
comments show, the importance of the doctors what was going on with her ones in their time of need.’ ’’
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35559
Id. at 16–42. more than once prevented me from because of my excellent medical
Numerous employees commented that looking for work elsewhere.’’ An coverage as a full-time university
requesting and using FMLA leave was a Employee Comment, Doc. R62, at 1. employee, but because I could take a
positive experience because their Finally, one employee stated she did not one-term medical leave in the fall and
employers were helpful and find requesting FMLA leave to be still receive paychecks[.]’’ Id.
straightforward in providing such leave. ‘‘cumbersome or unreasonable’’ because Some employers also noted that
Several of these employees commented her Human Resources department was making it easier on employees to use
that their employers initially suggested ‘‘very helpful with the entire process.’’ FMLA leave was a positive experience
they request FMLA leave and helped An Employee Comment, Doc. 4720, at 1. from their perspective. One employer
them through the process. See, e.g., Further, she noted that ‘‘the process and commented:
Employee Comments, Doc. 4734, at 1 leave itself [was a Godsend] as caring for If I have an employee with a child or
(‘‘My employer did not give me any our Mother was very, very stressful[.]’’ family member with a serious illness, and
difficulty in using my sick/personal Id. this employee is unable to be with that
time[.] * * * I spoke to my Human Many comments recounted employer family member when needed, they are
Resources person and she suggested I policies that go above and beyond what distracted at work and their productivity
apply [for FMLA leave].’’); Doc. 874, at is required under the Act. See, e.g., An suffers. In contrast, if they are allowed time
1 (an employee who needed leave to Employee Comment, Doc. 5069, at 1 to take care of that family member, their
care for her mother in a different state (employer ‘‘gives paid medical leave productivity increases. They know what they
‘‘first heard of FMLA when I contacted based on how much time is medically have to accomplish and—sometimes by
working at home, or working extra hours, or
my HR office about my dilemma, and I necessary.’’); Jill Ratner, President, The skipping lunch, or working exceptionally
was so amazed and relieved that such a Rose Foundation for Communities and hard—they get it done. And in the end I have
worker-centric law actually existed! the Environment, Doc. 4877, at 1 (A an extremely loyal employee.
With the help of FMLA, I was able to non-profit foundation that provides
spend a month in Michigan helping my ‘‘one week of paid family leave (in Marie Alexander, President & CEO,
Mom—away from my job—without addition to two weeks of paid sick Quova, Inc., Doc. 5291, at 1. A public
having to worry that I would be fired.’’). leave) to all employees’’ commented sector employer commented that
Other employees observed that their that ‘‘providing family leave is critical administering FMLA leave was ‘‘no
employers put them at ease when they to recruiting and retaining qualified more difficult to navigate than any other
requested FMLA leave. Specifically, an staff, and to maintaining staff morale labor oriented legislation. In fact, I find
employee recalled when her child and effectiveness.’’); An Employee it very straightforward, and it has been
became ill with a brain tumor that her Comment, Doc. 1106, at 1 (‘‘Altogether, a literal lifesaver for some of our
‘‘company was very understanding I was away from work for about two people.’’ Kevin Lowry, Nassau County
about granting me [FMLA] leave. I felt months or so. My employer, Monsanto, Probation, Doc. 86, at 1. The commenter
very safe and secure knowing that I was very generous with me. In addition went on to say, ‘‘In the long run, most
could take leave and still have my job to granting the time off and guaranteeing people will appreciate the extra
when I returned.’’ An Employee I would still have my job when I protection offered by the employer
Comment, Doc. 95, at 1. Similarly, an returned, they paid sick leave during during a difficult time and will return
employee said she was ‘‘[s]o thankful this period.’’); An Employee Comment, as more motivated employees once the
when my employer informed me of this Doc. 70, at 1 (The employer of an crisis has passed.’’ Id. The benefit to
law because it gave my mom peace of employee who had been employed for employers of providing FMLA leave to
mind knowing that I would be available less than one full year when she needed employees was also the topic of another
for her when she needed me.’’ An FMLA leave to care for her sick mother employer’s comment: ‘‘As a supervisor,
Employee Comment, Doc. 4773, at 1. ‘‘essentially applied the FMLA rules FMLA allowed me to keep a good
Often employees were thankful anyway; they let me use all my vacation employee while she cared for her
because their employers were time and then gave me unpaid leave. I terminally ill husband. After he passed
sympathetic to their family needs while cannot tell you what a difference that away, she came back to work and has
on FMLA leave. The National made.’’); National Employment Lawyers continued to contribute to [the
Association of Working Women Association, Doc. 10265A, at 3 (An company] in an extremely valuable
provided the example of ‘‘a 41-year-old attorney association commented that way.’’ Chris Yoder, Doc. 922, at 1.
single mother in Aurora, Colorado. The one of her clients suffered from chronic Some employees also noted that,
FMLA allows her to take off whenever fatigue syndrome, which shortened her upon returning from FMLA leave, they
her 11-year-old son * * * has an attack work day by 1 to 2 hours, but ‘‘her felt more productive at work and more
caused by his chronic asthma. ‘When he employer was very cooperative with her loyal to their employer. One employee
does get sick, I have to be up practically efforts to continue working by allowing said, ‘‘My mentor allowed me to use my
24 hours,’ [the mother] says, praising her to use her FMLA [leave] in these own sick leave and vacation and then to
her employer, Kaiser Permanente, and short blocks of time and wasn’t even hold my position without pay until after
her supervisor for understanding her really counting whether she was using my mother passed and I was able to
situation.’’ Doc. 10210A, at 1. One up her FMLA leave.’’). return to work. The course of my
employee said her employer’s sympathy A professor commented that her mother’s illness was quick, and I was
during FMLA leave prevented her from college provided leave periods in gone about six weeks total. When I
looking for new work: ‘‘Thanks to the addition to FMLA leave, lasting the returned to work, I was able to re-engage
FMLA, I was able to take three months length of a full school term. An in it and be productive.’’ An Employee
off work with full salary in order to take Employee Comment, Doc. R79A, at 1. ‘‘I Comment, Doc. 885, at 1. Another
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care of [my husband] when he was also underwent surgery, several cycles employee commented, ‘‘I used FMLA
reduced to a state of complete of adjuvant chemotherapy, and a series three times in the last 9 years (with and
dependency. * * * I was secure in the of medical tests for the management of without pay); each time I was very
knowledge that I could come right back my cancer and am currently considered grateful to know that my job status was
to my job, and I developed a keen sense to be cancer-free and doing well. These protected when I was out on leave. All
of loyalty to my employer which has treatments were possible, not only three times I returned to work and
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35560 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
rededicated myself to my job. FMLA CFR 825.700(a). The Court held the The categorical penalty provision of
helped me, my family, and my loyalty provision is invalid because, in some the regulations with regard to paid leave
and productivity in the workplace.’’ An circumstances, it requires employers to provides as follows:
Employee Comment, Doc. R2, at 1. provide leave in excess of an employee’s If the employer has the requisite
A telecommunications employee also 12-week statutory entitlement. Although knowledge to make a determination that the
commented that taking FMLA leave the Court did not invalidate the paid leave is for an FMLA reason at the time
allows her to be more productive: ‘‘The underlying notice and designation the employee either gives notice of the need
FMLA has changed my life. It has saved provisions in the regulations, it made for leave or commences leave and fails to
my job. Without the intermittent leave, designate the leave as FMLA leave (and so
clear that any ‘‘categorical penalty’’ for
and my taking only 1.5 days maximum notify the employee in accordance with
a violation of such requirements would paragraph (b)), the employer may not
per month, I would be on a disability. exceed the Department’s statutory designate leave as FMLA leave retroactively,
When I do miss work, I work twice as authority. and may designate only prospectively as of
hard to make up for the time I am gone. the date of notification to the employee of the
I actually produce more than those who The Request for Information noted
designation. In such circumstances, the
don’t take the FMLA time.’’ An that a number of courts have invalidated employee is subject to the full protections of
Employee Comment, Doc. 233, at 1. a similar penalty provision found in the Act, but none of the absence preceding
Another employee noted that FMLA section 825.110(d), which requires an the notice to the employee of the designation
leave is not ‘‘charity’’ but ‘‘instead it employer to notify an employee prior to may be counted against the employee’s 12-
the employee commencing leave as to week FMLA leave entitlement.
safeguard[s] loyal employees who,
because of unforeseen circumstances whether the employee is eligible for 29 CFR 825.208(c). See also 29 CFR
need a temporary helping hand.’’ An FMLA leave. If the employer fails to 825.700(a) (‘‘If an employee takes paid
Employee Comment, Doc. 4732, at 1. provide the employee with such or unpaid leave and the employer does
Further, the commenter noted, ‘‘I have information, or if the information is not not designate the leave as FMLA leave,
known a family which has benefited accurate, the regulation bars the the leave taken does not count against
tremendously by the FMLA. After employer from challenging the an employee’s FMLA entitlement.’’).
assistance, they have emerged once employee’s eligibility at a later date, In Ragsdale, 535 U.S. 81, the Supreme
again into a productive, tax paying, even if the employee is not eligible for Court considered a case in which the
exciting family that is contributing to FMLA leave pursuant to the statutory plaintiff had received 30 weeks of leave
our community.’’ Id. requirements. from her employer. At that point, her
While other chapters of this Report Therefore, the Department asked employer denied her request for
detail areas where commenters indicate commenters what ‘‘changes could be additional leave and terminated her
the FMLA may not work as well as it made to the regulations in order to employment. She alleged that her
could, the comments in this chapter comply with Ragsdale and yet assure employer violated section 825.208(a),
show the continued value to employees that employers maintain proper records which requires an employer to designate
and employers of the FMLA leave prospectively that leave is FMLA-
and promptly and appropriately
entitlements. While employees were covered and to notify the employee of
designate leave as FMLA leave?’’ The
relieved at having available job- the designation. Because her employer
Department received a significant
protected leave, they also often noted did not do so, she alleged that she was
number of comments regarding this
their increased loyalty to their entitled under section 825.700(a) to an
issue and related notice issues.
employers after using periods of FMLA additional 12 weeks of FMLA-protected
leave, especially where they felt their A. Background leave.
employers were sympathetic concerning The Court found that this ‘‘categorical
the leave circumstances and helpful The FMLA entitles eligible employees penalty’’ is ‘‘incompatible with the
with the procedures for taking leave. of covered employers to 12 weeks of FMLA’s comprehensive remedial
Employers, as well as employees often leave per year for certain family and mechanism,’’ which puts the burden on
noted increased productivity among medical reasons. 29 U.S.C. 2612(a)(1). In the employee to show that the employer
employees returning from FMLA leave order to allow employees to know when interfered with, restrained, or denied
and, in some instances, provided greater they are using their FMLA-protected the employee’s exercise of FMLA rights,
benefits than those required by the Act. leave, the regulations state that ‘‘it is the and that the employee suffered actual
The value of FMLA leave was pointed employer’s responsibility to designate prejudice as a result of the violation.
out for all types of qualifying leave leave, paid or unpaid, as FMLA- Ragsdale, 535 U.S. at 89. The Court
scenarios, but was particularly qualifying, and to give notice of the observed that, according to the
referenced in regard to employees of the designation to the employee.’’ 29 CFR regulation, the ‘‘fact that the employee
‘‘sandwich generation’’ who frequently 825.208(a). More specifically, ‘‘[o]nce would have acted in the same manner
find themselves caring for their own the employer has acquired knowledge if notice had been given is, in the
health needs, those of their children, that the leave is being taken for an Secretary’s view, irrelevant.’’ Id. at 88.
and of their aging parents. FMLA required reason, the employer The Court also found that the regulation
must promptly (within two business ‘‘subverts the careful balance’’ that
II. Ragsdale/Penalties days absent extenuating circumstances) Congress developed with regard to ‘‘the
In Ragsdale v. Wolverine World Wide, notify the employee that the paid leave FMLA’s most fundamental substantive
Inc., 535 U.S. 81 (2002), the Supreme is designated and will be counted as guarantee’’ of an entitlement to a total
Court held that the penalty provision in FMLA leave.’’ 29 CFR 825.208(b)(1). See of 12 weeks of leave, which was a
the Department’s regulation at section also 29 CFR 825.301(b)(1)(i) and (c). The compromise between employers who
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825.700(a) is invalid. That regulation employer’s designation may be oral or wanted fewer weeks and employees
states that ‘‘[i]f an employee takes paid in writing, but if it is oral, it must be who wanted more. Id. at 93–94. Thus,
or unpaid leave and the employer does confirmed in writing, generally no later the Court held that the penalty
not designate the leave as FMLA leave, than the following payday, such as by provision of section 825.700(a) is
the leave taken does not count against a notation on the employee’s pay stub. ‘‘contrary to the Act and beyond the
an employee’s FMLA entitlement.’’ 29 29 CFR 825.208(b)(2). Secretary of Labor’s authority.’’ Id. at 84.
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35561
The Supreme Court did not invalidate establishes that employees are eligible his silence misled an employee
the notice and designation provisions in for FMLA leave only if they have been concerning the employee’s entitlement
the regulations. Indeed, the Court employed by the employer ‘‘for at least to family leave might, if the employee
recognized that there may be situations 12 months’’ and have ‘‘at least 1,250 reasonably relied and was harmed as a
where an employee is able to show that hours of service with such employer result, be estopped to plead the defense
the employer’s failure to provide the during the previous 12-month period.’’ of ineligibility to the employee’s claim
required notice of FMLA rights 29 U.S.C. 2611(2)(A). The regulations of entitlement to family leave.’’);
prejudiced the employee in a specific generally require an employer to notify Kosakow v. New Rochelle Radiology
way (such as depriving the employee of an employee whether the employee is Assocs., P.C., 274 F.3d 706, 722–27 (2d
an opportunity to take intermittent leave eligible for FMLA leave prior to the Cir. 2001). See also Wage and Hour
or to return to work sooner). The Court employee commencing leave. If the Opinion Letter FMLA2002–1 (Aug. 6,
stated, however, that the Act’s remedial employer confirms the employee’s 2002).
structure requires a ‘‘retrospective, case- eligibility, ‘‘the employer may not
B. Comments on Ragsdale: Notice and
by-case examination’’ to determine subsequently challenge the employee’s
Designation Issues
‘‘whether damages and equitable relief eligibility.’’ 29 CFR 825.110(d).
are appropriate under the FMLA,’’ based Furthermore, ‘‘[i]f the employer fails to A number of commenters addressed
upon the steps the employee would advise the employee whether the the Ragsdale categorical penalty issue
have taken had the employer given the employee is eligible prior to the date the and responded to the Request for
required notice, rather than a categorical requested leave is to commence, the Information’s question regarding what
penalty. Id. at 91. See Sorrell v. Rinker employee will be deemed eligible. The ‘‘changes could be made to the
Materials Corp., 395 F.3d 332, 336 (6th employer may not, then, deny the leave. regulations in order to comply with
Cir. 2005) (remanding the case for a Where the employee does not give Ragsdale and yet assure that employers
determination of whether the doctrine notice of the need for leave more than maintain proper records and promptly
of estoppel bars the company from two business days prior to commencing and appropriately designate leave as
challenging the employee’s entitlement leave, the employee will be deemed to FMLA leave?’’
to FMLA leave because the employer be eligible if the employer fails to advise The National Coalition to Protect
had unconditionally approved the leave the employee that the employee is not Family Leave stated that section
request); Duty v. Norton-Alcoa eligible within two business days of 825.700(a) and the similar penalty
Proppants, 293 F.3d 481, 493–94 (8th receiving the employee’s notice.’’ Id. provision in section 825.208 should be
Cir. 2002) (holding that the employer Thus, even if an employee fails to removed from the regulations, and that
was equitably estopped from asserting satisfy the statutory eligibility ‘‘any ‘penalty’ that DOL wants to
that the plaintiff had exhausted his 12 requirements, the regulation ‘‘deems’’ impose on employers for failure to
weeks of FMLA leave, based on a letter the employee to be eligible for FMLA- follow certain notice obligations
expressly informing him after 22 weeks protected leave. The courts have held dictated by the regulations must be
of disability leave that he still had 12 that this regulation is invalid. See, e.g., tailored to the specific harm suffered by
weeks of FMLA leave left); Wilkerson v. Woodford v. Comty. Action of Greene the employee for failure to receive
Autozone, Inc., 152 Fed. Appx. 444 (6th County, Inc., 268 F.3d 51, 57 (2d Cir. notice.’’ National Coalition to Protect
Cir. 2005) (based on the employer’s 2001) (‘‘The regulation exceeds agency Family Leave, Doc. 10172A, at 43, The
statement that the employee had six rulemaking powers by making eligible Coalition asserted that retroactive
weeks of post-partum FMLA leave, under the FMLA employees who do not designation should be permitted, so that
equitable estoppel applied because the meet the statute’s clear eligibility employees ‘‘could receive the FMLA
employee reasonably relied on it and requirements.’’); Brungart v. BellSouth protections despite their failure to
showed the requisite prejudice). Telecomm., Inc., 231 F.3d 791, 796–97 adequately communicate that the FMLA
The Ragsdale decision addressed only (11th Cir. 2000), cert. denied, 532 U.S. is at issue, and employers who
the penalty provision in section 1037 (2001) (‘‘There is no ambiguity in inadvertently fail to timely designate
825.700(a), which is applicable to both the statute concerning eligibility for leave can have the opportunity to count
unpaid leave and paid leave (Ragsdale family medical leave, no gap to be the absence toward the employee’s
involved unpaid leave). The penalty filled.’’); Dormeyer v. Comerica Bank- FMLA leave bank. Retroactive
provision in section 825.208(c) Ill., 223 F.3d 579, 582 (7th Cir. 2000) designation should be permitted in all
(applicable only to paid leave) is (‘‘The statutory text is perfectly clear cases where the employee is eligible, the
virtually identical. A number of courts and covers the issue. The right of family condition qualifies, and the employee
have held that the rationale of the leave is conferred only on employees has adhered to his/her FMLA notice
Ragsdale decision applies equally to who have worked at least 1,250 hours in obligations that FMLA leave is at issue.’’
section 825.208(c), and that an the previous 12 months.’’ Therefore, the Id. at 44. See also Proskauer Rose LLP,
employee must show prejudice from the Department ‘‘has no authority to change Doc. 10182A, at 9 (the regulations
lack of notice to establish a violation of the Act,’’ as the regulation attempts to should allow an employer ‘‘who
the Act. See, e.g., Miller v. Personal- do, by making ineligible employees initially fails to designate a leave as
Touch of Va., Inc., 342 F. Supp. 2d 499, eligible for family leave). FMLA leave, but nevertheless grants the
513–14 (E.D. Va. 2004); Donahoo v. The courts have concluded that an employee the leave, to retroactively
Master Data Ctr., 282 F. Supp. 2d 540, employee may pursue a case, based on designate the leave as FMLA leave’’);
554–55 (E.D. Mich. 2003); and Phillips the principle of equitable estoppel, Coolidge Wall Co. LPA, Doc. 5168, at 1
v. Leroy-Somer N. Am., No. 01–1046–T, where the employer’s failure to advise (the regulations should state that an
2003 WL 1790941, *5–7 (W.D. Tenn. the employee properly of his/her FMLA employer that has an FMLA policy in its
pwalker on PROD1PC71 with PROPOSALS2
Mar. 28, 2003). eligibility/ineligibility is determined to handbook, for which an employee has
As discussed above, a number of have interfered with the employee’s acknowledged receipt, can send out the
courts also have found that the rights, and the employee could have FMLA notice ‘‘mid-leave and can
‘‘deeming’’ provision in section taken other action had s/he been retroactively count the employee’s
825.110(d) of the regulations is invalid properly notified. See, e.g., Dormeyer, time’’); Commonwealth of Pennsylvania,
and contrary to the statute. The FMLA 223 F.3d at 582 (‘‘an employer who by Doc. FL95, at 2–3 (retroactive
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35562 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
designation should be allowed ‘‘when Association of Convenience Stores FL184, at 2 (noting that Ragsdale
an employee’s FMLA rights were suggested that, in light of Ragsdale, invalidated only the penalty provision
provided during the period of absence,’’ ‘‘DOL should consider eradicating all of the regulations and that any changes
because the two-day verbal notification formal employer designation in the regulations should be limited to
requirement is difficult to achieve, requirements.’’ Doc. 10256A, at 7. remedying that problem and should go
although the written notification/ Other stakeholders, however, no further).
designation requirements ‘‘usually can presented views in support of the Another commenter suggested that
occur * * * within the timeframes current notice and designation ‘‘fines should be imposed’’ on
prescribed by the Regulations’’). requirements and had suggestions for employers that do not maintain accurate
The Air Transport Association of changes that would provide improved records, and they ‘‘should not be able to
American, Inc., and the Airline and prompt information to employees. retroactively change how leave was
Industrial Relations Conference One commenter stated that the data originally designated without notice and
suggested that the regulations be revised show that two days is sufficient to allow consultation with the employee.’’ OWL,
in light of Ragsdale, because employers employers to review and respond to The Voice of Midlife and Older Women,
do not know which regulations they employees’ leave requests. ‘‘Most Doc. FL180, at 2.
must follow and which are no longer organizations spend only between thirty A number of commenters emphasized
valid, and employees who read them and 120 minutes of administrative time the hardships employees suffer when
also are confused about which per FMLA leave episode to provide they do not know promptly whether the
regulations their employers must follow. notice, determine eligibility, request and employer believes they are entitled to
Doc. FL29, at 15. See also Association review documentation, and request a protected leave. Employees then either
of Corporate Counsel, Doc. FL31, at 10 second opinion. Therefore, no change to feel compelled not to take the time off
(section 825.700 should be deleted to the current two-day response that they need, or else they take off but
clarify that an employer’s failure to requirement is warranted.’’ National are afraid because they do not know
timely designate leave does not increase Partnership for Women & Families, Doc. whether they will be subject to
the statutory leave period). 10204A, at 21 (citation omitted). That discipline for being off work. See, e.g.,
United Parcel Service, Doc. 10276A, commenter also noted that while the Frasier, Frasier & Hickman, LLP, Doc.
at 2, suggested that the Department Supreme Court struck down the FL60, at 1–3. As discussed in detail in
should clarify in section 825.208 the ‘‘categorical penalty’’ in the current Chapter V, a number of commenters
effect of an employer’s mistaken regulations, it left intact the requirement therefore suggested that employers be
designation of FMLA leave, because that employers designate leave, and it required to inform employees promptly
some courts have held that the doctrine ‘‘did not prohibit DOL from imposing when they are using FMLA leave.
of equitable estoppel prevents an Another commenter noted that his
any penalties on employers for failing to
employer from denying protected leave employer ‘‘is able to delay, and many
properly designate and notify employee
based on a subsequent determination times deny, for many weeks and months
about leave.’’ Id. at 18. Therefore, in
that the employee was not eligible. The the benefits and protections which the
light of the overall purposes of the
United States Postal Service similarly Act affords,’’ because it repeatedly asks
notice and designation requirements,
suggested that both sections 825.700(a) for more information on the certification
this commenter suggested that any
and 825.208(c) should be revised to form. An Employee Comment, Doc.
changes to the regulations should:
clarify that ‘‘a technical violation of the 10094A, at 2. During this ‘‘very lengthy
• ‘‘Emphasize that the Court did not
notice provisions does not result in a approval process, the employee is
alter the obligation of employers to both
windfall of surplus FMLA protection for subjected to attendance-related
designate leave promptly and notify
an employee who suffered no harm as discipline when the absence should
a result.’’ Doc. 10184A, at 4. A large employees of how that leave has been
have been approved or at the very least
provider of human resources designated. Thus, employers must
be treated as ‘pending.’ ’’ Id. See also An
outsourcing services commented that continue to adhere to these designation
Employee Comment, Doc. 5335, at 1
‘‘by deleting the ‘penalty’ provision and and notice requirements or risk
(noting that she had gone out on short-
simply reinforcing employer penalties.’’
term disability leave for surgery but,
notification obligations,’’ the • ‘‘Reaffirm and modify current
despite her regular contact with the
Department would appropriately recordkeeping requirements that require
benefits specialist, she was not notified
respond to Ragsdale. Hewitt Associates, employers to keep accurate and
that the company had placed her on
Doc. 10135A, at 8. Hewitt stated that complete records of how leave has been
FMLA leave). This issue is addressed in
employers benefit by providing more designated, and when the employee was
more detail in Chapter VI relating to
notice because they: Educate employees notified of the designation.’’
medical certifications.
about their rights, responsibilities, and • ‘‘Prohibit employers from making
benefits; maximize the likelihood that any retroactive changes to how leave C. Deeming Eligible Issues
employees will return to work has been designated without A number of commenters also
promptly; maintain or enhance their notification and consultation with the addressed issues related to the provision
engagement; minimize the impact on employee, and require maintenance of in 29 CFR 825.110(d) deeming
other HR administrative processes; records documenting such notification employees eligible for FMLA leave if an
minimize the impact on business and consultation.’’ employer either fails to advise them of
operations; and reduce available time • ‘‘Establish new penalties for their eligibility status within the allotted
off balances accurately. Id. at 7–8. employer non-compliance that are not time period, or incorrectly advises them
Finally, as discussed in detail in automatic, but can be imposed that they are eligible when they have
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Chapter V, a number of commenters following a complaint by the affected not satisfied the statutory requirements
stated that the two-day time frame for employee and an independent of 12 months of employment and 1,250
designating leave is inadequate, or that determination of the harm caused by the hours of service in the preceding 12
the designation requirement should employer’s violation.’’ months.
apply only when employees expressly Id. at 18–19. See also Letter from 53 One commenter stated that ‘‘[t]he
request FMLA leave. The National Democratic Members of Congress, Doc. Supreme Court’s decision in the
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35563
Ragsdale case casts grave doubt on the designation, with fairness to employees definitions of serious health condition
validity of other categorical penalties in who have relied upon that designation.’’ contained at 29 CFR 825.114: (1)
the Regulations.’’ National Coalition to Hewitt Associates, Doc. 10135A, at 10. ‘‘Section 825.114(c) states ‘[o]rdinarily,
Protect Family Leave, Doc. 10172A, at This commenter suggested a rule that unless complications arise, the common
13. It noted that a number of courts have both allows employers to count the time cold, the flu, earaches, upset stomach,
struck down both the provision in that an ineligible employee is permitted minor ulcers, headaches other than
section 825.110(d) stating that an to remain on leave against that migraine, routine dental or orthodontia
employer may not later challenge an employee’s eventual 12-week problems, periodontal disease, etc., are
employee’s eligibility if it mistakenly entitlement, and gives employees a examples of conditions that do not meet
confirms that an employee is entitled to ‘‘grace period’’ to return to work (the the definition of a serious health
leave, and the provision deeming an length of which would turn on condition and do not qualify for FMLA
employee eligible if the employer fails circumstances such as the length of time leave.’ Have [the] limitations in section
to notify the employee that the left in the leave, the reason for the leave, 825.114(c) been rendered inoperative by
employee is not eligible prior to the start travel, etc.). The commenter also would the regulatory tests set forth in section
of leave (if the employer had advance require the employer to provide an 825.114(a)?’’; and (2) ‘‘Is there a way to
notice) or within two business days of ‘‘immediate and thorough notification to maintain the substantive standards of
receiving notice. This commenter stated the employee’’ explaining that the section 825.114(a) while still giving
that it ‘‘urges DOL to delete the language employee was not eligible for leave, meaning to section 825.114(c) and
in section 825.110(d) that [the] federal how the absences would be treated, the congressional intent that minor illnesses
courts have invalidated.’’ Id. at 14. length of the grace period, etc. Id. at 11. like colds, earaches, etc., not be covered
Another commenter stated that, in As discussed in detail in Chapter V, by the FMLA?’’
light of the Ragsdale decision, the a substantial number of employers The regulatory definition of serious
penalty provision for an employer’s emphasized the difficult and time- health condition is central to the FMLA
failure to timely notify employees that consuming nature of making eligibility because the primary reason that people
they are eligible for FMLA leave should determinations, with regard to take FMLA leave is to attend to their
be deleted; however, the regulation calculating both the number of hours own or a family member’s health needs.
should continue to require that the worked in the past 12 months and the See Westat, ‘‘Balancing the Needs of
employer notify employees whether amount of FMLA leave used. They Families and Employers, Family and
they are/are not eligible, but either objected to any revision to the Medical Leave Surveys, 2000 Update,’’
delete the consequences from the regulations that would require January 2001, at 2–5 (hereinafter ‘‘2000
regulation or incorporate the employers to provide periodic reports to Westat Report’’) (83.3% of employees
interference/estoppel theory approved employees about the amount of FMLA report ‘‘own health’’ or health of parent,
by the Supreme Court in Ragsdale. leave they have remaining. See, e.g., child, or spouse as reason for taking
‘‘That is, if the employee can United Parcel Service, Doc. 10276A, at leave); see also National Coalition to
demonstrate that the failure to provide 7–8. On the other hand, a few employers Protect Family Leave, Doc. 10172A,
notice caused actual harm to the noted that they use payroll tracking Darby Associates, Attachment at 10
employee’s FMLA rights the employer’s systems that tell them whether (‘‘The [employee’s] own health * * *
notice failure is actionable employees are eligible for FMLA leave.
was the predominant reason for
interference.’’ Carl C. Bosland, Esq., Other commenters emphasized the
leave[.]’’).3 The Department received an
Preemptive Workforce Solutions, Inc., importance to employees of knowing
promptly whether they are eligible for overwhelming response to these
Doc. 5160, at 2–3.
Another commenter suggested that, if leave, and they suggested that the FMLA questions. In order to fully understand
an employer has a handbook, bulletin regulations should encourage employers these comments, though, and to give
board, orientation materials, etc., that to provide accurate, thorough and them some context it is necessary to
show employees were provided timely information about FMLA explain the regulatory history of the
information about the FMLA, which eligibility and procedures. As discussed definition of serious health condition.
leaves are protected, and how to apply in Chapter V, these commenters A. History and Background
for protected leave, ‘‘the employer emphasized that many employees still
should be exempted from consequences do not know whether they are protected 1. The Family and Medical Leave Act of
under this part of the act.’’ Ken by the FMLA; they do not have 1993
Lawrence, Doc. 5228, at 1. information about their leave options; Under the Act, an employee may be
Hewitt Associates noted that while and they do not know whether their entitled to FMLA leave for any one of
equitable estoppel provides some leave is being designated as FMLA the four following reasons:
guidance, it does not provide a rule. ‘‘In leave. Therefore, a number of (A) Because of the birth of a son or
fact, an employer that wishes to commenters suggested that the daughter of the employee and in order
‘undeem’ a leave is now required to Department should consider regulations to care for such son or daughter.
make a subjective review of the that require employers to provide notice (B) Because of the placement of a son
employee’s circumstances (if the to employees, when they have worked or daughter with the employee for
employer knows them) and analyze for one year and on an annual basis, adoption or foster care.
whether it would be fair to revoke the explaining their eligibility status, their (C) In order to care for the spouse, or
designation. * * * [R]evoking leave entitlement, and the procedures a son, daughter, or parent, of the
§ 825.110(d) allows employers to correct for applying for FMLA leave. See, e.g.,
their errors by undesignating these
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American Federation of Labor and 3 Westat is a statistical survey research
leaves but, considering the analysis Congress of Industrial Organizations, organization serving agencies of the U.S.
required, at an overly burdensome Doc. R329A, at 40. Government, as well as businesses, foundations,
administrative price. The Department and state and local governments. These surveys
should craft a bright-line rule that III. Serious Health Condition were commissioned by the Department of labor in
2000 as an update to similar 1995 surveys ordered
balances the right of employers to The Department asked two questions by the Commission on Family and Medical Leave,
revoke an ‘inappropriate’ FMLA in its Request for Information about the which was established by the FMLA.
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35564 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
employee, if such spouse, son, daughter, meet the general test that either the had to be careful to ensure the
or parent has a serious health condition. underlying health condition or the definition covered every type of serious
(D) Because of a serious health treatment for it requires that the health condition that Congress intended
condition that makes the employee employee be absent from work on a to cover while not extending the Act’s
unable to perform the functions of the recurring basis or for more than a few protections to those conditions Congress
position of such employee. days for treatment or recovery.’’ Id. The intended to exclude.
29 U.S.C. § 2612(a)(1). The Act defines reports further explained that these The first regulatory definition in the
a serious health condition as ‘‘an illness, covered conditions either involve regulations is a stand-alone definition
injury, impairment, or physical or inpatient care or significant continuing from the statute—‘‘inpatient care (i.e.,
mental condition that involves—(A) treatment. See id. (‘‘For example, an overnight stay) in a hospital.’’ This
inpatient care in a hospital, hospice, or someone who suffers a heart attack is followed by five separate definitions
residential medical care facility; or (B) generally requires both inpatient care at for ‘‘continuing treatment,’’ all of which
continuing treatment by a health care a hospital and ongoing medical also qualify as serious health
provider.’’ 29 U.S.C. 2611(11). The term supervision after being released from conditions. See 29 CFR § 825.114(a)(1)–
‘‘continuing treatment’’ is not defined the hospital. * * * Someone who has (2). One of these five definitions is
by the statute. The FMLA expressly suffered a serious industrial accident ‘‘incapacity due to pregnancy,’’ which is
grants to the Secretary of Labor the may require lengthy treatment in a a discrete definition clearly articulated
authority to ‘‘prescribe such regulations hospital and periodic physical therapy in the legislative history (‘‘ongoing
as are necessary to carry out [the Act].’’ under medical supervision thereafter.’’). pregnancy, miscarriages, complications
29 U.S.C. 2654. Significantly, the committee reports or illnesses related to pregnancy, * * *
The legislative history of the Act characterize covered FMLA conditions the need for prenatal care, childbirth,
states that ‘‘[w]ith respect to an as ones that are not only serious but also and recovery from childbirth.’’).
employee, the term ‘serious health cause the employee to be absent from Of the four remaining definitions of
condition’ is intended to cover work: ‘‘With respect to an employee, the serious health condition, stakeholders
conditions or illnesses that affect an term ‘serious health condition’ is have focused significantly on one
employee’s health to the extent that he intended to cover conditions or illnesses definition:4
or she must be absent from work on a that affect an employee’s health to the (i) A period of incapacity of more than
recurring basis or for more than a few extent that he or she must be absent three consecutive calendar days * * *
days for treatment or recovery.’’ H. Rep. from work[.]’’ H. Rep. No. 103–8, at 40; that also involves:
No. 103–8, at 40 (1991); S. Rep. No. S. Rep. No. 103–3, at 28. ‘‘All of these (A) Treatment two or more times by
103–3, at 28 (1993). The scope of health conditions require absences from a health care provider * * * or
coverage intended by ‘‘serious health work[.]’’ H. Rep. No. 103–8, at 41; S. (B) Treatment by a health care
condition’’ is not unlimited, however: Rep. No. 103–3, at 29. provider on at least one occasion which
2. Department of Labor Regulations results in a regimen of continuing
The term ‘serious health condition’ is not
intended to cover short-term conditions for (1993–1995) treatment under the supervision of the
which treatment and recovery are very brief. health care provider.
The Act, including the definition of
It is expected that such conditions will fall 29 CFR 825.114(a)(2)(i)(A)–(B). This is
within even the most modest sick leave
serious health condition described
an objective definition of continuing
policies. Conditions or medical procedures above, was enacted on February 5, 1993.
treatment the Department established
that would not normally be covered by the Congress gave the Department 120 days
based in part on state workers’
legislation include minor illnesses which last to promulgate regulations under the
compensation laws and the Federal
only a few days and surgical procedures new statute. See 29 U.S.C. 2654.
which typically do not involve Pursuant to the Act, the Department Employees’ Compensation Act
hospitalization and require only a brief promulgated interim regulations on June (‘‘FECA’’), which apply a three-day
recovery period. * * * It is intended that in 4, 1993, which became effective August waiting period before compensation is
any case where there is doubt whether 5, 1993 (the effective date of the Act). paid to an employee for a temporary
coverage is provided by this act, the general disability. See 60 FR 2180, 2192 (Jan. 6,
tests set forth in this paragraph shall be
The Department then received public
comments on the regulations and used 1995). ‘‘A similar provision [to FECA]
determinative. was included in the FMLA rules; a
the comments to further refine the
Id. The House and Senate Committee regulations. Final regulations were period of incapacity of ‘more than three
Reports also list the types of illnesses issued on January 6, 1995. These final days’ was used as a ‘bright line’ test
and conditions that would likely qualify regulations, adopted pursuant to this based on references in the legislative
as serious health conditions: notice-and-comment rulemaking, history to serious health conditions
Examples * * * include but are not established the comprehensive lasting ‘more than a few days.’ ’’ 60 FR
limited to heart attacks, heart conditions framework that exists today for at 2192.
requiring heart bypass or valve operations, determining a serious health condition. This objective test changed little
most cancers, back conditions requiring The final rulemaking yielded six during the rulemaking process despite
extensive therapy or surgical procedures,
separate definitions of serious health the numerous proposed revisions
strokes, severe respiratory conditions, spinal submitted to the Department. These
injuries, appendicitis, pneumonia, condition that exist today. A statutory
definition of serious health condition comments received in response to the
emphysema, severe arthritis, severe nervous interim regulations represented a
disorders, injuries caused by serious that involved only two parts (inpatient
accidents on or off the job, ongoing care or continuing treatment) has thus multitude of permissible alternative
pregnancy, miscarriages, complications or been expanded to six separate and directions the Department might have
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illnesses related to pregnancy, such as severe distinct regulatory tests for determining gone with this test, but were rejected as
morning sickness, the need for prenatal care, a serious health condition. Giving the Department adhered to its original
childbirth and recovery from childbirth. meaning to the broad and undefined 4 Stakeholders did also comment significantly on
H. Rep. No. 103–8, at 40 (1991); S. Rep. statutory term ‘‘continuing treatment’’ the definition of a ‘‘chronic’’ serious health
No. 103–3, at 29 (1993). The committee presented a daunting task for the condition contained at 29 CFR 825.114(a)(2)(iii),
reports state, ‘‘All of these conditions Department. Moreover, the Department which is discussed in Chapter IV.
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35565
standard, which is reflected in the suggested eschewing a strict day ongoing struggle to reconcile this
current regulations stated above. It is standard in favor of adopting each objective test in the regulatory
worth examining what some of those individual state’s waiting period for definition (more than three calendar
comments were to the original workers compensation benefits or, days of incapacity plus treatment) with
rulemaking record to better inform the alternatively, the EEOC’s definition of the legislative intent also reflected in
comments received to the current RFI. disability. See id. at 2193. The the regulations that common conditions
First, several parties contended that Department rejected these various like colds and flus not be covered by the
the period of incapacity—whatever the proposals in favor of its original Act.
exact length of days—should be judged standard: ‘‘Upon review, the The Department’s opinion letter
by ‘‘absence from work’’ as opposed to Department has concluded that the response in 1995 stated that a minor
calendar days. 60 FR at 2192. Some ‘more than three days’ test continues to illness such as the common cold could
stakeholders to the rulemaking noted be appropriate. The legislative history not be a serious health condition
that the Department’s proposed specifically provides that conditions because colds were on the regulatory list
‘‘calendar day’’ rule contradicted the lasting only a few days were not of non-covered ailments. ‘‘The fact that
legislative intent (reflected in the intended to be included as serious an employee is incapacitated for more
committee reports) that ‘‘the employee health conditions, because such than three days, has been treated by a
must be absent from work for the conditions are normally covered by health care provider on at least one
required number of days[.]’’ Id. at 2192. employers’ sick leave plans.’’ Id. at occasion which has resulted in a
Another commenter noted that under 2195. regimen of continuing treatment
the three-calendar-day rule, employers The Department did make one change
prescribed by the health care provider
would have no way of verifying of note in the definition of serious
does not convert minor illnesses such as
incapacity because a single absence on health condition, however. After the
the common cold into serious health
a Friday followed by a weekend of 1993 interim regulations were
conditions in the ordinary case (absent
incapacity could qualify as a serious promulgated, several commenters urged
complications).’’ Wage and Hour
health condition. See id. Other ‘‘clarifications [that would] exclude
Opinion Letter FMLA–57 (Apr. 7, 1995).
commenters similarly favored the from the definition [of serious health
More than a year and a half later,
workday schedule because it was more condition] minor, short-term, remedial
however, the Department reversed
compatible with other sick leave and or self-limiting conditions, and normal
course, stating that Wage and Hour
short-term disability programs and childhood or adult diseases (e.g., colds
‘‘removes any doubt as to whether an flu, ear infections, strep throat, Opinion Letter FMLA–57 ‘‘expresses an
employee was otherwise incapacitated bronchitis, upper respiratory infections, incorrect view, being inconsistent with
and unable to work during days the sinusitis, rhinitis, allergies, muscle the Department’s established
employee was not scheduled to work.’’ strains, measles, even broken bones).’’ interpretation of qualifying ‘‘serious
Id. The Department originally chose 60 FR at 2193. Still others suggested that health conditions’’ under the FMLA
‘‘calendar days’’ in the interim the Department expressly list every regulations[.]’’ Wage and Hour Opinion
regulations. After receiving comments, ailment that would qualify as a serious Letter FMLA–86 (Dec. 12, 1996). In the
the Department chose, for two policy health condition. See id. While the second letter, the Department stated that
reasons, to retain calendar days as Department declined to provide a such minor illnesses ordinarily would
opposed to work days: ‘‘The Department ‘‘laundry list of serious health not be expected to last more than three
has * * * concluded that it is not conditions,’’ 60 FR at 2195, we did days, but if they did meet the regulatory
appropriate to change the standard to enumerate in the final regulations criteria for a serious health condition
working days rather than calendar days examples of ailments that customarily under section 825.114(a), they would
because the severity of the illness is would not be covered by the Act: qualify for FMLA leave. Complications,
better captured by its duration rather ‘‘Ordinarily, unless complications arise, per se, need not be present to qualify as
than the length of time necessary to be the common cold, the flu, ear aches, a serious health condition if the
absent from work.’’ Id. at 2195. The upset stomach, minor ulcers, headaches objective regulatory tests of a period of
Department further explained: ‘‘[A] other than migraine, routine dental or incapacity of ‘‘more than three
working days standard would be orthodontia problems, periodontal consecutive calendar days’’ and a
difficult to apply to serious health disease, etc., are examples of conditions ‘‘regimen of continuing treatment by a
conditions of family members or to part- that do not meet the definition of a health care provider’’ are otherwise met.
time workers [who might be serious health condition and do not See id. In reversing its position in this
incapacitated but not necessarily absent qualify for FMLA leave.’’ 29 CFR second opinion letter, the Department
from work].’’ Id. § 825.114(c). This language would explained that the regulations reflect the
Second, there was also a broad range become the subject of much reported view that, ordinarily, conditions like the
of suggestions as to what length or type confusion in the regulated community common cold and flu would not
of incapacity was appropriate for (reflected in, among other things, the routinely be expected to meet the
defining a serious health condition. many comments on this subject regulatory tests. But such conditions
Some comments rejected any fixed day submitted in response to the RFI). could qualify under FMLA where the
limitation at all, stating that a minimum objective tests are, in fact, met in
durational limit had been specifically 3. Wage and Hour Opinion Letters particular cases. See id. ‘‘For example,
rejected during a committee markup of In 1995, shortly after the regulations if an individual with the flu is
the bill. See id. at 2192. Still others became final, the Department provided incapacitated for more than three
suggested that three days was its initial interpretation of the serious consecutive calendar days and receives
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‘‘unreasonably low and trivialized the health condition objective test when continuing treatment, e.g., a visit to a
concept of seriousness[.]’’ Id. ‘‘Fifteen responding to an employer’s objections health care provider followed by a
commenters suggested extending the that the definition in sections regimen of care such as prescription
three-day absence period to 5, 6, 7, or 825.114(a)(2)(i)(A)–(B) did not reflect drugs like antibiotics, the individual has
10 days[,] * * * two weeks[,] * * * or the intent of the Act’s authors. The a qualifying ‘serious health condition’
31 days[.]’’ Id. Other commenters Department’s response reflects an for purposes of FMLA.’’ Id.
