Monday, February 11, 2008 Part IV Department of Labor Employment Standards Adminstration Wage and Hour Division 29 CFR Part 825 The Family and Medical Leave Act of 1993; Proposed Rule mstockstill on PROD1PC66 with PROPOSALS2 VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\11FEP2.SGM 11FEP2 7876 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules DEPARTMENT OF LABOR defining ‘‘qualifying exigencies.’’ TTY/TDD callers may dial toll-free 1– Because of the need to issue regulations 877–889–5627 to obtain information or Employment Standards Administration under the military family leave request materials in alternative formats. provisions of the amendment as soon as Questions of interpretation and/or Wage and Hour Division possible, the Department is including in enforcement of the agency’s current this Notice a description of the relevant regulations may be directed to the 29 CFR Part 825 military family leave statutory nearest Wage and Hour Division District RIN 1215–AB35 provisions, a discussion of issues the Office. Locate the nearest office by Department has identified, and a series calling the Wage and Hour Division’s The Family and Medical Leave Act of of questions seeking comment on toll-free help line at (866) 4US–WAGE 1993 subjects and issues that may be ((866) 487–9243) between 8 a.m. and 5 considered in the final regulations. p.m. in your local time zone, or log onto AGENCY: Employment Standards the Wage and Hour Division’s Web site DATES: Comments must be received on Administration, Wage and Hour for a nationwide listing of Wage and or before April 11, 2008. Division, Department of Labor. Hour District and Area Offices at: ADDRESSES: You may submit comments, ACTION: Notice of proposed rulemaking; http://www.dol.gov/esa/contacts/whd/ identified by RIN 1215–AB35, by either request for comments. america2.htm. one of the following methods: SUMMARY: The Department of Labor’s • Electronic comments, through the SUPPLEMENTARY INFORMATION: Employment Standards Administration/ Federal eRulemaking Portal: http:// www.regulations.gov. Follow the I. Electronic Access and Filing Wage and Hour Division proposes to Comments revise certain regulations implementing instructions for submitting comments. the Family and Medical Leave Act of • Mail: Address all written Public Participation: This notice of 1993 (‘‘FMLA’’), the law that provides submissions to Richard M. Brennan, proposed rulemaking is available eligible workers with important rights to Senior Regulatory Officer, Wage and through the Federal Register and the job protection for absences due to the Hour Division, Employment Standards http://www.regulations.gov Web site. birth or adoption of a child or for a Administration, U.S. Department of You may also access this document via serious health condition of the worker Labor, Room S–3502, 200 Constitution the Wage and Hour Division’s home or a qualifying family member. The Avenue, N.W., Washington, DC 20210. page at http://www.wagehour.dol.gov. proposed changes are based on the Instructions: Please submit one copy To comment electronically on Federal Department’s experience of nearly of your comments by only one method. rulemakings, go to the Federal fifteen years administering the law, two All submissions must include the eRulemaking Portal at http:// previous Department of Labor studies of agency name and Regulatory www.regulations.gov, which will allow the FMLA in 1996 and 2001, several Information Number (RIN) identified you to find, review, and submit U.S. Supreme Court and lower court above for this rulemaking. Please be comments on Federal documents that rulings, and the public comments advised that comments received will be are open for comment and published in received in response to a Request for posted without change to http:// the Federal Register. Please identify all Information (‘‘RFI’’) published in the www.regulations.gov, including any comments submitted in electronic form Federal Register in December 2006 personal information provided. Because by the RIN docket number (1215–AB35). requesting information about we continue to experience delays in Because of delays in receiving mail in experiences with the FMLA and receiving mail in the Washington, DC the Washington, DC area, commenters comments on the effectiveness of these area, commenters are strongly should transmit their comments regulations. encouraged to transmit their comments electronically via the Federal The Department is also seeking public electronically via the Federal eRulemaking Portal at http:// comment on issues to be addressed in eRulemaking Portal at http:// www.regulations.gov, or submit them by final regulations regarding military www.regulations.gov or to submit them mail early to ensure timely receipt prior family leave. Section 585(a) of the by mail early. For additional to the close of the comment period. National Defense Authorization Act for information on submitting comments Submit one copy of your comments by FY 2008 amends the FMLA to provide and the rulemaking process, see the only one method. leave to eligible employees of covered ‘‘Public Participation’’ heading of the II. Background employers to care for injured SUPPLEMENTARY INFORMATION section of servicemembers and because of any this document. A. What the Law Provides qualifying