Thursday June Part II Department of Labor Employment Standards Administration by armedman2

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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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                                            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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                                            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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                                            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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                                            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
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                                            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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                                            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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                                            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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                                            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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                                            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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                                            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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                                            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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                                            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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                                            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
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                                                                                                                                                           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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                                            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
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                                                                                                    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
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                                            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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                                            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
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                                            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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                                            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
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                                            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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                                            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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                                            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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                                            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.
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                                            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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                                            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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                                            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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                                            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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                                            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-