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35566 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
4. United States Court of Appeals and Hour opinion letter—that B. Request for Information Comments
Decisions ‘‘§ 825.114(c) is properly interpreted as and Recommendations
Employers challenged the indicating merely that common ailments The responses to the RFI demonstrate
Department’s objective regulatory such as the flu will not qualify for that the definition of serious health
definition of serious health condition in FMLA leave because they generally will condition continues to be a source of
two U.S. Courts of Appeals. In both not satisfy the regulatory criteria for a concern in the regulated community in
cases, the regulatory test was upheld as serious health condition.’’ Id. at 832. terms of its scope and its meaning.
a permissible legislative rule pursuant However, ‘‘[s]ection 825.114(c) simply While the Department asked only two
to a congressional delegation of does not automatically exclude the flu narrow questions about the objective
authority under the Act. See Thorson v. from coverage under the FMLA. Rather, test and the list of ailments, commenters
Gemini, Inc., 205 F.3d 370 (8th Cir. the provision is best read as clarifying to the Request for Information voiced a
2000); Miller v. AT&T Corp., 250 F.3d that some common illnesses will not wide array of opinions about the
820 (4th Cir. 2001). The Eighth Circuit ordinarily meet the regulatory criteria regulatory test in general.
in Thorson found the statutory term and thus will not be covered under the A common theme the Department
‘‘serious health condition’’ was not FMLA.’’ Id. heard from various parties was that the
precisely defined in the statute and Having concluded the objective test regulatory definition of serious health
legislative history: ‘‘[W]e do not see was the dispositive one, the Miller condition is vague and/or confusing.
th[e] legislative history as Congress court, like the Thorson court, upheld The American Academy of Family
speaking ‘directly’ to the question of the regulatory definition as consistent Physicians stated: ‘‘The definition of a
what constitutes a ‘serious health with legislative intent. The court noted serious health condition within the Act
condition.’ ’’ Id. at 381. Thus, the court that these regulations were promulgated creates confusion not only for the
deferred to the Department’s reasonable pursuant to an express delegation from administrators of the program and
legislative rule implementing the Congress and should be given employers but also for physicians.
statute: ‘‘DOL’s objective test for ‘serious controlling effect ‘‘unless arbitrary, Requiring a physician to certify that a
health condition,’ which avoids the capricious, or manifestly contrary to gastrointestinal virus or upper
need for employers—and ultimately statute.’’ Id. at 833 (quotations omitted). respiratory infection is a serious health
courts—to make subjective decisions The court stated that ‘‘when a regulatory condition in an otherwise healthy
about statutory ‘serious health choice represents a reasonable individual is incongruous with medical
conditions,’ is a permissible accommodation of conflicting policies training and experience. * * *
construction of the statute.’’ Id. The that were committed to the agency’s [Moreover, t]he categories of ‘Serious
Court acknowledged that this test might care by the statute, we should not Health Conditions’ are overly
result in findings of serious health disturb it unless it appears from the complicated and * * * contradictory.’’
conditions for ‘‘minor illnesses’’ that statute or the legislative history that the Doc. FL25, at 1. The American College
Congress did not intend to cover, but accommodation is not one that Congress of Occupational and Environmental
that ‘‘the DOL reasonably decided that would have sanctioned.’’ Id. (quotations Medicine agreed: ‘‘The term ‘serious
such would be a legitimate trade-off for omitted). The court held that the health condition’ is unnecessarily
having a definition of ‘serious health Department clearly was within its vague. Employees, employers and
condition’ that sets out an objective test statutory purview in this case, stating: medical providers would be well served
that all employers can apply ‘‘Consistent with the statutory language, if the FMLA were to more clearly define
uniformly.’’ Id. the regulations promulgated by the the criteria for considering a health
The Fourth Circuit even more condition serious.’’ Doc. 10109A, at 2.
Secretary of Labor establish a definition
squarely and directly upheld the Other commenters echoed this same
of ‘‘serious health condition’’ that
objective test in the regulations because concern: ‘‘Uniformly, employers have
focuses on the effect of an illness on the
the plaintiff in that case was suffering found the definition of ‘serious health
employee and the extent of necessary
from the flu—an illness listed in the condition’ and the criteria for
treatment rather than on the particular
regulations at 825.114(c) (reflecting determining whether or not an
diagnosis. This policy decision is
legislative history) as an example of an
neither unreasonable nor manifestly employee has a ‘serious health
illness that is generally not a serious
inconsistent with Congress’ intent to condition’ to be extremely broad and
health condition. The Fourth Circuit
cover illnesses that ‘require[ ] that the very confusing.’’ ORC Worldwide, Doc.
directly confronted the tension between
employee be absent from work on a 10138A, at 2. ‘‘This [serious health
the objective test and the list of
recurring basis or for more than a few condition] definition is widely
ailments:
There is unquestionably some tension days for treatment or recovery’ and considered to be vague and overly
between subsection (a), setting forth objective involve ‘continuing treatment or broad, and has caused unnecessary
criteria for determining whether a serious supervision by a health care provider.’ ’’ confusion.’’ Florida Power & Light
health condition exists, and subsection (c), 250 F.3d at 835 (citations omitted). Company, Doc. 10275A, at 2. ‘‘What
which states that certain enumerated Finally, like the Eighth circuit, the constitutes a serious health condition?
conditions ‘‘ordinarily’’ are not serious Fourth Circuit noted: The definition is not clear.’’ City of
health conditions. Indeed, that tension is Philadelphia, Doc. 10058A, at 1. ‘‘The
evidenced by Miller’s illness. Miller was It is possible that the definition adopted by
the Secretary will, in some cases—and
current definition is so vague that it is
incapacitated for more than three consecutive
calendar days and received treatment two or perhaps even in this one—provide FMLA
nearly impossible to define a condition
more times; thus, she satisfied the regulatory coverage to illnesses Congress never that does not qualify as a serious
medical condition.’’ Northern Kentucky
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definition of a serious health condition under envisioned would be protected. We cannot
subsection (a). But, the condition from which say, however, that the regulations adopted by Chamber of Commerce, Doc. 10048A, at
Miller suffered—the flu—is one of those 2.
the Secretary are so manifestly contrary to
listed as being ‘‘ordinarily’’ not subject to Commenters often pointed to the
coverage under the FMLA. congressional intent as to be considered
arbitrary. language in section 825.114(c) regarding
Id. at 831. The Court concluded—even minor ailments as the primary source of
without deferring to the second Wage Id. definitional confusion. Whereas the first
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35567
part of the regulatory definition of condition to cover truly serious needs, criteria that could hinder the ability of
serious health condition in not the common flu.’’ Debbie Robbins, workers to take leave when necessary.’’
subparagraph (a)(2) provides objective Human Resources, City of Gillette, Doc. National Partnership for Women &
standards for leave (irrespective of the 5214, at 1. ‘‘[T]he intent of the Families, Doc. 10204A, at 7. ‘‘[N]o
person’s medical diagnosis) in terms of regulations was not to find conditions definition, if it is to be effective, can
‘‘days’’ and ‘‘incapacity’’ and ‘‘health such as the flu, earaches, headaches, impose precise categories for every
care provider’’ visits, this language in and upset stomach qualifying; however, health condition. The practical reality is
subparagraph (c) suggests the opposite: as a result of DOL opinion letters it is that serious health conditions will differ
excluding common illnesses by practice for FMLA to be granted for from person to person. Thus, the
diagnosis/name without regard to these conditions when the regulatory regulations must necessarily have the
seriousness. The American Bakers criteria defining a serious health flexibility to be applied to different
Association stated: ‘‘[The definition of condition [are] met.’’ Carle Clinic individual circumstances.’’ Faculty &
serious health condition] has also Association, Doc. 5449A, at 1. ‘‘The Staff Federation of Community College
caused unnecessary confusion for DOL needs to limit the definition of of Philadelphia, Local 2026 of the
employers who rely on regulatory serious health condition to what it was American Federation of Teachers, Doc.
language that states, ‘Ordinarily, unless originally intended by Congress. For 10242A, at 4. A letter from 53
complications arise, the common cold, example, while a common cold or flu Democratic Members of Congress also
the flu, ear aches, upset stomach, minor were never intended to be serious health lauded the current definition of serious
ulcers, headaches other than migraine, conditions, in case law courts have health condition as both expansive and
routine dental or orthodontia problems, essentially done away with all the flexible. The letter cited congressional
periodontal disease etc. are examples of exclusions from the original definition intent of a ‘‘general test’’ that defines
conditions that do not meet the by stating that ‘complications’ (without serious health condition: ‘‘We urge the
definition of a serious health condition defining this) could cause virtually Department to adhere to that test.
and do not qualify for FMLA leave.’ 29 anything (a cold, an earache, a cut on Ultimately, Congress and the
CFR 825.114(c).’’ American Bakers finger) to become a serious health Department are not physicians, and we
Association, Doc. R354A, at 4. The condition.’’ Coolidge Wall Co. LPA, cannot evaluate every medical condition
Association of Corporate Counsel made Doc. 5168, at 1. ‘‘As [the definition of or necessary course of treatment. The
a similar point: ‘‘[T]he Department a ‘serious health condition’] has been presence of a serious health condition is
should clarify its guidance in section interpreted, a common cold or flu bug something that is readily determined by
[825.114](c) on when conditions such as lasting three days creates a FMLA medical professionals[.]’’ Letter from 53
the common cold, the flu, earaches, qualifying event. * * * As it is, a ‘runny Democratic Members of Congress, Doc.
upset stomach, minor ulcers, headaches, nose’ for three days would qualify as FL184, at 2. ‘‘To protect employers from
and routine dental or orthodontia long as you saw the doctor for it. To call employee abuse of this provision, the
problems could be considered as serious a ‘common cold’ a serious health regulations establish an objective
health conditions. The current condition significantly devalues the criteria to be used to determine whether
regulation indicates that such FML Act.’’ Mark Costa, Human conditions presented qualify for leave.
conditions should not normally be Resources Director, Team 1 Michigan, This criteria creates a standard that can
considered serious health conditions.’’ Doc. 5172, at 1. ‘‘[T]he current be applied in individual cases with
Doc. FL31, at 14. Regulations seemingly extend coverage sufficient flexibility to adjust for
Overall, it is probably fair to to considerably more than just serious differences in how individuals are
characterize the comments from health conditions and, in practice, the affected by illness. It also specifies that
employer groups about the regulatory general definition often swallows up the routine health matters cannot be
definition of ‘‘serious health condition’’ so-called ‘minor ailment exception.’ ’’ considered serious health conditions,
as having written ‘‘serious’’ out of Proskauer Rose LLP, Doc. 10182, at 5. unless complications arise.’’ Families
serious health condition. For example, ‘‘Contrary to what Congress intended, USA, Doc. 10327A, at 3.
the University of Minnesota stated: the DOL regulation bypasses ‘serious’ in The AFL–CIO emphasized that the
The current definition of ‘‘serious health ‘serious health condition’ by assuming a current objective test in the regulations
condition’’ is broad enough to cover minor condition is serious if an employee can best reflects congressional intent to
illnesses that were not intended to be get a physician to certify [that] he/she cover health conditions that have a
covered by the Act. * * * The University’s cannot work for three or more days and ‘‘serious’’ effect on the individual
experience indicates that the regulatory tests that he/she has seen a health care
set forth in section 825.114(a) of the FMLA
regardless of the label of the impairment
provider at least once and was or illness. See Doc. R329A, at 21–24.
regulations renders the limitations in section
825.114(c) inoperative. Specifically, the test
prescribed continuing treatment by that ‘‘The regulations correctly do not define
set forth in section 825.114(a)(2)(i) (period of health care provider, or that the serious health condition by relying on
incapacity lasting more than three days) is employee has seen a health care nonexhuastive [e]xamples of serious
broad enough to cover minor illnesses, like provider twice regardless of whether health conditions that Congress
the ones referenced in section 825.114(c). any continuing treatment was provided in the legislative history to the
Such minor illnesses are regularly the subject prescribed.’’ Southwest Airlines Co., Act * * * [but rather by defining] a
of FMLA leave requests. Because physician Doc. 10183A, at 9. serious health condition as an illness,
certifications seldom use terms like
‘‘common cold’’, ‘‘upset stomach’’, ‘‘ear The Department also received many injury or impairment, or physical
ache’’, etc., the University does not feel it can comments from employees and condition that requires either inpatient
employee groups, however, who felt care * * * or continuing treatment by a
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deny the requests, even when the University
is convinced the illness is minor. As that the objective test is a good, clear health care provider. * * * [W]e believe
indicated in section 825.114(c), such minor test that is serving its intended purpose. that the brightline tests set forth in
illnesses were not intended to be covered by ‘‘[T]he current regulations are crafted Section 825.114(a) continue to provide
the Act. appropriately to provide guidance on the best means of determining what
University of Minnesota, Doc. 4777A, at what constitutes a serious health qualifies as a serious health condition.’’
1–4. ‘‘Please redefine serious medical condition without imposing overly rigid Id. at 22, 24 (quotation marks and
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35568 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
citations omitted). The Coalition of 1. Section 825.114(c) Imposes no objective criteria, including the duration
Labor Union Women concurred: ‘‘Not Independent Limitation on Serious of an illness and the number of
only does this definition establish an Health Condition and Therefore Need treatments, to a worker’s individual
objective basis for determining when an Not Be Changed case, rather than categorically excluding
individual employee will and will not One common suggestion proffered for any set of health conditions from FMLA
qualify for leave, but it also recognizes reconciling sections 825.114(a)(2) and coverage.’’ Faculty & Staff Federation of
that every individual is different and (c) is to construe the list of ailments in Community College of Philadelphia,
thus likely to experience a particular subsection (c) as imposing no Local 2026 of the American Federation
medical condition differently from limitations on the definition of serious of Teachers, Doc. 10242A, at 3. ‘‘As long
others. Our members have described health condition. ‘‘We do not agree as a diagnosis meets the ‘objective
various medical problems that affected * * * that Section 825.114(c) places criteria’ of subsection (a), then
them or their family members and ‘limitations’ on Section 825.114(a)’s subsection (c) makes it clear that the
reported how many supervisors or regulatory tests.’’ American Federation employee has a ‘serious health’
managers express a biased attitude of Labor and Congress of Industrial condition that qualifies for FMLA
toward these medical conditions based Organizations, Doc. R329A, at 21. The leave.’’ American Federation of Labor
on a stereotypical view of the AFL–CIO noted that Congress did not and Congress of Industrial
condition.’’ Doc. R352A, at 3. Moreover, express a specific intention to exclude Organizations, Doc. R329A, at 23.
the Communication Workers of America This view, commenters maintained, is
‘‘minor illnesses like colds, earaches,
provided a relevant example of a worker the correct interpretation of the Act:
etc.,’’ but rather to exclude from serious
being uniquely affected by a common ‘‘The statute itself recognizes the need
health condition only ‘‘short-term for such flexibility. Congress expressly
illness: ‘‘An employee of Verizon conditions [whatever named] for which
experienced an extreme allergic reaction chose to forego excluding any
treatment and recovery are very brief[.]’’ conditions from the definition of a
to poison oak which made it impossible American Federation of Labor and
for her to sit or perform regular job serious health condition and instead
Congress of Industrial Organizations, defined a serious health condition
functions for a week. The FMLA Doc. R329A, at 21 n.34 (quoting S. Rep.
protected her during this period.’’ Doc. according to objective criteria.’’
No. 103–3, at 28). Thus, ‘‘subsection (c) Women’s Employment Rights Clinic,
R346A, at 12–13. [only] clarifies that certain conditions
Finally, the Legal Aid Society pointed Golden Gate University School of Law,
are not serious health conditions for Doc. 10197A, at 5.
out that after Wage and Hour Opinion FMLA purposes unless they meet all of
Letter FMLA–86 (Dec. 12, 1996), the Commenters favoring a flexible
the regulatory measures of subsection definition of ‘‘serious health condition’’
meaning of ‘‘serious health condition’’ (a). * * * [T]hese examples do not
should be perfectly clear to the generally believed no changes to the
modify or limit the objective tests set regulatory definition are necessary. ‘‘In
regulated community. It simply may not forth in subsection (a)[.]’’ Id. at 23.
be as ‘‘serious’’ as some would like: light of [our] experience, we do not
These commenters believe section believe that there is any need to retreat
With all due respect, there should not be 825.114(c) is merely an illustrative list from the existing regulatory definition
any significant confusion over this definition. of conditions that usually would not
It is clearly defined in the regulations. of a ‘serious health condition.’ ’’
qualify as serious health conditions, but Communication Workers of America,
Perhaps the term ‘‘serious health condition’’
is somewhat of a misnomer because it may
that the objective test is what matters Doc. R346A, at 7. ‘‘We urge DOL to
cause the uneducated employer to assume and what is applied: ‘‘Section retain the regulatory language in 29 CFR
that the medical condition must be 825.114(c) of the regulations includes a 825.114(a) and not to alter those
sufficiently grave to warrant leave. However, list of conditions that ordinarily would provisions so that conditions like
the educated and compliant employer will be not be considered serious health earaches, flus, and similar illnesses can
familiar with this key regulation. Indeed, the conditions, such as the common cold, never constitute a serious health
regulations make this definition quite clear, the flu, earaches, or an upset stomach.
and should be used as a road map for condition.’’ Women’s Employment
But the regulation on its face also makes Rights Clinic, Golden Gate University
ascertaining whether a medical condition
constitutes a ‘‘serious health condition’’ clear that complications can arise to School of Law, Doc. 10197A, at 5. ‘‘We
within the meaning of FMLA. Moreover, the make what is usually a routine health strongly oppose any efforts to restrict or
regulations make it perfectly clear that an matter much more serious.’’ National narrow the definition of a serious health
employer is required to ‘‘inquire further’’ Partnership for Women & Families, Doc. condition. The FMLA enables eligible
should it need more information to make this 10204A, at 8. ‘‘The list of conditions set workers to take family or medical leave
decision. out in 825.114(c) is useful in setting out for serious health conditions, and its
The Legal Aid Society-Employment Law what ‘ordinarily’ would not be a regulations establish objective criteria to
Center, Doc. 10199A, at 2. qualifying serious health condition[.] be used to determine whether
There was also no shortage of answers * * * But the operative word in conditions qualify for leave. While the
to the two questions we asked in the 825.114(c) is ‘ordinary.’ While these regulations set parameters to help define
RFI: whether the limitations in section conditions would not ‘ordinarily’ serious health conditions, they do not
825.114(c) have been rendered constitute a serious health condition, include an exhaustive list of conditions
inoperative by the regulatory tests set there are extraordinary situations where deemed ‘serious’ or ‘not serious.’ ’’
forth in section 825.114(a), and whether these conditions do just that. In National Partnership for Women &
there is a way to maintain the determining what those situations are, Families, Doc. 10204A, at 7. ‘‘Imposing
substantive standards of section all employers have to do * * * is apply additional requirements on the nature or
825.114(a) while still giving meaning to ‘the general tests’ * * * that were length of treatment, or the duration of
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section 825.114(c) and congressional incorporated into the Department’s incapacity, will inevitably exclude, with
intent that minor illnesses like colds, regulations at 825.114(a).’’ Association no basis whatsoever, serious medical
earaches, etc., not be covered by the of Professional Flight Attendants, Doc. conditions from the ambit of the FMLA.
FMLA. Below are some of the most 10056A, at 2 (citations omitted). ‘‘The The Department should resist making
common answers and suggestions we existing regulations properly define any changes in the definition of serious
received. ‘serious health condition’ by applying health condition.’’ American Federation
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35569
of Labor and Congress of Industrial 825.114(c) * * * has been rendered considered incapacitating or otherwise
Organizations, Doc. R329A, at 24. ‘‘I effectively inoperative by the regulatory within FMLA’s protections.’’ Pilchak
strongly oppose any changes to tests set forth in Section 825.114(a). Cohen & Tice, P.C., Doc. 10155A, at 9.
eligibility standards that would impose * * * Wage and Hour letter of The Pilchak law firm further reasoned
additional barriers for workers seeking interpretation of December 1996 that if a cold or flu became truly
FMLA leave, [and] regulatory revisions expanding ‘serious health condition’ to incapacitating, ‘‘the illness would
that would scale back the definition of include colds and flu further erodes typically elevate to an ailment that is
‘serious health conditions’ covered Section 825.114(c)’s potency as a indeed within the FMLA’s
under the act[.]’’ Judith Stadman brightline standard for what does not contemplation. For example, a common
Tucker, The Mothers Movement Online, constitute a ‘serious health condition.’ ’’ cold should never be an FMLA
Doc. 4766, at 1. ‘‘It is especially U.S. Chamber of Commerce, Doc. 10142, qualifying condition. However, if it
important to me that the definition of at 9. Some commenters pointed to progressed to pneumonia, then this is
‘serious health condition’ is not legislative history from 1990–1991 that the type of incapacitating condition
narrowed and that leave remains shows Congress expressly considered within the FMLA’s contemplation.’’ Id.
flexible.’’ An Employee Comment, Doc. ailments like colds and flus and at 9. ‘‘The substantive standards of
4790, at 1. ‘‘Altering the definition [of intended them not to be covered: section 825.114(a) cannot be maintained
serious health condition to ten days or The bill we are talking about requires while giving meaning to section
more] will leave out numerous serious medical certifications of serious illnesses. We 825.114(c), and the legislative intent
conditions from pneumonia to are not talking about a child with a cold. We that not all conditions are covered
appendicitis where a person could be are not talking about a parent with the flu. cannot be secured unless and until
treated and be back on the job under 10 We are talking about a child with cancer who section 825.114(c) is revised to state
days. We are concerned that altering the must have radiation treatments. We are that, ‘Unless complications arise, the
definition of a serious health condition talking about an elderly parent recovering common cold, the flu, ear aches, upset
from a stroke who needs home care.
will remove much needed job protection stomach, periodontal disease, and
for millions of Americans when they Pilchak Cohen & Tice, P.C., Doc. similar conditions are not serious health
need it most.’’ Women’s City Club of 10155A, at 8 (quoting Senate hearing). conditions and do not qualify for FMLA
New York, Doc. 10003A, at 1. ‘‘We are These commenters also cited to similar leave.’ Absent such a revision, the DOL
strongly opposed to any revisions to the words spoken by a co-sponsor of the must further define other terms in
regulation that would narrow the FMLA: ‘‘We’re talking about a seriously Section 825.114(c), such as ‘treatment.’ ’’
current definition. As the regulation is ill child, not someone who has a cold Fisher & Phillips LLP, Doc. 10262A, at
currently written, it adequately here.’’ Id. at 8 (quoting statement of 5. ‘‘[W]hen Congress passed FMLA, its
addresses the fact that some conditions Senator Dodd at Senate hearing). intent was not to cover short-term
(e.g., a head cold) can grow into a This group of stakeholders suggested illnesses where treatment and recovery
serious health condition needing that unless verifiable medical are brief. By listing examples of
repeated treatment and an absence from complications arise, the health conditions that would generally qualify
work of more than three days.’’ conditions in the section 825.114(c) and conditions that would generally be
University of Michigan’s Center for the list—such as colds and flus—should excluded, employers could reduce the
Education of Women, Doc. 10194A, at 1. never qualify as serious health use of FMLA leave for minor conditions
‘‘Imposing categorical changes to the conditions. ‘‘[T]he easiest solution to in which treatment and recovery are
definition of serious health condition, this dilemma is to rescind opinion letter brief. The Department should generally
such as increasing the required number FMLA–86 and carve minor illnesses out exclude from the list of conditions
of days of incapacity, could have a of section 825.114(c). This carve-out minor conditions such as colds, minor
devastating impact on employees.’’ should include a list of example headaches, and flu and provide an
Service Employees International Union ailments that do not qualify as serious improved definition of ‘chronic
District 1199P, Doc. FL104, at 2. health conditions absent serious conditions.’ ’’ National Business Group
complications—in much the same way on Health, Doc. 10268A, at 2. See also
2. Section 825.114(c) Should be opinion letter FMLA–57 attempted to Small Business Administration Office of
Converted into a Per Se Rule. do. This list should, at a minimum, Advocacy, Doc. 10332A, at 4–5
Other commenters took essentially the include the common cold, the flu, (collecting various proposals to exclude
opposite tack: that the congressional earaches, an upset stomach, minor minor illnesses by name).
intent to exclude minor illnesses ulcers, headaches, routine dental or
(reflected in section 825.114(c)) has orthodontia problems, and periodontal 3. ‘‘More Than Three Days’’ Of
been rendered inoperative by the disease.’’ Porter, Wright, Morris & Incapacity Should be Changed From
objective test and that the Department Arthur LLP, Doc. 10124B, at 2. ‘‘[Fairfax Calendar Days to Work Days.
should breathe life into subsection (c) County Public Schools] urges the Another suggestion offered to give
by making it more of a per se rule as it department to return to its earlier meaning to subsection (c) was to change
was interpreted by Wage and Hour interpretations, which emphasize that the period of incapacity in the objective
Opinion Letter FMLA–57 (Apr. 7, 1995). minor ailments do not qualify as test from ‘‘calendar’’ days to ‘‘business’’
Employers were largely in agreement ‘serious.’ Section 825.114(a) should be days. ‘‘The current regulations of the
that the regulatory list of ailments has modified so that it no longer contradicts Department of Labor allow for protected
been rendered inoperative: ‘‘[T]he section 825.114(c). * * * Additional leave when there is a ‘more than three-
limitations in Section 825.114 (c) have examples of minor, nonqualifying day incapacity,’ this should be defined
been rendered inoperative by the illnesses would be a useful addition to as a ‘more than three-day absence from
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regulatory test in Section 825.114(a) this subsection.’’ Fairfax County Public work.’ ’’ Ken Lawrence, Doc. 5228, at 1.
largely by the interpretation of the Schools, Doc. 10134, at 1. ‘‘[Section] ‘‘My suggestion is that FMLA leave
Department in holding that even minor 825.114(c) should be clarified in that should have a waiting period, just like
illnesses can meet the definition of even where the common cold results in a disability plan. * * * Most truly
‘serious health condition.’ ’’ ORC more than three consecutive days of serious health conditions, as defined by
Worldwide, Doc. 10138A, at 2. ‘‘Section missed work or school, it is not the act, last longer than 5 consecutive
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35570 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
business days and would warrant the language of both regulatory sections but This would eliminate most minor
need for the employee to be absent from explicitly adopt a recent United States illnesses and would also mirror more
work.’’ Cheryl Rothenberg, Human Court of Appeals interpretation of the closely what employers have in their
Resources Specialist, Doc. 4756, at 1. regulations that the ‘‘treatment two or short-term and sick leave plans.’’ ORC
‘‘[W]e suggest * * * [u]sing work days, more times by a health care provider’’ Worldwide, Doc. 10138, at 2.
rather than calendar days allows the in subsection 825.114(a)(2)(i)(A) must ‘‘Increasing the time to at least five work
employer to have actual knowledge of occur during the period of ‘‘more than days would help in eliminating some
the employee’s incapacity * * * [I]t is three days’’ incapacity. See Jones v. * * * minor illnesses from coverage.
difficult for the employer to verify Denver Pub. Sch., 427 F.3d 1315, 1323 Thus, the burden on physicians and
employee incapacity over the weekend (10th Cir. 2006) (‘‘[U]nder the employers would be reduced without
or to have knowledge sufficient to know regulations defining ‘continuing significant impact upon employees with
that the employee might be in need of treatment by a health care provider,’ the a serious medical situation.’’ American
FMLA leave.’’ Foley & Lardner LLP, ‘[t]reatment two or more times’ Academy of Family Physicians, Doc.
Doc. 10129A, at 2. ‘‘The current * * * described in 825.114(a)(2)(i)(A) must FL25, at 1.
‘more than three-day incapacity’ * * * take place during the ‘period of Oxbow Mining suggested that
should be defined as a ‘more than three- incapacity’ required by ‘‘ ‘serious health condition’ should be a
day absence from work.’ ’’ Bob Kiefer, 825.114(a)(2)(i).’’). ‘‘The Regulations period of incapacity of no fewer than
Baldor Electric, Doc. 5141, at 1. need to be clarified to state that each ten (10) consecutive work days as
‘‘Redefine a period of incapacity to examination must occur during the defined by an individual’s work
mean a period of more than five work period of incapacity that has resulted in schedule.’’ Doc. 10104, at 1. The Society
days or seven consecutive calendar an employee’s absence from work.’’ for Human Resource Management and
days, instead of the current just more South Central Human Resource the U.S. Chamber of Commerce both
than 3 days of ‘incapacity, before an Management Association, Doc. 10136, at proposed that the required incapacity
employee is qualified for FMLA leave.’’ 4. ‘‘WMATA proposes that an continue for a minimum of five business
U.S. Chamber of Commerce, Doc. individual’s illness or incapacity require days or seven consecutive calendar
10142A, at 9. ‘‘We recommend that the the treatments by a health care provider days. See Society for Human Resource
definition be changed to ‘three work to occur during the period of incapacity Management, Doc. 10154A, at 4; U.S.
days.’ Health conditions that occur ‘over (rather than, for example, weeks later) in Chamber of Commerce, Doc. 10142A, at
the weekend’ or other time off should order to qualify as a serious health 9. ‘‘MedStar Health requests that this
* * * not be considered.’’ Lorin condition.’’ Washington Metropolitan regulatory test be modified to utilize a
Simpson, Manager of Operational Area Transit Authority, Doc. 10147A, at more than five calendar days of
Systems & Labor Relations, Utah Transit 2. ‘‘We urge the Department to * * * incapacity requirement.’’ MedStar
Authority, Doc. 10249A, at 1. ‘‘[W]e require the employee or covered family Health Inc., Doc. 10144, at 8.
request that the Department amend this member to be treated on two or more ‘‘Incorporate a longer period for the time
provision to require an absence for a occasions during the period of of incapacitation to five (5) days.’’ Kim
specified length of ‘consecutive incapacity and delete the reference to Newsom, Personnel Director, Randolph
scheduled work days’ rather than treatment on one occasion plus a County, North Carolina, Doc. 4764, at 1.
‘consecutive calendar days.’ Employers regiment of continuing treatment.’’ The See also Edison Electric Institute, Doc.
are most likely to be unaware of Miami Valley Human Resource 10128A, at 3 (‘‘In order to limit FMLA
employees’ sicknesses over a weekend Association, Doc. 10156A, at 3. leave to those conditions that are truly
so when employees take FMLA leave at serious in nature, we believe the
5. The Period of Incapacity Should Be regulations should require a period of
the beginning of a workweek, this places
Increased From ‘‘More Than Three incapacity of more than five calendar
a hardship on employers. With this
Days’’ to a Greater Number of Days days, the length of a typical workweek,
clarification, employers will have
advance notice of an employee taking A number of stakeholders suggested before the condition may constitute a
FMLA leave.’’ National Business Group reconciling the two regulatory serious health condition.’’).
on Health, Doc. 10268A, at 7. ‘‘[I]f the provisions by simply tightening the Other stakeholders suggested ranges
three-day standard is maintained, this requirements for qualifying for a serious in their comments. Foley & Lardner
should be defined as three scheduled health condition under the objective stated the Department should ‘‘extend
work days[.]’’ The Miami Valley Human test. The primary suggestion (though by the number of days of incapacity
Resource Association, Doc. 10156A, at no means the only one) was to increase required to qualify as a ‘serious health
3. ‘‘I think it would help if the criteria the minimum number of days an condition[ ]’ * * * from the current
for incapacity were 5 work days as employee needs to be incapacitated to ‘more than three day’ period to five,
opposed to three calendar days. * * * qualify for a serious health condition. seven or ten consecutive work days[,
[Five] days would be consistent with Stakeholders suggested changing the which] would exclude most common,
most short term disability waiting current regulatory threshold of ‘‘more non-serious conditions, such as flu,
period requirements and with many than 3 days’’ to as many as ‘‘10 days or bronchitis, sinus infections and similar
waiting period time frames for more.’’ Miles & Stockbridge, P.C., Doc. common illnesses.’’ Doc. 10129A, at 1.
indemnity payments for workers FL79, at 2. ‘‘I would like to see the The Proskauer Rose law firm advocated
compensation. (Kentucky has a 7 day definition changed to require someone ‘‘the extension of the three-day period of
waiting period prior to the start of to miss work for at least a full week incapacity requirement to a five or ten
workers comp indemnity payments.)’’ before it would qualify as FMLA, day period of incapacity requirement.’’
requiring 4 full days is at least a start.’’ Doc. 10182, at 6. ‘‘The definition should
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Sharon Pepper, Doc. 5325, at 1.
Ed Carpenter, Human Resources be revised so that the period of
4. The ‘‘Treatment Two Or More Times Manager, Tecumseh Power Company, incapacity is at least five consecutive
by a Health Care Provider’’ Must Occur Doc. R123, at 1. ‘‘[We] would days or the average waiting period
During the Period of Incapacity. recommend that the Department expand provided by employer short-term
Many commenters suggested the the more than three-day period in disability periods.’’ Detroit Medical
Department maintain the substantive 825.114(a)(2)(i) to more than seven days. Center, Doc. 10152A, at 2.
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35571
IV. Unscheduled Intermittent Leave chronic serious health conditions.’’ unending burdens with no prospect of
The Department asked several Foley & Lardner LLP, Doc. 10129A, at a remedy.’’).
questions in the Request for Information 3.6 Many employers echoed this view, Offering a very different perspective,
about the use of the FMLA for indicating that unscheduled many employees and/or their
unscheduled intermittent leave.5 This intermittent leave due to chronic representatives commented that
type of leave has long been a matter of conditions results in decreased intermittent leave is expressly permitted
particular concern for employers and productivity, is difficult to manage, and by the FMLA and that employees who
employees alike, as shown by previous is ripe for ‘‘misuse.’’ Yellow Book USA experience unscheduled absences due
stakeholder input and public assessed the effects of unscheduled to chronic conditions are precisely those
commentary presented during intermittent leave as follows: most in need of the FMLA’s protections.
congressional hearings, as well as The use of unscheduled, intermittent The AFL-CIO stated:
comments filed with OMB concerning FMLA leave has a drastic negative impact on Congress explicitly provided that
the costs and benefits of regulations. productivity and profits for employers. employees have the right to take leave
Larger employers, specifically, have a greater ‘‘intermittently or on a reduced leave
The RFI sought comments on the financial burden. Employers need to add schedule when medically necessary.’’ * * *
following issues, among others: additional staff in the Human Resources The availability of intermittent leave is
• How the FMLA affects the ability of department to track the intermittent absence crucial for families who struggle to balance
employers to enforce attendance time used. Additionally, employers need to work and family demands and is necessary
policies; hire additional management staff to manage for employees who suffer from chronic health
• Whether unscheduled intermittent the employees on intermittent leave. Larger conditions or who must provide care for
FMLA leave presents costs or benefits employers are forced to provide training to family members with chronic illnesses.
different from those associated with managers on a constant basis. Due to the Congress’s concern in 1995 for the difficult
unscheduled nature of intermittent FMLA choices employees must make when faced
regularly scheduled leave; leave, productivity is greatly impacted. The
• Whether the duration of FMLA with a healthcare crisis is even more relevant
costs are many. Employers incur unexpected today: A growing number of employees find
leave affects the manner in which overtime costs, lost sales, missed deadlines, themselves in the ‘‘sandwich generation,’’
employers cover the work of employees additional administrative costs and negative faced with the dual responsibilities of caring
taking leave; employee morale. From my experience, I can for children and for elderly parents.
• Whether and to what extent estimate that 30 intermittent FMLA leaves
cost the company $40,000 annually. Doc. R329A, at 30. The Legal Aid
employees misuse unscheduled
Society’s Employment Law Center
intermittent leave; Doc. 10021A, at 4; see also National
• How best to accommodate shared similar concerns, asking the
Association of Manufacturers, Doc. Department to ‘‘please be mindful of the
employers’ operational concerns and 10229A, at 9–10 (‘‘Intermittent leave is
employees’ interests in legitimate employee who, in an ideal world, would
the point in the FMLA where all the not suffer from such devastating
unscheduled intermittent leave; unintended harmful consequences of
• Whether and to what extent illnesses that wreck havoc on their own
the law come together to cause an lives. Employees, too, struggle with
concerns arise regarding employees not economic nightmare for manufacturers:
providing prompt notice when taking chronic and episodic illnesses. The
unchallengeable ailments, unassailable FMLA was specifically designed to
unscheduled intermittent leave; and unannounced absences, and
• Whether and to what extent the use provide leave in these instances.’’ Doc.
of unscheduled intermittent leave 6 Many of the same commenters who expressed
10199A, at 5.
affects employee morale and concerns with unscheduled intermittent leave
The Association of Professional Flight
productivity; and report little or no concerns with scheduled leave, Attendants described chronic health
• Whether the availability of even when taken intermittently. Sun Microsystems conditions typically causing episodic
wrote: periods of incapacity as perhaps the
intermittent leave reduces employee When an employee notifies his/her manager that
turnover. most important FMLA issue for its
he/she is going out on a planned, intermittent leave
Based on the number and tone of the there is usually an opportunity to: review the members, making the following
comments the Department received, employee’s revised work schedule needs during observation:
this leave; identify the work load requirements
these questions, along with several during the leave; and determine the most effective
Under [the employer’s] no-fault
related issues involving unscheduled way to get the work completed given the available
absenteeism policy, these shorter, but
intermittent leave, remain at the resources. This is the optimal scenario whereby the perhaps more frequent and unscheduled
forefront of the debate regarding the employee and his/her manager have the absences are just as likely (and indeed more
opportunity to create a plan that meets both of their likely) to result in the kind of threat to an
FMLA and its regulations. The needs, the needs of other employees and provides employee’s job security that the FMLA was
responses to the RFI generally fall into a smoother transition for the employee. On the designed to protect against * * * But the
two categories: comments highlighting other hand, unplanned intermittent leave, which availability of FMLA leave for chronic
the disruption that unscheduled may be unavoidable with some medical conditions conditions resulting in episodic periods of
is a significantly greater burden on the employer
intermittent leave causes in the and co-workers.
incapacitation is of critical importance to
workplace, particularly when that leave flight attendants, in large part because of the
Doc. 10070A, at 2. See also City of Portland, Doc.
is taken in a manner perceived by 10161A, at 2 (‘‘An employee who is absent for
environment in which they work.
employers as ‘‘abusive’’; and comments frequent short periods of intermittent leave presents * * *
far greater challenges, including last minute staffing Many workers suffer from a variety of
emphasizing the importance of this kind
adjustments, abuse of leave issues and negative incapacitating health conditions—e.g.,
of leave for workers with certain types impacts on employee morale.’’). These differences irritable bowel syndrome—that have required
of chronic ailments. For example, are reflected in certain survey results from the treatment over a long period of time, for ten
according to one law firm, ‘‘[B]y far, the Society for Human Resource Management, which or more years, and which result in periodic
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most problematic type of FMLA leave is found that ‘‘71 percent of respondents stated that incapacitating episodes, but who are
they have not experienced challenges in
unscheduled, intermittent leave due to otherwise fully capable of performing even
administering FMLA leave for the birth or adoption
of a child [but] 60 percent of SHRM members
the most rigorous kind of work. It does no
5 Commenters tended to use the terms reported that they experienced challenges in good to advise these employees, as [the
‘‘unscheduled’’ and ‘‘unforeseeable’’ to mean granting leave for an employee’s chronic employer] does, to apply for block leave
essentially the same thing: arising suddenly and condition.’’ Society for Human Resource under 825.114(a). While the employee can be
with little or no opportunity for advanced notice. Management, Doc. 10154A, at 2. expected to experience a number of
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35572 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
incapacitating episodes over the course of the rise to the issues addressed in this Because the statute permits intermittent
year (as in the case of migraines), it is chapter. leave or leave on a ‘‘reduced leave schedule’’
unlikely that any one episode would last for in cases of medical necessity, it is also clear
more than three days. But employees who 1. Chronic Serious Health Conditions that the Act contemplates that employees
suffer from these recurring bouts of the same would be entitled to FMLA leave in some
incapacitating health condition (whatever its There is no definition or specific cases because of doctor’s visits or therapy—
cause) are not like employees who suffer the mention of a ‘‘chronic’’ serious health i.e., that the absence requiring leave need not
occasional cold or flu. The few absences condition in the Act. The House and be due to a condition that is incapacitating
experienced as a result of such common Senate Committee Reports do, however, at that point in time. Thus, the legislative
illnesses (once every two or three years) are refer to conditions where ‘‘the history explains that absences to receive
unlikely to jeopardize an employee’s job. But underlying health condition or treatment for early stage cancer, to receive
for the employee who suffers from a chronic physical therapy after a hospital stay or
recurring condition, they could experience
treatment for it requires that the because of severe arthritis, or for prenatal
three or four or even five unplanned absences employee be absent from work on a care are covered by the Act. Therefore, the
a year, and their jobs could be jeopardized— recurring basis * * * [A] patient with regulations provide that a serious health
but for the enactment of the FMLA. severe arthritis may require periodic condition includes treatment for a serious,
Association of Professional Flight treatment such as physical therapy.’’ H. chronic health condition which, if left
Rep. No. 103–8, at 40 (1991); S. Rep. No. untreated, would likely result in an absence
Attendants, Doc. 10056A, at 7, 9. from work of more than three days, and for
As already mentioned in Chapter I, 103–3, at 29 (1993). Because of this and
other legislative history, the Department prenatal care.
the Department received many
comments to the RFI from employees created a separate serious health 58 FR 31794, 31799 (June 4, 1993). The
discussing how they were able to take condition definition (one of the six preamble also explained that for certain
FMLA leave at crucial times in their different definitions mentioned in chronic conditions, continuing
work lives and how critically important Chapter III, which addresses serious treatment can include continuing
they viewed the FMLA in providing health conditions) for ‘‘chronic’’ supervision, but not necessarily active
them job security when they needed it conditions. The interim 1993 care, by a health care provider:
most. At the same time, the Department regulations defined a serious health For any condition other than one that
received many other comments from condition, in part, as a condition requires inpatient care, the employee or
employers discussing their perceptions involving ‘‘[c]ontinuing treatment by (or family member must be receiving continuing
under the supervision of) a health care treatment by a health care provider. * * * In
that the FMLA at times creates addition, there was concern about persons
situations where some employees can provider for a chronic or long-term
condition that is incurable or so serious who have serious, chronic conditions such as
misuse the rights or privileges Alzheimer’s or late-stage cancer, or who have
established under the FMLA. In this that, if not treated, would likely result
suffered a severe stroke, who obviously are
chapter, we address the various issues in a period of incapacity of more than severely ill but may not be receiving
raised in the comments related to three calendar days.’’ 29 CFR continuing active care from a doctor.
unscheduled intermittent leave in three 825.114(a)(3) (1993). ‘‘Continuing Therefore, the rule encompasses such serious
parts. We begin by providing the treatment’’ was further defined as: conditions which are under continuing
supervision by a health care provider.
statutory and regulatory background, (1) The employee or family member in
Some may argue that this approach may
addressing the concepts of chronic question is treated two or more times for the
encompass health conditions that are not
serious health conditions, intermittent injury or illness by a health care provider.
really serious, while others may view the
leave, and leave that is not foreseeable. Normally this would require visits to the
approach as excluding certain situations that
health care provider or to a nurse or
Next, we discuss comments concerning were intended to require the granting of
physician’s assistant under direct
the workplace consequences of FMLA leave. However, the Department
supervision of the health care provider.
unscheduled intermittent leave, believes the regulation’s definition is most
(2) The employee or family member is
including scheduling problems where consistent with the statute and legislative
treated for the injury or illness two or more
history.
employees taking intermittent leave times by a provider of health care services
provide little or no notice, loss of (e.g., physical therapist) under orders of, or Id.
management control resulting from on referral by, a health care provider, or is Under the final 1995 regulations, a
perceived employee ‘‘abuse,’’ and the treated for the injury or illness by a health chronic serious health condition was
impact on employee morale and care provider on at least one occasion which defined as any period of incapacity or
results in a regimen of continuing treatment treatment for such incapacity that: (1)
productivity. Finally, we examine
under the supervision of the health care ‘‘[r]equires periodic visits for treatment
comments addressing the benefits to provider—for example, a course of
employees of the availability of medication or therapy—to resolve the health
by a health care provider, or by a nurse
unscheduled intermittent leave. condition. or physician’s assistant under direct
(3) The employee or family member is supervision of a health care provider’’;
A. Background (2) ‘‘[c]ontinues over an extended period
under the continuing supervision of, but not
Employers and employees made necessarily being actively treated by, a health of time (including recurring episodes of
frequent reference in their comments to care provider due to a serious long-term or a single underlying condition)’’ and (3)
coverage of chronic conditions under chronic condition or disability which cannot ‘‘[m]ay cause episodic rather than a
the definition of serious health be cured. Examples include persons with continuing period of incapacity (e.g.,
condition. Both groups recognize that Alzheimer’s, persons who have suffered a asthma, diabetes, epilepsy, etc.).’’ 29
severe stroke, or persons in the terminal
chronic conditions are a primary reason stages of a disease who may not be receiving
CFR 825.114(a)(2)(iii)(A)–(C). As
for unscheduled intermittent absence active medical treatment. restructured, the final regulation did not
under the FMLA. Three legal concepts retain from the interim regulation the
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underpin the debate regarding Id. § 825.114(b)(1)–(3). requirement that, but for treatment,
unscheduled intermittent leave: Chronic The preamble to the interim more than three days of incapacity
serious health conditions, intermittent regulations explained the creation of a would result. Nor did it retain the
leave, and leave that is not foreseeable. separate ‘‘chronic’’ serious health requirement of ‘‘continuing
Together, the interaction of these facets condition that does not involve supervision’’ by a health care provider,
of the FMLA and its regulations give incapacity per se: instead requiring only ‘‘periodic visits’’
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35573
to the health care provider. The final conditions that do not fit the average. commonplace chronic conditions have
regulations also created separate See id. at 2192. become under the FMLA and how
categories of serious health conditions A number of other comments stated difficult it is for employers to determine
for conditions that are long-term and for that the interim rule definition was too or to monitor ‘‘incapacity’’ when self-
which treatment is not effective, and for restrictive and recommended that it be treatment is involved. See United States
conditions that would likely result in a expanded to specifically include Postal Service, Doc. 10184A, at 4, 8–9
period of incapacity in excess of three chronic illnesses and long-term (Out of ‘‘1,077,571 instances where
days without treatment. See id. conditions that may not require FMLA leave was requested and
§ 825.114(a)(2)(iv)–(v). inpatient care or treatment by a health approved’’ resulting in over 2 million
The Department described its care provider. Other commenters took hours of protected FMLA leave taken,
treatment of chronic conditions as a issue with the definition’s ‘‘leave taken intermittently for chronic
reasonable approach to the unusual characterization of ‘‘continuing conditions accounts for the largest
circumstances that surround chronic treatment’’ for a chronic or long-term category of FMLA conditions and
serious illnesses that often cause only condition that is ‘‘incurable,’’ constitutes almost 38% of all FMLA
contending that curability is not a cases for 2006.’’); Spencer Fane Britt &
episodic periods of incapacity:
proper test for either a serious health Browne LLP, Doc. 10133C, at 15 (‘‘Of
The Department concurs with the condition or continuing treatment, that the six situations that fall within the
comments that suggested that special curability is ambiguous and subject to current definition of ‘serious health
recognition should be given to chronic
change over time, and that many condition,’ the ‘chronic’ conditions
conditions. The Department recognizes that
certain conditions, such as asthma and
incurable disabilities require continuing create the most problems for
diabetes, continue over an extended period of treatment that has nothing to do with employers[.] The Act was never
time * * *, often without affecting day-to- curing the condition (e.g., epilepsy, intended to cover sporadic absences
day ability to work or perform other activities traumatic brain injury, and cerebral from work on a permanent basis for the
but may cause episodic periods of incapacity palsy, conditions for which training and entire work life of an employee.’’); Brian
of less than three days. Although persons therapy help restore, develop, or T. Farrington, Esq., Doc. 5196, at 1
with such underlying conditions generally maintain function or prevent (‘‘The most troublesome part of the
visit a health care provider periodically, deterioration). See id. at 2193. current regulations is the definition of a
when subject to a flare-up or other In response to the comments received,
incapacitating episode, staying home and ‘chronic’ health condition. Under the
the Department also modified and current regulation, the only right the
self-treatment are often more effective than
separated the portion of the interim employer has to challenge or question
visiting the health care provider (e.g., the
asthma sufferer who is advised to stay home rule’s definition pertaining to long-term an employee claiming a chronic health
and inside due to the pollen count being too conditions by deleting the reference to condition under 29 CFR
high). The definition has, therefore, been the condition being incurable. Instead, 825.114(a)(2)(iii) is to go through the
revised to include such conditions as serious the Department required that the process described in 825.307(a). Once
health conditions, even if the individual condition involve a period of incapacity the existence of the condition has been
episodes of incapacity are not of more than that is permanent or long-term and for established, the employee can then take
three days duration. which treatment may not be effective, off any time, with little or no notice,
but for which the patient is under the claiming a manifestation of the chronic
60 FR 2180, 2195 (Jan. 6, 1995).
supervision of a health care provider condition, and the employer is
The Department explained in the rather than receiving active treatment.
preamble to the final rule the nature of powerless either to verify or control that
‘‘Examples include Alzheimer’s, a absence.’’).7
the comments received on the interim severe stroke, or the terminal stages of
rule that had prompted restructuring the a disease.’’ 29 CFR 825.114(a)(2)(iv). 2. Intermittent Leave
portion of the definition addressing The Department also created a separate The second legal concept central to
chronic conditions. Some had definition to address serious health understanding the present debate
contended that the duration of the conditions that are not ordinarily regarding unscheduled intermittent
absence was not always a valid incapacitating (at least at the current leave is the increment in which
indicator of serious health conditions state of the patient’s condition), but for employees may use leave. The Act
that are very brief (e.g., a severe asthma which multiple treatments are being provides for the taking of leave in small
attack that is disabling but requires given because the condition would
fewer than three days for treatment and likely result in a period of incapacity of 7 Other comments to the RFI suggest that the
recovery to permit the employee’s more than three consecutive calendar Department arguably has rendered the ‘‘multiple
return to work), or that the duration is days in the absence of medical treatments’’ component of the definition of serious
simply irrelevant if a condition is intervention or treatment, and listed as health condition—29 CFR 825.114(a)(2)(v)—
unnecessary. See, e.g., Association of Corporation
sufficiently severe or threatening. example conditions ‘‘such as cancer Counsel, Doc. FL31, at 14 (‘‘[T]he inclusion in 29
Additional comments contended that (chemotherapy, radiation, etc.), severe CFR 825.114(a)[2](v) of conditions that, if left
seriousness and duration do not arthritis (physical therapy), [and] kidney untreated, could become serious is unnecessary and
necessarily correlate, particularly for disease (dialysis).’’ Id. § 825.114(a)(2)(v). should be eliminated. Any period of absence
needed to receive multiple treatments for a
people with disabilities; that a fixed Multiple treatments for restorative condition that could result in a period of incapacity
time limit fails to recognize that some surgery after an accident or other injury for more than three days would likely fall under the
illnesses and conditions are episodic or were also specifically cited. The definition of chronic health condition in section
acute emergencies that may require only previous requirement that the condition (iii). Indeed, the illnesses listed in the regulation
(cancer, arthritis, and kidney disease) would be
brief but essential health care to prevent be chronic or long-term was deleted
pwalker on PROD1PC71 with PROPOSALS2
chronic health conditions.’’); American Academy of
aggravation into a longer term illness or from this section because cancer Family Physicians, Doc. FL25, at 1 (‘‘The categories
injury, and thus do not easily fit into a treatments, for example, might not meet of ‘Serious Health Condition’ are overly
specified linear time requirement; and that test if immediate intervention complicated and, in some cases, contradictory. For
instance, category 6—‘Multiple Treatments (Non-
that establishing arbitrary time lines in occurs. Chronic Conditions)’ goes on to list as examples
the definition only creates ambiguity Comments received from employers chronic conditions like cancer and kidney
and discriminates against those in response to the RFI emphasize how disease.’’).