exigency arising out of the Docket: For access to the docket to The Family and Medical Leave Act of fact that a covered family member is on read background documents or 1993, Public Law 103–3, 107 Stat. 6 (29 active duty or has been notified of an comments received, go to the Federal U.S.C. 2601 et. seq.) (‘‘FMLA’’ or ‘‘Act’’) impending call to active duty status in eRulemaking Portal at http:// was enacted on February 5, 1993, and support of a contingency operation www.regulations.gov. became effective for most covered (collectively referred to herein as FOR FURTHER INFORMATION CONTACT: employers on August 5, 1993. The military family leave). The provisions of Richard M. Brennan, Senior Regulatory FMLA entitles eligible employees of this amendment providing FMLA leave Officer, Wage and Hour Division, covered employers to take up to a total to care for a covered servicemember Employment Standards Administration, of twelve weeks of unpaid leave during became effective on January 28, 2008, U.S. Department of Labor, Room S– a twelve month period for the birth of mstockstill on PROD1PC66 with PROPOSALS2 when the law was enacted. The 3502, 200 Constitution Avenue, NW., a child; for the placement of a child for provisions of this amendment providing Washington, DC 20210; telephone: (202) adoption or foster care; to care for a for FMLA leave due to a qualifying 693–0066 (this is not a toll free number). newborn or newly-placed child; to care exigency arising out of a covered family Copies of this proposed rule may be for a spouse, parent, son or daughter member’s active duty (or call to active obtained in alternative formats (Large with a serious health condition; or when duty) status are not effective until the Print, Braille, Audio Tape or Disc), upon the employee is unable to work due to Secretary of Labor issues regulations request, by calling (202) 693–0675. the employee’s own serious health VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7877 condition. See 29 U.S.C. 2612. The • There were an estimated 95.8 addressed the Act and/or implementing twelve weeks of leave may be taken in million workers in establishments regulations. The most significant court a block, or, under certain circumstances, covered by the FMLA regulations, decision on the validity of the intermittently or on a reduced leave • There were approximately 77.1 regulations is that of the United States schedule. Id. million workers in covered Supreme Court in Ragsdale v. Wolverine Employers covered by the law must establishments who met the FMLA’s World Wide, Inc., 535 U.S. 81 (2002). In maintain for the employee any requirements for eligibility, and its first case involving the FMLA, the preexisting group health coverage • About 7.0 million covered and Court ruled in March 2002 that the during the leave period under the same eligible workers took FMLA leave in penalty provision in 29 CFR 825.700(a), conditions coverage would have been 2005. which states ‘‘[i]f an employee takes provided if the employee had not taken • About 1.7 million covered and * * * leave and the employer does not leave and, once the leave period has eligible employees who took FMLA designate the leave as FMLA leave, the concluded, reinstate the employee to the leave took at least some of it leave taken does not count against an same or an equivalent job with intermittently—and may have taken that employee’s FMLA entitlement[,]’’ was equivalent employment benefits, pay, intermittent leave multiple times over invalid because in some circumstances and other terms and conditions of the course of the year. it required employers to provide leave employment. See 29 U.S.C. 2614. to employees beyond the 12-week If an employee believes that his or her C. Implementing Regulations statutory entitlement. ‘‘The FMLA FMLA rights have been violated, the The FMLA required the Department guaranteed [Plaintiff] 12-not 42-weeks of employee may file a complaint with the to issue regulations to implement Title leave[.]’’ Ragsdale, 535 U.S. at 96. While Department of Labor (‘‘Department’’ or I and Title IV of the FMLA within 120 the Supreme Court did not invalidate ‘‘DOL’’) or file a private lawsuit in days of enactment, or by June 5, 1993, the notice and designation provisions in Federal or State court. If the employer with an effective date of August 5, 1993. the regulations, it made clear that any has violated an employee’s FMLA Given this short implementation period, categorical penalty for a violation of rights, the employee is entitled to the Department published a notice of such requirements set forth in the reimbursement for any monetary loss proposed rulemaking in the Federal regulations would exceed the incurred, equitable relief as appropriate, Register on March 10, 1993 (58 FR Department’s statutory authority. Id. at interest, attorneys’ fees, expert witness 13394), inviting comments until March 91–96. fees, and court costs. Liquidated 31, 1993, on a variety of questions and damages also may be awarded. See, 29 issues. The Department received a total Other Challenges to ‘‘Categorical U.S.C. 2617. of 393 comments at that time from a Penalty’’ Provisions Title I of the FMLA applies to private wide variety of stakeholders, including As the Department explained in its sector employers of fifty or more