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35574 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
blocks, or intermittently, in certain unnecessarily and impermissibly erode an health condition of the employee or of a
situations: employee’s FMLA leave entitlement for family member. If 30 days notice is not
reasons not contemplated under FMLA practicable, such as because of a lack of
IN GENERAL.—Leave under subparagraph . . . . An employee may only take FMLA knowledge of approximately when leave will
(A) or (B) of subsection (a)(1) shall not be leave for reasons that qualify under the Act, be required to begin, a change in
taken by an employee intermittently or on a and may not be charged more leave than is circumstances, or a medical emergency,
reduced leave schedule unless the employee necessary to address the need for FMLA notice must be given as soon as practicable.
and the employer of the employee agree leave. Time that an employee is directed by
otherwise. Subject to paragraph (2), 29 CFR 825.302(a). The regulations then
the employer to be absent (and not requested
subsection (e)(2), and section 103(b)(5), leave or required by the employee) in excess of
define ‘‘as soon as practicable’’ to mean
under subparagraph (C) or (D) of subsection what the employee requires for an FMLA ‘‘as soon as both possible and practical,
(a)(1) may be taken intermittently or on a purpose would not qualify as FMLA leave taking into account all of the facts and
reduced leave schedule when medically and, therefore, may not be charged against circumstances in the individual case.’’
necessary. The taking of leave intermittently the employee’s FMLA leave entitlement. Id. § 825.302(b). In the case of
or on a reduced leave schedule pursuant to ‘‘foreseeable leave where it is not
this paragraph shall not result in a reduction Id. at 2236.
in the total amount of leave to which the In rejecting a four-hour minimum for possible to give as much as 30 days
employee is entitled under subsection (a) intermittent leave in the preamble to the notice, ‘‘as soon as practicable’’
beyond the amount of leave actually taken. interim regulations, the Department ordinarily would mean at least verbal
suggested that such a limitation was notification to the employer within one
29 U.S.C. 2612(b)(1). Although the Act
unnecessary. The Department stated: or two business days of when the need
specifies that an employee’s FMLA
‘‘There are other protections for for leave becomes known to the
leave entitlement shall not be reduced
employers in the statute; for example, if employee.’’ Id. The regulations on
‘‘beyond the amount of leave actually
leave is foreseeable, an employee is unscheduled leave similarly require that
taken,’’ it does not specify what
required to try to schedule the leave so ‘‘an employee should give notice to the
increment can be used to measure that
as not to unduly disrupt the employer’s employer of the need for FMLA leave as
amount. As set forth in the final
operation[.]’’ 58 FR at 31801. The soon as practicable under the facts and
regulations: ‘‘There is no limit on the
Department further predicted that circumstances of the particular case.’’
size of an increment of leave when an
incidents of unscheduled intermittent Id. § 825.303(a). As with foreseeable
employee takes intermittent leave or
leave would be unusual: ‘‘[I]t is leave where 30 days notice is not
leave on a reduced leave schedule.
considered unlikely that an employee possible, ‘‘it is expected that an
However, an employer may limit leave
would have several short instances of employee will give notice to the
increments to the shortest period of time
intermittent leave on an emergency employer within no more than one or
that the employer’s payroll system uses
basis which qualify as serious health two working days of learning of the
to account for absences or use of leave,
conditions.’’ Id.. Thus, the Department need for leave, except in extraordinary
provided it is one hour or less.’’ 29 CFR
did not envision how commonplace circumstances where such notice is not
825.203(d).
Comments submitted before the final unscheduled intermittent leave would feasible.’’ Id.
become, at least as is now reflected in Some courts have found the
regulations proposed a variety of
many of the comments submitted in Department’s regulations difficult to
changes to the rule, but none was
response to the RFI. For example, the interpret:
accepted. Many comments from
employers ‘‘urged that the taking of United States Postal Service reported to Except for the 30-day notice provision, [the
intermittent leave in increments of one the Department that, out of 179,370 regulations] do not clearly explain when
FMLA certifications and 2 million days leave is viewed as ‘‘foreseeable’’ or
hour or less was too burdensome’’ and
of FMLA protected leave in 2006, ‘‘unforeseeable.’’ For example, if an
attempted to limit the blocks of leave employee learns of the need for leave only a
available to minimum amounts such as almost 38% of all leaves were chronic day before the workday begins is the need for
‘‘half-days (four hours) or full days[.]’’ and intermittent, and ‘‘76.8% of all leave viewed as ‘‘foreseeable’’ or
60 FR at 2201. Still other commenters FMLA leave hours associated with a ‘‘unforeseeable’? What about a half-day? Or
suggested ‘‘that the amount of chronic condition were unscheduled.’’ just two hours?
intermittent leave available be limited to Doc. 10184A, at 9. Spraggins v. Knauf Fiber Glass, 401 F.
four weeks of the 12 week total available 3. Leave That Is Not ‘‘Foreseeable’’ Supp. 2d 1235, 1239 (M.D. Ala. 2005);
in any 12 months.’’ Id. at 2202. The see also Cavin v. Honda of Am. Mfg.,
Department rejected any minimum The third facet of the FMLA that
contributes to the issues concerning Inc., 346 F.3d 713, 719 (6th Cir. 2003)
limitations on intermittent leave beyond (‘‘The regulations do not so explicitly
the units of time captured by an unscheduled intermittent leave is the
concept of leave that is not discuss employer notice procedures in
employer’s payroll system because ‘‘it the context of an employee’s
seemed appropriate to relate the ‘‘foreseeable.’’ The Act expressly
provides than an employee must give 30 unforeseeable need for leave, noting
increments of leave to the employer’s only that when an employee requires
own recordkeeping system in days notice if the need for FMLA leave
is foreseeable. If 30 days’ notice is not emergency medical leave, an employer
accounting for other forms of leave or cannot require advance written notice
absences.’’ Id. The Department possible, the employee must give ‘‘such
notice as is practicable.’’ 29 U.S.C. pursuant to its internal rules and
explained this position on the basis that procedures.’’).
the statute makes no provision for 2612(e)(2)(B).
In a January 15, 1999 opinion letter
limiting the increment of leave and that The Department’s regulations on deriving from the regulatory language
‘‘otherwise employees could be required discussed above, the Department
pwalker on PROD1PC71 with PROPOSALS2
foreseeable leave mirror this language:
to take leave in amounts greater than rejected an employer’s attendance
necessary, thereby eroding the 12-week An employee must provide the employer at
least 30 days advance notice before FMLA
policy that ‘‘assess[ed] points against an
leave entitlement unnecessarily.’’ Id. employee who fails to report within one
leave is to begin if the need for the leave is
Moreover, foreseeable based on an expected birth, hour after the start of the employee’s
[p]ermitting an employer to impose a four- placement for adoption or foster care, or shift that the employee is taking FMLA
hour minimum absence requirement would planned medical treatment for a serious intermittent leave, unless the employee
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35575
is unable to report the absence due to particular facts and circumstances.’’ U.S.C. 2612(e)(2)(a); 29 CFR 825.117.
circumstances beyond the employee’s National Coalition to Protect Family Employees must also give advance notice of
control.’’ Wage and Hour Opinion Letter Leave, Doc. 10172A, at 27. thirty days before taking leave, or at least give
notice as soon as practicable. 29 U.S.C.
FMLA–101 (Jan. 15, 1999). The 2612(e)(2)(b) (2002); 29 CFR 825.302 (a)–(b).
B. Workplace Consequences of
Department deemed this policy non- If an employee could have given proper
Unscheduled Intermittent Leave
compliant, stating: notice but did not, the employer may delay
The company’s attendance policy imposes
The comments received in response to the commencement of leave for thirty days
more stringent notification requirements than the RFI reflect the tension and until after notice. See Gilliam v. United
those of FMLA and assigns points to an complexity surrounding the workplace Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir.
employee who fails to provide such ‘‘timely’’ issues related to unscheduled 2000) (employer entitled to delay leave 30
notice of the need for FMLA intermittent intermittent leave: tension because these days where employee did not give notice of
leave. Clearly, this policy is contrary to issues ultimately require striking the intent to take paternity leave until day after
FMLA’s notification procedures which child’s birth). See also Kaylor v. Fannin Reg’l
appropriate balance between an Hosp., Inc., 946 F. Supp. 988, 998 (1996) (‘‘It
provide that an employer may not impose
employee’s ability to take job-protected is plaintiff’s failure to adhere to the FMLA
stricter notification requirements than those
required under the Act (§ 825.302(g)) and that leave due to unforeseen circumstances procedures for informing his employer of
FMLA leave cannot be denied or delayed if and an employer’s ability to schedule its intermittent leave that is ultimately fatal to
the employee provides timely notice (under work; complexity because reaching that his claim.’’). An employer may deduct points
FMLA), but did not follow the company’s balance also involves considering, at a under an attendance control policy from an
internal procedures for requesting leave. minimum, the FMLA’s notice employee who could have given advance
provisions, the definition of ‘‘chronic’’ notice and failed to comply with FMLA
Id. The letter went on to provide regulations. Dep’t of Labor Op. Ltr. FMLA–
guidance regarding how the notice serious health condition, the minimum 101 (Jan. 15, 1999).
provision works: permissible leave increments, and the * * *
For example, an employee receives notice
interaction between the FMLA and an There is no empirical evidence of
on Monday that his/her therapy session for employer’s own attendance-related widespread abuse of intermittent leave, and
a seriously injured back, which normally is policies. the current regulations provide employers
scheduled for Fridays, must be rescheduled The Society for Human Resource with procedures to ensure that only eligible
for Thursday. If the employee failed to Management commented on the effect of employees take intermittent leave, that the
provide the employer notice of this unscheduled intermittent leave on leave taken is medically necessary, and that
scheduling change by close of business employers: leave is scheduled at convenient times and
Wednesday (as would be required under the as far in advance as possible.
FMLA’s two-day notification rule), the Intermittent leave initially was intended to
permit scheduled leave for planned medical Doc. R329A, at 33.
employer could take an adverse action The comments in response to the RFI
against the employee for failure to provide treatments or physical therapy. Since the
FMLA’s enactment, however, regulatory focused on the following workplace
timely notice under the company’s
attendance control policy. interpretations of a ‘‘serious health consequences of unscheduled
condition’’ have brought many chronic intermittent leave: (1) Scheduling
Id. conditions under that umbrella, thus problems caused by employee absences
As a result of this letter, an employee enabling some employees to expand FMLA with little or no notice, (2) loss of
must now be allowed two full days to protections to the point of abuse * * * For management control, and (3) impact on
report an unscheduled absence instance, if an employee is approved for employee morale and productivity. We
regardless of the facts and intermittent FMLA leave related to a chronic
address these issues in turn.
circumstances of the employee’s episodic condition for which there is no date
individual case.8 What began as an certain when leave will be needed (arthritis 1. Scheduling Problems Where
illustrative outer limit of one or two and allergies), the employee may take Employees Taking Intermittent Leave
unscheduled leave whenever s/he likes Provide Little or No Notice
working days notice by the employee to
without further medical substantiation that
the employer of the need for leave has the condition actually incapacitated the A number of comments identify the
in effect evolved into the rule that an employee on each leave date. Under this root of the problems with unscheduled
employee with a chronic condition can frequent scenario, the employer has no intermittent leave as the Department’s
miss work without notifying the ability to require confirmation that the interpretation of the notice requirement,
employer in advance of the need for employee was actually ill each time leave is particularly the amount of notice an
leave and, in fact, notify the employer taken. Conversely, if an employee attempts to employee must give to his or her
of this event two days later. ‘‘[The take sick leave for a non-FMLA qualifying
employer when the employee seeks
regulatory notice provisions have] been condition, the employer can require medical
substantiation for each absence and can FMLA protection for unscheduled leave.
applied by the Department * * * to See, e.g., Southwest Airlines Co., Doc.
discipline the employee if medical or other
protect employees who provide notice substantiation for each absence is not 10183A, at 6–7; College and University
within two days, even if notice could provided, specifically based on employer Professional Association for Human
have been provided sooner under the policies. Resources, Doc. 10238A, at 7–8.
Doc. 10154A, at 8. As mentioned above, Wage and Hour
8 As one commenter stated, ‘‘Not only are
In contrast, the comments submitted Opinion Letter FMLA–101 interpreting
employers’’ routine call-in procedures subordinated
to the FMLA rule allowing notice ‘within one or to the RFI on behalf of employee the regulations at 29 CFR 825.302 and
two working days of learning of the need for leave’ representatives suggested a markedly 825.303 has given rise to an
(29 CFR 825.303(a)), another provision of the FMLA different view. For example, the AFL– understanding in the regulated
regulations, 29 CFR 825.208(e)(1), expands the time community that employers (1) are
period to allow an employee to notify the employer CIO stated:
prevented from disciplining any
pwalker on PROD1PC71 with PROPOSALS2
that his or her absence was FMLA-protected up to [T]he regulations currently permit
two days after returning to work, even if the employee for failing to comply with a
employers to discipline employees, even
employee could have followed normal call-in
when they are eligible for leave, if they fail
policy that requires advance notice of
procedures or provided notice earlier. This is the need for leave and (2) are required
another procedure that makes no sense in the to follow the rules. Employees are required
context of intermittent leave for a chronic to make reasonable efforts to schedule to treat leave as FMLA-protected as long
condition.’’ National Association of Manufacturers, intermittent leave so as not to ‘‘disrupt as the employee provides the employer
Doc. 10229A, at 12. unduly the operations of the employer.’’ 29 with ‘‘notice’’ within two days after the
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35576 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
absence. As explained by the National College and University Professional within 1 hour of their start time) on
Coalition to Protect Family Leave: Association for Human Resources, Doc. employees who are absent from work for an
10238A, at 7–8. FMLA related reason where the call-in
The phrase ‘‘as much notice as is procedure is more onerous [than] the verbal
practicable’’ is not well-defined. The current Throughout the comments, employers
and written notice procedures set forth in 29
phrase puts employers in the difficult explained why they believe the ‘‘two CFR §825.303. The inability of an employer
position of having to approve leaves where day rule’’ is impractical and tantamount to insist that employees on FMLA leave
questionable notice has been given. The to eliminating the ability of employers comply with a call-in procedure, such as in
current regulatory definition—within one or to adequately staff their shifts and/or the previous example, invites abuse from
two business days—has been applied by the discipline employees for violating employees who are medically approved for
Department to both foreseeable and standard workplace rules. The ‘‘two day intermittent FMLA leave and, subsequently,
unforeseeable leaves, and to protect give their employer little or no notice leading
employees who provide notice within two
rule’’ is thus described as unworkable:
up to their sporadic absences.
days, even if notice could have been [T]he DOL’s informal practice of allowing
provided sooner under the particular facts employees to give their employers notice of Wolf, Block, Schorr and Solis-Cohen,
and circumstances. See Opinion Letter No. FMLA leave up to two business days after the Doc. 10093A, at 2.
101 (FMLA) (1/15/99) (proposed attendance fact facilitates abuse * * * [T]his ‘‘two-day’’ Employers asserted that the call-in
policy, which would require employees practice of the DOL is also an arbitrary, procedures, which are enforced
taking intermittent FMLA leave to report unreasonable standard[.] * * * The DOL’s routinely outside the FMLA context, are
absence within one hour after start of two-day notice practice is not a promulgated often critical to an employer’s ability to
employee’s shift unless employee was unable regulation or rule, and indeed the DOL’s ensure appropriate staffing levels. The
to do so because of circumstances beyond practice conflicts with the FMLA and DOL’s Ohio Department of Administrative
employee’s control, violated FMLA because own regulations[.] * * * The DOL’s informal
two-day notice practice improperly allows an
Services commented that:
employees have two days to notify employer
that absence is for FMLA-covered reason). employee to remain silent and provide no Many state agencies have a call-in procedure
notice to his/her employer for up to two full that requires employees to personally call
National Coalition to Protect Family business days, even when the employee has within a certain period of time prior to the
Leave, Doc. 10172A, at 27. See also the knowledge and means to give timely shift if they will be unexpectedly absent that
Temple University, Doc. 10084A, at 6. notice to their employer. As such, the DOL’s day. For agencies that employ this procedure,
Employer commenters to the RFI were informal two-day notice practice is an the advanced ‘‘call-in’’ serves as a crucial
nearly unanimous in their arbitrary standard that fails to recognize an element of their attendance program, and
understanding that the FMLA permits employer’s legitimate operational need for enables the agency to adjust schedules and
timely notice and that contradicts with an personnel to cover the absent worker’s duties
an employee to wait until two days after and responsibilities. This procedure is
employee’s statutory duty to provide such
an absence to advise his or her employer notice as is practicable. especially critical in institutional agencies
of the need for FMLA leave. This that provide direct care and supervision of
understanding, according to the Southwest Airlines Co., Doc. 10183A, at inmates or patients.
commenters, combines with other 6–8.
Employers also identified as an area Doc. 10205A, at 3.
issues—e.g., the definition of serious Employer commenters, however, were
health condition, the minimum period of concern the closely related issue of
their inability to enforce routine call-in clear in their belief that the
for intermittent leave, and the inability Department’s interpretations have
to request additional medical procedures. Section 825.302(d) of the
regulations, which addresses the issue severely limited those employers who
information—to create a situation where need to know in advance of any absence
employers lose much of their ability to of advanced notice in the context of
foreseeable leave, provides: and have opened the door for misuse of
manage their business: FMLA leave:
The DOL regulations at 29 CFR 825.203 An employer may also require an employee
to comply with the employer’s usual and [T]he current FMLA regulations reduce the
require employers to permit employees to effectiveness of [call-in procedures], as
take leave in the ‘‘shortest period of time the customary notice and procedural
requirements for requesting leave. For agencies are prohibited under the regulations
employer’s payroll system uses to account for from requiring advance notice of the
absences of leave, provided it is one hour or example, an employer may require that
written notice set forth the reasons for the employee’s need for FMLA leave. Once an
less.’’ Many employers have payroll systems employee receives a certification for an
capable of accounting in increments as small requested leave, the anticipated duration of
the leave, and the anticipated start of the ongoing chronic condition, leave can be
as six minutes. Tracking FMLA leave in such taken on numerous occasions intermittently
small increments is extremely burdensome— leave. However, failure to follow such
internal employer procedures will not permit for the same condition and without advance
particularly with respect to exempt notice. * * * This restriction leads to a
employees, whose time is not normally an employer to disallow or delay an
employee’s taking FMLA leave if the greater potential for abuse, as employees may
tracked. In addition, CUPA–HR members be tempted to use their certifications to
have had difficulties scheduling around employee gives timely verbal or other notice.
justify tardiness. Current FMLA regulations
intermittent leave because it is hard to find 29 CFR 825.302(d). require an employee to give notice of the
a replacement worker for small increments of A comment from Wolf, Block, Schorr need for FMLA leave ‘‘as soon as is
time and the regulations do not require and Solis-Cohen identified what it practicable,’’ which usually means within a
employees to provide any advance notice of believes to be the problems associated day or two of learning of the need for leave.
the need for leave. The DOL Opinion Letter
FMLA–101 (January 15, 1999) exacerbates
with section 825.302(d): Id. See also National Association of
this problem by stating that an employer Another area of FMLA abuse involves the Manufacturers, Doc. 10229A, at 4, 12
must accept notice of need for leave up to DOL regulations’ limits on an employer’s (‘‘65 percent of the requests received for
two days following the absence. These ability to require employees to comply with intermittent leave were made either on
problems are evidenced by the overwhelming their customary call-out procedures. This is the day of the leave, after the leave was
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majority of respondents to our membership of particular concern for employees taking taken, or without any notice. * * *
survey that reported problems with FMLA intermittent leave.
administration. More than 80 percent of * * *
[E]mployees with unscheduled
respondents reported problems with tracking [Section 825.302(d)] has been interpreted intermittent leave routinely ignore
intermittent leave and close to 75 percent by the DOL to limit an employer’s ability to mandatory shift call-in procedures (even
reported problems with notice of leave and impose a call-in procedure (e.g. requiring if they are fully able to comply), wait
unscheduled absences. employees to call in and report their absence two working days, as permitted by 29
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35577
CFR 825.303(a), and then report their request a leave of absence from a those absences create: missed deadlines,
absence as FMLA-qualifying’’). specified department within three late shipments, lost business, temporary
Wage and Hour Opinion Letter workdays of the first day missed. The help, and over-worked staff.’’). The
FMLA–101, discussed above, allows employee called daily to report his commenters assert that because
employers to discipline employees for absences to the employer’s security employers’ ability to use call-in
failure to follow employer notice office, but failed to comply with the procedures and other attendance control
policies only where those policies are requirement to notify the correct mechanisms is severely limited where
less stringent than the FMLA’s notice department of his need for a leave of the FMLA is involved, and because the
requirements. absence in a timely manner. The Sixth FMLA allows few options for
The employer, however, could impose a Circuit concluded that the employer’s determining whether a specific instance
penalty, i.e., assign points under its policy did not comply with the FMLA, of leave use is appropriate, situations
customary attendance control policy, in a holding that ‘‘employers cannot deny arise where certain employees do as
situation where the employee was in the FMLA relief for failure to comply with they wish, ignoring the employers’
position of providing advance notice, absent their internal notice requirements’ as rules, schedules, and staffing decisions.
extenuating circumstances, of the need for long as the employee gives timely notice As described by one attorney:
FMLA leave and failed to provide the notice pursuant to the FMLA. Id. at 723. In
in accordance with FMLA’s requirements In my practice, by far the biggest problem
and the company’s notification policy, if less denying the employer’s ability to we face with the FMLA is intermittent leave
stringent than FMLA’s. Under this enforce its workplace rule, the court * * * These employees typically use their
circumstance, the provisions of § 825.302(d) determined that ‘‘[i]n permitting intermittent leave in small increments day-
would not apply because of the employee’s employers to develop notice procedures, to-day. Especially when based on the need to
failure to provide timely notice based upon the Department of Labor did not intend care for others or highly subjective factors,
FMLA’s requirements (§§ 825.302(a) and (b)). to allow employers in effect to this leave is neither scheduled in advance
undermine the minimum labor standard nor susceptible of being scheduled. The end
Wage and Hour Opinion Letter FMLA– result is employees who, under the auspices
101 (Jan. 15, 1999). for leave.’’ Id. at 722.
of FMLA, we must * * * allow to come and
This issue of an employer’s ability to In Bones v. Honeywell Int’l., Inc., 366 go as they please without any regard for our
enforce its own notice policies for F.3d 869 (10th Cir. 2004), the Tenth business needs. From both a legal and
employees taking leave has been Circuit took a different approach, practical point of view, the employer is at the
litigated in the federal courts with allowing an employer to enforce its own mercy of the employee. As a practical matter,
varying results.9 Two appellate courts internal requirements governing whom there is no effective or legally ‘‘safe’’ way for
have addressed whether the application an employee must contact regarding her an employer to regulate or verify the
of employer policies requiring absence. In Bones, the employee was legitimacy [of] an employee’s use of
terminated because she failed to report intermittent leave.
employees to notify a specific
individual or office when requesting a to work or to call her supervisor for Peter Wright, Esq., Doc. 4760, at 1.
leave of absence violates the FMLA and three days. On the second day of her One employer made the following
have reached differing results. In Cavin absence, she requested a leave of observation:
v. Honda of America Manufacturing, absence from the employer’s medical The most difficult and burdensome part of
Inc., 346 F.3d 713 (6th Cir. 2003), the department; the employer’s policy, the FMLA is the intermittent FMLA. Many
U.S. Court of Appeals for the Sixth however, expressly stated that employees will request FMLA as soon as they
Circuit addressed an employer policy employees were required to follow the are placed in the discipline system for
call-in procedure and that contacting attendance. Health care providers will
requiring an employee to formally
the medical department was not complete the forms for some for any reason
9 Cases addressing employer policies have sufficient. Id. at 875. The court did not the employee requests. The provider does
this in such a vague manner i.e. ‘‘chronic
involved three types of employer policies. The first directly address whether the employee
condition, unknown or lifetime length,
group involves employer policies requiring the had provided sufficient notice under the unknown frequency that may prevent them
employee to report an absence within a specific FMLA, finding that the issue had been
time frame (frequently one hour prior to the start from coming to work, may cause them to be
of the employee’s shift). These types of employer waived. Id. at 877. The court went on late leave early or not be able to attend
policies present the clearest potential for conflict to note, however, that ‘‘Bones was without notice.’’ This gives the employee the
with the FMLA notice regulations. Compare terminated because she did not comply right to come and go as they please without
Spraggins v. Knauf Fiber Glass GmbH, Inc., 401 with Honeywell’s absence policy; she giving the company the right to question or
F.Supp. 2d 1235 (M.D. Ala. 2005) (holding that discipline.
employer could enforce rule requiring employees to
would have been terminated for doing
call in one hour prior to their shift unless it was so irrespective of whether or not these FNG Human Resources, Doc. FL13, at 2.
impracticable for them to do so), with Mora v. absences were related to a requested Although not strictly limited to
Chem-Tronics, Inc., 16 F.Supp. 2d 1192 (S.D. Cal. medical leave.’’ Id. at 878. unscheduled intermittent leave use, a
1998) (holding that employer’s policy requiring
employees to call 30 minutes prior to the start of 2. Loss of Management Control number of comments noted that
their shift, regardless of circumstances, conflicts employers cannot enforce their
with FMLA notice provision). The second group Employers commented frequently attendance policies—particularly ‘‘no
involves employer policies requiring employees to regarding what they see as the difficulty fault’’ attendance policies—against
call a specific office or individual to report an in maintaining control over the
absence. See infra (discussion of Cavin v. Honda of employees on FMLA leave, which
Am. Mfg., Inc., 346 F.3d 713 (6th Cir. 2004), and
workplace when, in the employers’ view results in inconsistent treatment of
Bones v. Honeywell Int’l, Inc., 366 F.3d 869 (10th at least, employees ‘‘abuse’’ those absent for non-FMLA-qualifying
Cir. 2004)). The final group of cases involves unscheduled intermittent leave in order reasons. The Society for Human
employer policies applied during the course of an to achieve some privilege or advantage
employee’s FMLA leave. See, e.g., Callison v. City Resource Management summarized the
to which they are not entitled. See, e.g.,
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of Philadelphia, 430 F.3d 117 (3d Cir. 2005) issue:
(upholding application of employer policy National Association of Manufacturers,
Moreover, some employers’ sick or
requiring employees on paid sick leave to call in Doc. 10229A, at 4 (‘‘As currently personal leave policies penalize repeated
when leaving home); Lewis v. Holsum of Fort interpreted by DOL, the FMLA has
Wayne, Inc., 278 F.3d 706 (7th Cir. 202) (upholding absences, even illness-related absences,
application of three-day no-call/no-show rule);
become the single largest source of which do not qualify for FMLA protection.
Gilliam v. UPS, 233 F.3d 969 (7th Cir. 2000) uncontrolled absences and, thus, the (These are commonly called ‘‘no-fault’’
(upholding application of three-day no-call rule). single largest source of all the costs policies.) For a non-FMLA qualifying
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35578 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
condition, the employer can discipline and minutes, and one facility had over 200 other instances, reservation agents have
even terminate an employee who is incidents of three minute FMLA uses in been known to miss their regular shift
repeatedly absent. This follows from the 2005. We strongly suspect that our —forcing the carrier to call-in another
principle that regular attendance is generally incidents of three minute FMLA leave worker with overtime pay— and then
required of every job and is essential to
productive and smooth operations. With an
are used to excuse tardiness rather than report into work later that day for an
FMLA-qualifying condition, however, the true FMLA leave.’’); DST Systems, Doc. overtime shift that pays a higher
employer may not discipline the employee 10222A, at 1 (‘‘Increasing increment premium.’’).
for any absences, no matter how frequent, allowed may reduce inappropriate use A number of commenters expressed
unless and until the employee’s leave of the FMLA which can be misused for concern that compliance with the
entitlement is exhausted. late arrivals/tardiness instead of a FMLA’s intermittent leave provisions—
Society for Human Resource legitimate FMLA reasons.’’); Methodist particularly when taken for a chronic
Management, Doc. 10154A, at 8. Hospital, Thomas Jefferson University condition—often converted a full-time
The Edison Electric Institute was able Hospital, Doc. FL76, at 1 (‘‘Having a position into a permanent, part-time
to quantify the effect this position (and major medical problem like surgery and position:
other FMLA-related positions) has had receiving block time off without DOL takes the view that an employee is
repercussion is not the issue. entitled to an FMLA reduced schedule due
on its attendance:
Intermittent leave on the other hand has to a serious health condition regardless of the
In the year 1987 our sick leave usage created a hiding place for Employees fact that the condition is permanent and it is
averaged 89.2 hours per employee. In 1990 who have absence issues. * * * unlikely that the employee will return to full-
we implemented a No-Fault Modified time employment. (DOL Opinion Letter-97,
Facilities are not looking to punish
Attendance Policy (point system) to control July 10, 1998) If an employee has a reduced
employee attendance. After the policy was in
cancer patients who need chemotherapy
on a weekly basis; we do need to schedule with one full day off per week due
place for three years the sick leave usage to FMLA, this arrangement can go on
dropped 70% (from 89.2 hours to 27.2 question Employees that have
indefinitely. This results, in effect, in the
hours). However, since FMLA went into intermittent problems on snow days creation of a new part-time position * * *.
effect in 1993, sick leave usage has steadily when they call in for ‘‘intermittent [An employee can refuse] reasonable
increased each year. At the end of 2006 the leave’’ and hospitals have to struggle in accommodation under the American[s] with
average hours used per employee escalated to providing last minute staffing.’’). Disabilities Act (ADA) but instead chose to
78.2. This is a 188% increase over a thirteen continue with * * * reduced schedule under
year period. * * * We attribute most of this b. Obtaining a Preferred Shift FMLA * * *. The regulations should not
increase to the FMLA. Under the existing A number of commenters stated that permit this.
regulations 29 CFR 825.220(c) employers some employees misuse the FMLA rules
cannot use the taking of FMLA leave as a Seyfarth Shaw LLP (on behalf of a
to secure for themselves a preferred not-for-profit health care organization),
factor in employment actions, i.e., No-Fault
Attendance policies. schedule in the form of a shift different Doc. 10132A at 3. See also Sally L.
from the one legitimately assigned by Burnell, Program Director, Indiana State
Edison Electric Institute, Doc. 10010A, the employer. See, e.g., Southwest Personnel Department, Doc. 10244C, at
at 1. Airlines Co., Doc. 10183A, at 2, 4 (‘‘Far 4 (‘‘The issue here is that some
The types of scenarios identified by too many employees misuse intermittent FMLA leaves almost default
employers as subject to ‘‘abuse’’ through unscheduled, intermittent FMLA leaves into light duty assignments because
the improper use of unscheduled to set their preferred rather than supervisors must reassign work that the
intermittent leave include, among other assigned work schedules; to work shifts frequently-absent employee is
things: (1) Employees using leave to paying overtime but no show regular responsible for to ensure that deadlines
cover for simple tardiness or a desire to pay shifts; to get excused absences that are met and services are provided to
leave work early, and (2) employees would otherwise violate attendance customers.’’); Madison Gas and Electric
seeking to alter their work schedule rules; * * * FMLA usage plummets on
Company, Doc. 10288A at 2 (‘‘Offering
through securing a different shift. December 25 Christmas Day each year
an employee the possibility of 12 weeks
a. Arriving Late/Departing Early when triple overtime is paid[.] * * *
of intermittent, unscheduled absences
FMLA usage is near its peak the day
Many employer commenters makes the employer vulnerable to the
before Christmas and jumps the day
suggested that employees use discretion of the employee. An
after, but somehow nearly all those
unscheduled intermittent leave as a employee taking advantage of this
employees who have been out on FMLA
pretext to cover for their tardiness or to provision can essentially work part-
feel better on Christmas day and are able
leave work early for reasons unrelated to time, but reap the benefits of a full-time
to come to work.’’); Roger Bong, Doc.
a serious health condition. See employee.’’); Air Conference, Doc.
6A, at 4 (‘‘We even had one individual
Southwest Airlines Co., Doc. 10183A, at during our busy period of time (where 10160A at 11 (‘‘Some employees use
4; Air Conference, Doc. 10160A, at 11 overtime was abundant) come in four this regulation to effectively convert a
(‘‘Under the current regulations, an hours before the start of their shift (2 fulltime position to part-time when part-
employee could be tardy by nearly two hours at double time and 2 hours at time time work is not otherwise available or
hours every scheduled workday for an and one half) and then at the start of to receive a shift which they do not have
entire year and never exceed his their regular shift go home on FMLA. In the seniority to hold under a
allotment * * * [S]ome employees use that way she would earn seven (7) hours collectively-bargained seniority
this loophole to leave work early every of pay and leave while not working the system.’’).10
day to be at home when their healthy shift (2nd shift) that she hated.’’); Air 10 Several comments, in making this point, noted
children arrive home from school.’’; Conference, Doc. 10160A, at 4. (‘‘[E]very
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that it is possible for a ‘‘full-time’’ employee to use
‘‘[M]any employees use intermittent airline has numerous examples of FMLA leave intermittently under these
leave to cover for tardiness, creating a workers who bid a full-time, 40-hour circumstances and not exhaust his or her yearly
scheduling and attendance reliability week schedule, entitling them to leave entitlement. For example, 12 weeks times 40
hours per week = 480 hours of intermittent FMLA
issue for airlines.’’); Cummins Inc., Doc. maintain all corresponding full-time leave entitlement per year, divided by 52 weeks =
10340A, at 2 (‘‘Our payroll system benefits, but who then cut short most 9.2 hours of intermittent FMLA leave per week,
allows for increments as few as three work days with intermittent leave. In divided by 5 days per week = 1.8 hours per day.
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35579
Comments from the University of supervisors who are more responsive to the available. Most employees will need to take
Minnesota noted similar problems: personal and family needs of employees, and FMLA leave at some point during their
create a workplace culture that is more career, and good management practices
Dealing with such situations is extremely supportive of the worklife needs of dictate that employers recognize this
difficult. Supervisors do not know if the employees have employees who are more eventuality and plan for it.
employee will come in to work on any given satisfied with their jobs, more committed to
day. They do not know if the employee will their employers, and more likely to plan to
Center for WorkLife Law, Doc 10121A,
work an entire shift. Employees will simply stay with their current employers. at 7.
notify their supervisors, in many cases after Interestingly, none of these work-life
the fact, that they have experienced b. Viewpoint: Unforeseeable
supports necessarily impose direct costs Intermittent Leave Negatively Affects
symptoms and cannot come in to work, or
upon employers, in contrast with
must leave work early. A comment by a
conventional benefits.’’
Employee Morale and Productivity
supervisor regarding a performance issue
may result in the employee excusing himself/ Doc. 10197A, at 7–8 (citation omitted). In contrast to the comments
herself for the rest of the day. Without proper See also Faculty & Staff Federation of emphasizing the morale-related benefits
notice, a supervisor cannot make plans for a Community College of Philadelphia, of the FMLA generally, several
replacement * * *. Nonetheless, the current Local 2026 of the American Federation employers commented that when co-
statutory and regulatory provisions provide
of Teachers, Doc. 10242A, at 8 (‘‘The workers perceive employees to be
employers with few options. ‘‘abusing’’ the FMLA, morale and
law promotes workforce stability by
University of Minnesota, Doc. 4777A, at helping employees retain their jobs productivity suffer. As described by the
2. when an emergency strikes. We believe Pennsylvania Turnpike Commission:
3. Impact on Employee Morale and the FMLA is essential to greater FMLA leave when abused/misused affects
employee retention and to reducing morale negatively. We have received phone
Productivity calls from both employees and managers who
employee turnover, and it is crucial to
A very large number of comments preserve FMLA’s protections in their are frustrated that an employee(s) at their
addressed the effect that the FMLA (and work location call off for FMLA so they can
entirety.’’). be off for holidays and weekends. These call-
unforeseeable intermittent leave in A number of commenters focused on
particular) has had on employee morale. offs may interfere with another employee’s
the benefits directly enjoyed by the vacation request, requiring them to come to
The Department received comments employer: work while another employee uses their
emphasizing the positive aspects of the Based on recent research, it is clear that the FMLA. We have heard these type of holiday/
FMLA on employee morale and FMLA contributes to a more stable economy vacation FMLA requests called ‘‘get-out-of-
retention, as well as the negative impact and workforce by helping employers retain jail-free’’ cards because there is no recourse
on employee morale and productivity. their employees and reduce turnover. In the that we have as an employer to enforce these
2000 Westat study, 98 percent of employees types of abuses/misuses of leave. Employees
a. Viewpoint: the FMLA Improves taking FMLA leave returned to work after will request a vacation day, and if that
Employee Morale and Retention taking that leave. And of the employers who request is denied, they often call in sick for
Most of the comments addressing the experienced cost savings due to the FMLA, FMLA that day. Some employees have even
FMLA’s positive impact on employee more than three-quarters attributed their bragged to others how easy it is to get the
savings to decreased turnover. The extra time off and how they use this time for
morale focus on the FMLA generally.
Employment Policy Foundation reports that vacation or other non-FMLA reasons.
Several of the commenters who the average cost of employee turnover is 25
described the FMLA’s positive impact percent of an employee’s total compensation. Doc. 10092A, at 8. See also Dover
on morale relied on the 2000 Westat Not only does the FMLA support families, it Downs Hotel & Casino, Doc. 10278A, at
Report. See, e.g., Faculty & Staff also supports businesses. The FMLA has 2 (‘‘Here is an example of what occurs
Federation of Community College of reduced these costs by creating an effective on a REGULAR basis. An employee
Philadelphia, Local 2026 of the mechanism for employees to retain their jobs. requests a vacation at the last minute as
American Federation of Teachers, Doc. Families USA, Doc. 10327A, at 6 she received an unexpected invitation
10242A at 8 (‘‘The 2000 Westat Study (footnotes omitted). See also The for a week at the beach. The manager
found that 89% of employers reported Human Rights Campaign, Doc. 10179A, denies the request, citing the numerous
that the FMLA has had either a positive at 2 (‘‘Many companies and states know others who were granted vacation for
or neutral effect on employee morale. from experience that providing a safety the week in question. The manager
The survey also reported that, of those net for all families is a good business simply cannot afford to allow one more
who have taken on added duties when decision.’’); 9to5, National Association person to take that week off as it would
a co-worker has taken FMLA leave, over of Working Women, Doc. 10210A, at 2 incur overtime for others to cover for
four in five (85%) say the impact on (‘‘The Family Medical Leave Act is a this one. This employee chooses to head
them was neutral or positive.’’); The win-win for employees and to the beach anyway and calls the
Human Rights Campaign, Doc. 10179A, employers.’’). manager, citing only those magic words
at 2 (same); 9to5, National Association Several comments from employees ‘FMLA’. In this true scenario, we were
of Working Women, Doc. 10210A, at 2 opined that the causes of decreased inconvenienced—as were the employees
(‘‘And more than 4 in 5 employees who employee morale are not so much the who had to work overtime to pick up
have taken on added duties when a co- result of the FMLA, but rather the extra hours to cover for this
worker has taken FMLA leave say that employer’s failure to manage effectively: employee.’’).
the impact on them was neutral or This sentiment is echoed in the
The primary method for covering for comments of the National Coalition to
positive.’’).
employees on FMLA leave is to assign their
According to the Women’s work to co-workers. Reportedly, this method
Protect Family Leave:
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Employment Rights Clinic: of getting the work done has a negative affect The Coalition believes that the availability
Studies clearly suggest that workplace on the morale of the employees who pick up of FMLA leave can increase morale in the
flexibility, such as leaves for family the slack for their absent co-workers. workplace, if the leave is used in accordance
obligations, increases employee retention Employers should not rely on co-workers to with the spirit and intent of the Act.
* * *. [O]ther findings ‘‘strongly suggest that cover for absent employees as a matter of Employees who take FMLA leave are
employers who provide greater opportunities course. Rather, co-workers should be used to generally satisfied, for not only are the
for flexible work arrangements, have pick up the slack when no other option is employees able to retain their benefits, but
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35580 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
they also have job security. However, FMLA Other commenters addressed the C. The Importance of Unscheduled
can also lead to low morale and decreased perception of ‘‘abuse’’ of the FMLA by Intermittent Leave to Employees
productivity in the workplace. When leave-takers or the overall ‘‘costs’’ of the
employees take unscheduled intermittent Many commenters addressed the need
leave and even scheduled leave in large
FMLA. A postal employee commented for unscheduled intermittent leave. For
blocks of time, the morale and productivity ‘‘it seems to me many employees abuse example, one commenter described her
may decline for the remaining employees. the system * * *. I don’t think the personal experiences with her
The employees who report to work must employees lie about illnesses, but they daughter’s chronic, serious health
cover for their colleagues who take FMLA milk the system to stay home as much condition:
leave, often resulting in overtime. Both as possible.’’ An Employee Comment,
employers and employees have expressed Doc. 188, at 1. An employee at a My daughter had a major asthma attack
concerns regarding the abuse of FMLA leave which caused a bronchial infection, swelling
unionized factory commented that he and bacteria in her throat * * *. [N]one of
and, thus, the employees who report to work
are the ones who suffer. had witnessed ‘‘a lot of abuse’’ of FMLA my daughter’s doctors have told her how
which created morale issues as well as many times she needed to see them. I’m quite
Doc. 10172A, at 51. See also Bendix additional costs to the company. An sure if they knew the answer, it would have
Commercial Vehicle Systems, Doc. Employee Comment, Doc. 195, at 1. been written * * *. No one is capable of
10079A, at 4, 11 (‘‘[FMLA leave] has a However, an employee in the predicting an asthma attack or the severity of
positive impact when it is believed to be transportation industry noted, ‘‘I do see the attack; I just would like the assurance of
used appropriately; however, when it is people occasionally abuse sick leave but knowing that if or when the situation should
believed to be being abused, it has a arise, I have the time off required to handle
those people would abuse it regardless her needs without the threat of being * * *
very negative [effect]. It can build of FMLA.’’ An Employee Comment,
animosity towards coworkers for not terminated.
Doc. 4684, at 1.
pulling their weight, towards the An Employee Comment, Doc. 4395, at 1.
employer because we are allowing the Several commenters contended that Another commenter described her
employee to abuse the FMLA and won’t misuse of intermittent leave has a experience:
do anything about it.’’; ‘‘This means that negative effect on employee retention
In 2003, my mother was diagnosed with
coworkers have to be asked to do more and turnover. For example:
end stage renal failure and had to
to cover for the person who took the [I]t is common that morale problems begin immediately begin receiving dialysis
intermittent FMLA. This can create to appear among the employees (collectively treatments three times a week. Since then, I
morale issues—employee not pulling and individually) who are left to deal with have been working a reduced work schedule
their own weight.’’). an ‘‘intermittent’’ abuser in their production which allows me to be able to help my mom
Some employers report that area and have to continually pick up the with transportation to/from her treatments,
employees themselves also identify slack; however, while this last group may doctor appointments, errands, etc. * * *. I
perhaps receive some benefit via overtime as was so thankful when my employer informed
morale issues associated with their co- me of this law because it gave my mom peace
workers’ use of FMLA: a result, the more common result is
of mind knowing that I would be available
diminishing morale which often results in
There is a menacing, intangible cost to for her when she needed me. By me working
increased turnover. only 32 hrs a week, instead of the normal 40
abuse of intermittent FMLA: it wears out
fellow employees who must cover shifts and hr workweek, I have been able to act [as] an
Krukowski & Costello, S.C. (on behalf of advocate/liaison for my mom with all of her
trips for those abusing FMLA. It dampens
workplace morale and teamwork * * *. In Legislative Committee of the Human doctors, specialists and treatments that she’s
2006, Southwest employees * * * were Resource Management Association of had to endure. Most importantly, it has
asked what one thing they would change Southeastern Wisconsin), Doc. 10185A, allowed for my mom to feel independent
* * *. In response, employees provided at 8. with my help. I know that if the FMLA act
hundreds of unsolicited comments about [wasn’t] around, I would be losing a lot of
Additional comments in response to time and money with my employer and my
FMLA abuse and its negative [effect] on
morale. the RFI described the impact of mom would probably be a burden to the
unforeseeable intermittent leave on society and maybe even be living in a rest
Southwest Airlines Co., Doc. 10183A, at employee morale: home somewhere * * *. My mom will need
6. dialysis treatments indefinitely but I end up
[T]he availability of FMLA improves the
Morale—Employees that are not utilizing taking leave without pay for most of the
morale of the employees that use it, while
the unforeseen, intermittent leave report year[.]
negatively affecting the employees who do
feeling cheated. They come to work on time
not. Everyone knows the day may come An Employee Comment, Doc. 4773, at 1.
and work 40 hours each week. When they
need time off, they utilize their vacation when we all may need to use it; however, the The AFL–CIO comments also
time. They also report that employees on fact that every individual has the ability to included statements from individual
unforeseen, intermittent leave indicate that be certified and then be able to miss up to employees detailing the importance of
they can and will abuse the system when twelve weeks in a twelve-month period is intermittent FMLA leave to affected
they want to. As a result, more and more very disheartening. There are individuals workers:
employees are applying for unforeseen, who will exhaust the twelve weeks and then
Many of the responses to Working
intermittent leave so they can take time off miraculously can come to work everyday
of work whenever they choose. America’s 2007 online survey on FMLA
thereafter and once eligible, complete a new
stressed the importance of intermittent leave.
Yellow Book USA, Doc 10021A, at 1. certification and start the [vicious] cycle all A Human Services Supervisor in Easton,
See also An Employee Comment, Doc. over again. We have no evidence that it Pennsylvania, relied on intermittent leave to
improves employee retention, however, care for his terminally ill father:
136, at 1 (‘‘We have a serious problem
employees that already have attendance By using the intermittent leave provisions
with this where I work. There are
problems find themselves with a serious of FMLA, I was able to help care for my Dad
several people who do take advantage of
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health condition and are then able to in the final stages of his terminal cancer, in
the system to the point where it is a continue to miss work but are able to be his own home. I was grateful that he was able
problem for the other workers. There is excused instead. to spend his last days in the comfort of his
no way for them to stop or control this house, as he desired, while I was able to
either as they call in for 2 days, then are AM General LLC, Doc. 10073A, at 2–3. maintain my employment status, which I
back before required to bring in a See also Spencer Fane Britt & Browne desperately needed for my own family.
doctor’s excuse.’’). LLP, Doc. 10133C, at 19–20. Weakening this law, will only lead to the
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35581
further breakdown of already stressed family • The Department noted that employee’s FMLA rights and
support systems. employers have reported that some responsibilities and the employer’s
A payroll and benefits administrator employees do not promptly notify their policies regarding the FMLA in the
in Euclid, Ohio also cares for a sick employers when they take unforeseeable pertinent employee handbook or
parent: FMLA leave and requested information through other means if the employer
My mother suffered a severe stroke 4 years on the prevalence and causes of does not have such formal written
ago. I use FMLA time to care for her at home employees failing to notify their policies. 29 CFR 825.301(a)(1)–(2).
and keep her out of a nursing home. I have employers promptly that they are taking
two siblings who help with her care, so I only The notice requirements set forth in
have to take intermittent leave. It’s hard
FMLA leave and suggestions as to how section 825.301 derive from notice
enough to care for a disabled parent without to improve this situation. provisions found throughout the
having to worry about losing your job * * *. • What methods are used to notify regulations. Within a reasonable time
It would break my heart and my mother’s if employees that their leave has been after the employee has provided notice
I had to put her in a nursing home. The designated as FMLA leave? What of the need for leave, the employer shall
government should be finding ways to make improvements can be made so that provide the employee with written
it easier to take this leave, not make it harder. employees have more accurate notice detailing the specific
American Federation of Labor and information on their FMLA balances? expectations and obligations of the
Congress of Industrial Organizations, • Does the two-day timeframe for
employee and explaining the
Doc. R329A, at 30–31 (citation omitted). providing notification to employees that
consequences of a failure to meet these
The Center for WorkLife Law their FMLA leave request has been
obligations. The written notice must be
expressed its belief in the importance of approved or denied provide adequate
provided in a language in which the
unforeseeable intermittent leave for time for employers to review
employee is literate and must include,
chronic conditions to working sufficiently and make a determination?
as appropriate:
Americans:
A. Background (i) that the leave will be counted against
Recent studies show that 65 percent of
families with children are headed by two The Act places notice obligations on the employee’s annual FMLA leave
working parents or a single parent. One in both employers and employees. The entitlement (see § 825.208);
four employed men and women has elder notice provisions are scattered (ii) any requirements for the employee to
care responsibilities and one in 10 employees throughout the regulations, which furnish medical certification of a serious
is a member of the ‘‘sandwich generation’’ further define the statutory health condition and the consequences of
with both child care and elder care requirements and also include failing to do so (see § 825.305);
responsibilities. For those working caregivers additional notice obligations. (iii) the employee’s right to substitute paid
with a seriously ill child or family member, leave and whether the employer will require
medical emergencies are a way of life. 1. Employer Notice Requirements the substitution of paid leave, and the
Intermittent FMLA leave allows these conditions related to any substitution;
employees to be available to their families
The FMLA mandates that covered
(iv) any requirement for the employee to
when they are needed most without the employers affirmatively notify their
make any premium payments to maintain
stress of losing their jobs. We cannot employees of their rights under the Act: health benefits and the arrangements for
emphasize strongly enough that the Each employer shall post and keep posted, making such payments (see § 825.210), and
availability of intermittent FMLA leave is in conspicuous places on the premises of the the possible consequences of failure to make
critical for eligible employees caring for an ill employer where notices to employees and such payments on a timely basis (i.e., the
child, spouse or parent with a serious applicants for employment are customarily circumstances under which coverage may
chronic illness. posted, a notice, to be prepared or approved lapse);
Doc. 10121A, at 5 (emphasis in original) by the Secretary, setting forth excerpts from, (v) any requirement for the employee to
(footnotes omitted). or summaries of, the pertinent provisions of present a fitness-for-duty certificate to be
this title and information pertaining to the restored to employment (see § 825.310);
V. Notice: Employee Rights and filing of a charge. (vi) the employee’s status as a ‘‘key
Responsibilities 29 U.S.C. 2619(a). ‘‘Any employer that employee’’ and the potential consequence
The Department noted in its Request willfully violates this section may be that restoration may be denied following
for Information that one consistent assessed a civil money penalty not to FMLA leave, explaining the conditions
concern expressed by the employee exceed $100 for each separate offense.’’ required for such denial (see Sec. 825.218);
representatives during stakeholder 29 U.S.C. 2619(b). (vii) the employee’s right to restoration to
meetings was that employees need to be In addition to the statutory posting the same or an equivalent job upon return
better aware of their rights under the requirement, the Department of Labor from leave (see § 825.214 and 825.604); and
(viii) the employee’s potential liability for
FMLA. Awareness of FMLA rights and regulations flesh out employers’
payment of health insurance premiums paid
responsibilities is critical to fulfilling obligations to inform employees of their by the employer during the employee’s
the goals of the statute, yet it has been FMLA rights and responsibilities. See unpaid FMLA leave if the employee fails to
a challenge since the inception of the generally 29 CFR 825.300–825.301. In return to work after taking FMLA leave (see
FMLA. Employees learn of their rights addition to repeating the statutory § 825.213).
and responsibilities through the notice requirements, section 825.300 of the
provisions of the FMLA and its regulations requires some degree of 29 CFR 825.301(b)(1). ‘‘The specific
implementing regulations. The bilingual or multilingual notice: ‘‘Where notice may include other information—
Department sought information in an employer’s workforce is comprised of e.g., whether the employer will require
response to several questions a significant portion of workers who are periodic reports of the employee’s status
concerning the notice provisions and not literate in English, the employer and intent to return to work, but is not
required to do so.’’ 29 CFR
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how those provisions relate to employee shall be responsible for providing the
awareness of their rights and notice in a language in which the 825.301(b)(2). ‘‘The notice shall be given
responsibilities: employees are literate.’’ 29 CFR within a reasonable time after notice of
• Whether employees continue to be 825.300(c). the need for leave is given by the
unaware of their rights under the Act Section 825.301 sets forth additional employee—within one or two business
and, if so, what steps could be taken to employer notice requirements, requiring days if feasible.’’ 29 CFR 825.301(c). The
improve this situation. the inclusion of information on the written notification to the employee that
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35582 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
the leave has been designated as FMLA will provide sufficient information for was my management as they testified in
leave ‘‘may be in any form, including a the employer to designate the paid leave court. [Company Name] did not meet
notation on the employee’s pay stub.’’ a FMLA leave.’’ 29 CFR 825.208(a)(1). their obligation to thoroughly explain
29 CFR 825.208(b)(2). FMLA leave to management and
B. Awareness of Rights
therefore they failed to provide adequate
2. Employee Notice Requirements The 1995 Commission on Leave protection to their employees.’’ An
The FMLA also imposes a Report found that 41.9% of employees Employee Comment, Doc. 167A, at 2.
requirement on employees to notify at covered establishments had not heard The Legal Aid Society-Employer Law
their employers of the need for FMLA of the FMLA. The 2000 Westat Report Center commented:
leave. The statute requires that in the found that 40.7% of covered employees
Awareness of one’s FMLA’s rights in the
case of foreseeable leave due to the birth had not heard of the FMLA and nearly workplace is woefully absent. In my
of a son or daughter or the placement of half the employees did not know experience, most litigation has been the
a son or daughter with the employee for whether the law applied to them. See result of supervisors who are simply ignorant
adoption or foster care, ‘‘the employee 2000 Westat Report, at 3–8 and 3–9. One about FMLA, its intended purpose and basic
shall provide the employer with not less commenter cited these percentages and protections, and then, with no training or
than 30 days notice before the date the expressed a continuing concern that information, improperly deny FMLA leave to
leave is to begin * * * except that if the employees are not aware of their rights. eligible employees with a legitimate serious
health condition. Invariably, in every case
date of birth or placement requires leave National Partnership for Women &
that I have litigated, the key supervisor did
to begin in less than 30 days, the Families, Doc. 10204A, at 17. not know that: (1) FMLA provides 12 weeks
employee shall provide such notice as is Increasing employee and employer of leave for an eligible employee; (2) the
practicable.’’ 29 U.S.C. 2612(e)(1). The awareness of FMLA rights and leave can be taken on an intermittent basis;
same standard applies to foreseeable responsibilities continues to be a (3) existing health care coverage continues
leave based on planned medical challenge. See Madison Gas and Electric while an employee is on leave; (4) an
treatment for a serious health condition Company, Doc. 10288, at 3 (‘‘Employees employee has the right to be reinstated to her
of the employee or the employee’s tend to be uninformed about many legal same or comparable job upon expiration of
rights or employer benefit provisions. the leave; and (5) an employee who exercises
spouse, son, daughter, or parent. 29
their right to take FMLA leave may not [be]
U.S.C. 2612(e)(2). Employees seek ‘just in time’ subject to retaliation.
‘‘When the approximate timing of the information when they really need it.’’).
need for leave is not foreseeable, an See also An Employee Comment, Doc. Doc. 10199A, at 3–4. See also Center for
employee should give notice to the 10336A, at 12 (‘‘People generally do not WorkLife Law, Doc. FL64, at 6 (‘‘Some
employer of the need for FMLA leave as understand the law. If you address an employers fail to inform eligible
soon as practicable under the facts and employer’s human resources employees about their right to take
circumstances of the particular case. It department, you can leave even more FMLA leave because of the employers’
is expected that an employee will give confused * * *. Overall, employee or their managers’ own lack of
notice to the employer within no more rights are not disclosed clearly to knowledge or understanding of the
than one or two working days of employees.’’); Zimbrick Inc., Doc. law.’’).11
learning of the need for leave, except in FL125, at 9 (‘‘Some employees are aware Other comments from employees and
extraordinary circumstances.’’ 29 CFR and others are not. However, this is no employee groups reported that many
825.303(a). ‘‘An employer may also different than any other areas.’’); An employees have some general awareness
require an employee to comply with the Employee Comment, Doc. 4646, at 1 of the FMLA but do not know what the
employer’s usual and customary notice (‘‘[I]f my coworker did not inform me of law is (e.g., whether it extends beyond
and procedural requirements for FMLA I know I would have lost my leave for birth of a child) or whether it
requesting leave. * * * However, job.’’). One employer suggested that applies to them. A survey conducted by
failure to follow such internal employer employees may be unaware of their AARP of workers age 50 and over
procedures will not permit an employer FMLA rights due to the timing of when
11 Private sector supervisors are subject to
to disallow or delay an employee’s they receive information about FMLA.
individual liability under the FMLA and therefore
taking FMLA leave if the employee ‘‘If employees continue to be unaware of may be held liable if they violate an employee’s
gives timely verbal or other notice.’’ 29 their FMLA rights, it may be because FMLA rights. See 29 U.S.C. 2611(4)(A)(ii)(I); 29 CFR
CFR 825.302(d). most employers will cover this at 825.104(d). The Department is aware, however, that
While the statute and its orientation. On the first day of the job, there is a conflict in the circuits and in the lower
courts regarding whether public agency supervisors
implementing regulations require the new employees are nervous and are can also be held individually liable under the
employee to provide notice of the need overwhelmed with paperwork and work FMLA. Compare Modica v. Taylor, 465 F.3d 174,
for leave, employees are not required to rules. Since FMLA won’t affect them 186 (5th Cir. 2006) (‘‘The most straightforward
specifically request FMLA leave. The until they have in the requisite 12 reading of the text compels the conclusion that a
public employee may be held individually liable
‘‘employee need not expressly assert months with the company, they may under the FMLA.’’) and Darby v. Bratch, 287 F.3d
rights under the FMLA or even mention shove that information to the back 673, 681 (8th Cir. 2002) (‘‘It seems to us that the
the FMLA, but may only state that leave burner.’’ Elaine G. Howell, H.R. plain language of the statute decides this question
is needed[.]’’ 29 CFR 825.302(c), Specialist, International Auto * * * This language plainly includes persons other
than the employer itself. We see no reason to
825.303(b). However, the regulations Processing, Inc., Doc. 4752, at 1. distinguish employers in the public sector from
also state that ‘‘[a]n employee giving It appears that employees are not the those in the private sector.’’) with Mitchell v.
notice of the need for unpaid FMLA only ones who could benefit from Chapman, 343 F.3d 881, (6th Cir. 2003) (‘‘Our
leave must explain the reasons for the increased awareness of FMLA. An independent examination of the FMLA’s text and
structure reveals that the statute does not impose
needed leave so as to allow the employee who took FMLA leave for the
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individual liability on public agency employers.’’),
employer to determine the leave adoption of a daughter and later sued cert. denied, 124 S. Ct. 2908 (2004) and Wascura
qualifies under the Act. * * * In many his employer for interfering with his v. Carver 169 F.3d 683, 686 (11th Cir. 1999)
cases, in explaining the reasons for a FMLA rights and terminating his (holding based on the similarity of the definition of
‘‘employer’’ under the FMLA and the FLSA, and
request to use paid leave, especially employment in violation of the FMLA circuit precedent interpreting the term under the
when the need for the leave was stated that ‘‘Not only was I unaware of FLSA, that public officials are not individually
unexpected or unforeseen, an employee my [FMLA] protected status, but neither liable under the FMLA).
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35583
revealed that, although 91 percent were posting FMLA basic facts as required by formally contact the employee and
generally aware of the FMLA, only 50 the regulation, employers should be notify them of the options available
percent of those workers reported that required to give the information to under FMLA. This should include a
they first learned of the FMLA through employees, in writing, once they description of the protection and a
their employer, suggesting that ‘‘more become eligible under the regulations review of what the employee needs to
can be done to improve employer- with that employer. Contact phone do to qualify for this protection (if
employee communication[.]’’ AARP, numbers for the employer as well as anything). Employees should be clearly
Doc. 10228A, at 3. A survey of Working detailed appeals process afforded to the made aware of their obligations to the
America members by the AFL–CIO employee should be provided, as well as employer. Employees should be
similarly showed that 53.9 percent of recourse information for possible instructed when protection begins,
respondents were informed about their retaliatory practices by the employer.’’ when paid leave begins and ends (ie.
FMLA rights by their employers. See United Transportation Union, Doc. paid vacation until it is used up), and
Doc. R329A, at 7. The survey also 10022A, at 2. protection should be defined.’’ An
showed that 68 percent of the Another union recommended that Employee Comment, Doc. 167A, at 2–3.
respondents had taken unpaid leave to ‘‘employees should be expressly The National Employment Lawyers
care for themselves or a spouse, child, notified of their right to take Association similarly asserted that the
or parent during an illness, but did not intermittent leave.’’ International regulations should require employers to
know whether it was considered FMLA Association of Machinists and take steps to provide workers with
leave. Id. at 40. Aerospace Workers, Doc. 10269A, at. 2. adequate information regarding their
Still other stakeholders report that ‘‘This has proven a real problem for rights and responsibilities. See Doc.
employees’ awareness of their FMLA some of our members * * * An 10265A, at 4. One of its members
rights is not lacking. For example, the employee who suffers from a condition suggested requiring employers to have
National Coalition to Protect Family that is still being diagnosed, but doctors such information in their handbooks
Leave stated that ‘‘Coalition members believe it is either lupus, a connective and/or requiring employers ‘‘to produce
believe that, in many cases, employees tissue disorder or rheumatoid arthritis, a written statement of rights and
are well aware of their FMLA leave arrived late to work due to her condition responsibilities to an employee upon
rights. Among unionized employers, on a number of occasions. This that employee’s first anniversary (if no
coalition members report that unions employee was completely unaware that handbook is issued).’’ Id. See also
routinely inform their members of their she could take FMLA on an intermittent Coalition of Labor Union Women, Doc.
FMLA rights.’’ Doc. 10172A, at 39. One basis. She thought if she took any FMLA R352A, at 2–3 (noting that many
law firm representing employers agreed. leave, she would have to stop working employees are not aware of their FMLA
Porter, Wright, Morris & Arthur LLP, altogether, something her illness did not rights, and that employers do not
Doc. 10124B, at 5 (‘‘Today, 13 years necessitate and something she could not provide them with the required
after the Act’s passage, employees are afford to do.’’ Id. at 2–3. The Legal Aid information).
very savvy about their FMLA rights—it’s Society-Employment Law Center also
the rare employee who does not know stated that few employers effectively C. Employee Notice
of the FMLA.’’). Other stakeholders advise employees about their rights and As previously explained, employees
echoed the sentiment: ‘‘As indicated by options under the FMLA. See Doc. have the responsibility to notify their
the high usage of FMLA by employees 10199A, at 4. Therefore, when ‘‘a employers of the need for FMLA leave;
at most of our member airlines, supervisor denies a legitimate leave, however employees are not required to
employees are fully aware of the rights uninformed employees must make the expressly request FMLA leave or invoke
available to them under this popular difficult decision to take the leave in their FMLA rights. A great deal of
Act.’’ See Air Transport Association of spite of the supervisor’s denial and risk anecdotal information was provided
America, Inc., and Airline Industrial losing their jobs.’’ Id. This commenter concerning notices provided by
Relations Conference, Doc. FL29, at 9. suggested that employers provide employees as well as several suggestions
See also MedStar Health Inc., Doc. employee training so that the workers on this subject.
10144, at 15 (asserting that ‘‘employees understand their rights.
are not only aware of but, also, well The AFL–CIO suggested that the 1. Notice of the Need for Leave: Timing
educated on their FMLA rights’’); Department should consider regulations and Information Provided
National Association of Convenience that require ‘‘employers to provide an Stakeholders offered several possible
Stores, Doc. 10256A, at 8 (‘‘today’s individualized notice provision to explanations for employees failing to
employees are aware of their rights and employees on an annual basis,’’ and provide notice of their need for leave,
obligations under FMLA long before referred to another commentator who ranging from the employee’s
they are hired’’). suggested requiring notice to employees relationship with his/her supervisor to
Suggestions we received for increased at the point of hiring and annually not wanting the absence to count as
awareness include outreach efforts, thereafter. Doc. R329A, at 40. The FMLA:
public campaigns, increased Communication Workers of America
It appears that reasons for employees
dissemination of materials in both reiterated that employees should receive failing to notify their employer in advance of
English and Spanish, on-line tools, and documents that ‘‘explain their annual FMLA leave-qualifying events vary
development of user-friendly FMLA leave entitlement and the process for depending upon the medical situation and
materials that could be widely making application for FMLA leave.’’ the employee’s personality and relationship
disseminated. See National Partnership Doc. R346A, at 9. It suggested that with his/her supervisor. For example, some
for Women & Families, Doc. 10204A, at employers could improve employees’ employees discuss the possibility of surgery
pwalker on PROD1PC71 with PROPOSALS2
17; Families USA, Doc. 10327A, at. 4. awareness of their rights, as well as or childbirth informally with co-workers and
then neglect to submit formal documentation
One union stated that the ‘‘posting inform them of their individual
in a timely manner perhaps assuming that
requirements for employers under eligibility status, by taking steps such as the informal break room discussions are
FMLA do not go far enough in that they producing an annual FMLA document sufficient; other employees do not want
do not actively educate employees on for them. One employee recommended supervisors or management to be aware of
their rights under FMLA. In addition to that a ‘‘manager and/or HR should medical issues until the very last minute and
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35584 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
then provide only a bare minimum of quickly as is reasonably possible, but it non-existent, forcing employer
information. also is important to ensure that representatives to make a discretionary
Another reason for delays is that employees are not penalized unfairly ‘‘judgment call’’ in questionable
employees seem to think that they can when confronted with unexpected situations time and time again.’’).
retroactively document most absences, The timing of employee notification
whether foreseeable or not, and frequently
emergencies. We believe the regulations
submit the documentation after their return strike an appropriate balance to allow of the need for leave was also
to work. Since in many cases these employees to take leave in emergency mentioned by employers and employer
employees used accrued leave to cover their situations, and also to provide representatives as a problem in their
absences, it is often in the employer’s interest employers with information about the administration of the FMLA,
to also designate the absence as FMLA leave need for leave in a prompt manner.’’ particularly—as discussed in greater
whenever the employee provides the National Partnership for Women and detail in Chapter IV—employee notice
documentation of qualification. Families, Doc. 10204A, at 19. See also with respect to intermittent leave. ‘‘The
It also appears that employees who have OWL, The Voice of Midlife and Older last issue has to do with the fact that we
the option of using other accrued paid leave are often not notified that an employee
often do not mention the reason for that leave
Women, Doc. FL180, at 2 (‘‘OWL
believes that the current notice from is out for a serious health condition
in order to avoid the absence being charged
concurrently to FMLA leave. Employees employee to employer in unforeseeable until after they return to work and then
without other leave options are very quick to leave situations is adequate.’’). we are unable to ask for medical
request FMLA leave even for doubtful The majority of stakeholders offering documentation.’’ Jan M. Gray, Benefits
absences. Coordinator, Spokane County, Doc.
information on this topic, though,
5441A, at 1. See also Suzanne Kilts,
Sally L. Burnell, Program Director, highlighted the problems they see with
Doc. 5204, at 1 (‘‘On our intermittent
Indiana State Personnel Department, the sufficiency of information provided
FMLA employees, we have had several
Doc. 10244C, at 5. See also Elaine G. by employees in notifying employers of
occasions where the employee does not
Howell, H.R. Specialist, International the need for FMLA leave. ‘‘[E]mployees
call in for his FMLA absence until
Auto Processing, Inc., Doc. 4752, at 1 who call in because of their own or a
minutes before their shift start. * * *
(‘‘As an H.R. Specialist that handles family member’s medical condition do
Just last week I had an FMLA call off at
FMLA, I can tell you that we have had not necessarily provide sufficient
9:05 a.m. in the morning. That’s 2 hours
employees with a foreseeable leave that information for an employer to make
and five minutes after their shift is to
did not notify us of their need for leave. such a determination. Since what start.’’); The Pennsylvania Turnpike
Some employees have scheduled constitutes ‘‘sufficient’’ information is Commission, Doc. 10092, at 6 (‘‘The
surgery and used vacation time. We are not clearly defined anywhere in the issue of [employees] failing to notify
unaware of it unless there are regulations, both employees and their supervisors promptly that they are
complications. * * * Many of our employers face difficulties in meeting taking FMLA leave is very prevalent in
employees are very private of their their rights and responsibilities under our company. Some employees that are
medical needs, as they should be.’’); the FMLA.’’ National Coalition to approved for intermittent FMLA simply
Zimbrick Inc., Doc. FL125, at 10 (‘‘We Protect Family Leave, Doc. 10172A, at don’t show up for work, and then email
see several causes [for employee’s 39–40. See also National Retail or call their supervisor when the work
failing to notify employer]: (1) Federation, Doc. 10186A, at 16 (‘‘Certain day is almost over to inform them that
Employees’ lack of knowledge about retailers report that paperwork is often they are taking FMLA. This is extremely
FMLA; (2) employees don’t anticipate not provided in a timely manner frustrating as an employer, and there
the need (for example[:] employee takes because the employee has failed to does not ever seem to be a valid reason
off on Friday to have surgery but due to adequately communicate the reason that the employee could not notify the
medical complications can’t return to prompting the leave request or has not supervisor earlier.’’).
work on Monday); [and] (3) employees shared the information with an
who know FMLA is 12 weeks and they appropriate manager.’’); Jackson Lewis 2. Commenter Recommendations
try to scam the system by using vacation LLP, Doc. FL71, at 9 (‘‘Much of the The Department also asked for
and sick time up first and then want 12 frustration employers experience in suggestions on how to improve the
more weeks off.’’). One stakeholder administering FMLA leaves stems from reported situation of employees not
cited the need to provide medical the difficulty employers have in promptly providing notice to their
certification of the serious health ‘‘spotting’’ FMLA qualifying absences. employers of their need for
condition as a reason employees do not Employers are not ‘‘mind readers’’ and unforeseeable FMLA leave. One
request FMLA leave. See FNG Human they often refrain from asking commenter suggested ‘‘shifting the
Resources, Doc. FL13, at 3 (‘‘Employees employees why they are absent for fear burden to the employee to request the
refuse to request FMLA because some that they may invade an employee’s leave be designated as FMLA leave in
medical providers either refuse to medical privacy. It also is naive to think writing.’’ See Miles & Stockbridge, P.C.,
complete the paperwork, complete it that employers can effectively train Doc. FL79, at 5. Other commenters
incorrectly or incompletely, or charge front line supervisors on the myriad of suggested not only written leave
the patient up to $50 to complete the health conditions and personal family requests but also that leave requests
required certification. Employees would emergencies that might qualify for specifically mention FMLA. ‘‘It would
rather do without the hassle, request FMLA protection.’’); Porter, Wright, eliminate many disputes if an employee
sick pay for the days they are out, Morris & Arthur LLP, Doc. 10124B, at 4 were required to request leave in writing
regardless of severity of their (‘‘The first concern in this area relates or to follow up an oral request with a
illnesses.’’). to the type of notice an employee must written request within a reasonable time
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Some commenters do not see provide to obtain FMLA leave. * * * (such as within two work days after
problems with employee notification as Instead, they simply need to request returning to work in the case of
mentioned in the RFI and suggested time off and provide a reason for their intermittent leave, or five work days
maintaining the status quo. ‘‘Clearly, request.’’); National Association of after requesting leave in the event of
employees should notify their Convenience Stores, Doc. 10256A, at 5 unforeseen continuous leave). * * * It
employers about their need for leave as (‘‘Employee notice is often vague or would help both parties immensely if
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35585
the employee were required to mention Employer Labor Relations Association, FMLA-qualifying and the specific notice
the FMLA when making such a Doc. FL93, at 4. See also Association of required to be provided by employers
request.’’ South Central Human Corporate Counsel, Doc. FL31, at 10 are essential means by which employees
Resource Management Association, Doc. (‘‘DOL should * * * make clear that an learn of their FMLA rights and
10136A, at 14; see also Spencer Fane employee may be subject to an obligations. Several employers provided
Britt & Browne LLP, Doc. 10133C, at 39 employer’s disciplinary process for information on this topic.
(same). ‘‘Especially for intermittent use, failure to provide timely notice or to With regard to the notice procedures
require that employee provide specific comply with the employer’s written employers actually use, one commenter
FMLA notice when absences are notification policy.’’); Miles & stated that its notification procedures
necessary, relieving employer from Stockbridge, P.C., Doc. FL79, at 4 (‘‘A are ‘‘working quite well,’’ because it
identifying possible need of FMLA with possible remedy * * * would be to includes FMLA information during new
timely designation based on limited require an employee taking intermittent employee orientation and has trained its
information provided by employee[.]’’ leave to provide notice of the need to supervisory workforce to recognize
DST Systems, Inc., Doc. 10222A, at 4. take intermittent leave consistent with potential covered absences. FNG Human
Other stakeholders expressed a desire the employer’s call out procedures and/ Resources, Doc. FL13, at 4. It stated that
for more information from employees, or sick leave/absentee policy. supervisors notify the personnel office,
but stopped short of suggesting a Additionally, at the time of the which mails out contingent FMLA
requirement that the employee must employee’s call, the employee should be notices and certification paperwork
specifically ask for FMLA leave. required to indicate that the reason for with instructions on how to have it
‘‘Employees should be required to the absence is because of the FMLA completed, and the notice includes a
specify the purpose of any instance of qualifying chronic condition.’’); statement of all employee rights and
FMLA leave, such as a doctor’s National Association of Convenience responsibilities. This employer allows
appointment, physical treatment, etc. so Stores, Doc. 10256A, at 5 (‘‘Employers employees 20 days to return the
employers can assess veracity when should also have the flexibility to certification forms (more than the
employees appear to be abusing the impose more stringent internal notice required 15 days), in order to cover
leave policy.’’ U.S. Chamber of requirements upon employees, and to mailing time and because some medical
Commerce, Doc. 10142A, at 11. See also impose leave forfeiture provisions for providers have a slow completion rate.
Williams Mullen, Doc. FL124, at 2 their non-compliance.’’); University of Once the paperwork is received, ‘‘we
(‘‘DOL should implement detailed Wisconsin-Milwaukee, Doc. 10098A, at keep both the employee and supervisory
regulations which provide necessary 4 (‘‘Requiring employees to comply with personnel abreast of updates and
language or actions that must be taken regular attendance policies unless there approvals.’’ Id.
by employees to put their employers on is a ‘medical’ emergency would be one The Pennsylvania Turnpike
notice of their intent to take FMLA Commission stated that its ‘‘process
way to rectify the problem of employees
leave.’’); Association of Corporate works great for our company and
failing to notify the employer of the
Counsel, Doc. FL31, at 8 (‘‘The DOL everyone is kept abreast of their FMLA
need for unforeseeable leave.
should revise its regulations * * * by status.’’ The Pennsylvania Turnpike
Intermittent, unscheduled FMLA does
making clear that an employee’s notice Commission, Doc. 10092A, at 5–6. It
not necessarily imply a ‘medical
to the employer must go beyond merely described that when it receives a
emergency’ which makes regular
requesting leave and must provide a certification form, employees are sent a
notification impossible.’’); American
basis for the employer to conclude that letter stating whether the leave is
Electric Power, Doc. FL28, at 2–3 (‘‘The
the requested leave is covered by the approved or denied, with a starting date
regulations should be reformed to allow
FMLA.’’). However, some employers and expiration date if approved. It
employers to enforce attendance reminds the employee’s supervisor a
advocated for a requirement that
policies that require employees to week prior to the expiration date, who
employees specifically request FMLA
observe reasonable reporting-off
leave, suggesting that the regulations
protocols, including policies that
should apply ‘‘to only those employees employers from retroactively designating leave as
require employees to report off to their FMLA if they could have properly determined the
who request FML coverage.’’ Edison
direct supervisors or to a designated status of the leave at the time the employee either
Electric Institute, Doc. 10010A, at 3. See requested or commenced the leave. See 29 CFR
person in human resources.’’).
also Spencer Fane Britt & Browne LLP, 825.208(c); but see supra Chapter II (discussing
Doc. 10133C, at 42 (employers who have D. Employer Notification That Leave Is status of penalty provision of section 825.208(c) in
light of the Supreme Court’s decision in Ragsdale).
a written FMLA policy should receive FMLA-Qualifying The regulations do allow for retroactive
‘‘safe harbor’’ protection and be designation, however, if the employer learns after
In order to allow employees to know
permitted to enforce procedural an employee’s leave has begun that the leave is for
when they are using their FMLA- an FMLA-covered purpose. See 29 CFR 825.208(d).
requirements such as that FMLA leave
protected leave, the regulations state Similarly, if an employer knows the reason for the
requests be in writing, that the FMLA be
that ‘‘it is the employer’s responsibility leave but is unsure whether it qualifies for FMLA
specifically mentioned, and that the protection, or if the employer has requested but not
to designate leave, paid or unpaid, as
requests go to a particular centralized yet received certification of the need for leave, the
FMLA-qualifying, and to give notice of employer may preliminarily designate the leave as
source).
Several stakeholders recommended the designation to the employee.’’ 29 FMLA-covered. See 29 CFR 825.208(e)(2). If upon
CFR 825.208(a). It is the Department’s receipt of the requested information the employer
allowing employers to enforce employee determines that the leave is FMLA protected, the
compliance with established attendance intent that such designation occur ‘‘up preliminary designation becomes final. Id. If the
and leave notification procedures, front’’ whenever possible, to eliminate additional information does not confirm that the
particularly with respect to intermittent protracted ‘‘after the fact’’ disputes. See absence was for an FMLA-covered reason, the
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60 FR 2180, 2207–08 (January 6, employer must withdraw the preliminary
unscheduled FMLA leave. ‘‘The designation and notify the employee. Id. Finally, if
regulations should expressly provide 1995).12 Notification that the leave is the employer does not learn that leave was taken
that the employer may enforce any for an FMLA-covered purpose until the employee
12 In general, employers are required to designate returns from leave, the employer may, within two
generally applicable leave notification leave as FMLA within two days of learning that the business days of the employee’s return, designate
or call-off requirements, even if the leave is being taken for an FMLA-covered purpose. the leave retroactively as covered by the FMLA. See
FMLA is also involved.’’ Ohio Public See 29 CFR 825.208(b)(1). The regulations prohibit 29 CFR 825.208(e)(1).
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35586 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
reminds the employee that the leave is members follow the regulations for notification of an absence or need for
expiring. If the employee needs designating leave at sections 825.301(b) leave is received by front-line
additional leave, the employee (specific notice of rights and management, who conveys the
recertifies. responsibilities) and 825.208(b)(2) information up the chain of command
The Ohio Department of (payroll stub or other written and to the local HR representative, who
Administrative Services similarly noted designation). However, it stated that notifies the FMLA administrator, who is
that it understands that an employee’s some employers are not aware of both ultimately responsible for making a
awareness of FMLA rights and provisions, and that the designation determination. It is not unusual for it to
responsibilities ‘‘is critical to fulfilling process is confusing when an employer take one to two business days just for
the goals of the statute,’’ and therefore provisionally designates leave when the the right personnel to receive the
employees are given notice of the State’s employer does not have sufficient information, much less make a
FMLA policy upon their hire and information to make a final determination and communicate it back
notices also are posted. Doc. 10205A, at determination within two days. The to the employee.’’); Courier Corporation,
4. The State also notifies employees of Coalition suggested that the regulations Doc. 10018A, at 4 (‘‘The two-day
their rights verbally within two days of should allow the ‘‘official ‘designation’ timeframe is way too short for notifying
designating leave as FMLA leave, and notice to be sent to employees after employees about their leave request,
confirms the designation in writing by sufficient information is received from since as employers we are often chasing
the following payday. Employees the employee to make a determination information from the employee or
receive notice the first time they are whether the leave qualifies for FMLA physician.’’); Spencer Fane Britt &
granted FMLA leave in each six-month protections as part of the section Browne LLP, Doc. 10133C, at 42 (‘‘For
period. The State noted that sending a 825.301 notice obligations (rights and most employers, this is virtually
letter to employees with chronic responsibilities requirement). No further impossible. Although most employers
conditions every time they request designation should be required. designate leave within a reasonable time
FMLA leave for such a condition could Employers should simply have the frame, it is usually well outside the two-
‘‘serve as an additional opportunity for obligation to provide the employees day time frame, thus creating a risk that
communication,’’ but it believes that with FMLA usage information on the designation will be ineffective.’’).
such notice would be very burdensome. request[.]’’ National Coalition to Protect Employers suggested varying
Id. at 5. The State also supported Family Leave, Doc. 10172A, at 42. timeframes to replace the two-day limit.
eliminating the requirement to notify One commenter suggested, as a See, e.g., Fisher & Phillips LLP, Doc.
employees that their leave will be possible improvement that would allow 10262A, at 15 (fifteen days from receipt
counted as FMLA leave when an employees to receive more accurate of a certification form); National
employee has requested FMLA leave in information on their FMLA leave Coalition to Protect Family Leave, Doc.
writing or a verbal request has been balances, that employees should keep 10172A, at 48 (ten business days);
appropriately documented. See id. their own records and also ask ‘‘the Association of Corporate Counsel, Doc.
One commenter stated that it also employer for a copy of their FMLA FL31, at 11 (five working days); Courier
advises employees verbally that their records and report any discrepancies Corporation, Doc. 10018A, at 4 (five
leave is FMLA-qualifying and then within a specified amount of time to be days); United States Postal Service, Doc.
follows up with a letter. ‘‘If they have resolved.’’ Bendix Commercial Vehicle 10184A, at 5 (same); Northrop
already used some FMLA in the last 12 Systems LLC, Doc. 10079A, at 9. Grumman Newport News Shipbuilding
months, I will include in the letter the Another commenter similarly suggested and Dry Dock Company, Doc. FL92, at
amount of leave still available to them. that employers should be required ‘‘to 3 (same); Spencer Fane Britt & Browne
In the case of intermittent leave I will make a good faith effort to provide LLP, Doc. 10133, at 42 (suggesting a
carefully explain our rolling 12 month employees with information about their reasonableness standard).
period and give them a copy of the eligibility status and FMLA leave One employer stated that while some
attendance controller on which I balances within a reasonable amount of decisions can be made in two days, even
recorded their leave and, again, time, upon request by an employee[,]’’ a week might not be sufficient in other
carefully explain that on the anniversary but employees also should be required cases, depending upon the amount of
date of time used, that amount will to track their own hours and notify the information supplied by an employee
become available for them to use.’’ employer if they dispute the employer’s and whether clarification is needed
Elaine G. Howell, H.R. Specialist, data. Spencer Fane Britt & Brown LLP, from the health care provider. See
International Auto Processing, Inc., Doc. Doc. 10133C, at 43. This commenter Elaine G. Howell, H.R. Specialist,
4752, at 1. contended that an employee’s FMLA International Auto Processing, Inc., Doc.
Another commenter stated that it rights should be ‘‘no greater than they 4752, at 1. Other commenters similarly
notifies employees that their leave has would otherwise be if the employer stated that the two-day time frame for
been designated as FMLA leave by either fails to provide the information or providing notification to employees that
sending the employees a letter inadvertently provides inaccurate FMLA leave has been approved or
confirming that their rights under the information.’’ Id. denied is inadequate, ‘‘as there are
FMLA have been reviewed and the many factors which result in delays in
leave conditionally designated, pending E. Timing Issues both obtaining information and
proper doctor certification. Franklin The Request for Information sought processing requests.’’ Hinshaw &
County Human Resources Department, comments on whether the two day time Culbertson LLP, Doc. 10075A, at 5.
Doc. FL59, at 7. The University of frame for employers to notify employees With regard to possible alternative
Washington noted that it mails a written that their request for FMLA leave has requirements, Jackson Lewis suggested
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notification to eligible employees after a been approved or denied was adequate. employers should not be required to
health-related three-day absence. See The majority of comments on this designate absences as FMLA-qualifying
University of Washington, Doc. FL17, at topic indicated that the current two-day within two days, ‘‘as long as the
2–3. time frame was too restrictive. See, e.g., employee is receiving the protections of
The National Coalition to Protect United Parcel Service, Doc. 10276A, at the FMLA[,]’’ and that a regulation
Family Leave stated that many of its 10 (‘‘In most cases, the initial could allow employers to preliminarily
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35587
designate absences as FMLA-qualifying, regulations to provide further guidance requirements and make a good faith
subject to the ‘‘employees ‘‘opting out’’ on making retroactive FMLA eligibility determination that is later
of FMLA leave’’ or the employer designations when an employee has overturned by a court or other
establishing that the condition does not initial absences that do not qualify for authoritative body.’’ Ohio Department of
qualify. Doc. FL71, at 8. The commenter FMLA leave, but the health condition Administrative Services, Doc. 10205A,
stated this ‘‘would bring greater develops over a period of time. City of at 1. (Penalties arising from an
certainty and closure to absence Eugene Human Resource & Risk employer’s failure to follow the
management for absences by imposing a Services, Doc. 10069A, at 1. regulatory requirements concerning
periodic ‘‘employee-employer’’ Another commenter emphasized the notice are addressed in Chapter II of the
reconciliation of FMLA leave.’’ Id. at 9. hardships employees suffer when they Report.).
Alternatively, Jackson Lewis suggested do not know promptly whether the AVAYA Communication similarly
that a regulation could ‘‘require that employer believes they are entitled to noted that calculating the 1,250 hours of
employers advise employees in general protected leave. The commenter stated work is a time consuming process for
notices that they must specifically that companies do not respond within employers, and that ‘‘it is difficult to
request FMLA leave for all absences of the required two business days, so obtain an accurate number of hours
less than one week in duration,’’ and employees either do not take the time worked in time for the notification letter
that employers should be allowed ‘‘to off that they (or their family members) to go out promptly.’’ Doc. FL33, at 1.
designate retroactively absences that need, or else they take off but are afraid Therefore, the commenter
initially were not classified by either the because they do not know whether they recommended allowing employers a
employer or employee as FMLA but will be subject to discipline for being off grace period within which to determine
would, in retrospect, qualify as work. Frasier, Frasier & Hickman, LLP, whether employees are eligible for
intermittent leave under the FMLA.’’ Id. Doc. FL60, at 1–3. The commenter gave leave. Another commenter believed that
See also Fairfax County Public Schools, an example of an employee who was not employers should simply have to advise
Doc. 10134A, at 3–4 (in order to focus advised of his FMLA leave status until an employee who does not have the
on the outcome [12 weeks of leave] approximately 60 days after he requisite 1,250 hours of service of that
rather than the application process, submitted a certification form. This conclusion, and the employer should
employers could be required to notify commenter suggested finding some not be required to advise the employee
employees annually that, if they have means of making employers respond when s/he will be eligible for FMLA
one year of service and 1,250 hours, timely to requests for leave. Similarly, leave because that timing is difficult to
they are entitled to FMLA leave and the International Association of predict. Pilchak Cohen & Tice, P.C.,
then the burden should be on Machinists and Aerospace Workers Doc. 10155A, at 5. See also United
employees to contact the designated suggested that employers should be Parcel Service, Doc. 10276A, at 7–8
official to apply). ‘‘required to promptly inform workers (objecting to any revision to the
when they are using their FMLA leave, regulations that would require
Another commenter suggested that, and to provide copies of FMLA leave ‘‘employers to provide periodic or on-
because employers experience problems balances,’’ rather than putting this demand updates about the amount of
with giving proper notice when burden on employees, because FMLA leave remaining to employees’’).
employees do not provide prompt and employees can be confused as to which On the other hand, another
proper notice of their need for leave, days their employer has counted as commenter noted that it uses a tracking
‘‘DOL should implement detailed FMLA leave and which it has not. Doc. program related to its payroll system
regulations which provide necessary 10269A, at 3. See also 9to5, National that tells it whether ‘‘the employee has
language or actions that must be taken Association of Working Women, Doc. been employed one year, worked 1250
by employees to put their employers on 10210A, at 3 (same). hours in the prior twelve months, and
notice of their intent to take FMLA One commenter noted that the number of weeks they are eligible
leave. As a result, employers will be ‘‘[m]istakes about an employee’s [based on] any previous leaves
significantly better equipped to execute eligibility under the FMLA can be costly associated with FMLA. A notice is sent
their responsibilities under the Act, for both employers and employees. to the employee within 48 hours of their
including, but not limited to notifying Certainty in this area is critical.’’ request.’’ AM General LLC, Doc.
employees that the leave in question National Multi Housing Council and 10073A, at 2. Another employer
will count as FMLA leave.’’ Williams National Apartment Association, Doc. similarly stated that it determines
Mullen, Doc. FL124, at 2. See also Miles 10219A, at 2. However, other comments whether employees are eligible by
& Stockbridge, P.C., Doc. FL79, at 5 indicate that certainty may be difficult running a report through the payroll
(designation difficulties could be to achieve promptly. For example, the system to track the number of hours
eliminated by requiring employees ‘‘to Ohio Department of Administrative worked in the past 12 months, but then
request the leave be designated as Services noted that, because the 1,250 spends ‘‘an unusual amount of time’’
FMLA leave in writing’’ either prior to hours of work test involves determining how much FMLA leave the
or within three days of the absence); distinguishing between active work and employee already has used. Elaine G.
Betsy Sawyers, Director, Human paid time off, such as vacation time, Howell, H.R. Specialist, International
Resources Department, Pierce County, sick leave, bereavement leave, holidays, Auto Processing, Inc., Doc. 4752, at 1.
Washington, Doc. FL97, at 4 personal leave, etc., ‘‘eligibility One law firm suggested that the
(responsibility for requesting FMLA determinations continue to bring Department’s regulations may be the
leave should be shifted to employee so confusion to employers and their cause of employer confusion over their
employer does not have to ‘‘second managers. In light of the difficult fact notice responsibilities. ‘‘The
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guess or request additional explanation patterns that oftentimes accompany Regulations include several notice
from the employee’’ or, alternatively, eligibility determinations, the State of obligations, which we believe are not all
broaden an employer’s ability to Ohio recommends that the Department necessary and have simply created more
retroactively designate FMLA leave to implement a ‘‘safe harbor’’ provision to FMLA paperwork than is really
include entire period of leave). Another exempt employers from penalties when necessary.’’ Spencer Fane Britt &
commenter noted that it would like the employers follow the regulatory Browne LLP, Doc. 10133C at 41. ‘‘The
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35588 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
Regulations do not include in one omitted). Notably, Unum Group, a 1. Statutory Provisions Regarding the
provision all of the applicable time provider of Federal and state FMLA Medical Certification and Verification
frames and when they apply. Employers administration services, stated that Process
struggle over provisions requiring ‘‘[t]he two-day timeframe for providing Employers have the option of
preliminary designations, final notice to an employee of his/her requiring employees who request leave
designations, when designations can be eligibility for FMLA leave is sufficient.’’ due to their own serious health
made retroactively, whether to designate See Doc. 10008A, at 3. At the end of condition or to care for a covered family
leave as FMLA leave when an 2006, Unum Group reported having 95 member with a serious health condition
incomplete certification is returned, and customers located throughout all 50 to support their need for leave with a
when the ‘‘two-day’’ designation rule states and administering leaves for a certification issued by their (or their
applies.’’ Id. at 41–42. total employee population of 585,157. family member’s) health care provider.
Finally, 53 Democratic Members of Id. at 1. See 29 U.S.C. 2613(a).13 The
Congress recognized the potential for information necessary for a sufficient
confusion concerning employer notice VI. The Medical Certification and certification is set forth in section 103
obligations. Verification Process of the Act. See 29 U.S.C. 2613(b). The
The Department mentions a few of the statute states that a medical certification
The Department asked several
notice issues that have arisen under the ‘‘shall be sufficient’’ if it states the
FMLA. While it is true that the statute is not questions in the Request for Information
following: the date the condition
perfectly clear in elaborating the notice regarding the medical certification and commenced; the probable duration of
obligations of employees and employers verification process. This chapter the condition; ‘‘appropriate medical
under the FMLA, it is not clear that the addresses the Department’s request for
Department can fully resolve the issues
facts’’ regarding the condition; a
comments on the following issues: statement that the employee is needed
through revisions in regulation alone. It whether the regulatory restriction in
would be helpful for the Department to ask to care for a covered family member or
Congress to clarify how the notice motions of section 825.307(a) that permits an a statement that the employee is unable
the Act apply. The law or the regulations employer to contact the employee’s to perform the functions of his/her
should put forth a clear and commonsense health care provider for purposes of position (as applicable); dates and
regime by which employers would notify clarification and authentication only duration of any planned treatment; and
workers of their rights and responsibilities through the employer’s health care a statement of the medical necessity for
under the Act, workers would be required to provider results in unnecessary expense intermittent leave and expected
notify their employers of their need to take or delay and what are the benefits of the duration of such leave. Id.
FMLA leave, and employers would be
restriction; whether the optional model In cases in which the employer has
required to notify workers of their approval
or denial of FMLA leave as well as the term certification form (WH–380) seeks the reason to doubt the validity of the
of any approval or reasons for any denial and appropriate information and how it certification provided by the employee,
appeal rights. Clearer notice requirements could be improved; whether the general the statute allows the employer to
would also resolve any issues related to the 30-day period for recertification set require the employee to obtain a second
‘‘duration’’ of leave. forth in section 825.308 is an opinion from a health care provider of
Letter from 53 Democratic Members of appropriate time frame; whether second the employer’s choice and at the
Congress, Doc. FL184 at 3. opinions should be allowed on employer’s expense. See 29 U.S.C.
On the other hand, a few commenters recertifications; and whether employers 2613(c). Where the first and second
indicated that the two-day time frame is should be allowed to request a fitness opinions differ, the employer may
adequate. One commenter stated that for duty certification for an employee require the employee to obtain a binding
the ‘‘two-day rule is not an issue when third opinion from a health care
returning from intermittent leave. This
you are aware of a possible FMLA event provider selected jointly by the
chapter also addresses other comments
on the first day of eligibility[,]’’ because employer and employee (and paid for by
received regarding the medical
the contingent notice can be mailed or the employer). See 29 U.S.C. 2613(d).
certification process including Finally, the statute allows the employer
handed to the employee immediately, comments related to the Health
but problems arise when the possible to require the employee to provide
Insurance Portability and subsequent recertifications from the
FMLA coverage is not known until later, Accountability Act of 1996 (‘‘HIPAA’’),
such as when the employee returns to employee’s health care provider on a
Pub. L. 104–191, a law that was reasonable basis. See 29 U.S.C. 2613(e).
work. FNG Human Resources, Doc. discussed in Request for Information but
FL13, at 5. However, this employer In addition to the certification of the
was not directly referenced in any need for leave due to the employee’s or
allows the employee to apply at that
specific questions. a covered family member’s serious
time and gives them the paperwork
immediately. The National Partnership A. Statutory and Regulatory Provisions health condition, the statute also allows
for Women & Families noted the current Regarding Medical Certification and employers to require certification of the
data does not support an increase in the Verification employee’s ability to return to work
time period beyond the two days following leave for his or her own
provided. See National Partnership for The medical certification process serious health condition as a
Women & Families, Doc. 10204A, at 21 implicates several statutory and precondition to job restoration under
(‘‘Most organizations spend only regulatory provisions under the FMLA. certain circumstances. See 29 U.S.C.
between thirty and 120 minutes of While the Act does not require 2614(a)(4). An employer’s request for a
administrative time per FMLA leave employers to obtain medical return-to-work certification must be
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episode to provide notice, determine certification in support of an employee’s pursuant to a uniformly applied practice
eligibility, request and review request for leave, if an employer chooses or policy. Id. Where an employee’s
documentation, and request a second to do so, it is limited in what medical
13 The certification provision does not apply to
opinion. Therefore, no change to the information it may seek as well as the requests for leave to care for a healthy newborn or
current two-day rule response process it must go through to obtain that newly placed child under 29 U.S.C. 2612(a)(1)(A)
requirement is warranted.’’) (footnote information. and (B).
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35589
return to work is governed by the terms provided on the Department’s optional Employers must allow employees at
of a collective bargaining agreement or WH–380 form or any other form least 15 days to provide recertification.
State or local law, however, the FMLA containing the same information. See 29 See 29 CFR 825.308(d). Recertifications
does not supersede those procedures. Id. CFR 825.306. Section 307 governs the are at the employee’s expense and
employer’s ability to seek clarification completed by the employee’s health
2. Regulatory Provisions Regarding the
Medical Certification and Verification and authentication of, and a second care practitioner. Employers are not
Process and/or third opinion on, the employee’s permitted to request second opinions on
medical certification. See 29 CFR recertifications. See 29 CFR 825.308(e).
The regulations flesh out the 825.307. This section makes clear that Finally, sections 825.309 and 825.310
procedures employers must follow an employer may not require of the regulations govern requirements
when utilizing the tools provided them information beyond that set forth in for the employee’s return to work.
in the Act for verifying an employee’s section 306, but that the employer’s Employers may require employees to
need for FMLA leave. In general, health care provider may seek report periodically on their intention to
sections 825.305 and 825.306 address clarification or authentication of the return to work. See 29 CFR 825.309(a).
the initial medical certification, section information in the certification from the If an employee states an unequivocal
825.307 sets forth the employer’s employee’s health care provider with intention not to return to work the
options for verifying the information in the employee’s permission. See 29 CFR employer’s obligations under the FMLA
the initial certification, section 825.308 825.307(a). Section 307 also makes clear cease. See 29 CFR 825.309(b). Where an
details the employer’s right to seek that where an employee’s FMLA leave employee needs more or less leave than
subsequent recertification, and sections is also covered by workers’ originally requested, the employer may
825.309 and 825.310 address the compensation, the employer may follow require the employee to provide notice
employer’s ability to require the workers’ compensation procedures of the changed circumstances within
certification of the employee’s ability to if they allow for direct contact with the two business days where foreseeable.
return to work following FMLA leave employee’s health care provider. See 29 See 29 CFR 825.309(c). Employers may
due to their own serious health CFR 825.307(a)(1). If the employer has have a uniformly applied policy of
condition. reason to question the validity of the requiring similarly situated employees
Section 825.305 requires an employer who take leave for their own serious
certification, the employer may require
to notify the employee in writing if the health condition to submit certification
the employee to obtain a second opinion
employer is going to require medical of their ability to return to work. See 29
at the employer’s expense and with a
certification for the leave (subsequent CFR 825.310(a). Such certification need
health care provider selected by the
requests for recertification may be oral).
employer. See 29 CFR 825.307(a)(2). If only be a simple statement of the
See 29 CFR 825.305(a). Section 825.305
the second opinion conflicts with the employee’s ability to work. See 29 CFR
also sets forth the general rule that
employee’s original certification, the 825.310(c). The employer’s health care
employers must allow employees at
employer may require the employee to provider may contact the employee’s
least 15 calendar days to provide the
obtain a binding third opinion at the health care provider, with the
certification and that, where time
employer’s expense from a health care employee’s permission, to clarify the
allows, employees should provide the
provider selected jointly by the return-to-work certification but may not
certification prior to the commencement
employer and the employee. See 29 CFR request additional information and may
of foreseeable leave. See 29 CFR
825.307(c). If it is ultimately determined not delay the employee’s return to work.
825.305(b). While employers are
generally expected to inform employees as a result of the second and/or third Id. The employee bears the cost of
that certification will be required at the opinion process that the employee is not providing the return to work
time the leave is requested or, if the entitled to FMLA-protected leave, the certification. See 29 CFR 825.310(d).
leave is unforeseen, within two business leave shall not be designated as FMLA- Where state or local law or the terms of
days of the leave commencing, covered and the employer may treat the a collective bargaining agreement
employers may request certification at a leave under its established policies. See govern an employee’s return to work,
later time if they have reason to 29 CFR 825.307(a)(2). those provisions shall apply. See 29
question the appropriateness or Section 308 of the regulations sets CFR 825.310(b). Employers are required
duration of the leave. See 29 CFR forth the conditions under which an to provide employees with advance
825.305(c). Employers are required to employer may request recertification of notice of the requirement to provide a
inform employees of the consequences the employee’s (or covered family return-to-work certification. See 29 CFR
of not providing the requested member’s) serious health condition. See 825.310(e). Where an employee has
certification and to advise the employee 29 CFR 825.308. Generally, employers been given appropriate notice of the
if the certification is incomplete and may not request recertification more requirement to provide a return-to-work
allow an opportunity for the employee often than once every 30 days and only certification, the employee’s return from
to cure any deficiency. See 29 CFR in connection with an absence. Where leave may be delayed until the
825.305(d). If the employer’s sick leave the initial certification indicates a certification is provided. See 29 CFR
plan’s certification requirements are less minimum period of incapacity in excess 825.310(f). Return-to-work certifications
stringent and the employee or the of 30 days, recertification may not be may not be required for employees
employer exercises the option to requested until the initial period of taking intermittent leave. See 29 CFR
substitute paid sick leave for unpaid incapacity indicated has passed. See 29 825.310(g). Employers may not require a
FMLA leave, the employer may only CFR 825.308(b)(1). In all instances, second opinion on return-to-work
require compliance with the less employers are allowed to request certifications. See 29 CFR 825.310(e).
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stringent certification requirements of recertification if there is a significant B. Comments Regarding the Medical
the paid leave plan. See 29 CFR change in circumstances regarding the Certification and Verification Process
825.305(e). leave or if the employer receives
Section 825.306 of the regulations sets information that casts doubt on the 1. Medical Certification Process
forth the information required for a employee’s stated reason for the Both employers and employees
complete certification, which may be absence. See 29 CFR 825.308(a)–(c). expressed frustration with the medical
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35590 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
certification process. As discussed Reserve Bank of Chicago, Doc. FL56, at Darveaux MD, Eric Reiner MD, Susan R.
below, employers generally expressed 2 (‘‘We often see health care providers Manuel PA–C, Doc. FL292, at 1 (‘‘The
frustration with their ability to obtain list the duration of an employee’s form also asks us to estimate how often
complete and clear certifications. chronic condition as ‘indefinite’ or a patient may need to miss work and
Employees expressed frustration with ‘lifetime’ and indicate that the then wants patient to fill a new form if
employers determining that a frequency of the episodes of incapacity they miss more than we estimate.
certification is incomplete but not as ‘unknown.’ This makes it very Unfortunately, we in health care do not
informing the employee what additional difficult to manage employee have a crystal ball to know the precise
information is necessary to satisfy the attendance.’’); City of Portland, Doc. number of days patients may miss.’’). As
employer’s concerns. Some commenters 10161A, at 2 (‘‘The certifications, the Communication Workers of America
noted that these repeated requests for particularly for chronic conditions, are noted, when it comes to the frequency
additional information are causing often so vague as to be useless.’’); South and duration of leave due to a chronic
tension in the doctor/patient Central Human Resource Management condition employers are searching for
relationship. Overall, the comments Association, Doc. 10136, at 11 (‘‘If a certainty in response to a question
make clear that the certification process doctor cannot venture an estimate as to which asks the health care provider for
is a significant source of friction how often an employee will have a true an estimate. Doc. R346A, at 10 (‘‘The
between employees and employers: The medical need to be absent, we question
current certification form recommended
two groups, however, attribute the whether the doctor is competent to
by DOL makes it clear that the doctor is
source of the friction to very different evaluate the condition.’’); Society for
being asked to estimate the likely
causes. Human Resource Management, Doc.
10154A, at 8 (‘‘Notations such as frequency and duration of any absences
a. Complete Certifications (‘probable duration’ ‘likely duration and
‘lifetime,’ ‘as needed,’ or other similarly
Multiple employers commented that a vague statements ought not suffice. frequency’), yet many employers seem
complete certification should require Health care providers in particular to expect a definitive prediction and
not just that the certification form is should be required to provide as much deny leaves that exceed the estimates
filled-out, but that meaningful responses detail as possible on the total amount of provided on the original certification
are given to the questions. See, e.g., intermittent leave that is needed or form.’’).
Jackson Lewis LLP, Doc. FL71, at 5 allow employers to deny the leave.’’). b. Incomplete Certifications
(‘‘The rule prohibiting employers from The American Academy of Family
asking any additional information once Physicians, however, noted that such Multiple commenters also expressed
an employee submits a completed responses are appropriate in some frustration with what they perceived to
medical certification ignores the reality circumstances: be the open-ended nature of the
that a technically ‘completed’ certification process and sought
Intermittent leave is problematic for the
certification may offer little insight into certifying physician and employer. clarification of how many opportunities
the need for FMLA leave, much less the Employers have noted that with respect to an employee must be provided to cure
medical necessity for leave on an the frequency of the episode of incapacity, a defective certification. See, e.g., Waste
intermittent basis.’’); National Coalition the physician might write ‘‘unknown.’’ Management, Inc., Doc. 10240A, at 2
to Protect Family Leave, Doc. 10172A, at Employers argue that this leaves them in the
difficult position of guessing about the (‘‘The current regulation is open to
47 (‘‘If health care providers * * * do
employee’s regular attendance. However, the interpretation regarding when
not provide direct responses to the
frequency of incapacity in chronic conditions information is due and how much
questions, the regulations should be
such as migraine headaches is not additional time should be afforded to
modified to specify that the certification predictable, making ‘‘unknown’’ the employees who do not share the FMLA
is not considered ‘complete’ for appropriate answer to the question. * * * It certification forms timely.’’); Ken
purposes of the employee’s certification is worth noting that despite medical
obligations, thereby not qualifying the Lawrence, Doc. 5228, at 1 (‘‘At the
advances, absolute cures do not exist for all
employee for FMLA leave.’’); South conditions making the duration of these present time the employee is really not
Central Human Resource Management conditions ‘‘indefinite’’ or ‘‘lifetime’’ from limited to any particular time (could be
Association, Doc. 10136, at 11 (‘‘We the current medical perspective. months) if they are making ‘good faith’
recommend the Regulations make clear American Academy of Family efforts to obtain the certification.’’);
that a ‘complete’ certification is Physicians, Doc. FL25, at 2–3. Other Federal Reserve Bank of Chicago, Doc.
required, that meaningful answers have commenters echoed the point that FL56, at 2 (‘‘There should be an absolute
to be furnished for all questions, and specific estimates of the frequency and cut off when an employer can require
that a certification is ‘incomplete’ if a duration of intermittent leave due to the the employee to submit a completed
doctor provides ‘unknown’ or ‘as flare-up of a chronic condition cannot certification form and the consequence
needed’ to any question.’’). A always be made. See, e.g., An Employee of not meeting that deadline is that the
commenter who had represented several Comment, Doc. 4668, at 1 (‘‘The Doctor absence(s) is not covered by the
employees in FMLA suits disagreed, should simply state that the person has FMLA.’’); Society for Human Resource
however, stating that ‘‘in order to avoid a covered condition and how long the Management, Doc. 10154A, at 18 (‘‘HR
protracted litigation over these issues, person will need to take time off and professionals often have difficulty in
once completed and signed by a when, if known. If unknown the Doctor determining how many times an
physician, the model certification form should be able to say just that.’’); employer must give an employee an
should be considered final and Association of Professional Flight opportunity to ‘cure’ a deficiency, and
binding.’’ Kennedy Reeve & Knoll, Doc. Attendants, Doc. 10056A, at 10 how long to allow them to provide such
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4763A, at 14. (recounting employee’s sending over 25 a complete certification.’’). Commenters
Commenters’ frustration with vague pages of medical documentation in an also sought clarification regarding the
and nonspecific responses on effort to satisfy employer’s questions consequences to the employee if leave is
certifications was greatest in regard to regarding frequency and duration of taken during the certification process
certifications for intermittent leave due need for leave due to chronic but a complete and sufficient
to chronic conditions. See, e.g., Federal conditions); Mark Blick DO, Rene certification is not ultimately provided.
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35591
Delaying a leave for the tardy return of a employees and their treating health care appealed or pursued through the
completed certification is meaningless providers for more medical facts, contract’s grievance procedures.’’).
because by the time the delayed certification without ever indicating what kinds of Some commenters viewed repeated
has been returned, the employee has likely additional medical facts are required employer requests for additional
already taken leave (perhaps for weeks) and medical information as an inappropriate
the employer can only revoke the FMLA
before the employer will make a
designation for time already taken. The determination of medical eligibility or attempt by the employer to substitute its
situation is exacerbated because the medical ineligibility.’’). The determination of the seriousness of the
employer cannot reduce any of the commenters noted that these repeated employee’s health condition for the
employee’s FMLA balance despite the fact requests for additional information force employee’s health care provider’s
the employee was absent. As a result, the the employee to make additional visits judgment. See Coalition of Labor Union
employee is rewarded by having the to his or her health care provider Women, Doc. R352A, at 4 (‘‘We have
opportunity to take more than 12 weeks of (resulting in additional missed work heard disturbing reports from our
leave in that given year. While the employer and expense) and discourage the members that many employers are often
technically could terminate or discipline the employee from pursuing FMLA ‘second-guessing’ the diagnoses of
employee for this non-FMLA time already workers’ doctors and other health care
taken, in all likelihood employers would be
protection. See, e.g., Association of
concerned that such an action would run Professional Flight Attendants, Doc. providers by insisting on additional
afoul of the law’s sweeping prohibitions from 10056A, at 12 (‘‘[T]he Company’s certifications or challenging intermittent
interfering with, restraining or denying an decision to challenge somewhat leave requests if the doctor’s estimate of
employee’s leave. routinely the health care provider’s the likely time needed is exceeded even
estimate of frequency and duration by one or two days or in some minor
Hewitt Associates, Doc. 10135A, at 19; respect. We believe that DOL should
imposes substantial burdens on the
see also United Parcel Service, Doc. issue a strong reminder that employers
employee—both in terms of the cost of
10276A, at 11 (‘‘The remedy specified in are obligated to utilize the second
a second or third visit to the doctor’s
the regulations for an employee’s failure opinion process established in the
office, and in terms of the time required
to provide adequate notice is to deny or regulations.’’); Communications
to complete what is becoming a
delay the employee’s leave, but in these paperwork nightmare.’’); An Employee Workers of America, Doc. R346A, at 7
cases, leave has already been taken.’’); Comment, Doc. 4395, at 1 (recounting (‘‘In CWA’s experience, many
Foley & Lardner LLP, Doc. 10129A, at 4 her personal experience with repeated employers evidence their distaste for
(‘‘The provision does not explain how employer requests for additional FMLA leaves by needlessly quarreling
long the delay may last or what the information regarding her daughter’s with the information provided by health
consequences of a ‘delay’ can be.’’); medical condition); An Employee care providers in support of the
Sherman & Howard L.L.C., Doc. Comment, Doc. 4668, at 1 (‘‘It should employee’s request for leave or ‘second-
10252A, at 1 (‘‘The regulations should not be up to the employer to nitpick a guessing’ the doctor under the guise of
make clear that if an employee does not request for FMLA coverage.’’).14 ‘clarifying’ the information provided on
ultimately qualify for FMLA leave, or Commenters noted that repeated the form.’’); Association of Professional
fails to provide medical certification to requests for additional information were Flight Attendants, Doc. 10056A, at 15
support the requested leave, the creating tension between employees and (identifying ‘‘employer’s rejection of
employee’s absence will be unprotected. their health care providers. See [FMLA] applications based on its
This means that the employer may International Association of Machinists medical staff’s disagreement with the
appropriately enforce its attendance and Aerospace Workers, Doc. 10269A, health care provider’s estimate of
policy which may result in disciplinary at 4 (‘‘Some doctors refuse to fill out the duration and frequency, or treatment
action being taken against the exact same paperwork every 30 days, plan, without invoking the second
employee.’’). particularly for life-long chronic doctor review’’ as one of three primary
c. Employer Requests for Additional conditions like colitis or migraines.’’); concerns with medical certification
Information Kennedy Reeve & Knoll, Doc. 4763A, at process).
15 (‘‘I have been hearing more and more Not all commenters, however, felt the
Employee commenters expressed stories of doctors refusing to fill out the current certification process needed to
related frustrations with the certification forms, thereby leaving the employee be revised. One commenter noted that
process. In particular, several without recourse.’’); Lucy Walsh, the current certification process works
commenters stated that employers Director, Human Resources, Providence well in its workplace.
repeatedly reject certifications as Health Ministry, Doc. 10064A, at 1–2
incomplete without specifying what We have trained our supervisory workforce
(‘‘Some physicians have absolutely to recognize even the slightest possibility of
additional information is necessary, refused to deal with the forms at all a covered absence. The supervisory
leading to a prolonged and frustrating which leaves both the employee and personnel notify H.R. to mail out contingent
back-and-forth process. See, e.g., employer in a dilemma.’’); Coalition of FMLA notice and we include Certification
International Association of Machinists Labor Union Women, R352A, at 5 paperwork with instructions on how to have
and Aerospace Workers, Doc. 10269A, (‘‘Many doctors are refusing to complete it completed. We immediately place the
at 4 (‘‘We have many members who employee on possible FMLA pending the
duplicative paperwork, resulting in receipt of certification paperwork. The notice
have their doctors fill out the paper leave denials that must be either covers all provisions of FMLA and necessary
work only to be told it is not properly steps to rights and responsibilities. We
filled out. The employee fixes that 14 Several commenters also expressed concern
actually give the employees 20 days to return
problem and the Company tells them that health care providers are charging employees the certification to cover the mailing time
there is another problem with the paper to complete the certification form (and, in some
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and some providers’ slow completion rate.
cases, to respond to employer requests for
work. This occurs over and over until clarification). See, e.g., Sun Microsystems, Inc.,
Once all certification paperwork is received
finally the doctor or the employee, or Doc. 10070A, at 2 (reporting that their employees we keep both the employee and supervisory
both give up.’’); Association of have been charged between $25 and $200 to fill out personnel abreast of updates and approvals.
a medical certification); FNG Human Resources,
Professional Flight Attendants, Doc. Doc. FL13, at 3–4 (employees charged up to $50 for
FNG Human Resources, Doc. FL13, at
10056A, at 18 (‘‘[I]t is simply unfair to certification); Shelly Johnson, Oklahoma State 4; see also Legal Aid Society—
send FMLA leave requests back to the University, Doc. 5185, at 1 (same). Employment Law Center, Doc. 10199A,
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35592 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
at 3 (‘‘It is the [certification procedure] because it was not itself permitted commenters suggested that their human
that establishes the objective basis for under the FMLA regulations to ask resources professionals could more
leave based upon the informed opinion questions which that provider was then efficiently clarify the certification with
of the health care provider of the forced to ask on its behalf.’’); City of the employee’s health care provider
employee or family member. Despite Portland, Doc. 10161A, at 2 (‘‘The Act because they were both better versed in
this useful, practical, and commonsense requires employers to use the employee the FMLA and more familiar with the
system that was designed to evaluate as an intermediary to communicate with employee’s job duties and the work
whether any condition constitutes a doctors or incur substantial costs hiring environment than the employer’s health
‘serious health condition,’ many additional doctors to consult with care provider. See, e.g., Association of
employers refuse to use it or use it employee physicians or, in narrow Corporate Counsel, Doc. FL31, at 10
improperly.’’). Several commenters circumstances, to give second and third (‘‘[T]he employer’s staff members—often
suggested that there was no need to opinions. Greater flexibility in obtaining its Human Resources employees—are
change the current certification information for medical certification usually more knowledgeable about the
procedure. See, e.g., National would streamline FMLA approvals.’’); specific job requirements and other
Partnership for Women & Families, Doc. Hewitt Associates, Doc. 10135A, at 15 information that may be relevant or
10204A, at 19 (‘‘The existing regulations (‘‘The employer’s engagement of its own helpful to the employee’s health care
appropriately balance a worker’s health care provider is expensive, takes provider in making his/her
interest in a manageable certification additional time and ultimately delays assessment.’’); Milwaukee Transport
process that does not impose the decision to approve or deny a leave Services, Inc., Doc. FL80 at 3–4 (same).
unreasonable burdens, with the request. Moreover, in cases when the One commenter, however, suggested
employer’s interest in the accurate employer simply wants clarification on that it was appropriate that medical
certification of medical conditions.’’); the amount of time off required, it inquiries be handled by medical
Faculty & Staff Federation of provides no true benefit to either the professionals. See Unum Group, Doc.
Community College of Philadelphia, employer or the employee.’’). The AFL– 10008A, at 3 (‘‘The regulatory
Local 2026 of the American Federation CIO, however, commented that ‘‘[a]ny requirement that the employee’s health
of Teachers, Doc. 10242A, at 6 (same); expense caused by the requirement that care provider be contacted only through
Center for Law and Social Policy, Doc. employers use their own health care the employer’s health care
10053A, at 4 (same); OWL, The Voice of professional to contact the employee’s representative is beneficial in that it not
Midlife and Older Women, Doc. FL180, treatment provider, rather than making only protects the privacy of employees
at 2 (opposing any change in contact directly, is necessary to the but also ensures that medical
certification rules). preserve employee privacy.’’ Doc. information discussed and terminology
2. Employer Contact With Employee’s R329A, at 42. used while clarifying and authenticating
Health Care Provider—Process and Some commenters suggested that complete medical certifications are
Privacy Concerns employers’ expenses could be reduced understood and correctly interpreted.’’).
Both employers and employees by permitting registered nurses to Employers also expressed frustration
commented extensively on the subject contact the employee’s health care with the scope of information they
of employer contact with the employee’s provider. See, e.g., United Parcel could request when clarifying a medical
health care provider. Section 825.307(a) Service, Doc. 10276A, at 8–9 (noting certification. See Sally L. Burnell,
of the regulations requires that that even employers that have nurses on Program Director, Indiana State
employers may contact the employee’s their staff are required to hire a health Personnel Department, Doc. 10244C, at
health care practitioner for clarification care provider to comply with section 6 (‘‘The requirement to have another
of the medical certification only with 825.307(a) of the regulations); MedStar health care provider contact the
the employee’s consent and the contact Health, Inc., Doc. 10144A, at 16–17 submitting health care provider, and
must be made through a health care (same); Manufacturers Alliance/MAPI, then only for clarification of the form,
practitioner. The employer may not use Doc. 10063A, at 7 (suggesting inclusion not for additional information,
the clarification process to request of RNs, LPNs, and physician’s assistants unnecessarily complicates and
additional information beyond the under the term ‘‘health care provider’’); lengthens the approval process, often
information required in the initial see also American Academy of beyond the length of the absence
certification. See 29 CFR 825.307(a). In Physician Assistants, Doc. 10004A, at 1 itself.’’); Jackson Lewis LLP, Doc. FL71,
general, employers were frustrated with (suggesting that definition of health care at 5 (‘‘The rule prohibiting employers
the regulatory restrictions on contact provider in regulations should be from asking for any additional
with the employee’s health care broadened to include physician information once an employee submits
provider and employees were concerned assistants). The Coalition of Labor a completed medical certification
that any changes to the current process Union Women, however, objected to ignores the reality that a technically
would impinge on their medical broadening the definition of health care ‘completed’ certification may offer little
privacy. providers allowed to contact the insight into the need for FMLA leave,
employee’s treating physician, noting much less the medical necessity for
a. Requirement That Employer that its members ‘‘complain that leave on an intermittent basis.’’). Several
Communicate Through a Health Care employers use nurses or physician’s employee commenters, however,
Provider assistants who are not adequately asserted that employers are already
Many employers commented that the trained and who repeatedly challenge using the clarification process
requirement that they communicate their doctor’s diagnoses and predictions improperly to seek additional
pwalker on PROD1PC71 with PROPOSALS2
only through a health care practitioner of leave duration and frequency, leading information beyond that included in the
resulted in significant cost and delay. to the need for additional certifications certification form or even to challenge
See, e.g., Milwaukee Transport Services, and forcing the employee to take the employee’s health care provider’s
Inc., Doc. FL80, at 3 (‘‘In 2006 alone, personal leave time to obtain new medical judgment. See United Steel,
MTS spent $23,000.00 for the services of paperwork.’’ Coalition of Labor Union Paper and Forestry, Rubber,
a designated health care provider Women, Doc. R352A, at 6. Other Manufacturing, Energy, Allied
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35593
Industrial and Service Workers the frequency and duration of leave compromise, DOL limited this contact
International Union, Doc. 10237A, at 4 with the employee’s health care to an employer’s health care provider to
(‘‘It has been our experience that some provider.’’ Honda, Doc. 10255A, at 11– protect the privacy interests of
employers contact the health care 12. Other commenters suggested that the employees and their families and ensure
provider and attempt to reschedule process for seeking medical information that their medical information was only
appointments, ask questions that go under the FMLA should be consistent being shared between medical
beyond the certification of serious with the procedure set forth under the professionals.’’ Doc. 10204A, at 20
health condition at issue, or even try to Americans with Disabilities Act. See (footnotes omitted); see also Service
get the health care provider to change infra Chapter VII. Employees International Union District
the medical certification, all without 1199P, Doc. FL104, at 5 (same);
c. Employee Privacy Concerns
employee consent.’’); Communications American Federation of Labor and
Workers of America, Doc. R346A, at 10 Finally, many commenters expressed Congress of Industrial Organizations,
(‘‘In CWA’s experience, there is concern that any changes to the Doc. R329A, at 42–43 (same).
currently widespread non-compliance regulations governing contact between
their employers and their health care 3. Interaction of Health Insurance
with the intent of the current regulation
providers would compromise their right Portability and Accountability Act and
[29 CFR 825.307] limiting employer
to medical privacy. See, e.g., An Medical Certification Process
contact with employee health care
providers to those circumstances where Employee Comment, Doc. 4019, at 1 (‘‘I As noted in the Request for
‘clarification’ or ‘authentication’ are also oppose any regulatory changes that Information, the most significant law
necessary.’’). would allow employers to directly passed since the FMLA with regard to
contact a worker’s health care provider, employee medical information is the
b. Requirement of Employee Consent for which unnecessarily violates the Health Insurance Portability and
Contact worker’s right to keep medical Accountability Act (‘‘HIPAA’’). HIPAA
Several commenters asserted that the information confidential.’’); 9to5, addresses in part the privacy of
requirement that an employer obtain National Association of Working individually identifiable health
employee consent prior to contacting Women, Doc. 10210A, at 4 (‘‘We also information. The Department of Health
the employee’s health care provider oppose any regulatory changes that and Human Services (‘‘HHS’’) issued
makes it extremely difficult for would allow employers to directly regulations found at 45 CFR Parts 160
employers to investigate suspected contact a worker’s health care provider, and 164 that provide standards for the
fraud related to medical certifications. which unnecessarily violates the privacy of individually identifiable
See, e.g., Robert Haynes, HR- worker’s right to keep medical health information. The HIPAA
Compliance Supervisor, Pemco information confidential.’’); Faculty & regulations do not impede the
Aeroplex, Inc, Doc. 10100, at 1 (noting Staff Federation of Community College disclosure of protected health
difficulty in investigating fraud when of Philadelphia, Local 2026 of the information for FMLA reasons if the
employee’s consent is necessary for the American Federation of Teachers, Doc. employee has the health care provider
employer to authenticate form with 10242A, at 6 (same); United Steel, Paper complete the medical certification form
employee’s health care provider); Ohio and Forestry, Rubber, Manufacturing, or a document containing the equivalent
Public Employer Labor Relations Energy, Allied Industrial and Service information and requests a copy of that
Association, Doc. FL93, at 5–6 (same); Workers International Union, Doc. form to personally take or send to the
United States Postal Service, Doc. 10237A, at 4 (same). Another employer. HIPAA regulations, however,
10184A, at 15 (suggesting that a ‘‘simple commenter stated, ‘‘[w]orkers have the clearly do come into play if the
and fair way to remedy this problem is right to keep their medical information employee asks the health care provider
to allow an employer to make contact confidential and not have irrelevant to send the completed certification form
with the provider for the purpose of health status information affect their or other medical information directly to
confirming authenticity’’); Taft, employers’ decisions.’’ Families USA, the employer. In such situations, HIPAA
Stettinius & Hollister LLP, Doc. FL107, Doc. 10327A, at 5. Moreover, the will generally require the health care
at 6 (‘‘Where authenticity is suspect, the National Partnership for Women and provider to first receive a valid
employer’s inquiry is not medically Families noted that the Department authorization from the employee before
related but rather, is intended to already considered issues relating to the sending the information to the
determine whether the employee’s employer’s need for medical employer.
health care provider issued the information and the employee’s right to There is no requirement under the
certificate and that it has not been medical privacy and struck the FMLA that employees sign a release
altered. In such circumstances, the appropriate balance back in 1995 with allowing employers to access their
restrictions contained in Section the final regulations: ‘‘DOL has already medical information. In the preamble to
825.307(a) serve no useful purpose, considered comments regarding the final regulations, the Department
impose unnecessary expense on concerns about an employer’s ability to specifically rejected the idea of
employers, and are not justified by any obtain medical information from a requiring employees to execute a
language in the Act.’’). Honda suggested health care provider. The interim [1993] medical release as part of the
that the regulations should distinguish FMLA regulations entirely prohibited an certification process as unnecessary. See
between contacts by the employer to employer from contacting the health 60 FR 2180, 2222 (Jan. 6, 1995) (‘‘The
confirm administrative details and care provider of the employee or the Department has not adopted the
contacts related to substantive medical employee’s family member. In response suggestion that a waiver by the
discussions: ‘‘[T]he FMLA Regulations to a number of comments, * * * DOL employee is necessary for FMLA
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should be amended to permit the amended the regulations to allow an purposes. The process provides for the
employer to contact the employee’s employer’s health care provider to health care provider to release the
health care provider’s office to confirm contact an employee’s or a family information to the patient (employee or
date, time and place of appointments, member’s health care provider to clarify family member). The employee then
but not permit the employer to discuss or authenticate the information in this releases the information (form) to the
the medical facts, the need for leave and medical certification. In arriving at this employer. There should be no concern
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35594 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
regarding ethical or confidential Certification.’’). As a result of these employee will still have a check over
considerations, as the health care difficulties, several commenters— the process as the health care provider
provider’s release is to the patient.’’). including some medical providers— would require the employee’s
Employers, however, always have the suggested that employees be required to permission before he or she would
statutory right under the Act to obtain sign a release as part of the certification speak with the employer.’’); see also
sufficient medical information to requirement allowing the employer to National Retail Federation, Doc.
determine whether an employee’s leave communicate directly with the 10186A, at 17 (‘‘The professional
qualifies for FMLA protection, and it is employee’s health care provider. See, standards binding health care providers
the employee’s responsibility to ensure e.g., American Academy of Family serve as a sufficient ‘‘check’’ on the
that such information is provided to the Physicians, Doc. FL25, at 3 (‘‘The scope of the inquiry.’’).
employer. If an employee does not specific information required by the 4. Recertification and Second and Third
fulfill his or her obligation to provide FMLA certification form and lack of an Opinions
such information upon the employer’s authorization on the form releasing the
request, the employee will not be information may lead to inadvertent The medical verification process does
entitled to FMLA leave. See 29 CFR HIPAA violations. We would not end with the initial medical
825.307–825.308; Wage and Hour recommend the addition of an certification. Employers who question
Opinion Letter FMLA–2004–2–A (May authorization to release medical the validity of an employee’s medical
25, 2004). Some commenters believe information to the certification form certification have the right to require a
that the HIPAA regulations restricting which would allow the patient to second opinion from a health care
the flow of medical information from indicate their authorization to release provider of their choosing. See 29 CFR
health care providers to third parties information to a family member or 825.307. Where the second opinion
have created tension with the directly to the employer.’’); Ed conflicts with the initial certification,
employer’s right to medical information Carpenter, Human Resource Manager, the regulations allow the employer to
under the FMLA and have caused Tecumseh Power Company, Doc. R123, obtain a final and binding third opinion
difficulties for employees seeking to at 1 (certification process would be from a jointly-designated health care
exercise their FMLA rights. See, e.g., made easier if employee signed a release provider. See id. Additionally,
Krukowski & Costello, S.C. (on behalf of allowing the employer to contact employers have the right to require
Legislative Committee of the Human employee’s health care provider); employees to provide subsequent
recertification for conditions that persist
Resource Management Association of Williams Mullen, Doc. FL124, at 3
over time. See 29 CFR 825.308. The
Southeastern Wisconsin), Doc. 10185A, (‘‘DOL should coordinate HIPAA and
Request for Information sought
at 3 (‘‘[W]hen an employer may attempt FMLA issues, including medical
comments regarding several aspects of
to ascertain the true nature of any given certifications with HIPAA waivers, to
the recertification and second opinion
absence, the employee then uses HIPAA make the process of medical
processes. Comments were sought
as a shield designed to prevent the information consistent.’’). Other
regarding the time frame for
employer from obtaining any further commenters, however, objected to
recertification and the requirement that
information in order to clear up any requiring employees to provide medical
requests for recertification be made only
ambiguities (or discover potential releases in exchange for requesting
in connection with an absence.
abuses).’’); Methodist Hospital, Thomas FMLA leave. See United Steel, Paper Comments were also sought on whether
Jefferson University Hospital, Doc. and Forestry, Rubber, Manufacturing, the second and third opinion process
FL76, at 2 (‘‘With HIPAA regulations Energy, Allied Industrial and Service should be extended to apply to
physicians are reluctant to share Workers International Union, at 4 (‘‘The recertifications in addition to the initial
information with Employers who are USW asks the DOL to clarify that certification.
trying to accommodate Employee employees are not required to provide a
medical conditions to minimize release of medical information to the a. Timing of Recertifications
absence.’’); American Academy of employer as a condition of applying for Several commenters recommended
Family Physicians, Doc. FL25, at 3 (‘‘We or receiving FMLA leave.’’). that employers should be allowed to
agree with comments that the Health Finally, some commenters suggested seek recertification every thirty days
Insurance Portability and that the protections afforded to regardless of the minimum duration of
Accountability Act (HIPAA) has created employee medical information by the need for leave set forth in the
confusion about the disclosure of HIPAA have obviated the need for certification. See, e.g., United Parcel
information on the FMLA form. As employers to get employee consent for Service, Doc. 10276A, at 11 (‘‘As
employers are not covered entities, clarification of FMLA certifications. See currently drafted, [the] language permits
disclosure directly to the employer is Ohio Public Employer Labor Relations employees to evade the 30-day
prohibited without an authorization by Association, Doc. FL93, at 6 (‘‘With recertification requirement by having
the patient.’’) HIPAA laws protecting confidential their health care provider specify a
Several commenters reported that medical information, the excessive longer period of time.’’); University of
they have experienced increased restrictions found in 29 CFR 825.307 are Minnesota, Doc. 4777A, at 1 (‘‘In all
difficulties with obtaining medical unnecessary and should be removed.’’); cases, employers should have the right
certifications from health care providers Taft, Stettinius & Hollister LLP, Doc. to request recertification from an
as a result of HIPAA. See, e.g., AIG FL107, at 5 (‘‘HIPAA and similar laws employee on FMLA leave every thirty
Employee Benefit Solutions’ Disability provide ample protection for personal days.’’); Carolyn Cooper, FMLA
Claims Center, Doc. 10085A, at 2–3 health data and the employee’s health Coordinator, City of Los Angeles, Doc.
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(‘‘More than one Provider has written care provider can always refuse to 4709, at 1 (‘‘A remedy to this
‘HIPAA’ across the Form and returned disclose information if he or she manipulation or gaming of the medical
it.’’); Briggs & Stratton Corporation, Doc. considers a request for clarification to certification restriction pertaining to
FL37, at 4 (‘‘[M]any physicians still implicate privacy issues.’’); Hewitt intermittent/reduced work schedule
insist that they are prohibited by HIPAA Associates, Doc. 10135A, at 15 (‘‘[G]iven leaves is to allow employers to request
from responding to questions on the HIPAA concerns, it’s likely that the recertification every 30 days, regardless
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35595
if the duration indicated in the initial exercise intermittent leave, spend time completing the form to
medical certification is greater than 30 documenting specifically that the indicate that a chronic condition is still
days.’’). The National Coalition to intermittent condition prevented being managed. It would lessen this
Protect Leave made a related point that attendance at work.’’); Spencer Fane burden to allow recertification only for
recertifications should be permitted Britt & Browne LLP, Doc. 10133C, at 32 those conditions which are not
every thirty days irrespective of whether (‘‘The employee should not be categorized as chronic care or
there was an absence during that period. permitted to be the only party who permanent disability.’’ American
See National Coalition to Protect Family determines the medical necessity of an Academy of Family Physicians, Doc.
Leave, Doc. 10172A, at 49 (‘‘Employers absence on any particular day. * * * If FL25 at 3; see also Mark Blick DO, Rene
should always be allowed to obtain an employee is ill enough to miss work, Darveaux MD, Eric Reiner MD, Susan R.
recertification every 30 days as long as the employee should be required to visit Manuel PA–C, Doc. FL292, at 1 (‘‘One
the initial certification indicates the or at least consult by phone with his/her employer requires us to complete the
leave needed is ongoing; the right of an doctor.’’); Seyfarth Shaw LLP (on behalf form every 60 days (ATT/SBC), one
employer to request recertification in of a not-for-profit health care employer every 90 days and another
such circumstances should not be organization), Doc. 10132A, at 4 (‘‘We every year. Chronic conditions
limited to whether an employee had an suggest as an alternative an amendment extending a patient’s lifetime such as
‘absence.’); see also Hewitt Associates, to the regulations so that an employer diabetes and hypertension are not going
Doc. 10135A, at 17 (‘‘Simplify § 825.308 can request documentation from the to change and there is no reason the
by deleting the requirement that employee’s health care provider form has to be updated multiple times
employers can only request pursuant to a uniformly applied policy throughout the year.’’). Another
recertification ‘in connection with an for similarly-situated employees for any commenter suggested that employers are
absence’ allowing employers to ask for unforeseen, intermittent absence of less abusing the recertification process and
a recertification every 30 days.’’). than a work day due to a chronic serious using repeated requests for
Many of the commenters seeking health condition.’’). recertification to discourage employees
Employee commenters objected to from taking FMLA leave:
more frequent recertifications cited the
more frequent recertifications, however,
desire to control unforeseen, [E]mployees bear the expense and burden
because of the additional burden placed
intermittent absences due to chronic of having to secure re-certifications and run
on employees. See, e.g., International the risk of denials if health care providers do
conditions. See Pierce Atwood, LLP (on Association of Machinists and
behalf of Maine Pulp & Paper not cooperate (or fail to do so in the relatively
Aerospace Workers, Doc. 10269A, at 4 short time required by the employer), even
Association), Doc. 10191A, at 2–3 (‘‘[O]ur members find that the though the serious and chronic nature of
(‘‘Given the fact that intermittent leave requirement to recertify every thirty their medical condition is well documented.
is widely abused, employers need more days is incredibly burdensome. * * * In fact, we believe that, in some work
flexibility to request recertification for [I]t is very expensive for employees to locations, these re-certification requests are
intermittent leave than for serious get re-certifications. Some employees, thinly veiled efforts to discourage employees
health conditions that render the particularly in rural areas, have to travel from taking intermittent FMLA leave and/or
employee unable to work for the full 12 to retaliate against them for needing to do so.
long distances to even see their doctors.
weeks.’’); Nancy Dering Martin, Deputy It is ironic that often these employees Communications Workers of America,
Secretary for Human Resources and actually have to miss more work time Doc. R346A, at 12.
Management, Commonwealth of just to get the recertification.’’); An
Pennsylvania, Doc. FL95, at 4 (‘‘Also, b. Second and Third Opinion Process
Employee Comment, Doc. 4738, at 1
because of the potential for abuse, we (‘‘For an employer to repeatedly request Several employers commented on the
recommend Section 825.308 be further for recertifications every 30 days, for an expense involved in the second and
revised to allow employers to require a chronic Asthmatic who has an third opinion process. See, e.g., Honda,
medical excuse indicating the time of unforeseeable mild flare-up that can be Doc. 10255A, at 11 (‘‘Based upon
the appointment or treatment when taken care of with prescription Honda’s experience, second and third
leave is used intermittently, the absence medication, seems unreasonable and opinions average over $700 per second
is unexpected, or the employer suspects repetitious.’’); Kennedy Reeve & Knoll, or third opinion, and cost the employees
abuse.’’); Milwaukee Transport Services, Doc. 4763A, at 17 (‘‘The frequency with their time.’’); Spencer Fane Britt &
Doc. FL80, at 2 (‘‘One regulatory change which some employers are requiring Browne LLP, Doc. 10133C, at 25
that would assist employers such as notes and recertification is both (‘‘Second and third opinions have
MTS in curbing intermittent leave abuse logistically (due to the availability of proven expensive and difficult to
would involve revising the current doctor’s appointment times) and obtain.’’); Yellow Book USA, Doc.
recertification regulation, 29 CFR [§ ] financially burdensome on the 10021A, at 2 (asserting that second
825.308, by allowing an employer to employee and physician.’’); An opinions are so expensive they are not
require medical documentation of the Employee Comment, Doc. 4582, at 1 used); Zimbrick, Inc., Doc. FL125, at 12
need for intermittent FMLA leave on (‘‘[E]ven though my mother’s illness is (‘‘We have not requested a second
any occasion on which such leave is terminal and my father’s condition is opinion. The cost, time and negative
taken.’’). Several of these commenters considered lifetime, I still am required impact on employee morale is
suggested that employers should be to fill out forms and have a doctor sign prohibitive.’’). Other commenters noted
allowed to obtain medical verification of them every 3 months. The physician’s practical concerns regarding finding
each intermittent absence even if that office now charges me $20 for each form physicians to perform second opinions.
verification were more summary than a I have to have them sign. As you can See, e.g., United States Postal Service,
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recertification. See Northrup Grumman imagine, this takes a lot of time and Doc. 10184A, at 19 (‘‘We are
Newport News Shipbuilding and Dry money.’’). experiencing increasing difficulty
Dock Company, Doc. FL92, at 2 (‘‘A rule Physicians also objected to allowing finding physicians who will perform a
could be added to require employees to recertifications every 30 days for second opinion medical exam. Although
provide documentation from the conditions that are medically stable: we do not keep numbers on refusal
healthcare provider each time they ‘‘This is a burden to physicians who rates, our national FMLA coordinators
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35596 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
regularly voice concerns about this employers sought to expand the use of urged that the Department’s 2005
problem.’’); Foley & Lardner LLP, Doc. the process to recertifications. See, e.g., opinion letter concerning reinitiating
10129A, at 5 (‘‘Our experience shows National Coalition to Protect Family the medical certification process on an
that second opinions are rarely used due Leave, Doc. 10172A, at 49 (‘‘Permitting annual basis, and with it the availability
to delay inherent in locating a health second and third opinions [on of the second opinion process, be
care provider and scheduling an recertifications] will provide substantial incorporated into the regulations. See
examination and due to the expense benefits to both employers and Honda, Doc. 10255A, at 15; see also
associated with obtaining these employees. Employers will not have to American Federation of Labor and
opinions.’’); Coolidge Wall Co., Doc. incur the unnecessary expense of Congress of Industrial Organizations,
5168, at 1 (‘‘Even in larger cities it can obtaining second and third opinions Doc. R329A, at 44 (‘‘[T]he regulations
be difficult to find doctors in a specialty based on a doubtful initial certification currently permit employers to reinitiate
who are willing to do FMLA second unless a pattern of abuse in fact the medical certification process twelve
opinion examinations.’’); FNG Human develops without losing the opportunity months after leave commences,
Resources, Doc. FL13, at 5 (‘‘Requesting to challenge the certification at a later including requests for second and third
a second opinion is neither date. Employees will also benefit, since opinions, regardless of past certification
economically feasible nor beneficial in they will not have to go for second and for the same health condition.’’); Wage
our area. We do not find healthcare third opinions if they do not abuse and Hour Opinion Letter FMLA–2005–
providers willing to state that another FMLA leave even if their original 2–A (Sept. 14, 2005).
provider is incorrect in his/her medical certification creates doubt as to The United States Postal Service
diagnosis.’’). the validity of the need for leave.’’); argued that allowing second opinions
Some commenters suggested that United States Postal Service, Doc. on recertifications would ultimately
employers should be allowed to use 10184A, at 17 (‘‘[A] second opinion inure to the benefit of employees. See
doctors with whom they have should be allowed during the lifetime of Doc. 10184A, at 19 (‘‘When an employer
relationships for second opinions an employee’s condition, so long as knows that it has the option of a second
because these health care providers are there is reason to doubt the validity of opinion if later needed, it is more likely
more familiar with the work the information in the certification.’’); to allow the protection at the outset
environment and job requirements. See, Air Conference, Doc. 10160A, at 13 even in instances where it may have
e.g., Air Conference, Doc. 10160A, at 13 (‘‘Second and third opinions should some concern about the certification.
(‘‘[O]ur member carriers have developed also be available to employers on a The employee will be more content, as
relationships with health care providers medical recertification.’’). the leave request is quickly approved
who understand our industry and and he/she is spared a second medical
operating environment and who are Commenters noted that the statute is
silent as to the availability of second exam.’’). The National Partnership for
very familiar with the essential Women & Families disagreed, however,
functions of airline jobs.’’). opinions on recertification and argued
that the Department should not prohibit stating that the extension of the second
Two commenters expressed and third opinion process to
frustration that even where the second their use by regulation. See City of New
York, Doc. 10103A, at 9 (‘‘Under 29 CFR recertifications would burden
and third opinion process resulted in a
825.308(e), employers are specifically employees. See Doc. 10204A, at 22–23
determination that the employee was
barred from seeking a second or third (‘‘[A]llowing employers to request
not entitled to FMLA leave, employees
opinion on a recertification. The FMLA, second opinions on recertifications
have attempted to subvert the process
however, does not bar an employer from would unfairly burden employees for
by submitting a new certification for the
seeking additional opinions for a taking leave to which they are
same condition thus initiating the
subsequent recertification.’’); National entitled.’’).
review process anew. See United States
Postal Service, Doc. 10184A, at 19 (‘‘[A] Coalition to Protect Family Leave, Doc. d. Adequacy and Use of Current
number of employees * * * 10172A, at 49 (‘‘Subsection 29 CFR Medical Verification Process
subsequently submit a new medical 825.308(e) prohibits employers from
obtaining second and third opinions in Finally, some commenters suggested
certification from their original health that, if properly used, the recertification
care provider which counters the connection with recertifications despite
the fact that no statutory prohibition and second and third opinion processes
information in that second/third set forth in the current regulations
opinion. The employees then argue that exists with regard to such requests.’’);
Association of American Railroads, Doc. provided employers with ample tools to
the employer must go through the control FMLA leave usage.
second opinion process again.’’); 10193A, at 4 (noting that the prohibition
Exelon, Doc. 10146, at 6 (‘‘Even if both on second and third opinions on At present, we believe that the regulations
the second and third opinion providers recertification is not based on the Act). provide a manageable balancing of the
Other commenters, however, viewed the employer’s need for accurate information
disagree with the employee’s own demonstrating that the leave is covered by
provider, after the process has been statutory silence differently, arguing
the Act and the employee’s important
concluded, the regulations do not that the statute only provides for second privacy interest. The regulations also
preclude the employee from submitting opinions on the initial certification and establish a clear framework within which to
a new certification to support a new therefore they should not be permitted evaluate leave requests when good faith
absence, and subsequent absences, from on recertification. See American questions arise—the second and third
work for the same medical condition for Federation of Labor and Congress of opinion process. Because of the concerns that
which a second and third opinion were Industrial Organizations, Doc. R329A, at this existing process is not being followed by
44; National Partnership for Women & many employers, we urge DOL to take steps
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obtained.’’).
Families, Doc. 10204A, at 22–23 (‘‘The to evaluate whether that process is being
c. Expanding Second Opinions to regulations do not allow employers to utilized appropriately.
Recertification request second opinions for medical Coalition of Labor Union Women,
Despite employer frustrations with recertifications because the statute itself Doc. R352A, at 6; see also 9to5, National
the costs and utility of the second and only provides for second opinions in the Association of Working Women, Doc.
third opinion process, however, some context of initial certifications.’’). Honda 10210A, at 4 (‘‘Robust employer
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35597
safeguards already exist in the current creates an exception to most employers’ Several employers suggested the
regulations. Employers are allowed to policies or practices when an employee Department should delete or revise this
ask for second and third opinions from has been incapacitated for any medical section of the regulations so that
alternate doctors for an FMLA request. reason for more than a brief period.’’); employers would have the same right to
Employers have always had the ability MGM Mirage, Doc. 10130A, at 10 seek fitness for duty certifications from
to handle suspicious patterns of time (‘‘Quite simply, an employee places his/ employees returning to work from
off, just like any other personnel her physical condition at issue by intermittent leave. See, e.g., Willcox &
problem.’’); Kennedy Reeve & Knoll, requesting FMLA leave. This is true Savage, Doc. 10088A, at 6; Foley &
Doc. 4763A, at 14–15 (‘‘Instead of regardless of whether the employee was Lardner LLP, Doc. 10129A, at 5;
utilizing the certification process and absent as result of continuous or National Coalition to Protect Family
the second and third opinion process intermittent leave.’’). Leave, Doc. 10172A, at 50. The National
within the regulations, many employers Some employers noted that the Partnership for Women & Families,
are now choosing to forgo some or all particular safety concerns inherent in however, argued that requiring
of those processes, and instead litigating their workplaces necessitated that they employees returning from intermittent
these issues at a high price to everyone, obtain clear information regarding an leave to provide fitness for duty
including the courts. In order to avoid employee’s ability to safely return from certifications—which are to the
costly litigation and in order to provide leave. See Union Pacific Railroad, Doc. employee’s expense—would
more stability in the administration of 10148A, at 6 (noting that clear significantly undermine the statutory
leaves of absences, the regulations information regarding their employees purpose behind allowing employees to
should require the use of a consistent ability to work is critical as ‘‘those very take intermittent leave. See Doc.
form and also require the utilization of employees are entrusted with jobs that 10204A, at 23 (‘‘Any benefit to the
the regulatory enforcement affect the safety and security of the employer of obtaining fitness for duty
procedures[.]’’). general public’’); Honda, Doc. 10255A, statements from intermittent leave-
at 14 (‘‘In manufacturing, many of the takers is far outstripped by the
5. Medical Certification of the jobs include safety-sensitive duties. unwarranted burden that such a change
Employee’s Ability To Return To Work Therefore, the current regulation in the regulations would impose on
(‘‘Fitness for Duty Certifications’’) prohibiting a fitness-for-duty form for employees. * * * The intermittent
Section 825.310 of the regulations intermittent leaves puts the employee leave option helps to take some of the
allows employers to require medical and his/her co-workers at risk and financial strain off employees by
certification of the employee’s fitness to requires the employer to assume a legal enabling them to continue to earn a
return to work under certain risk for liability, if there is an accident paycheck while addressing serious
circumstances. Section 825.310(g), caused by the reinstated employee.’’); health or family needs, and allows
however, bars employers from seeking a City of New York, Doc. 10103A, at 7 employees to preserve as much of the
fitness for duty certification from (‘‘Fitness for Duty Certifications for twelve weeks of leave as possible.’’)
employees returning to work after taking employees in safety-sensitive positions (footnotes omitted). The AFL–CIO also
intermittent leave. See 29 CFR who are intermittently absent should be noted that ‘‘[r]equiring employees who
825.310(g). The Request for Information an option for employers. For example, if take intermittent leave to present fitness
sought comments on the benefits and a sanitation worker responsible for for duty certifications for potentially
burdens of removing this restriction and driving a two-ton truck on public every absence is burdensome and
allowing fitness for duty certifications roadways takes intermittent leave to unnecessary.’’ Doc. R329A, at 44. See
for employees returning from treat high blood pressure, a fitness for also National Business Group on Health,
intermittent leave. duty certification should be required Doc. 10268A, at 4 (‘‘It would be an
Many commenters questioned the before the employee is restored to the administrative headache to require a
rationale for the different treatment the position which carries an extreme fitness for duty statement from an
regulations accorded to different types responsibility to the public.’’). These employee who is absent intermittently.
of leave and argued that safety concerns employers suggested that the FMLA The added paperwork to cover this
support requiring fitness for duty return to work process undercuts would be overly burdensome.’’);
certifications for intermittent leave. legitimate employer safety programs. Kennedy Reeve & Knoll, Doc. 4763A, at
Exempting chronic conditions from return For example, the Maine Pulp & Paper 18 (‘‘[T]he logistical impossibility and
to work clearance seems to make little sense Association submitted the following financial burdens of allowing employers
because those conditions are just as likely as statement: to require fitness-for-duty statements for
any other to compromise the health or safety Employees in the paper industry routinely each and every day of absence make
of the workforce. Indeed, some chronic work with hazardous materials in close such a policy not feasible.’’). In an
conditions are even more likely to give rise proximity to heavy machinery. Forcing attempt to address the costs concern,
to a justifiable need for return to work employers to accept the employee’s medical one commenter suggested that
clearance than the other serious health provider’s simple statement that the
conditions under the FMLA. For example, an
employers bear the cost for fitness for
employee ‘‘is able to resume work,’’ or worse, duty certifications when the employee
employer may have little concern about the in the case of an intermittent leave-taker,
clerical assistant returning to work after is returning from intermittent leave. See
accept the employee’s word alone with no
giving birth, but far more (and legitimate) United Parcel Service, Doc. 10276A, at
medical verification whatsoever jeopardizes
concern about allowing a utility worker to the safety of co-workers and increases 6.
return after a series of epileptic seizures on exposure to expensive workers’ Finally, some commenters
the job. compensation claims. MPPA’s members have commented that the return to work
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United States Postal Service, Doc. strong safety programs which should not be process under the FMLA conflicted with
10184A, at 20; see also Honda, Doc. undercut by administrative requirements of the return to work process under the
10255A, at 14 (‘‘Not permitting fitness- the FMLA. ADA, with the latter providing a better
for-duty medical forms for FMLA Pierce Atwood, LLP (on behalf of Maine model because it allows both more
Intermittent Leaves puts employers and Pulp & Paper Association), Doc. substantive information and physical
employees at risk. Such a prohibition 10191A, at 4. examinations. See infra Chapter VII.
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35598 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
6. WH–380 Form condition; and (d) reduced schedule/ Management Association, Doc. 10136A,
The Department provides an optional intermittent leave for serious health at 11 (‘‘an employer should be permitted
model certification form titled ‘‘WH– condition of a family member.’’ Doc. to obtain diagnosis and prognosis’’);
380’’ to assist employers who require 10133C, at 32. Detroit Medical Center, Doc. 10152A, at
employees to provide medical Commenters also suggested ways to 2 (‘‘It is critical that the regulations and
make the current form more useful to WH–380 form be changed to require
certification of their need for FMLA
employers and easier for health care actual diagnoses to determine whether
leave. The form can be used for initial
providers to understand and to an employee’s absences correlate with
certification or recertification, as well as
complete. See, e.g., Courier Corp., Doc. the medical certification.’’). One such
for second and third opinions. While
10018A, at 4 (Suggesting that the ‘‘form commenter stated that ‘‘the FMLA’s
employers may use a form other than
could be modified to be in more of a current restriction on obtaining a
the WH–380, they may not require
checkbox format, that might facilitate diagnosis creates an unnecessary and
information beyond what is required by
the physician’s office in actually awkward limitation on the employee’s
the sample form. 29 CFR § 825.306(b).
completing it more fully and providing health care provider in completing the
The Request for Information sought
better information for the employer to medical certification form and the
comments on how this form is working evaluate the need for leave.’’); United
and what improvements could be made employer’s health care provider in
States Postal Service, Doc. 10184A, at 12 seeking clarification of information
to it to facilitate the certification (advocating elimination of serious
process. contained in that form. Generally,
health condition checklist in favor of meaningful communications between
Several commenters expressed
description of medical facts); National the health care providers cannot take
frustration with the current form,
Coalition to Protect Family Leave, Doc. place without some discussion about
finding it overly long and complicated.
10172A, at 47 (‘‘DOL can make the form the actual diagnosis, particularly if
See, e.g., American Academy of Family more user-friendly by streamlining the
Physicians, Doc. FL25, at 2 (‘‘The form second and third opinions are
information requested instead of asking involved.’’ MedStar Health, Inc., Doc.
WH–380 is overly complicated and the health care providers to respond to
confusing in its format.’’); Spencer Fane 10144A, at 17.
a page and a half of specific questions.’’)
Britt & Browne LLP, Doc. 10133C, at 27 Finally, some commenters noted that
(footnote omitted). A physicians group
( ‘‘DOL’s prototype medical certification the WH–380 does not include all of the
suggested that use of a standard form, as
form * * * is confusing to employers, information that an employer is entitled
opposed to individual employer
employees, and health care providers.’’); variations, would reduce the burden on to under the Act. Importantly, multiple
United Parcel Service, 10276A, at 10 health care providers. See American commenters noted that the current form
(‘‘The current WH–380 form is poorly Academy of Family Physicians, Doc. does not require the health care
drafted and confusing.’’); Courier FL25, at 2; see also Kennedy Reeve & provider to certify the medical necessity
Corporation, Doc. 10018A, at 3 (‘‘We Knoll, Doc. 4763A, at 14 (‘‘The model for intermittent leave, which is a
feel the Certification of Health Care certification form must be simplified, statutory requirement for the taking of
Provider (Optional Form WH–380) is far and then it must be the required form such leave. See 29 U.S.C. § 2612 (b); see
too vague.’’); Association of Corporate for employers to use.’’). also National Coalition to Protect
Counsel, Doc. FL31, at 10 (‘‘The current Several commenters suggested that Family Leave, Doc. 10172A, at 47 (‘‘In
form is confusing and often results in the Department ‘‘allow an employer the the case of intermittent leave, the
incomplete or vague responses by health option of identifying key job skills and medical necessity for the intermittent or
care providers that are insufficient to tasks, similar to the [ADA], to allow the reduced schedule also should be
assess the employee’s eligibility for doctor to make a more informed specified in accordance with 29 CFR
leave or the timing of the leave.’’). decision about the necessity of leave § 825.117 (not currently asked on the
Several commenters suggested that with respect to the specified essential model form).’’); Society for Human
the form could be simplified if it was job functions[.]’’ U.S. Chamber of Resource Management, Doc. 10154A, at
broken into multiple forms, with Commerce, Doc. 10142A, at 8; see also 18 (same); American Electric Power,
separate forms either for intermittent United States Postal Service, Doc. Doc. Fl28, at 5 (‘‘Unfortunately, the
and block leave, or for leave for the 10184A, at 14 (form should include ‘‘a statutory requirement that ‘medical
employee and leave for the employee’s statement that the provider has been necessity’ be demonstrated by
family member. See, e.g., Yellow Book informed of the employee’s essential job employees seeking intermittent leave
USA, Doc. 10021A, at 3 (suggesting functions’’). Another commenter, has been effectively eliminated by the
separate forms for block and however, noted that the FMLA Department’s regulations.’’). Another
intermittent leave); National Counsel of regulations already permit employers to commenter noted that the current form
Chain Restaurants, Doc. 10157A, at 16 ‘‘include a job description with the also does not solicit the information
(suggesting separate forms for employee medical certification form given to the necessary to allow employers to
and family members); Indiana treating physician’’ but that few determine whether an employee is
University, School of Medicine, employers utilize this process. Kennedy entitled to FMLA leave to care for a
Department of Orthopedic Surgery, Doc. Reeve & Knoll, Doc. 4763A, at 5. child who is 18 years old or older.
FL70, at 1 (same); Ohio Department of Commenters also suggested that the Honda, Doc. 10255A, at 13 (suggesting
Administrative Services, Doc. 10205A, WH–380 should include a diagnosis, that in order for employers to determine
at 6 (same). Spencer Fane recommended something that was included in the form whether an adult child is covered under
that the Department actually develop published with the interim FMLA the FMLA the form should be amended
four different versions of the form for: regulations but was removed from the to include: ‘‘[1] Whether the adult child
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‘‘(a) Continuous leave for employee’s form when the regulations were has a physical or mental disability; [2]
own serious health condition; (b) finalized. See Preamble to Final FMLA Whether the physical or mental
continuous leave for serious health Regulations, 60 FR 2180, 2222 (Jan. 6, disability has caused the child to be
condition of a family member; (c) 1995) (‘‘The regulation and form no incapable of self-care; and [3] A
reduced schedule/intermittent leave for longer provide for diagnosis.’’); see also checklist of ‘activities of daily living’
employee’s own serious health South Central Human Resource and ‘instrumental activities of daily
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35599
living’ that the adult child cannot entitled to such leave if there is no other (hereafter, ‘‘EEOC FMLA and ADA Fact
perform.’’). effective accommodation and the leave Sheet’’), at Question 17.
will not cause an ‘‘undue hardship’’ on Moreover, an FMLA ‘‘serious health
VII. Interplay Between the Family condition’’ is not necessarily an ADA
Medical Leave Act and the Americans the employer’s business operations. See
EEOC, Enforcement Guidance: ‘‘disability.’’ An ADA disability is an
With Disabilities Act impairment that substantially limits one
Reasonable Accommodation and Undue
The Department’s Request for Hardship under the Americans with or more major life activities, a record of
Information noted that several Disabilities Act (hereafter, ‘‘EEOC such an impairment, or being regarded
organizations had reported the FMLA’s Reasonable Accommodation as having such an impairment. See 42
‘‘interaction with other laws,’’ including Guidance’’), at Question 21. The FMLA, U.S.C. 12102(2). While some conditions
Title I of the Americans with that qualify as serious health conditions
enforced by the Department’s Wage and
Disabilities Act of 1990, 42 U.S.C. under the FMLA may be ADA
Hour Division, entitles ‘‘eligible’’
12101–12117, 12201–12213 (1994) disabilities (e.g., most cancers and
employees of covered employers up to
(‘‘ADA’’), was a ‘‘potential source of serious strokes), other qualifying serious
confusion.’’15 In seeking comments on 12 weeks of unpaid, job-protected leave
health conditions under the FMLA may
section 825.307 of the FMLA each year–with continuation of group
not be ADA disabilities. For example,
implementing regulations, which health insurance coverage under the
periods of incapacity due to a routine
permits an employer to contact the same conditions as prior to leave–for broken leg or hernia could qualify as an
employee’s health care provider for specified family and medical reasons, FMLA serious health condition, but not
purposes of clarification and including the employee’s own serious be a qualifying disability under the ADA
authentication only through the health condition. See 29 U.S.C. 2612, because the impairment is not
employer’s health care provider and 2614(c). The FMLA does not include a substantially limiting. Similarly,
only with the employee’s permission, provision for ‘‘reasonable incapacity due to pregnancy (e.g., severe
the Department specifically asked how accommodation,’’ nor does it limit the morning sickness) qualifies as a serious
this provision ‘‘[should] be reconciled availability of leave to situations where health condition under the FMLA, but
with the [ADA], which governs the employee’s absence would not cause may not be a disability under the ADA
employee medical inquiries and an ‘‘undue hardship’’ for the employer. because the condition is not long-term
contains no such limitation on employer Nonetheless, one of the stated purposes or permanent. See EEOC FMLA and
contact?’’ Although not directly of the FMLA is to allow an employee to ADA Fact Sheet, at Question 9.
mentioning the ADA, the Department take reasonable leave for medical Despite the different purposes and
also asked for information relating to the reasons ‘‘in a manner that scope of the two statutes, the FMLA and
‘‘implications of permitting an employer accommodates the legitimate interests of its implementing regulations borrow
to modify an employee’s existing job employers.’’ 29 U.S.C. 2601(b). several important concepts from the
duties to meet any limitations caused by While both statutes provide ADA. For example, the Department
the employee’s serious health condition employees with job-protected medical relied on ADA concepts when defining
as specified by a health care provider, leave, as the FMLA’s legislative history one of the qualifying reasons for
while maintaining the employee’s same makes clear, ‘‘the leave provisions of the medical leave under the FMLA—
job, pay, and benefits.’’ [FMLA] are wholly distinct from the because of an employee’s own serious
The ADA, which is enforced by the health condition. The statutory
reasonable accommodation obligations
United States Equal Employment provision governing this issue provides
of employers covered under the [ADA].’’
Opportunity Commission (‘‘EEOC’’), the that leave is available ‘‘because of a
S. Rep. No. 3, 103d Cong., 1st Sess. 38
Department’s Office of Federal Contract serious health condition that makes the
(1993). Indeed, the two Acts have
Compliance Programs, and the employee unable to perform the
distinctively different purposes: the
Department of Justice, prohibits private functions of the position of such
ADA is intended to ensure that qualified
employers, state and local governments, employee.’’ 29 U.S.C. 2612(a)(1)(D). The
individuals with disabilities are implementing regulations provide that
employment agencies, and labor unions
provided with equal opportunity to leave entitlement accrues under this
from discriminating in employment
work, while the FMLA’s purpose is to provision ‘‘where a health care provider
against qualified individuals with
provide reasonable leave from work for finds that the employee is unable to
disabilities. See 42 U.S.C. 12101–12117,
12201–12213. The statute includes an eligible employees. Compare 42 U.S.C. work at all or is unable to perform any
affirmative obligation to provide 12101 and 29 CFR 1630.1 (Title I of the one of the essential functions of the
reasonable accommodation to the ADA requires equal employment employee’s position,’’ as provided for
known disability of a qualified opportunity for qualified individuals under the ADA and the EEOC’s
applicant or employee, unless doing so with disabilities) with 29 U.S.C. 2601(b) regulations. 29 CFR 825.115. Under the
would pose an ‘‘undue hardship.’’ See (one of the purposes of the FMLA is ‘‘to ADA, a qualified individual with a
42 U.S.C. 12112 (b)(5)(A). Under the entitle employees to take reasonable disability is defined as an individual
ADA, an employee who needs medical leave for medical reasons, for the birth who, with or without reasonable
leave related to his or her disability is or adoption of a child, and for the care accommodation, can perform all of the
of a child, spouse, or parent who has a ‘‘essential functions’’ of the position in
15 Several commentators have called the serious health condition’’). Recognizing question. See 42 U.S.C. 12111(8). The
intersection of the ADA, the FMLA, and workers’ this fact, section 825.702(a) of the FMLA ADA implementing regulations define
compensation laws the ‘‘Bermuda triangle of implementing regulations provides that essential functions as the ‘‘fundamental
employment laws’’ because, while all three address ‘‘[a]n employer must therefore provide job duties’’ of the employment position.
pwalker on PROD1PC71 with PROPOSALS2
employers’ obligations towards employees with
certain medical conditions, the responsibilities leave under whichever statutory 29 CFR 1630.2(n).
imposed by each are overlapping but distinctively provision provides the greater rights to The intersection of the ADA and the
different. Lawrence P. Postol, ‘‘Sailing the employees.’’ See also EEOC, Fact Sheet: FMLA, and its implications for
Employment Law Bermuda Triangle,’’ The Labor
Lawyer, Vol. 18, No. 2 (Fall 2002); Peter A. Susser,
The Family and Medical Leave Act, the employees and employers, was the
Family and Medical Leave Handbook, Vol. 6, No. Americans with Disabilities Act, and subject of much discussion by
4, p. 7 (July 1998). Title VII of the Civil Rights Act of 1964 respondents to the Department’s RFI.
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35600 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
The comments focused on five broad to provide appropriate information depending on whether the employee’s
areas of interplay between the two about why leave is needed so that request is covered by the FMLA or the
statutes, discussed in greater detail employers can fulfill their obligations ADA. The statutory provisions of the
below: (1) The interaction between the under the Act if the leave is potentially ADA outline the factors to be
FMLA employee notice provisions and FMLA-covered without violating the considered when determining whether a
the ADA prohibitions on medical ADA’s restrictions on medical inquiries reasonable accommodation must be
inquiries; (2) obtaining medical or running the risk that they will be granted (42 U.S.C. 12111(10)) and the
information under the FMLA and the deemed to have ‘‘regarded’’ someone as types of medical inquiries and
ADA; (3) confirming that an employee is disabled. More than one commenter examinations that may be made (42
fit to return to work after medical leave noted that an employee’s failure to U.S.C. 12112(d)), but do not specify a
under the FMLA and the ADA; (4) provide adequate FMLA notice can particular process for considering an
offering light duty, modified work or place employers in an unreasonable employee’s request for reasonable
transfers/reassignments under the situation. For example, the National accommodation. The EEOC’s
FMLA and the ADA; and (5) permitting Coalition to Protect Family Leave stated implementing regulations and
‘‘reasonable leave for medical reasons’’ that employers often have been required interpretative guidance suggest that an
under the FMLA and the ADA. to ‘‘‘read between the lines’ by grasping employee and employer engage in an
unspoken behavioral clues that an ‘‘interactive process’’ designed to
A. The Interaction of the FMLA
employee may need [FMLA] leave,’’ confirm that the employee has an ADA-
Employee Notice Provisions and the
which places ‘‘employers—and their covered disability and to identify an
ADA Medical Inquiry Prohibitions
front-line managers—in the impossible effective accommodation for the
Under section 825.302 of the FMLA position of having to navigate between employee’s specific limitations. See
implementing regulations, an employee compliance with the FMLA * * * and generally 29 CFR Part 1630 and
must provide notice ‘‘sufficient to make compliance with the [ADA] which Appendix to Part 1630—Interpretive
the employer aware that the employee restricts medical inquiries of employees Guidance on Title I of the Americans
needs FMLA-qualifying leave, and the and prohibits employers from with Disabilities Act (‘‘This process of
anticipated timing and duration of the ‘regarding’ individuals as disabled.’’ identifying whether, and to what extent,
leave.’’ The request may be verbal and Doc. 10172A, at 31–32. A law firm a reasonable accommodation is required
the employee need not specifically representing employers echoed similar should be flexible and involve both the
mention the FMLA. See 29 CFR concerns. Schwartz Hannum PC, Doc. employer and the individual with a
825.302(c). The regulations permit an 10243A, at 7 (cases reasoning that disability.’’). As part of this process, the
employer to ‘‘inquire further’’ about an ‘‘unusual behavior’’ may itself employer may request reasonable
employee’s medical condition where constitute notice to employer of need for documentation about the nature,
insufficient information is initially FMLA leave ‘‘impose an unreasonable severity, and duration of the employee’s
provided. Id. The ADA, however, expectation upon managers and human impairment, and the extent to which the
strictly proscribes the circumstances resources personnel * * * such impairment limits the employee’s
under which employers may make employer representatives must be able ability to perform daily activities when
medical inquiries of employees, to intuit when an employee’s body the disability or the need for
including those without ADA language or behavior suggests that an accommodation is not known or
disabilities, providing that: FMLA leave may be appropriate.’’). obvious. See EEOC Reasonable
A covered entity shall not require a Still another commenter noted that
Accommodation Guidance, at Question
medical examination and shall not make ‘‘[e]mployers are wary of asking too
6; EEOC, Enforcement Guidance:
inquiries of an employee as to whether such many questions for fear of violating
Disability-Related Inquiries and Medical
employee is an individual with a disability complicated limitations of the ADA.’’
or as to the nature and severity of the Examinations of Employees under the
Employers Association of New Jersey,
disability, unless such examination or Americans with Disabilities Act
Doc. 10119A, at 7. This commenter
inquiry is shown to be job-related and (hereafter, ‘‘EEOC Disability-Related
stated that ‘‘employers err on the side of
consistent with business necessity. Inquiries Guidance’’), at Question 7. If
caution and grant many questionable
42 U.S.C. 12112(d)(4)(A); see also 29 the initial information provided is
FMLA requests to ensure the employee’s
CFR 1630.14(c).16 The ADA also insufficient, the EEOC encourages the
rights are not violated.’’ Id. at 8; see also
prohibits discrimination in employment National Public Employer Labor employer to ‘‘consider consulting with
against individuals who are ‘‘regarded Relations Association, Doc. R358A, at the employee’s doctor (with the
as’’ having an impairment by their 10 (suggestion in section 825.302 that employee’s consent).’’ EEOC Disability-
employer. 42 U.S.C. 12102(2)(c) and employers may ‘‘inquire further’’ about Related Inquiries Guidance, at Question
12112(a). an employee’s medical condition when 11.
The Department received comments insufficient information is provided The FMLA, after appropriate
from employers and their ‘‘flies in the face of what human notifications, allows the employer to
representatives suggesting that resources managers have trained require that the employee submit a
employees need to be further educated supervisors not to do under other certification from his/her heaLth care
about their obligations under the FMLA federal laws,’’ such as the ADA). provider to support the need for FMLA
leave. If the employer questions the
16 EEOC Enforcement Guidance expressly B. Obtaining Medical Information Under validity of the employee’s certification,
provides that the ADA’s restrictions on inquiries the FMLA and the ADA the employer may require second and/
and examinations apply to all employees, not just
While an employer’s obligation to or third medical opinions to resolve the
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those with disabilities, such that ‘‘[a]ny employee
* * * has a right to challenge a disability-related provide medical leave under both the situation. See 29 U.S.C. 2613. The
inquiry or medical examination that is not job- FMLA and the ADA are triggered by FMLA medical certification process
related and consistent with business necessity.’’ similar employee notice provisions, the prohibits an employer from contacting
EEOC, Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees
approach an employer must follow to an employee’s health care provider
under the Americans with Disabilities Act, at obtain appropriate medical information directly and restricts the scope and
General Principles Section. to support the need for leave varies timing of information requests. See 29
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35601
CFR 825.303–825.311; (See also Chapter 10182A, at 2. This commenter stated If an employee requests reasonable
V for a discussion of employee that, ‘‘[w]ith the frequent overlap accommodation under the ADA in
notification rights and responsibilities between FMLA and employer-provided connection with or before an FMLA request,
and Chapter VI for a full discussion of leave, and the interplay with disability therefore, the Company lawfully may have
direct contact with the employee’s health
the FMLA medical certification and discrimination and workers care provider. In those cases, the rule that an
verification process.). compensation laws, many employers are employer may contact * * * the provider
Commenters routinely noted these reluctant to risk disciplining an directly for one purpose but not for the other
differences between the ADA and the employee for the administrative failure confuses employees and their providers. As
FMLA, and the difficulties caused when to timely comply with the provision of well, whenever the Company contacts a
leave requests triggered obligations information needed to make an FMLA provider for ADA purposes during the
under both statutes. See International eligibility determination.’’ Id. certification process, there is an inherent risk
Foodservice Distributors Association, Commenters also noted that the two that the contact could be challenged as
Doc. 10180A, at 2 (‘‘The severe statutes allow employers to obtain unlawful under the FMLA.
limitations on inquiries of healthcare different information regarding an Progressive, Doc. FL2, at 4.
providers certifying the presence of employee’s medical condition, with the
serious health conditions—more ADA generally permitting a broader A number of retailers reported that
extreme than under the ADA or state exchange of information. See, e.g., this limitation ‘‘poses one of the biggest
workers’ compensation laws—should be South Central Human Resource obstacles to preventing FMLA misuse
revisited.’’). Several of these Management Association, Doc. 10136A, and abuse. It also creates a conundrum
commenters stated that the ‘‘FMLA at 11 (‘‘The ADA allows an employer to for compliance-minded employers who
restrictions particularly are problematic obtain all relevant medical information are concerned about violating the FMLA
when employers face a request from an in determining whether a ‘disability’ when fulfilling their obligations under
employee that triggers obligations under exists. The same approach should be the ADA.’’ National Retail Federation,
both the FMLA and ADA, given that the used under the FMLA.’’); see also Doc. 10186A, at 17. Furthermore, some
latter requires the employer to engage in MedStar Health, Inc., Doc. 10144A, at commenters felt that the prohibition
interactive processes to accommodate 17 (allow ‘‘employers’ health care against contact with the health care
the employee.’’ Temple University, Doc. providers to obtain information provider is unnecessary. One public
10084A, at 10; United States Postal regarding the actual diagnosis of an employer asserted:
Service, Doc. 10276A, at 9–10 (‘‘When employee’s serious health condition,’’ as Comparison with the [ADA] demonstrates
an FMLA-qualifying ‘serious health is currently permitted under the ADA). that these additional barriers are not
condition’ is also a potential ‘disability’ Still other commenters suggested that necessary. The ADA, like the FMLA, requires
under the ADA, [section 825.306’s] the Department ‘‘allow an employer the employers to review an employee’s medical
restriction on medical information is in option of identifying key job skills and information and make determinations about
conflict with the ADA interactive tasks, similar to the [ADA], to allow the the employee’s ability to work based on that
medical information. The type of medical
process, which allows—and arguably doctor to make a more informed
information reviewed under both statutory
requires—an employer to gather far decision about the necessity of leave schemes is similar. Additionally, the
more medical information regarding an with respect to the specified essential employer’s staff members reviewing FMLA
employee so that it can make an job functions.’’ U.S. Chamber of requests may also be responsible for making
informed decision regarding possible Commerce, Doc. 10142A, at 8; see also determinations regarding employee ADA
accommodations.’’). Another United States Postal Service, Doc. accommodation requests.
commenter argued that the FMLA 10184A, at 14 (form should ‘‘include a
process ‘‘places artificial restrictions on statement that the provider has been City of New York, Doc. 10103A, at 8; see
access to necessary information informed of the employee’s essential job also Edison Electric Institute, Doc.
regarding an employee’s serious health functions’’). 10128A, at 9 (‘‘Our experience has
condition. The limitations imposed by Information received in response to shown no negative consequences of
the FMLA regulations go far beyond the Department’s RFI suggests that one direct contact between employers and
those imposed in such acts as the [ADA] particularly problematic area for many their employees’ health care providers
and clearly fail to balance both employers is that the FMLA prohibits in the ADA context.’’); Clark Hill PLC,
employer and employee rights under the direct employer contact with the Doc. 10151A, at 3–4 (Because the ADA
FMLA.’’ MGM Mirage, Doc. 10130A, at employee’s health care provider, while ‘‘clearly allows employers to make such
7; see also U.S. Chamber of Commerce, the ADA does not. Compare 29 U.S.C. job related inquiries to a health care
Doc. 10142A, at 7 (‘‘Employers found 2613 with EEOC Disability-Related provider on their own* * *. [t]he added
that the burdens to obtaining medical Inquiries Guidance, at Question 11. burden of hiring a health care provider
information under the FMLA are Several commenters noted that the is not necessary’’). Comments from the
significantly greater’’ than inquiries FMLA ‘‘limitations associated with the National Retail Federation also reflect
under the ADA). clarification process were created solely this view:
Several commenters contrasted by the regulations. Such limitations Employers know based on the
employees’ obligations under the FMLA contradict what was expressly conversations they have with health care
medical certification process with addressed and permitted by Congress providers during the ADA process that the
employees’ obligations under the ADA when enacting the ADA just three years clarification and additional information they
interactive process. See, e.g., Pilchak before the FMLA.’’ The National need usually does NOT require the
Cohen & Tice, P.C., Doc. 10155A, at 23 Coalition to Protect Family Leave, Doc. involvement of another health care
(‘‘employees should have a duty to 10172A, at 46; see also Temple professional. The need to follow-up with the
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health care provider presents an exception
cooperate with the employer, as they do University, Doc. 10084A, at 10 (The
and is borne out of legitimate needs, such as
under the ADA’’). A law firm reported FMLA restrictions on direct doctor to gain a better understanding of an
that its employer clients feel that their contact are ‘‘purely a product of the employee’s condition, to determine if the
hands are tied when employees fail to regulation.’’). One commenter summed employee qualifies, and if so, what should
complete and return FMLA medical up the difficult position it believes this the employer reasonably expect with respect
certification forms. Proskauer Rose, Doc. places employers in: to intermittent absences and to curb abuse.
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35602 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
National Retail Federation, Doc. encourage free communication in order suggested that the need for a second
10186A, at 17. for the parties to have a common opinion examination would be reduced
These commenters, and numerous understanding of medical limits and by incorporating ADA concepts into the
others, suggested that the Department leave requirements’’); Manufacturer’s FMLA certification process. See Pilchak
‘‘allow employers to contact the health Alliance/MAPI, Doc. 10063A, at 7 Cohen & Tice, P.C., Doc. 10155A, at 22.
care provider to confirm that (suggesting that ‘‘the ADA informal A health care provider argued that
appointments or treatments are being interactive process used to gather coordinated procedures for obtaining
scheduled when least disruptive to information on an employee’s medical medical information under the FMLA
operations * * * and for the purposes condition should be adopted under the and the ADA would reduce employer
of clarification and to verify authenticity FMLA’’); Society for Human Resource costs of providing FMLA leave. MedStar
of the certification.’’ Commonwealth of Management, Doc. 10154A, at 17 (‘‘By Health, Inc., Doc. 10144A, at 17 (current
Pennsylvania, Doc. 10042A, at 4; see reconciling the processes permitted by rule creates an ‘‘unnecessary cost for
also City of Philadelphia Personnel the ADA with the FMLA, needless time employers, even for those with in-house
Department, Doc. 10058A, at 2 (arguing and expense associated with the FMLA employee health offices that are staffed
that Department should permit Human approval process will be eliminated.’’); by nurses but do not have a nurse
Resource department to contact National Association of Manufacturers, practitioner or other FMLA health care
employee’s doctor ‘‘when medical Doc. 10229A, at 9 (‘‘The ADA model provider’’).
certification is vague and needs should be adopted for the FMLA[.]’’). A The AFL–CIO, however, argued that
clarification’’ in same way practice is human resource management the clear distinctions between the
‘‘currently permitted under the ADA’’); association stated that an interactive ‘‘reasonable accommodation’’
Frost, Brown, Todd, LLC, Doc. 10137A, process would work better than the provisions of the ADA and the ‘‘leave
at 2 (eliminate barrier on direct doctor ‘‘exchange of paper’’ process currently provisions’’ of the FMLA made the
contact as ‘‘unnecessary and in place under the FMLA: different procedures under each statute
unjustified’’ given that such contact is for obtaining medical information
permitted under ADA and most state While we understand the goals reflected by
appropriate:
the FMLA, perhaps it would be less
workers’ compensation laws); burdensome if employers were allowed to be Since only ‘‘known physical or mental
International Public Management involved in the back-and-forth discussion limitations’’ trigger an employer’s obligation
Association for Human Resources and between the employee and physician as to make reasonable accommodation under
International Municipal Lawyers opposed to stressing the exchange of paper the ADA (§ 12112(b)(5)(A)), it is reasonable
Association, Doc. R350A, at 4 (allow similar to the ‘‘interactive process’’ line of for employers to have direct contact with
employers to communicate directly with cases that has developed under the ADA employees’ health care providers in certain
health care providers, as is permitted * * *. When family and medical leave is limited situations. An ADA employer may
properly certified, it is our experience that require detailed medical knowledge of an
under ADA). employee’s disability in order to
Other commenters suggested that the leave is typically granted; however, when
the circumstances surrounding the leave are accommodate that disability in the
employers be permitted to require that workplace. Furthermore, it is advantageous
less than clear or the doctor’s certification is
an employee provide a limited release for employees with disabilities if their
less than straightforward, the employer is in
allowing the disclosure of sufficient a no-win situation. employers understand their limitations.
medical information to confirm the need The same concerns are not present with
for leave, as is permitted by the ADA. Krukowski & Costello, S.C. (on behalf of respect to FMLA medical determinations—
Seyfarth Shaw LLP (on behalf of a not- Legislative Committee of the Human employers are not required by the FMLA to
for-profit health care organization), Doc. Resource Management Association of make changes in the workplace to
Southeastern Wisconsin), Doc. 10185A, accommodate the serious health conditions
10132A, at 4 (suggesting that employers of employees, and they therefore need less
be allowed to require that employees at 4.
information than employers under the ADA
seeking FMLA leave sign release Commenters suggested a number of in order to fulfill their statutory obligations.
authorizing employer to submit list of potential benefits that might flow from In the FMLA context, an employer does not
questions to employee’s health care implementing similar processes for need access to information beyond a doctor’s
provider as is permitted by ADA); see obtaining medical information under certification of the factors establishing the
also United States Postal Service, Doc. the ADA and FMLA. The City of New presence of a serious health condition under
10184A, at 16–17 (noting that such an York stated that more consistent the statute and a doctor’s estimate of likely
procedures would allow employers ‘‘to absences or duration of treatment.
approach would be consistent with the
ADA where it is ‘‘well settled law that make informed decisions in a timely American Federation of Labor and
an employee who refuses to provide an manner’’ and reduce administrative Congress of Industrial Organizations,
employer with sufficient medical compliance burdens by allowing ‘‘staff Doc. R329A, at 42–43. The National
information under the ADA can be members who review both FMLA- and Partnership for Women & Families also
denied the accommodation the ADA-related requests * * * to apply a opined that the FMLA and the ADA
employee seeks’’). For a fuller similar inquiry procedure to both types raise different privacy concerns and
discussion of comments relating to of situations.’’ Doc. 10103A, at 9. thus that a different approach to
medical releases and medical Another commenter stated that adopting protecting medical privacy is
certification forms generally, see similar processes would eliminate appropriate under the FMLA. See Doc.
Chapter VI. confusion between the FMLA and ADA 10204A, at 21 (‘‘The privacy concerns
More generally, many of the guidelines for medical inquiries and regarding employers’ access to medical
commenters stated that the FMLA interactive discussion. Northern information are heightened in the
certification process could be improved Kentucky Chamber of Commerce, Doc. context of the FMLA because the FMLA
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if a more interactive process, similar to 10048A, at 7. The Ohio Department of governs the employer’s access not only
that provided for under the ADA, was Administrative Services believed such a to the medical information of
adopted. See, e.g., Fairfax County Public change would ‘‘diminish the employees, but also to the medical
Schools, Doc. 10134A, at 4–5 (ADA requirement that the doctor correct information of employees’ family
interactive process is ‘‘much better vague or incomplete paperwork.’’ Doc. members. This provides justification for
model’’ and FMLA ‘‘regulations should 10205A, at 4–5. Another commenter additional caution in insuring the
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35603
privacy of medical information under at 8–9. This commenter suggested that Guidance, General Principles Section.
the FMLA.’’). the Department adopt the reasonable Moreover, the employer has the
belief standard used under the ADA so ‘‘ultimate discretion’’ to choose among
C. Confirming That an Employee Is Fit
that employers could seek fitness for reasonable accommodations as long as
To Return To Work After Medical Leave
duty certifications for FMLA leave in all the chosen accommodation is effective.
Under the FMLA and the ADA
instances, and using the same processes, EEOC Reasonable Accommodation
Under the ADA, an employer may permitted by the ADA. Id. Guidance, at Question 9. In certain
require an employee returning from Several commenters representing situations, employers must offer light
medical leave to provide a doctor’s note, employees cautioned that altering the duty or reassignment to qualified
as long as it has a policy or practice of fitness for duty certification procedures individuals with disabilities as a
requiring all employees to do so, and under the FMLA would place an reasonable accommodation. See, e.g.,
may require an employee to submit to ‘‘unwarranted burden’’ on employees. EEOC, Enforcement Guidance: Workers’
a fitness for duty examination when the See, e.g., National Partnership for Compensation and the ADA (hereafter,
‘‘employer has a reasonable belief that Women & Families, Doc. 10204A, at 23. ‘‘EEOC Workers’ Compensation
an employee’s present ability to perform For a fuller discussion of employee Guidance’’), at Questions 27 and 28
essential job functions will be impaired comments relating to this issue, see (discussing employer’s obligation to
by a medical condition or that s/he will Chapter VI. provide light duty work); EEOC FMLA
pose a direct threat.’’ EEOC Disability- and ADA Fact Sheet, at Question 13
Related Inquiries Guidance, at D. Offering Light Duty, Modified Work,
or Transfers/Reassignments Under the (discussing employer’s obligation to
Questions 15 and 17. The FMLA reassign employee to vacant position).
regulations, on the other hand, prohibit FMLA and the ADA
A number of commenters discussed
an employer from obtaining (except One of the qualifying reasons for the different treatment afforded
when governed by a collective medical leave under the FMLA is for an modified work, light duty, and
bargaining agreement or State or local employee’s own serious health transfers/reassignments under the
law) a fitness for duty examination condition. The FMLA implementing FMLA and the ADA. While commenters
when an employee returns from an regulations provide that an employee is sometimes used these terms
intermittent leave absence, even if the entitled to leave under this provision interchangeably, this Chapter treats each
request would be permitted under the ‘‘where a health care provider finds that issue separately. This is because each
ADA. See 29 CFR 825.310(g). The same the employee is unable to work at all or may impose different obligations and
section allows employers to require a is unable to perform any one of the restrictions on employers under the
fitness for duty certification pursuant to essential functions of the employee’s ADA and the FMLA. Thus, for the
a uniformly applied policy, but limits position within the meaning of’’ the Department’s purposes, the discussion
that certification to a ‘‘simple ADA and the EEOC’s regulations. 29 of modified job duties generally refers to
statement’’ of an employee’s ability to CFR 825.115.17 The regulations prohibit situations where an employer wishes to
return to work and places limitations on employers from modifying an modify an employee’s job duties in his
an employer’s communications with the employee’s job functions to preclude the or her existing job, and particularly to
employee’s health care provider taking of FMLA leave. 29 CFR the suggestion by commenters that
regarding the employee’s ability to 825.220(b)(2), see also 825.702(d)(1). employers should be permitted to
return to work that are not present The FMLA permits the temporary remove one or more essential job
under the ADA. 29 CFR 825.310(c). reassignment of employees needing functions in lieu of providing FMLA
As noted in Chapter VI, numerous intermittent or reduced schedule leave leave. The discussion of the treatment
commenters questioned the FMLA ‘‘that is foreseeable based on planned afforded ‘‘light duty’’ under the FMLA
restrictions on fitness for duty medical treatment’’ under certain and ADA refers to particular positions
certifications, with many arguing that circumstances. See 29 U.S.C. 2612(b)(2). created specifically for the purpose of
the current process compromises Under the ADA, an employer must providing work for employees who are
legitimate safety concerns. Several of provide reasonable accommodation, unable to perform some or all of their
these commenters stated that the FMLA including job restructuring, to qualified normal duties. It is important to note,
fitness for duty provision ‘‘conflicts individuals with disabilities. See 42 however, that the term ‘‘light duty’’ also
with that permitted under the ADA,’’ U.S.C. 12111(9); 29 CFR 1630.2(o). is used by some employers to refer to
with the latter allowing both more Under EEOC Enforcement Guidance, an situations whereby employees are
substantive information and physical employer is not required to eliminate an excused from performing certain job
examinations. National Coalition to ‘‘essential function’’ of a position, but functions of their normal job or are
Protect Family Leave, Doc. 10172A, at may do so if it wishes. ‘‘This is because assigned to any less demanding
50; see also Fisher & Phillips LLP, Doc. an individual who is unable to perform position. The discussion below
10262A, at 17–18 (‘‘Employers must be the essential functions, with or without concerning transfers or reassignments is
permitted to verify FMLA leave and reasonable accommodation, is not a intended to cover those situations
fitness for duty in the same way they ‘‘qualified’’ individual with a disability whereby an employer reassigns an
currently verify other absences due to within the meaning of the ADA.’’ See employee to an alternative position,
illness.’’). An employer’s association EEOC Reasonable Accommodation which need not be, and often is not, part
that commented on the different of the employer’s ‘‘light duty’’ program.
standards under the ADA and the FMLA 17 As discussed later in this chapter, the
stated that, ‘‘an employer is more aware Department received comments suggesting that the 1. Modifying Job Duties
Department’s regulation is inconsistent with the
of the inherent duties of a job than the The FMLA regulations prohibit
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ADA. Under the ADA, an employee is entitled to
employee’s health care provider. Yet reasonable accommodation only if he or she has a employers from ‘‘changing the essential
[under the FMLA], the employer may covered disability and is qualified to perform (with functions of [the employee’s] job in
not delay the employee’s return to work or without an accommodation) all of the essential order to preclude the taking of leave.’’
functions of his or her position. Only those physical
while contact with the health care or mental impairments that ‘‘substantially limit’’
29 CFR 825.220(b)(2). Many employers
provider is being made.’’ Employers one or more major life activities are covered expressed support for changing the
Association of New Jersey, Doc. 10119A, disabilities under the ADA. regulations to allow ‘‘an employer to
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35604 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
modify an employee’s job duties in his/ employee with protections. It also Congress of Industrial Organizations,
her existing job—including removal of would better rationalize the FMLA with Doc. R329A, at 35 (‘‘[N]either the statute
essential job functions—in lieu of FMLA accommodation provisions of the [ADA] nor the regulations provides a basis for
leave.’’ National Coalition to Protect and the light duty provisions of treating a modified position as the
Family Leave, Doc. 10172A, at 36 workers’ compensation laws.’’ Temple equivalent of FMLA leave. An employee
(emphasis in original); see also College University, Doc. 10084A, at 8–9; College who accepts a modified job does not
and University Professional Association and University Professional Association forfeit his or her entitlement to a full 12
for Human Resources, Doc. 10238A, at for Human Resources, Doc. 10238A, at weeks of leave if the employee remains
9 (allowing modification of job duties in 9 (same). As one law firm noted, ‘‘[a]n unable to perform the essential
employee’s existing job allows for employee at work performing his or her functions of the unmodified job.’’).
‘‘greater flexibility to meet staffing job is certainly preferable to their not
Some employers also expressed
needs’’); National Retail Federation, being at work at all. This option would
concern about the implications of
Doc. 10186A, at 14–15 (‘‘return[ing] an also benefit employees to the extent that
eliminating essential job functions. A
associate with a non-occupation illness they would now have the opportunity to
or injury to work in a manner that is continue receiving pay.’’ Fisher & state employer, who opposed any
consistent with restrictions is not Phillips LLP, Doc. 10262A, at 11. requirement that employers modify
unfriendly to the employee and is A group representing 5,000 essential job functions under the FMLA,
consistent with the statutory intent of physicians and other health care expressed concern that such a proposal
FMLA’’); DST Systems Inc. Doc. professionals specializing in the field of would not be cost effective, require
10222A, at 3 (‘‘Modifications enable an occupational and environmental significantly more documentation, and
employee to continue work and avoid medicine stated that employers should cause ‘‘further confusion’’ between the
the need for FMLA leave, thus be ‘‘encouraged in the FMLA to assist FMLA and the ADA. The
eliminating the burden on fellow the employee to consider alternatives Commonwealth of Pennsylvania, Doc.
employees and the employer, and loss for a better health solution than taking 10042A, at 2; see also The Pennsylvania
of active employment for the time off from work.’’ The American Turnpike Commission, Doc. 10092A, at
employee’’). These commenters College of Occupational and 5 (permitting employers to modify
suggested that ‘‘an employee who can Environmental Medicine, Doc. 10109A, existing job duties would ‘‘add to the
perform an essential function with an at 2. Another commenter noted it could existing confusion of FMLA and [ADA]
accommodation, or by virtue of the not see any ‘‘negative effect’’ to allowing regulations’’). Another state employer
elimination of that task for the period he an employer to alter the essential thought that it would be ‘‘unduly
or she is unable to perform it, should functions of an employee’s job but burdensome to require employers to
not be permitted to reject the thought it was unlikely that ‘‘most also modify job duties for employees
accommodation and pursue FMLA employers would ever take this with serious health conditions’’ because
leave. This result is contrary to the opportunity, as most are loathe to employers already were legally
legislative intent of FMLA, which was concede that essential functions may obligated to provide modified work
passed to protect employees who had to not really be essential.’’ Kennedy Reeve under workers’ compensation laws and
miss work rather than employees who & Knoll, Doc. 4763A, at 12. the ADA. City of Portland, Office of
merely chose to miss work because they A number of employee organizations Management and Finance, Doc. 10161A,
prefer to avoid it.’’ National Association expressed concern about any change to at 5. A business organization in
of Convenience Stores, Doc. 10256A, at the FMLA scheme that would require Northern Kentucky did not believe that
2–3; see also Fisher & Phillips LLP, Doc. employees to accept an employer’s offer permitting an employer to change the
10262A, at 6 (same). of modified work in lieu of leave. As the essential functions of a job would be of
Commenters supporting this view National Partnership for Women and ‘‘significant value.’’ Northern Kentucky
argued that ‘‘[a]llowing this would Families stated: Chamber of Commerce, Doc. 10048A, at
benefit both employers and employees. One bedrock principle of the FMLA is the 4–5. This organization felt that
The more options employees have to right of an eligible employee to take a permitting such a practice would likely
remain at work, the less likely they are specified amount of leave for family or add increased administrative burdens,
to exhaust their leave rights and, more medical reasons and then return to the same cause further conflict between the ADA
or equivalent job. To the extent the RFI is and the FMLA, and require increased
importantly, their rights to considering a change in the regulations to
reinstatement.’’ National Coalition to communications with supervisors to
require an employee to accept an employer’s
Protect Family Leave, Doc. 10172A, at offer to make modifications to the employee’s ensure that all assigned work met the
36–37. A number of employers felt that existing job to accommodate a serious health employee’s restrictions, among other
requiring modified work would be condition, we believe such a change would issues. See id. at 4–5; see also National
particularly helpful in situations where be inconsistent with the express language Business Group on Health, Doc.
the ‘‘employee has requested and intent of the FMLA. We also would 10268A, at 5 (‘‘implications of
intermittent leave to be taken on an oppose any effort to penalize an employee modifying an employee’s job duties
who declined to accept such a position, include higher budgeted costs, peer
unplanned, unscheduled basis.’’ except as currently permitted by law. The
Bendix, Doc. 10079A, at 8; see also The law entitles eligible employees to take up to dissatisfaction, and the administrative
Retail Industry Leaders Association, twelve weeks of family or medical leave, and difficulty of moving an employee to a
Doc. 10259A, at 3–4 (same); Detroit nothing in the statute, regulations, or temporary position’’); Elaine G. Howell,
Medical Center, Doc. 10152A, at 3 legislative history suggests that an employee H.R. Specialist, International Auto
(same). A university employer stated should lose the right to determine whether or Processing, Inc., Doc. 4752, at 3
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that allowing an employer to modify not to take leave if an employer modifies the (modifying an employee’s existing job
essential functions of an employee’s job employee’s job duties. duties would allow employees to collect
may be a better alternative than placing National Partnership for Women & the same pay and benefits while no
the employee on leave, as it allows the Families, Doc. 10204A, at 16; Families longer doing an equivalent job and
employer ‘‘greater flexibility to meet USA, Doc. 10327A, at 5; see also cause employees to provide their
staffing needs, while also providing the American Federation of Labor and physicians ‘‘with reasons why they
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35605
could not do the most disliked portion Doc. 10234A, at 3. In its comments, the others agreed. See National Association
of their jobs’’). EEOC acknowledged that the ADA of Convenience Stores, Doc. 10256A, at
A health system consisting of permits, but does not require, an 2–3; U.S. Chamber of Commerce, Doc.
multiple hospitals in the Washington, employer to modify or remove essential 10142A, at 11; Society for Human
D.C., metropolitan area expressed job functions. The Commission noted, Resource Management, Doc. 10154A, at
concern that modifying one or more however, that it has not yet provided 9; College and University Professional
essential job functions in lieu of guidance on ‘‘whether an employer’s Association for Human Resources, Doc.
providing leave under FMLA might reasonable accommodation duty [under 10238A, at 9; American Bakers
mean that an employer would be the ADA] could be satisfied by Association, Doc. R354A, at 4; American
required to modify those same functions reallocating essential functions with the Hotel & Lodging Association, Doc.
as a reasonable accommodation under express purpose of precluding leave as R366A, at 3; National Public Employer
the ADA, when it otherwise would not a reasonable accommodation.’’ Id. Labor Relations Association, Doc.
be required to do so. R358A, at 8. Employers who supported
2. Offering Light Duty Work
In keeping with the approach under the this proposal believed that ‘‘[i]n many
[ADA] that essential job functions need not A number of organizations also cases, light duty may be a better
be modified in order to accommodate an commented on the differences between alternative than placing the employee
employee’s disability, such modifications the FMLA’s and ADA’s treatment of on leave, as it allows the employer
should not occur to accommodate an light duty work. Section 825.220(d) of greater flexibility in meeting its staffing
employee’s serious health condition under the FMLA regulations provides that an needs. Such a change also would better
the FMLA. Both laws serve an important employee may voluntarily accept a rationalize the FMLA with the
purpose in accommodating employees for the ‘‘light duty’’ assignment while
ultimate objective of having them perform
accommodation provisions of the [ADA]
recovering from a serious health and the light duty provisions of many
the essential job functions. Thus, nothing
should detract from determinations made condition, but cannot be coerced to do workers’ compensation laws.’’ College
regarding the essential job functions as so. When an employee accepts a light and University Professional Association
necessary and central to a job position. duty assignment, the time spent for Human Resources, Doc. 10238A, at
Additionally, it is important to note that if working in the light duty position does 9. Other commenters stated that it ‘‘is
employers modify essential job functions for not count against his or her FMLA leave unnecessary, and often ill-advised, to
FMLA purposes, they have potentially entitlement. Under the FMLA, the allow an employee to refuse light duty
obligated themselves to doing so under the employee’s right to be restored to the
ADA.
* * * Experience has shown that
same (or equivalent) position held prior employees with minor injuries generally
MedStar Health, Inc., Doc. 10144A, at to the start of the leave, however, recover more quickly if they are
14–15. As another employer noted, expires after a cumulative period of 12 working, gradually returning to their
removing essential job functions for weeks of leave and light duty work. 29 former capabilities.’’ Society for Human
FMLA purposes ‘‘could lead to an CFR 825.220(d); see also Wage and Hour Resource Management, Doc. 10154A, at
argument that these functions are not Opinion Letter FMLA–55 (March 10, 9; see also The Retail Industry Leaders
that essential, and that the employer 1995). By contrast, under the ADA, an Association, Doc. 10259A, at 3–4
should be required to remove them from employer does not have to create a light (same).
the position’s job duties altogether as an duty position for an individual with a Several employers supporting
accommodation’’ under the ADA. disability but, if a vacant, light duty mandatory light duty work thought that
Washington Metropolitan Area Transit position already exists, the employer such work should count against an
Authority, Doc. 10147A, at 4; see also must reassign the individual with a employee’s 12-week FMLA entitlement.
Madison Gas and Electric Company, disability to the position if there is no See National Association of
Doc. 10288A, at 3 (‘‘An employer may other effective accommodation available Convenience Stores, Doc. 10256A, at 2–
be hesitant to modify an employee’s and the reassignment would not pose an 3; Fisher & Phillips LLP, Doc. 10262A,
existing job duties due to the undue hardship. See EEOC, Workers’ at 6; American Bakers Association, Doc.
implications of the [ADA].’’). The health Compensation Guidance, at Questions R354A, at 4 (Department should clarify
care employer felt that ‘‘[t]his would be 27 and 28. In addition, if the only that ‘‘time spent in light duty work
an undesirable result for employers effective accommodation available is away from the employee’s usual job
seeking to reasonably facilitate and similar or equivalent to a light duty counts against the 12 weeks of FMLA
manage ADA-related job position, an employer must provide that entitlement for all purposes’’). As one
accommodations.’’ MedStar Health, Inc., accommodation, absent undue employer noted, ‘‘light duty should
Doc. 10144A, at 14–15. Another hardship. See EEOC, Workers’ count against an employee’s FMLA
company, Zimbrick, Inc. stated the Compensation Guidance, at Question leave entitlement and reinstatement
following: 27. rights. Otherwise, the employer ends up
Nearly all respondents to a survey essentially making reasonable
Because FMLA and ADA overlap,
modifying existing job duties essentially
conducted by a human resource accommodations for FMLA even if the
creates a temporary accommodation which association in Ohio ‘‘believed condition is not an ADA-qualifying
could become permanent. From a business employees requesting leave for their disability.’’ Sally L. Burnell, Program
perspective, why would we want to pay an own serious health conditions should be Director, Indiana State Personnel
employee performing only part of the required to accept light duty work Department, Doc. 10244C, at 4.
essential functions the same as someone who consistent with their medical On the other hand, some employers
performs all of them? restrictions, if offered.’’ Miami Valley thought light duty should not count
Doc. FL125, at 1. Human Resource Association, Doc. against the employee’s FMLA leave
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The EEOC also stated that ‘‘such an 10156A, at 6–7. The National entitlement. A survey conducted by a
alteration to the FMLA rule could raise Association of Convenience Stores, the national law firm revealed that 66% of
new ADA issues related to essential U.S. Chamber of Commerce, the Society the almost 150 individuals who
functions and reasonable for Human Resource Management, the responded on behalf of their companies
accommodation.’’ United States Equal College and University Professional did not believe that light duty work
Employment Opportunity Commission, Association for Human Resources, and should be counted against an
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35606 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
employee’s FMLA leave entitlement. discussing unscheduled intermittent intermittent FMLA leave ‘‘to a lesser
‘‘The vast majority of respondents felt leave.). Under the ADA, part-time work management or a non-management
that light duty is generally the result of or occasional time-off may be a position that better accommodates the
a work injury or occupational injury and reasonable accommodation. As a general employer’s needs’’). As one employer
is better dealt with through the ADA or matter, transfer is the accommodation of stated, this approach ‘‘would provide
workers’ compensation. Most last resort under the ADA. However, if, employers with more flexibility in
respondents stated that with light duty, or when, an employee’s need for part- accommodating the employee’s need for
an employee is usually working and time work or reduced hours in his or her leave while enabling the employer to
therefore not on leave.’’ Hinshaw & current position creates an undue better manage the workforce.’’ Exelon,
Culbertson LLP, Doc. 10075A, at 4; see hardship for an employer, the employer Doc. 10146A, at 8.
also MedStar Health, Inc., Doc. 10144A, must transfer the employee to a vacant, A law firm suggested that employers
at 14 (‘‘When an employee works, even equivalent position for which the also be permitted to reduce the
in an alternate light duty capacity, he/ employee is qualified, unless doing so employee’s pay and benefits upon
she is not absent under the meaning of would present an undue hardship for transfer, as is permitted for
the FMLA.’’). the employer. If an equivalent position reassignments under the ADA. See
A number of organizations is not available, the employer must look Pilchak Cohen & Tice, P.C., Doc.
representing employees also opposed for an equivalent position at a lower 10155A, at 12.18 Another commenter
permitting an employer to modify an level. Further accommodation is not also recommended that the employer
employee’s existing job in lieu of required if a lower level position is also ‘‘be allowed to adjust the employee’s
providing leave. See, e.g., American unavailable. See EEOC FMLA and ADA compensation and benefits so that they
Federation of Labor and Congress of Fact Sheet, at Question 13. Employers are commensurate with the position into
Industrial Organizations, Doc. R329A, at who place employees in lower level which the employee is being moved.’’
34 (‘‘treating light duty work as the positions are not required to maintain National Council of Chain Restaurants,
equivalent of FMLA leave falls the employee’s salary at the level of the Doc. 10157A, at 10–11. The law firm
squarely’’ within statutory prohibition higher grade, unless the employer does supporting this approach explained
making it unlawful to interfere with, so for other employees. See EEOC that, otherwise, the provisions for
restrain, or deny exercise of right to take Technical Assistance Manual § 3.10.5. transferring employees under the FMLA
FMLA leave and conflicts with are ‘‘inherently unrealistic’’ because the
As discussed more fully in Chapter
regulatory provision concerning waiver ‘‘employee would always prefer to be
of FMLA rights). Several of these VIII, a number of commenters suggested
transferred to a position with less
commenters thought that counting light that the FMLA regulations should be
responsibilities and less duties, but with
duty as FMLA leave would be unfair to amended so that employers may transfer
equal pay and benefits.’’ Pilchak Cohen
employees because ‘‘[i]f an individual is employees who request unscheduled or
& Tice, P.C., Doc. 10155A, at 12.
at work, even if the duties have been unforeseeable intermittent leave. Some
commenters supporting reassignment E. Permitting ‘‘Reasonable Leave for
modified to address the employee’s
argued that employers should be Medical Reasons’’ Under the FMLA and
illness or care giving responsibilities, he
or she is still engaging in productive permitted to temporarily transfer an the ADA
activity for the employer.’’ University of employee to an alternative position in An employee is entitled to reasonable
Michigan Center for the Education of ‘‘all cases involving intermittent leave accommodation, including medical
Women, Doc. 10194A, at 2; see also or reduced leave schedules.’’ United leave, under the ADA only if he or she
Families USA, Doc. 10327A, at 4–5 Parcel Service, Doc. 10276A, at 5. Still has a covered disability and is qualified
(‘‘opposes any reduction in FMLA leave other commenters suggested that to perform (with or without an
for time spent working in a ‘‘light duty’’ employers should be allowed, in certain accommodation) the essential functions
position.’’); Coalition of Labor Union circumstances, to permanently reassign of the position. 42 U.S.C.
Women, Doc. R352A, at 4–5 (‘‘counting employees needing unforeseeable 12112(b)(5)(A); see generally EEOC
‘‘light duty’’ work as FMLA leave is not intermittent leave due to a chronic Reasonable Accommodation Guidance.
appropriate and runs counter to the condition. See Betsy Sawyers, Director, Only those physical or mental
intent of the statute’’). Human Resources Department, Pierce impairments that ‘‘substantially limit’’
County, Washington, Doc. FL97, at 4. one or more major life activities are
3. Standards for Transferring/ Many employers that supported covered disabilities under the ADA. See
Reassigning Employees reassignment urged that a process 42 U.S.C. 12102(2)(A). Moreover, an
The Department also received similar to that provided under the ADA employer is not required to provide any
comments regarding the differing be adopted, whereby reassignment accommodation that would pose an
standards under the FMLA and the ADA ‘‘could be conditioned on the ‘‘undue hardship’’ on the operation of
for transferring or reassigning employer’s determination that the employer’s business. See 42 U.S.C.
employees to alternative positions. The unscheduled leave could not be 12112(b)(5)(A); 29 CFR 1630.9. ‘‘Undue
FMLA provisions regarding transfers to continued without jeopardizing the hardship’’ means significant difficulty
an alternative position, discussed more essential functions of the job. After or expense and refers not only to
fully in Chapter VIII, generally permit making such a determination, the financial difficulty, but also to requested
the employer to temporarily transfer an employer could reassign the employee accommodations that are unduly
employee who needs foreseeable to a position that better accommodated extensive, substantial, or disruptive, or
intermittent or reduced schedule leave intermittent attendance.’’ Fairfax those that would fundamentally alter
for planned medical treatment to an County Public Schools, Doc. 10134A, at
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alternative position with equivalent pay 3; see also National Council of Chain 18 While the FMLA permits the temporary
and benefits. The position must be one Restaurants, Doc. 10157A, at 10–11 reassignment of employees needing intermittent or
for which the employee is qualified and (FMLA should ‘‘accommodate reduced schedule leave ‘‘that is foreseeable based
on planned medical treatment’’ under certain
which better accommodates recurring employers in a manner similar to the circumstances, the statute expressly requires that
periods of leave. See 29 U.S.C. ADA,’’ by permitting the employer to the alternative position have equivalent pay and
2612(b)(2). (See also Chapter IV transfer a manager needing unscheduled benefits. 29 U.S.C. 2612(b)(2).
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35607
the nature or operation of the business. perform any one of the essential CFR 825.115. Although attendance is an
See 42 U.S.C. 12111(10); 29 CFR functions of the employee’s position.’’ essential job function under well-established
1630.2(p). An employer also is not 29 CFR 825.115. Other provisions of the ADA case law, the Regulations ignore the
case law and permit employees to maintain
required to eliminate an essential FMLA allow an employee to take leave
unacceptable attendance records on a
function of an employee’s position intermittently or on a reduced schedule. permanent basis. In fact, the FMLA
when providing accommodation under See 29 U.S.C. 2612(b); 29 CFR 825.203– Regulations permit employees with
the ADA. See generally EEOC 825.205. Unlike the ADA, however, permanent chronic conditions to be absent
Reasonable Accommodation neither the FMLA regulations nor the with impunity for approximately 25% of a
Guidance.19 statute limits the availability of such work year. * * * The ADA, on the other
One of the stated purposes of the leave to situations where the employee’s hand, does not protect an employee with a
FMLA is to permit employees to take absence does not impose an ‘‘undue disability who cannot maintain an acceptable
reasonable leave for medical reasons ‘‘in hardship’’ on the employer. attendance record.
a manner that accommodates the A number of commenters believed The courts have consistently and
uniformly held that attendance is an essential
legitimate interests of employers.’’ 29 that the FMLA regulations should be
job function and that a continuous or
U.S.C. 2601(b). The statute entitles revised to incorporate the ADA concept reduced schedule leave of a reasonable
employees to FMLA leave for (among of ‘‘substantially limited’’ in working. duration are reasonable accommodations
other qualifying reasons) a serious As a group of human resource under the ADA. * * *. [T]he FMLA was
health condition that makes them professionals stated: intended to cover a temporary emergency or
unable to perform the functions of their The Act seems to suggest that an employee critical need for medical leave, not a
position. See 29 U.S.C. 2612(a)(1)(D). is only entitled to FMLA leave for a serious permanent non-emergency or non-critical
The FMLA implementing regulations health condition when the condition makes need for medical leave.
adopt the ADA ‘‘essential function’’ the employee totally unable to work. The Spencer Fane Britt & Browne LLP,
concept in explaining when an eligible Regulations have gone one step further and Doc. 10133C, at 9; see also South
employee is entitled to leave for his or state that an employee is entitled to FMLA Central Human Resource Management
her own serious health condition. Under leave if he/she is unable to perform just one
essential job function. * * * Employees
Association, Doc. 10136A, at 13 (noting
section 825.115, leave may accrue to an should only be able to take FMLA leave if inconsistency between ADA and FMLA
eligible employee ‘‘where a health care they are substantially limited in their ability treatment of attendance and stating that
provider finds that the employee is to perform essential job functions. FMLA regulations ‘‘permit chronic
unable to work at all or is unable to absenteeism problems whereas the ADA
South Central Human Resource
Management Association, Doc. 10136A, does not’’); United States Postal Service,
19 The EEOC has stated that ‘‘in some instances,
at 18; see also Baldor Electric Company, Doc. 10184A, at 24 (‘‘Pursuant to the
an employer’s refusal to modify a workplace policy,
such as a leave or attendance policy, could Doc. 10320A, at 2 (leave should only be ADA, an employer is not required to
constitute disparate treatment as well as a failure to allowed when a person cannot perform accommodate chronic absenteeism or
provide a reasonable accommodation.’’ EEOC the majority of the essential functions). allow employees to work on a part-time
Reasonable Accommodation Guidance, at Question schedule while encumbering a full-time
24. Numerous court decisions have held that the According to another employer, ‘‘the
ADA does not protect individuals who have current regulatory framework allows for position. Yet the FMLA requires an
‘‘erratic, unplanned absences.’’ EEOC v. Yellow leave when an employee is unable to employer to do just that.’’); Association
Freight Sys., Inc., 253 F.3d 943, 948 (7th Cir. 2001) perform only one essential function of of Corporate Counsel, Doc. FL31, at 2–
(‘‘our court, and every circuit that has addressed 3 (suggesting, when discussing
this issue has held that ‘‘in most instances the ADA his or her job, even if there are ten other
does not protect persons who have erratic, essential functions of the job that the employer’s ability to control
unexplained absences, even when those absences employee is able to perform. This absenteeism under FMLA, that ‘‘current
are a result of a disability. The fact is that in most conflicts with the provisions of the regulations protect employee behavior
cases, attendance at the job site is a basic that the Federal Courts and the EEOC
requirement of most jobs.’’); accord Brenneman v. [ADA].’’ Verizon, Doc. 10181A, at 7.20
MedCentral Health System, 366 F.3d 412 (6th Cir. Commenters also routinely contrasted have concluded is not only
2004); Mason v. Avaya Communications, Inc., 357 an employer’s ability to manage unreasonable but also inconsistent with
F.3d 1114 (10th Cir. 2004); Nesser v. Trans World absenteeism under the FMLA and the the essential needs and expectations of
Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998); employers’’). For a full discussion of
Hypes v. First Commerce Corp., 134 F.3d 721 (5th
ADA, particularly in situations where
Cir.1998); Lyons v. Legal Aid Soc’y, 68 F.3d 1512, an individual takes unscheduled comments regarding the impact of
1516 (2d Cir.1995); Tyndall v. Nat’l Educ. Ctrs., 31 intermittent leave. A law firm unscheduled intermittent leave on
F.3d 209, 213 (4th Cir.1994); Carr v. Reno, 23 F.3d representing employers summarized the attendance, see Chapter IV.
525, 530 (D.C. Cir.1994); cf. Nesser v. Trans World
inconsistencies between the two To address these concerns, a
Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998); significant number of employers and
Hypes v. First Commerce Corp., 134 F.3d 721 (5th statutes:
Cir.1998); Lyons v. Legal Aid Soc’y, 68 F.3d 1512, organizations representing employers
The [FMLA] Regulations clearly state that
1516 (2d Cir.1995); Tyndall v. Nat’l Educ. Ctrs., 31 suggested that intermittent or reduced
the ADA definition of ‘‘essential job
F.3d 209, 213 (4th Cir.1994); Carr v. Reno, 23 F.3d
functions’’ is to be used under the FMLA. 29 schedule medical leave should not be
525, 530 (D.C. Cir.1994); cf. Humphrey v. Memorial required under the FMLA when it
Hospitals Ass’n, 239 F.3d 1128 (9th Cir. 2001)
(noting ‘‘that although excessive or unscheduled 20 In the process of finalizing the FMLA presents an ‘‘undue hardship’’ or means
absences may prevent an employee from performing implementing regulations, the Department received that the employee cannot perform the
the essential functions of his job and thereby render comments questioning whether section 825.115 was essential functions of the position, as
him not otherwise qualified for purposes of the intended to mean that an eligible ‘‘employee must would be the case under the ADA.
ADA, regular and predictable attendance is not per be found unable to perform each and every essential
se an essential function of all jobs’’); Ward v. Mass. function (i.e. all), or only any single one, or some [P]rovisions could be added to the FMLA
Health Research Inst., 290 F.3d 29 (1st Cir. 2000) of several of the essential functions’ in order to take and its regulations to take into account the
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(while ‘‘regular and reliable schedule may be an FMLA leave due to his or her own serious health impact of intermittent leave on the employer.
essential element of most jobs, resolution of the condition. The Department made clear in the The ADA utilizes reasonableness and undue
issue in each case requires a fact-intensive inquiry preamble to its Final Rule that ‘‘[t]his section was
into the pattern of the attendance problem and the intended to reflect that an employee would be
hardship standards when assessing employee
characteristics of the job in question’’); see also considered ‘‘unable to perform the functions of the requests for accommodations. Under the
David v. Florida Power & Light Co., 205 F.3d 1301 position’’ * * * if the employee could not perform ADA, an employer is not required to
(11th Cir. 2000) (holding that overtime, like job any one (or more) of the essential functions.’’ 60 FR fundamentally alter the nature of a position
presence, can be an essential function of a job). 2179, 2196 (Jan. 6, 1995). in order to accommodate an employee’s
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35608 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
disability. The FMLA and its regulations that, at each FMLA workshop they Section 825.204(d) prohibits an
should include similar considerations. An conducted, ‘‘attendees repeatedly told employer from ‘‘transfer[ing] the
employer should not be required to grant a us that, without the protections offered employee to an alternative position in
request for intermittent leave if the request by the FMLA, many would have been order to discourage the employee from
fundamentally alters the nature of the
employee’s position (i.e., effectively changes out of work and without crucial taking leave or otherwise work a
the start or end time for the position, allows healthcare benefits, due to their hardship on the employee.’’ Section
the employee to excuse himself/herself from employers’ very strict absence policies.’’ 825.204(e) limits the length and
work without notice, excuses the employee Coalition of Labor Union Women, Doc. circumstances of the transfer: ‘‘When an
from performing essential duties, excuses the R352A, at 2. The National Partnership employee who is taking leave
employee from the requirement to work for Women & Families, while intermittently or on a reduced leave
overtime, etc.). An employer should not be acknowledging that ‘‘situations schedule and has been transferred to an
required to grant a request for intermittent involving unscheduled leave may alternative position, no longer needs to
leave if there is no reasonable way to cover
present unique challenges for both continue on leave and is able to return
the employee’s work duties (e.g., because of
the nature of the position; because the employees and employers,’’ argued that to full-time work, the employee must be
employee cannot provide reasonable advance limiting the availability of unscheduled placed in the same or equivalent job as
notice of the leaves; because the leaves are leave ‘‘would be inconsistent with the the job he/she left when the leave
frequent). very purpose of the FMLA’’ which commenced. An employee may not be
provides for unscheduled leave because required to take more leave than
University of Minnesota, Doc. 4777A,
‘‘it is impossible to plan or script every necessary to address the circumstance
at 3; see also National Retail Federation,
situation where family or medical leave that precipitated the need for leave.’’ 29
Doc. 10186A, at 11 (‘‘One suggestion is
is needed.’’ Doc. 10204A, at 12. CFR 825.204(e). Unlike a ‘‘light duty’’
that intermittent leave should not be
assignment under section 825.220 of the
required where the unpredictable or VIII. Transfer to an Alternative Position
regulations, a transfer to an alternative
short-term nature of the absences The RFI did not specifically ask position does not require the employee’s
impose undue hardship or mean that questions about an employer’s ability to consent. Cf. 29 CFR 825.220(d) (light
the employee cannot perform the transfer an employee to an ‘‘alternative duty) (‘‘[Regulations do] not prevent an
essential functions of the job.’’); position’’ but the Department received employee’s voluntary and uncoerced
National Council of Chain Restaurants, many unsolicited comments on this acceptance (not as a condition of
Doc. 10157A, at 10 (‘‘same defenses topic. Under the Act, an employer may employment) of a ‘‘light duty’’
available under the ADA [e.g., undue transfer an employee to an ‘‘alternative assignment while recovering from a
hardship] should be available’’ when position’’ with equivalent pay and serious health condition[.]’’).
employee is unable to perform essential benefits when the employee needs to
functions); Texas Parks and Wildlife take intermittent or reduced schedule A. Department’s Regulations Only
Department, Doc. 10253A, at 1 (allow leave ‘‘that is foreseeable based on Permit Transfer Where Employee Needs
employers to consider business planned medical treatment[.]’’ 29 U.S.C. Intermittent Leave or Leave on a
necessity when intermittent leave 2612(b)(2). This statutory provision was Reduced Leave Schedule That Is
extends beyond one year or 480 hours intended ‘‘to give greater staffing Foreseeable Based on Planned Medical
of leave); International Public flexibility to employers by enabling Treatment.
Management Association for Human them temporarily to transfer employees A significant number of commenters
Resources and International Municipal who need intermittent leave or leave on questioned why the regulations permit
Lawyers Association, Doc. R350A, at 3 a reduced leave schedule to positions an employer to transfer an employee
(summarizing survey of local, state, and more suitable for recurring periods of only when the employee’s need for
federal government employers, leave. At the same time, it ensures that leave is foreseeable based on planned
including respondent’s suggestion that employees will not be penalized for medical treatment as opposed to a
‘‘an ADA-type exception be made if the their need for leave by requiring that chronic need for unforeseeable leave.
need for intermittent leave will pose an they receive equivalent pay and benefits These stakeholders noted as an initial
undue hardship on the employer’’). One during the temporary transfer.’’ 60 FR matter that the statute is silent on the
commenter suggested that amending the 2180, 2202 (Jan. 6, 1995). issue. ‘‘We recognize that while the
FMLA to include ‘‘undue hardship’’ and Section 825.204 of the regulations statute allows an employer to transfer an
‘‘direct threat’’ defenses would import explains more fully when an employer employee taking intermittent or reduced
the ‘‘important balance between may transfer an employee to an schedule leave for planned medical
employee and employer rights found in alternative position in order to treatment, * * * it is silent on taking
the ADA’’ to the FMLA and make the accommodate intermittent leave or a unforeseeable intermittent leave or
two laws better integrated. Pilchak reduced leave schedule. Section foreseeable leave unrelated to
Cohen & Tice, P.C., Doc. 10155A, at 18. 825.204(a) sets the general parameters treatment.’’ Seyfarth Shaw LLP (on
While not specifically addressing the for the transfer: ‘‘If an employee needs behalf of a not-for-profit health care
inclusion of an ‘‘undue hardship’’ intermittent leave or leave on a reduced organization), Doc. 10132A, at 3. It is
defense under FMLA, several leave schedule that is foreseeable based the regulations, commenters contended,
commenters representing employees on planned medical treatment for the that prohibit a transfer in the
indicated that they ‘‘strongly oppose employee or a family member, * * * unforeseeable intermittent context. ‘‘As
any reconsideration of the FMLA that the employer may require the employee presently drafted, § 825.204 only
would serve to limit FMLA’s scope or to transfer temporarily, during the permits employers to transfer an
coverage.’’ American Federation of period the intermittent or reduced leave employee to an alternative equivalent
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State, County and Municipal schedule is required, to an available position where the employee’s need for
Employees, Doc. 10220A, at 1. A alternative position for which the intermittent leave is ‘foreseeable based
membership organization affiliated with employee is qualified and which better on planned medical treatment.’’’ United
the AFL-CIO expressed concern about accommodates recurring periods of Parcel Service, Doc. 10276A, at 5.
the impact ‘‘scaling back’’ FMLA leave than does the employee’s regular ‘‘Section 825.204 allows an employer to
protections would have. They noted position.’’ 29 CFR 825.204(a). transfer an employee to an alternative
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35609
position where the leave is foreseeable Employers report that it is most often the Doc. FL90 at 3. ‘‘[T]he regulation that
based on planned medical treatment for employees whose intermittent or reduced permits an employer to transfer an
the employee or a family member.’’ leave schedule is unforeseeable who cause employee to another position which
the most disruption in the workplace. For better accommodates the intermittent
Seyfarth Shaw LLP (on behalf of a not-
example, an employee works on an assembly
for-profit health care organization), Doc. line in a factory that runs on a 24-hour basis leave is inherently unrealistic. Is there
10132A, at 3. Moreover, Ford & Harrison in three shifts. The employee has been any doubt that an employee would
noted a recent Sixth Circuit case, which approved to take intermittent leave to always prefer to be transferred to a
stated that the Department’s regulations accommodate migraines and has been calling position with less responsibility and
allow ‘‘an employer [to] * * * transfer in sick on a relatively frequent, but less duties, but with equal pay and
an employee only when the need for the unforeseeable basis (e.g., approximately three benefits? And, would an employee
intermittent leave is foreseeable.’’ Doc. times a month), giving only about an hour placed into such a position of equal pay
notice before the start of his shift. Good and benefits, but with less
10226A, at 6. See Hoffman v.
attendance is essential to this position
Professional Med Team, 394 F.3d 414, responsibilities and duties, have any
because an absence can hold up the entire
421, n.11 (6th Cir. 2005) (transfer of production line. motivation to get better?’’ Pilchak Cohen
employee with chronic condition & Tice, P.C., Doc. 10155A, at 12.
requiring unforeseeable leave likely Ford & Harrison LLP, Doc. 10226A, at 6.
‘‘The most complicated part of B. Recommendations From the
prohibited by sections 825.204(a), (c), Regulated Community
and (d)). intermittent leave * * * occurs with
unplanned intermittent leave * * * Most stakeholders who submitted
Many commenters saw no practical [A]ccommodating late arrivals or even comments on this subject agreed that
basis for differentiating between early departures to satisfy the the regulations should be revised to
foreseeable and unforeseeable need for requirements of an intermittent leave permit employee transfers in the case of
leave in this context. ‘‘We do not see can create problems in the workplace, either foreseeable or unforeseeable
any basis for distinguishing between including overburdening other workers leave: ‘‘This section should be amended
foreseeable vs. unforeseeable leaves for and creating a sense of inequity and to permit the transfer to an alternative
purposes of such temporary transfers.’’ frustration.’’ Leonard, Street and position for unforeseen intermittent
United Parcel Service, Doc.10276A at 5. Deinard, Doc. 10330A, at 2. absences or foreseen intermittent
Similarly, another commenter stated: Other commenters criticized the absences unrelated to medical
[Section 825.204 provides n]o similar entire idea of ‘‘alternative positions’’ as treatment. * * * In the absence of such
option * * * for employers to transfer or unrealistic and/or problematic. For an amendment, prohibiting such
otherwise alter the duties of an employee example, one law firm stated that transfers often creates undue hardship
who needs unscheduled or unforeseeable ‘‘alternative positions’’ are a fiction: to our organization’s ability to provide
intermittent leave. Even if the employee’s
Alternative positions do not exist in the patient care or other services and does
unscheduled intermittent absences may
result in substantial safety risks to the public real world. [The regulations] provide that in not further the purposes of the FMLA.’’
or co-employees, or could cause serious a reduced schedule situation, ‘‘an [employer] Seyfarth Shaw LLP (on behalf of a not-
disruption to the operations of the employer, may assign an employee to an alternate for-profit health care organization), Doc.
such employee’s duties or position cannot be position with equivalent pay and benefits 10132A, at 3. ‘‘The FMLA regulations
altered as a result of the unscheduled that better accommodate the employee’s should be clarified to ensure that the
intermittent leave. intermittent or reduced leave schedule.’’ employer may transfer the employee to
* * * When this provision is pointed out, a position that better accommodates an
The Southern Company, Doc. 10293A, the overwhelming majority of employers I
unforeseeable intermittent leave
at 3. Another company echoed the same work with just laugh. Employers simply do
not have ‘‘alternative positions’’ hanging schedule.’’ Ford & Harrison LLP, Doc.
concern that under the current 10226A, at 6. ‘‘DOL should revise
regulatory scheme ‘‘[e]mployers do not around which they can simply slot someone
into. Most FMLA-covered companies are § 825.204 to permit temporary transfer
have [the option] to transfer or in all cases involving intermittent leave
small and medium sized. They do not have
otherwise alter the duties of an hundreds of positions. This was a regulatory or reduced leave schedules.’’ United
employee who needs unscheduled or provision written without understanding of Parcel Service, Doc. 10276A, at 5.
unforeseeable intermittent leave.’’ the real world. Real companies are trying to ‘‘Section 825.204 should be modified to
Edison Electric Institute, Doc. 10128A, run lean. They do not [have], and cannot allow an employer to transfer an
at 6. afford to create, an extra position which is employee who requires unscheduled
In fact, many employers reported that not needed. So, the ‘‘alternative position’’
provision is generally useless.
intermittent leave to an alternative
the underlying rationale for the transfer position with equivalent pay and
provision—to provide ‘‘greater staffing Boardman Law Firm, Doc. FL4, at 2. benefits or to otherwise alter such
flexibility’’ while maintaining the Even where an alternative position employee’s job duties (e.g., assign to
employee’s same pay and benefits—is exists to which an employee on another shift) in order to better
best served where the employee’s need intermittent leave may be assigned, accommodate the periods of
for leave is unforeseeable. ‘‘[I]f there is problems can arise. ‘‘Employees on intermittent leave. Such a modification
to be such a distinction, then a strong unpredictable intermittent leave who would allow an employer to determine
argument can be made that the DOL and have been placed in lower-level how to best accommodate the
Congress got it exactly backwards. positions on a temporary basis can employee’s periodic and unforeseen
Indeed, it is much easier for employers degrade morale of other employees in absences to minimize the disruption in
to arrange temporary coverage of an the same positions. The other the workplace and perhaps avoid a
employee’s normal job duties where the employees in the same positions may safety risk to others, while at the same
pwalker on PROD1PC71 with PROPOSALS2
intermittent leaves occurs on a regular earn lower wages than the employees on time allow the employee to perform the
and foreseeable schedule, than it is to FMLA leave, but those other employees essential functions of the position to the
accommodate an employee with a are held to higher attendance standards, best of his or her ability.’’ The Southern
chronic condition with unforeseeable absent their own need for FMLA leave.’’ Company, Doc. 10293A, at 3.
flare-ups[.]’’ United Parcel Service, Doc. North Dakota Society for Human ‘‘Employers should be provided with
10276A, at 5. Other commenters agreed: Resource Management State Council, greater flexibility to temporarily transfer
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35610 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
employees to positions that better at 3. In a different but related context, employee is needed in his/her principal
accommodate intermittent and reduced Ford & Harrison made the same position, not some alternative job.’’).
schedule absences.’’ Taft, Stettinius & suggestion: ‘‘[An] employee works in [a] On the other hand, some commenters
Hollister LLP, Doc. FL107, at 3. ‘‘The position at the * * * factory. The pointed out the potential downside of
employer should be permitted to move employee sees a posting for an opening permitting employers to unilaterally
an employee on intermittent leave for the assembly line position for which modify jobs. ‘‘Allowing employers to
* * * to another position with the same good attendance is essential and modify employee’s job duties to
salary and benefits, if in such a position requests a promotion or transfer to that temporarily meet limitations may be
the leave would be less disruptive. position. If the employee is otherwise acceptable until the employee recovers
* * * [P]ermitting the employer qualified for the position, but for the fully. However, the potential for
flexibility to relocate an employee at the employee’s attendance issues due to the employer’s modification being sub-par,
same salary and benefits * * * would intermittent FMLA leave, the demoralizing and unfair is very, very
help to address the difficulties regulations should be clarified to ensure high.’’ An Employee Comment, Doc.
employers have in addressing demands that the employer be allowed to deny 10336A at 26. The AFL–CIO, moreover,
for intermittent leave for chronic the promotion/transfer without risking a encouraged employers to use the tools
illnesses.’’ Leonard, Street and Deinard, claim of FMLA retaliation or they currently have to reach a mutually
Doc. 10330A, at 2. ‘‘[T]he employer interference with the employee’s FMLA agreeable solution: ‘‘We encourage
should be able to place employees rights on the grounds that the employers to consider whether job
whose restrictions only require some employee’s current position better modifications will permit employees to
additional rest periods, or less strenuous accommodates an unforeseeable remain at the workplace under mutually
work, into other slots, without requiring intermittent leave schedule.’’ Ford & agreeable arrangements.’’ Doc. R329A, at
time off.’’ Indiana Chamber of Harrison LLP, Doc. 10226A, at 6. 36.
Commerce, Doc. 10170A, at 3. The Southern Company noted that IX. Substitution of Paid Leave
‘‘Employers should be able to reassign permitting transfers of employees who The Department requested input on
an employee on intermittent leave, need unforeseeable leave would be three issues related to the substitution of
without loss to the hourly pay rate or consistent with the spirit of the FMLA, paid leave provisions: (1) The impact of
degradation in assignment, to a position given the pay and benefits safeguards the prohibition under section 825.207
schedule that would be more conducive built into the transfer provision. ‘‘All on ‘‘applying [employers’] normal leave
to an intermittent schedule without fear the safeguards that currently exist in policies to employees substituting paid
of retaliation claims. Employees would Section 825.204 (i.e., equivalent pay and vacation and personal leave for unpaid
still be returned to the same or similar benefits, transfer may not work a FMLA leave[;]’’ (2) how the ‘‘existence
job assignment at the end of the FMLA hardship on employee, and restoration of paid leave policies affect[s] the nature
leave.’’ County of Placer, Doc. 10067A, rights at the end of the necessity of the and type of FMLA leave used[;]’’ and (3)
at 3. leave) would be applicable to ensure whether ‘‘employers allow employees to
Some employers felt the move should that the employee’s rights to take FMLA use paid leave such as sick leave to
be potentially permanent where the leave will not be deterred in any way. cover short absences from work (such as
employee’s schedule cannot meet the Accordingly, modifying Section 825.204 late arrivals and early departures) for
employer’s need: to encompass intermittent unscheduled FMLA covered conditions[.]’’
Where regular and predictable attendance leave would be consistent with the Section 102(c) of the Act provides that
is an essential function of a position, and the FMLA’s stated purpose ‘‘to entitle FMLA leave is, as a general rule, unpaid
employee occupying that position has a employees to take reasonable leaves for leave. Section 102(d) addresses
chronic medical condition that the physician medical reasons * * * in a manner circumstances in which an employee
has determined will never allow regular and
that accommodates the legitimate may substitute (i.e., use concurrently)
predictable attendance, the Employer should
be allowed to accommodate that employee by interests of employers.’’ The Southern accrued paid leave for the unpaid FMLA
permanently transferring him/her to an Company, Doc. 10293A, at 3. Edison leave period. See 29 U.S.C. 2612(d); 29
alternative position or, if no alternative is Electric agreed that this was a CFR 825.207(a). Under this section of
available, to separate the employee from the reasonable solution under the Act: the FMLA, an ‘‘employee may elect, or
position that requires regular and predictable ‘‘Such a modification [to the regulations an employer may require, the employee
attendance, even if the employee has not for unscheduled intermittent leave] to substitute’’ accrued paid leave for the
exhausted the 12 weeks of FMLA leave. would allow an employer to determine employee’s FMLA leave. See 29 U.S.C.
Betsy Sawyers, Director, Human how to best accommodate the 2612(d)(2); 29 CFR 825.207(a). That is,
Resources Department, Pierce County, employee’s periodic and unforeseen the law provides employees the option
Washington, Doc. FL97, at 4. The absences to minimize the disruption in to take their accrued paid leave
Fairfax County Public Schools echoed the workplace and perhaps avoid a concurrently with their FMLA leave in
this theme: ‘‘[I]t would be helpful if the safety risk to others, while at the same order to mitigate their wage loss. If an
regulations would allow the employer to time allowing the employee to perform employee elects not to substitute
reassign the employee after a specified the essential functions of the position to accrued paid leave, however, the
period of unscheduled intermittent the best of his or her ability.’’ Doc. employer has the right to require such
leave, such as two or three months. 10128A, at 7. But see Brian T. substitution. Where either the employee
Reassignment could be conditioned on Farrington, Esq., Doc. 5196, at 1 (‘‘Th[e] or the employer elects to substitute
the employer’s determination that [intermittent absence] problem is accrued paid leave, the employee will
unscheduled leave could not be particularly acute when the employee be entitled to FMLA protection during
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continued without jeopardizing the performs an important or unique the period in which paid leave is
essential functions of the job. After function, and repeated absences can put substituted.
making such a determination, the the employer in a very difficult The underlying reason for an FMLA
employer could reassign the employee situation. In such a case, transferring the request determines the types of
to a position that better accommodated employee to another position * * * available accrued paid leave that may be
intermittent attendance.’’ Doc. 10134A, doesn’t solve the problem. The substituted. If the requested FMLA leave
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35611
is for the birth of a child, placement of to substitute paid leave for unpaid of accrued paid leave.’’ See 29 CFR
a child for adoption or foster care, or to FMLA leave is inapplicable, because 825.207(i). Employees may request to
care for a spouse, child or parent who such benefit plans already provide take accrued compensatory time in lieu
has a serious health condition, compensation and the leave therefore of FMLA leave, but employers may not
employees may choose to—or be ‘‘is not unpaid.’’ See 29 CFR require its substitution.21 If
required by their employers to— 825.207(d)(1)–(2). To the degree that the compensatory time is used in lieu of
substitute any accrued vacation, underlying condition for which the FMLA leave, employers may not count
personal (including leave available employee is receiving workers’ it against employees’ FMLA entitlement.
leave under a ‘‘paid time off’’ plan) or compensation or short-term disability Id.
family leave (subject to limitations). See pay also qualifies as a serious health In response to the RFI, the
29 U.S.C. 2612(d)(2)(A)-(B); 29 CFR condition under the FMLA, an employer Department received many comments
825.207(b), (e). may designate FMLA leave to run related to the general impact of the
When employees seek FMLA leave to concurrently with the employee’s substitution of paid leave provisions.
care for their own or a qualifying family workers’ compensation or disability The RFI also generated comments on
member’s ‘‘serious health condition,’’ leave. See id.; see also Repa v. Roadway how these provisions interact with
accrued paid medical, sick, vacation or Express, Inc., 477 F.3d 938, 941 (7th Cir. employer policies regarding paid leave
personal leave may be substituted. See 2007) (‘‘Because the leave pursuant to a and other workplace benefits, such as
29 U.S.C. 2612(d)(2)(B); 29 CFR temporary disability benefit plan is not temporary or short-term disability leave,
825.207(c). The substitution of accrued unpaid, the provision for substitution of leave under workers’ compensation
medical/sick leave for FMLA leave is paid leave is inapplicable. However, the plans, and collectively bargained leave
limited to circumstances that meet the employer may designate the leave as benefits. Some commenters also
requirements of the employers’ existing FMLA leave and count the leave as addressed the impact of the substitution
medical/sick leave policies. See 29 running concurrently for purposes of of leave provisions on the requirements
U.S.C. 2612(d)(2)(B); 29 CFR 825.207(c). both the benefit plan and the FMLA of certain other state and federal laws.
Employers are not required to ‘‘provide leave entitlement.’’). If the requirements
paid sick leave or paid medical leave in to qualify for disability plan payments A. General Impact of the Substitution of
any situation in which such employer are more stringent than those of the Paid Leave Provisions
would not normally provide any such FMLA, the employee may either satisfy Several employee advocacy groups
paid leave.’’ 29 U.S.C. 2612(d)(2)(B). the more stringent plan standards or noted that the ability to substitute paid
Essentially, employers may maintain instead choose not to receive disability leave for an otherwise unpaid FMLA
medical/sick leave policies distinct and plan payments and use unpaid FMLA leave period is a critical factor in
separate from FMLA leave, and will not leave or substitute available accrued employees being able to utilize FMLA
be required to provide paid leave where paid leave. See 29 CFR 825.207(d)(1). leave. According to these commenters,
the reason for the leave is not covered Under section 825.207(h), if the the substitution of paid leave provisions
by their policy (e.g., if the employer’s employer’s notice or certification are ‘‘essential to workers’ ability to
plan allows the use of sick leave only procedural standards for taking paid exercise their rights under the law. Few
for the employee’s own condition, the leave are less stringent than the general workers can afford to take extended
employer is not required to allow an FMLA requirements and such paid periods of leave without pay.’’ See
employee taking FMLA leave to care for leave is substituted for the FMLA leave, Faculty & Staff Federation of
a child to use sick leave). As the the employee may be required to meet Community College of Philadelphia,
regulations state, ‘‘an employee does not only the less stringent requirements. Local 2026 of the American Federation
have a right to substitute paid medical/ However, if ‘‘accrued paid vacation or of Teachers, Doc. 10242A, at 4. See also
sick leave for a serious health condition personal leave is substituted for unpaid Center for Law and Social Policy, Doc.
which is not covered by the employer’s FMLA leave for a serious health 10053A, at 3 (same); Service Employees
leave plan.’’ See 29 CFR 825.207(c). condition, an employee may be required International Union, Local 668
The regulations specifically prohibit to comply with any less stringent Pennsylvania Social Services Union,
employers from placing any restrictions medical certification requirements of Doc. FL105, at 3 (‘‘Permitting workers to
or limitations on employees’ accrued the employer’s sick leave program.’’ 29 use their accrued paid leave as wage
vacation or personal leave, however, or CFR 825.207(h). Further, where replacement * * * makes it possible for
any leave earned or accrued under employees comply with the applicable
them to take time off to address critical
‘‘paid time off’’ plans. See 29 CFR less stringent requirements, employers
family and medical issues.’’).
825.207(e). Additionally, the regulations may not deny or limit FMLA leave. Id.
provide that, if neither the employee nor The AFL–CIO also noted that the lack
Nevertheless, as the preamble to the
the employer chooses to substitute paid of paid leave ‘‘presents a significant
1995 Final Rule noted, employers may
leave, the employee ‘‘will remain obstacle for those who cannot afford to
revise any such less stringent notice or
entitled to all paid leave’’ previously take FMLA leave,’’ as shown by the
certification requirements so that their
accrued or earned. See 29 CFR 2000 Westat Report, which found that
paid leave programs correspond to the
825.207(f). FMLA requirements, or may treat paid 21 ‘‘Compensatory time off’’ is paid time off
The regulations also address how and unpaid leave differently. See 60 FR accrued by public sector employees in lieu of
FMLA entitlements are applied when 2180, 2206, Jan. 6, 1995. Comments ‘‘immediate cash payment’’ for working in excess of
employees qualify for both FMLA leave regarding the effects of these regulatory the applicable maximum hours standard of the
and payments under a non-accrued paid provisions on employers’ paid leave FLSA. 29 CFR 553.22(a). Compensatory time must
be earned at a rate of not less than ‘‘one and one-
benefit plan, such as leave provided policies are also discussed in Chapter
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half hours for each hour of employment for which
under a temporary disability or workers’ IX.B.1. overtime compensation is required by section 7 of
compensation plan. See 29 CFR Lastly, the regulations provide that the FLSA.’’ 29 CFR 553.22(b). Police, firefighters,
825.207(d). Specifically, the regulations compensatory time off, available to state emergency response personnel, and employees
engaged in seasonal activities may accrue up to 480
provide that when employees are on and local government employees under hours of compensatory time, while other public
leave under a short-term disability or section 7(o) of the Fair Labor Standards sector employees may accrue up to 240 hours. See
workers’ compensation plan, the choice Act (‘‘FLSA’’), is not considered a ‘‘form 29 CFR 553.24.
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35612 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
the most commonly noted reason for not receiving a paid sick or disability 1. Effect on Employer Policies
taking leave was inability to afford it. benefit * * * without a financial
Doc. R329A, at 28–29. The Coalition of impact, some employees have little to Many employers commented that the
Labor Union Women similarly noted no incentive to work and actually have regulations force employers to treat
that ‘‘a disturbing number of workers an incentive not to work, since the employees seeking to use accrued paid
are unable to take advantage of FMLA employer cannot discipline them for leave concurrently with FMLA leave
leave because it is not paid and they using job protected FMLA leave[.]’’ more favorably than those who use their
cannot afford to lose time away from Exelon, Doc. 10146A, at 6. The accrued paid leave for other reasons.
paying jobs.’’ Doc. R352A, at 4. substitution provisions can thus leave The Madison Gas and Electric
Allowing the substitution of paid leave an employer in a quandary: ‘‘While Company, for example, stated that
has ‘‘helped many employees cope with some may think the solution is to ‘‘during ‘peak’ or ‘high demand’
personal and family health reduce or eliminate paid sick or vacation periods, employees may
emergencies,’’ without which they disability benefits or to make the request FMLA leave causing the
‘‘would have faced a terrible choice standards for receiving such benefits employer to deny other employees their
between their health needs and their job more stringent to avoid FMLA leave scheduled leaves due to staffing level
security,’’ while allowing such abuse, doing so penalizes the vast concerns based on business needs.’’
flexibility ‘‘promotes worker morale and majority of employees who use sick Madison Gas and Electric Company,
productivity.’’ Id. See also International days or disability benefits only when Doc. 10288A, at 1. The United Parcel
Association of Machinists and they are truly unable to work due to Service concurred: ‘‘The applicable DOL
Aerospace Workers, Doc. 10269A, at 2; illness or injury.’’ Id. regulation * * * states that no
9to5, National Association of Working As noted in other chapters of this limitation may be placed by the
Women, Doc. 10210A at 3; National Report, many commenters discussed the employer on substitution of paid
Partnership for Women & Families, Doc. idea that the different treatment vacation or personal leave for FMLA
10204A, at 9–10; Families USA, Doc. experienced by employees based on the leave * * *. Indeed, as written, this
10327A, at 3–4. Moreover, the Coalition type of leave requested may have a regulation would even trump vacation
of Labor Union Women made the point substantial effect on employee morale picks conducted according to
that, because paid leave is available and productivity. A comment from the collectively bargained seniority
only when already provided by Indiana State Personnel Department provisions; an employee with little
employers, the employers have already noted that problems arise when seniority could, if on FMLA leave
determined that such paid leave ‘‘will employers require substitution of paid during a ‘plum’ vacation week,
not have an adverse impact on their leave for FMLA leave. See Doc. 10244C, substitute otherwise unavailable paid
business * * * and does not create at 2 (employees who saved and vacation time for his or her unpaid
undue hardships for the employer.’’ See maintained leave balances become FMLA leave.’’ Doc. 10276A, at 3–4
Doc. R352A, at 4. angry when forced to use accrued leave (citation and quotation marks omitted).
The National Business Group on as employees ‘‘feel they are being Some employers provided specific
Health similarly stated that allowing penalized for working overtime without examples of this phenomenon:
paid leave and FMLA leave to run taking leave’’). While not directly Deer hunting, if you happen to work for
simultaneously both ‘‘protects addressing morale concerns, the Ohio someone, usually calls for the individual to
employees’ incomes during periods of Department of Administrative Services request and receive approval to use vacation
serious illness and maximizes the noted in a similar vein that some state and or personal leaves of absences during the
flexibility in the design of employer agencies reported that employees take Deer Hunting season. These requests escalate
leave policies.’’ Doc. 10268A, at 7. The advantage of FMLA leave only when geometrically during the deer hunting
Maine Department of Labor asserted that they had exhausted all of their accrued season. Usually approvals for these days off
allowing substitution helps everyone: paid leave and were in jeopardy of are made using some kind of seniority
provisions. Employees who can not get
employees living paycheck-to-paycheck, disciplinary action. See Doc. 10205A, at
approval can circumvent the ‘‘written in
who ‘‘cannot afford to take unpaid leave 3. Thus, according to the comment, cement’’ policies by securing a Family doctor
without risking the loss of housing, FMLA was used as a last resort when to provide FMLA documentation for [a
heat, food[;]’’ employers, who would employees no longer had paid time off. serious health condition].
suffer lost productivity if employees In response to the problem, the Ohio
continued to work while ill; the public Department of Administrative Services Roger Bong, Doc. 6A, at 3. Another
sector, because employees otherwise adjusted its leave policies to allow employer stated, ‘‘We have had an
would have ‘‘to rely more and more on individual state agencies to require employee request a week of vacation
public resources to cope[;]’’ and the substitution of paid leave. Id. during the holidays and the request was
health care system, because employees denied because we had so many other
B. Effect on Workplace Benefits and employees off. Then the employee just
otherwise would work until their
Policies called off for the entire week using
condition became worse and more
expensive to treat. Doc. 10215A, at 3. Responses to the RFI indicated a FMLA, and then went on her vacation
Not all commenters uniformly variety of workplace benefits are to Florida.’’ Vicki Spaulding, Akers
supported the substitution of paid leave, affected by substitution of paid leave. Packaging Service, Inc., Doc. 5121, at 1.
however. Some employers commented Employers’ policies pertaining to See also National Coalition to Protect
that the substitution of leave provisions employer-provided paid leave plans are Family Leave, Doc. 10172A, at 5 (‘‘The
contribute to increased FMLA leave at impacted, as are benefit plans such as Department has * * * established
otherwise popular vacation or personal workers’ compensation and short term preferential rights to employees taking
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leave times. Another commenter noted disability, as well as existing collective FMLA leave by effectively mandating
that it is not just holidays or high bargaining agreements. Some that employers waive normal vacation
demand periods but that the ‘‘employee government employers also commented and personal leave policies. In fact,
is more likely to use FMLA leave for the on the impact of the inability to nothing in the Act requires preferential
employee’s own serious health substitute compensatory time off for treatment for FMLA leave users.’’);
condition when the employee is FMLA leave. Temple University, Doc. 10084A, at 5.
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35613
As previously noted, section that the regulations still speak in terms 1.5 hours for an FMLA reason, there is
825.207(e) provides that accrued paid of paid personal or vacation leave, thus a question as to how much time the
vacation or personal leave may be prohibiting employers from applying employer may charge against the
substituted for any FMLA leave, and an ‘‘their normal leave rules to the employee’s paid leave balance. Id. The
employer may not place any limitations substitution of such leave for unpaid comment concludes, ‘‘[i]t is inherently
on this substitution right. The preamble FMLA leave, even when using PTO in unfair to provide employees with FMLA
to the 1995 Final Rule stated, for connection with an illness.’’ Id. PTO absences with greater benefits than they
example, that an employer could not plans generally allow for employees to would otherwise have.’’ Id.
limit the timing during the year in take paid leave for any reason, as long On the other hand, the AFL–CIO
which paid vacation leave could be as company procedures are satisfied. commented that Congress placed no
substituted, or require an employee to A law firm commented that limitations on an employee’s right to
use such leave in full day increments or ‘‘substitution of paid leave should not substitute paid vacation or personal
a week at a time, even if it normally nullify an employer’s right to require leave, noting that ‘‘the Department
restricted paid vacation in such ways. medical certification’’ where the specifically rejected proposals to limit
See 60 FR 2180, 2205, Jan. 6, 1995. employer maintains a PTO plan. Fisher employees’ substitution rights’’ when
Opinion letters relating to the & Phillips LLP, Doc. 10262A, at 6. promulgating the FMLA final rules,
substitution of paid vacation or personal Section 825.207(h) states that if based on the statutory language. See
leave have clarified that such leave is ‘‘accrued paid vacation or personal American Federation of Labor and
‘‘accrued’’ and thus available for leave is substituted for unpaid FMLA Congress of Industrial Organizations,
substitution only when the employee leave for a serious health condition, an Doc. R329A, at 27–28. The AFL–CIO
has earned it and is fully vested in the employee may be required to comply also noted that the prohibition on
right to use it during the leave period. with any less stringent medical employer limitations applies only to
See Wage and Hour Opinion Letters certification requirements of the vacation and personal leave, and that
FMLA–81 (June 18, 1996); FMLA–75 employer’s sick leave program.’’ 29 CFR employers remain free to apply their
(Nov. 14, 1995); and FMLA–61 (May 12, 825.207(h). PTO plans, however, do not normal rules to the substitution of paid
1995). In contrast to vacation leave, the distinguish between sick pay and sick leave.
regulations clarify that substitution of vacation pay and generally have no
2. Benefit Plans: Short-Term Disability
paid sick or medical leave is authorized ‘‘sick leave’’ medical documentation
and Workers’ Compensation
only ‘‘to the extent the circumstances requirement. Thus, according to Fisher
meet the usual requirements for the use & Phillips, an employer should not be As indicated above, the choice to
of sick/medical leave.’’ 29 CFR prohibited from requiring a medical substitute accrued paid leave is
825.207(c). certification form to determine whether inapplicable when employees receive
The College and University the leave qualifies as FMLA leave payments from a benefit plan that
Professional Association of Human ‘‘simply because its paid time off replaces all or part of employees’
Resources suggested employers should program does not require it.’’ Id. The income. See 29 CFR 825.207(d). As the
be allowed to apply their normal leave firm further stated: preamble to the 1995 Final Rule
policies to all types of paid leave, explained, if an employee suffers a
Essentially, employers with more generous
including vacation and personal leave, leave programs are often disadvantaged by
work-related injury or illness, the
in order to ease administrative and that generosity, as their employees are more employee may receive workers’
paperwork burdens and to eliminate the likely to use leave if it is paid. Again, that compensation benefits or paid leave
preferential treatment it believes is generosity should not impose an obstacle to from the employer, but not both. 60 FR
afforded to employees seeking FMLA employer efforts to determine whether the 2180, 2205, Jan. 6, 1995. Thus, when
leave over employees requesting absence qualifies for FMLA to begin with, or such an injury or illness also qualifies
to enforce its paid time off programs under the FMLA and the employee is
vacation or personal leave. Doc.
consistently. receiving workers’ compensation
10238A, at 6. See also Ohio Public
Employer Labor Relations Association, Id. at 7. The National Coalition to benefits, the employer may not require
Doc. FL93, at 5; Temple University, Doc. Protect Family Leave agreed that the employee to substitute paid vacation
10084A, at 5. employers with generous PTO plans are or sick leave, nor may the employee
The National Retail Federation restricted by the regulations and elect to receive both payments. See id.
suggested clarifying the meaning of suggested such treatment could result in However, the time the employee is
‘‘personal leave’’ under section 825.207. employers reducing paid leave. See Doc. absent from work counts against the
Doc. 10186A, at 8. The Miami Valley 10172A, at 23. employee’s FMLA entitlement. See 60
Human Resource Association requested A comment from a law firm stated FR at 2205–06. See also Wage and Hour
clearer guidelines that instruct that, in terms of tracking FMLA leave, Opinion Letter FMLA2002–3 (July 19,
employers as to when they are allowed a double standard exists under the 2002) (allowing FMLA leave to run
to deny employees’ substitution of paid regulations. Spencer Fane Britt & concurrently with workers’
leave, if they fail to follow employers’ Browne LLP, Doc. 10133C, at 50. Many compensation is expressly allowed
leave notification policies. Doc. 10156A, employers allow employees to take non- under the regulations, but receipt of
at 4. FMLA leave only in increments that are workers’ compensation payments
The National Coalition to Protect longer than the time periods used for prohibits the substitution of other
Family Leave commented that many pay purposes. Id. The firm expressed a accrued paid leave).
employers are providing general paid concern, however, that such a policy One Employee Relations Manager
time off (‘‘PTO’’) benefits to may constitute ‘‘retaliation’’ under the noted a similar rule applicable under
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employees—which are provided in a FMLA regulations, even though it is some employers’ disability leave
single amount of paid leave to be used allowable for non-FMLA leave. For policies, pursuant to which ‘‘the
for any reason—instead of the more example, an employer may normally employees’ use of vacation and other
traditional paid leave policies for only allow employees to use paid leave earned time with pay to cover a
vacation and medical/sick leave. See in four-hour increments, but if the personal illness may exclude them from
Doc. 10172A, at 23. The comment noted employee is only away from work for qualifying for paid short-term disability
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35614 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules
benefits offered by the employer.’’ separate and independent sources of commenter also noted that the
Cindy S. Jackson, Employee Relations/ protection.’’ Id. Department considered and addressed
Labor Relations Manager, Cingular, Doc. Some comments also found the issue of collective bargaining
5480, at 1. A case manager from St. difficulties in the way substitution of agreements in the preamble to the 1995
Elizabeth Medical Center, in Edgewood, paid leave provisions are carried out by regulations: ‘‘At the same time, in the
Kentucky, indicated employees who employers or objected to substitution absence of other limiting factors (such
take FMLA leave for their own serious more generally. The United as a State law or applicable collective
health condition often qualify for short Transportation Union, Florida State bargaining agreement), where an
term disability payments after using a Legislative Board commented that the employee does not elect substitution of
required amount of paid time off. See problem with the substitution of paid appropriate paid leave, the employee
Doc. 10071A, at 3–4. Another employer leave is that employers can force must nevertheless accept the employer’s
from Huntington, Indiana said many of employees to use their hard-earned decision to require it.’’ Id. at 3 (citation
its employees on FMLA leave vacation and personal leave. See Doc. omitted).
eventually qualify for short term 10022A, at 2. The commenter labeled it This law firm also noted that a 1994
disability, resulting in payments during an ‘‘unfair and burdensome practice.’’ Wage and Hour opinion letter further
leave. Bendix Commercial Vehicle Id. clarifies ‘‘that a collective bargaining
Systems LLC, Doc. 10079A, at 3. agreement [can] limit an employer’s
3. Collective Bargaining Agreements
According to this commenter, ‘‘if FMLA ability to require use of paid leave in
were required to be paid by the The substitution of paid leave conjunction with FMLA leave.’’ Id. at 3.
employer, you would see a lot more use provisions also interact with existing See Wage and Hour Opinion Letter
of the intermittent, specifically abuse of collective bargaining agreements FMLA–33 (March 29, 1994) (‘‘With
(‘‘CBAs’’). One union commented that reference to your constituent’s concerns
FMLA.’’ Id. An HR manager agreed,
employers attempt to circumvent pertaining to paid vacation and sick
commenting that an employee who took
collective bargaining agreements by leave, an employer may require an
FMLA leave concurrently with short-
relying on their statutory right to eligible employee to use all accrued
term disability leave ‘‘allegedly for a
substitute paid leave, while ignoring paid vacation or sick leave for the
painful and permanent spinal condition,
their contractual obligations. See United family and medical leave purposes
is now heading up the company
Transportation Union, Florida State indicated above before making unpaid
baseball team.’’ See Debra Hughes, HR
Legislative Board, Doc. 10022A, at 2. A leave available. However, section 402 of
Manager, Doc. 2627A, at 2; see also
law firm representing several train and FMLA does not preclude the union’s
Roger Bong, Doc. 6A, at 3.
rail unions also noted such a trend: right to collectively bargain greater
Another commenter felt that the ‘‘Notwithstanding the CBAs’ benefits than those provided under the
regulations ‘‘created a substantial, unequivocal mandate that employees Act. In this instant case, the subject
unintended burden by prohibiting the are entitled to use their paid leave at the union could negotiate that substitution
substitution of accrued, paid leave’’ time they choose and not at a time of accrued paid leave is an election of
during an FMLA leave period that ran chosen by the carriers, the carriers in the employee only.’’).
concurrently with paid leave taken 2004 began to, and now routinely, Further, the commenter referred to the
under a workers’ compensation or a require employees to use their paid ongoing litigation on this issue and
state-mandated disability plan. See leave whenever they exercise their urged that any regulatory action taken
Employers Association of New Jersey, statutory right to FMLA leave—thus by the Department be consistent with
Doc. 10119A, at 3. This commenter also usurping the employees’ collectively- this position. Guerrieri, Edmond,
suggested that employers requiring bargained right to choose when and for Clayman & Bartos, P.C. (on behalf of
substitution of paid leave could run what purpose to use paid leave.’’ several labor unions in the railroad,
afoul of the regulations when employees Zwerdling, Paul, Kahn & Wolly, P.C., airline, bus, and other industries), Doc.
qualify under a state’s mandatory, non- Doc. 10163A, at 2. The comment 10235A, at 3–4. See Bhd of Maintenance
occupational, temporary disability plan; concluded that ‘‘the statute may not be of Way Employees v. CSX Transp., Inc.,
it also pointed out that many employees used as a tool to avoid compliance’’ 478 F.3d 814 (7th Cir. 2007). In CSX, a
actively seek the substitution of their with the parties’ prior agreements. Id. group of rail carriers required
accrued paid leave because temporary Another commenter raised the same employees to substitute accrued paid
disability plans only pay a portion of issue, noting that this dispute has arisen leave for family or medical leave
their salary. Id at 4. in the railroad context where several covered by the FMLA, relying upon
The United Steelworkers also railroad employers have claimed that their FMLA right to do so. The carriers
commented on the relationship between FMLA gives them the authority to required substitution for intermittent
short-term or other disability leave and diminish the rights afforded to leave for the employee’s own condition,
leave under the FMLA, stating that some employees under their existing contracts but they did not require substitution
employers may incorrectly ‘‘tell their to decide when and in what manner to when an employee used a block of
employees they cannot receive income use their paid leave. See Guerrieri, FMLA leave for his or her own serious
replacement under the [short term Edmond, Clayman & Bartos, P.C. (on health condition. The plaintiffs, a
disability] plan and be on FMLA- behalf of several labor unions in the collection of rail unions, challenged the
protected leave at the same time’’ and railroad, airline, bus, and other action on the grounds that an existing
thus incorrectly advise employees that industries), Doc. 10235A, at 2.22 This CBA precluded involuntary substitution
they waive their FMLA protections by of paid leave. They claimed that when
22 See also Jeanne M. Vonhof & Martin H. Malin,
going on paid disability leave. See Doc. a CBA gives employees greater rights
pwalker on PROD1PC71 with PROPOSALS2
What a Mess! The FMLA, Collective Bargaining and
10237A, at 3. To avoid this confusion, Attendance Control Plans, 21 Ill. Pub. Employee than the FMLA, the Act does not
the United Steel Workers recommended Relations Rep. 1 (Fall 2004) (discussing FMLA and supersede such contractual rights. The
that the Department ‘‘use the collective bargaining agreements from perspective court held that while employers
rulemaking process to clarify that of labor arbitrators, noting that regulations allow generally are permitted to require
parties to bargain for specific rights, especially
employers must treat family/medical option to manage when substitution of paid leave substitution of paid leave, the FMLA
leave and short-term disability as is permitted). does not authorize rail carriers that are
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Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 35615
subject to the Railway Labor Act (RLA) counting compensatory time off against B. Department of Labor Regulations
to do so when that would violate a CBA an employee’s FMLA entitlement. Section 825.104(c) of the regulations
and the RLA’s prohibition against One commenter noted the addresses who is the employer where
making unilateral changes in working inconsistency in the regulations more than one entity is involved, such
conditions. regarding the use of compensatory time as in an ‘‘integrated employer’’
The AFL–CIO—in addition to off, stating ‘‘[w]hile an employer cannot situation. It provides that the
adopting the comments of other unions compel the use of compensatory time, if ‘‘determination of whether or not
on this issue—asserted that employers an employee asks to use it to cover a separate entities are an integrated
cannot require employees to substitute FMLA absence, the time off should employer is not determined by the
paid leave for FMLA leave in a manner application of any single criterion, but
count against the FMLA entitlement. If
that contravenes existing CBAs, whether rather the entire relationship is to be
compensatory time is allowed to be
those agreements are subject to the RLA reviewed in its totality.’’ 29 CFR
taken in lieu of FMLA leave, the
or the National Labor Relations Act. See 825.104(c)(2). Factors considered in
regulations should require employees to
Doc. R329A, at 29. The AFL–CIO stated determining whether two or more
that ‘‘the Department should make no take the compensatory time at either the
entities are an integrated employer
changes in its regulations governing beginning or end of the leave.’’ City of
include the degree of common
substitution of paid leave for FMLA Portland, Doc. 10161A, at 4. See also management, interrelation between
leave in the collective-bargaining Washington Metropolitan Area Transit operations, centralized control of labor
context.’’ Id. Authority, Doc. 10147A, at 3 (regulation relations, and common ownership/
On the other hand, the Union Pacific ‘‘discourages employers from working financial control.
Railroad Company noted that its Train with employees to minimize the The Department stated in the
and Engine Service employees have an negative financial impact of unpaid preamble to the final rule that the
FMLA leave rate that is five times leave at times when employees are most ‘‘integrated employer’’ test is not a new
higher than its other employees. See in need’’). concept, but rather it is based on
Doc. 10148A, at 2–3. The employer established case law arising under Title
X. Joint Employment
stated that there is no obvious reason for VII of the Civil Rights Act of 1964 and
this disparity, such as a higher injury A. Statutory Background the Labor Management Relations Act.
rate. ‘‘The only significant differences Section 825.106 of the regulations
between the Train and Engine Service The FMLA covers an employer in the implements how the Department views
employee populations and all others private sector engaged in commerce or employer coverage and employee
are: 1) The schedules or lack thereof in an industry or activity affecting eligibility in the case of joint
(most T&E employees have no set commerce if it employs 50 or more employment. It provides that where two
schedule but rather work on call * * *); employees for each working day in 20 or more businesses exercise some
and 2) Union Pacific does not require or more calendar workweeks in the control over the work or working
T&E employees to substitute paid leave current or preceding calendar year. See conditions of the employee, the
for FMLA absences of less than 12 hours 29 U.S.C. 2611(4). An employee of an businesses may be joint employers
because paid leave cannot be granted to FMLA-covered employer is ‘‘eligible’’ under FMLA. For example, where the
these employees in smaller increments for the benefits of the FMLA if the employee performs work which
under their collective bargaining employee has worked for the employer simultaneously benefits two or more
agreements.’’ Id. at 2. Union Pacific for at least 12 months, for at least 1,250 employers, and there is an arrangement
explained, for example, that when a hours of service during the preceding between employers to share an
T&E employee who is called to duty 12-month period, and is employed at a employee’s services or to interchange
states that s/he has a migraine and worksite where 50 or more employees employees, a joint employment
cannot report for two hours, no paid are employed by the employer within 75 relationship generally will be
leave is substituted. Employees working miles of that worksite. 29 U.S.C. considered to exist. Id. § 825.106(a). The
under other collective bargaining 2611(2). regulations further provide:
agreements where Union Pacific can (b) A determination of whether or not a
Despite the plain wording of these
require substitution for less than full joint employment relationship exists is not
definitions a number of questions have determined by the application of any single