employers, trade and professional December 2006 RFI 1 and the employees, public agencies and certain associations, advocacy organizations, subsequent 2007 Report on the RFI Federal employers and entities, such as labor unions, State and local comments,2 Ragsdale is not the only the U.S. Postal Service and Postal Rate governments, law firms, employee court decision addressing penalty Commission. Title II applies to civil benefit firms, academic institutions, provisions contained in the regulations. service employees covered by the financial institutions, medical Another provision of the regulations, annual and sick leave system institutions, Members of Congress, and § 825.110(d), requires an employer to established under 5 U.S.C. Chapter 63, others. notify an employee prior to the plus certain employees covered by other After considering these comments, the employee commencing leave as to Federal leave systems. Title III Department issued an interim final rule whether or not the employee is eligible established a temporary Commission on on June 4, 1993 (58 FR 31794) that for FMLA leave. If the employer fails to Leave to conduct a study and report on became effective on August 5, 1993. The provide the employee with such existing and proposed policies on leave Department also invited further public information or the information is not and the costs, benefits, and impact on comment on the interim regulations accurate, the regulation bars the productivity of such policies. Title IV through September 3, 1993, later employer from challenging eligibility at contains miscellaneous provisions, extended to December 3, 1993 (58 FR a later date, even if the employee is not including rules governing the effect of 45433). During this comment period, the eligible for FMLA leave according to the the FMLA on more generous leave Department received more than 900 statutory requirements. The majority of policies, other laws, and existing substantive and editorial comments on courts addressing this notice provision employment benefits. Title V originally the interim regulations, from a wide have found it to be invalid, even prior extended leave provisions to certain variety of stakeholders. to the Ragsdale decision. See, e.g., employees of the U.S. Senate and House Based on this second round of public Woodford v. Cmty. Action of Greene of Representatives, but such coverage comments, the Department published County, Inc., 268 F.3d 51, 57 (2d Cir. was repealed and replaced by the final regulations to implement the 2001) (‘‘The regulation exceeds agency Congressional Accountability Act of FMLA on January 6, 1995 (60 FR 2180). rulemaking powers by making eligible 1995, 2 U.S.C. 1301. The regulations were amended on under the FMLA employees who do not B. Who the Law Covers February 3, 1995 (60 FR 6658) and on meet the statute’s clear eligibility March 30, 1995 (60 FR 16382) to make requirements.’’); Brungart v. BellSouth The FMLA generally covers minor technical corrections. The final Telecomm., Inc., 231 F.3d 791, 796–97 employers with 50 or more employees, mstockstill on PROD1PC66 with PROPOSALS2 regulations went into effect on April 6, (11th Cir. 2000) (‘‘There is no ambiguity and employees must have worked for 1995. in the statute concerning eligibility for the employer for 12 months and for family medical leave, no gap to be 1,250 hours of service during the D. Legal Challenges previous year to be eligible for FMLA leave. Based on 2005 data, the latest The Ragsdale Decision 1See71 FR 69504, 69505 (Dec. 1, 2006). 2See‘‘Family and Medical Leave Act Regulations: year for which data are available, the Since the enactment of the FMLA, A Report on the Department of Labor’s request for Department estimates that: hundreds of reported Federal cases have Information,’’ 72 FR 35550, 35560 (June 28, 2007). VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7878 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules filled.’’); Dormeyer v. Comerica Bank- complications).’’ Wage and Hour Appeals looked at a different eligibility Illinois, 223 F.3d 579, 582 (7th Cir. Opinion Letter FMLA–57 (Apr. 7, 1995). criterion, the requirement that the 2000) (the regulation tries ‘‘to change More than a year and a half later, employee has been employed by the the Act’’ because it makes eligible however, the Department reversed its employer for at least 12 months, and employees who, under the language of interpretation, stating that Wage and addressed whether an employee who the statute, are ineligible for family Hour Opinion Letter FMLA–57 had a break in service may count leave; ‘‘The statutory test is perfectly ‘‘expresses an incorrect view, being previous periods of employment with clear and covers the issue. The right of inconsistent with the Department’s the same employer toward satisfying the family leave is conferred only on established interpretation of qualifying 12-month employment requirement (29 employees who have worked at least ‘serious health conditions’ under the U.S.C. 2611(2)(A)(i); 29 CFR 1,250 hours in the previous 12 FMLA regulations.’’ Wage and Hour 825.110(a)(1) and (b)). See Rucker v. Lee months’’). Opinion Letter FMLA–86 (Dec. 12, Holding Co., 471 F.3d 6 (1st Cir. 2006) 1996). The Department further stated (a complete break in service of a period Legal Challenges to the Definition of that such minor illnesses ordinarily of five years does not prevent the Serious Health Condition would not be expected to last more than employee from counting previous Other regulatory provisions have been three days, but if they do meet the employment to meet the 12-month challenged as well. In particular, regulatory criteria for a serious health employment requirement). Another challenges to the regulatory section condition under § 825.114(a), they regulation that has been the subject of defining the term ‘‘serious health qualify for FMLA leave. The Department litigation is § 825.220(d), which in part condition’’ as a condition causing a received significant commentary about discusses the impact of a light duty period of incapacity of more than three its changing interpretations of the work assignment on an employee’s consecutive calendar days and definition of serious health condition in FMLA rights. Further, most recently, the continuing treatment, 29 CFR response to its RFI. See Chapter III of Fourth Circuit Court of Appeals ruled in 825.114(a)(2)(i), has received significant the Department’s 2007 Report on the Taylor v. Progress Energy, 493 F.3d 454 attention. See, e.g., Miller v. AT&T RFI comments (72 FR at 35563). (4th Cir. 2007), petition for cert. filed, 76 Corp., 250 F.3d 820 (4th Cir. 2001); U.S.L.W. 3226 (U.S. Oct. 22, 2007) (No. Thorson v. Gemini, Inc., 205 F.3d 370 Other Legal Challenges 07–539), that other language in (8th Cir. 2000). Many other legal issues have arisen § 825.220(d) prevents an employee and As the Department explained in its over the nearly thirteen years the final employer from independently settling December 2006 RFI 3 and subsequent regulations have been in effect. For past claims for FMLA violations without Report on the RFI,4 the Department example, litigation has ensued under the approval of the Department or a itself has struggled with this definition. §§ 825.302–.303 as to what constitutes court. After the Act’s passage, the Department sufficient employee notice to trigger an promulgated § 825.114(c), which states employer’s obligations under the FMLA. E. Prior Studies and Reports that ‘‘[o]rdinarily, unless complications See, e.g., Sarnowski v. Air Brook Title III of the FMLA established a arise, the common cold, the flu, ear Limousine, Inc.,—F.3d ,—2007 WL temporary Commission on Leave to aches, upset stomach, minor ulcers, 4323259 (3rd Cir. 2007) (employee with conduct a study and report on existing headaches other than migraine, routine chronic heart problems who informed and proposed policies on leave and the dental or orthodontia problems, employer of need for continuing costs, benefits, and impact on periodontal disease, etc., are examples medical monitoring and possible productivity of such policies. The of conditions that do not meet the surgery provided sufficient notice); Commission surveyed workers and definition of a serious health condition Spangler v. Fed. Home Loan Bank of employers in 1995 and issued a report and do not qualify for FMLA leave.’’ Des Moines, 278 F.3d 847 (8th Cir. 2002) published by the Department in 1996, This regulatory language was intended (employee who had made employer ‘‘A Workable Balance: Report to to reflect the legislative history of the aware that she had problems with Congress on Family and Medical Leave FMLA and expresses the Congressional depression gave sufficient notice when Policies.’’ 5 In 1999, the Department intent that minor, short-term illnesses she called in and indicated she was out contracted with Westat, Inc.,6 to update for which treatment and recovery are because of ‘‘depression again’’). the employee and establishment surveys very brief would be covered by Among other cases, the Tenth Circuit conducted in 1995. The Department employers’ sick leave programs and not Court of Appeals considered the published that report, ‘‘Balancing the by the FMLA. See H.R. Rep. No. 103– definition of ‘‘worksite’’ for determining Needs of Families and Employers: 8, at 40 (1993); S. Rep. No. 103–3, at 28– whether an employee seeking FMLA Family and Medical Leave Surveys, 29 (1993). Consequently, in an early leave was employed at a worksite where 2000 Update’’ in January 2001.7 response about the proper handling of 50 or more employees were employed an employee’s request for leave due to by the employer within 75 miles. F. Request for Information the common cold, the Department Section 825.111(a)(3) states that when On December 1, 2006, the Department responded by stating ‘‘[t]he fact that an an employee is jointly employed by two published a Request for Information employee is incapacitated for more than or more employers, the employee’s (RFI) in the Federal Register (71 FR three days, has been treated by a health worksite is the primary employer’s 69504). care provider on at least one occasion office from which the employee has The RFI asked the public to comment which has resulted in a regimen of been assigned or to which the employee on its experiences with, and continuing treatment prescribed by the reports. In Harbert v. Healthcare mstockstill on PROD1PC66 with PROPOSALS2 health care provider does not convert Services Group, Inc., 391 F.3d 1140 5 See http://www.dol.gov/esa/whd/fmla/fmla/ minor illnesses such as the common (10th Cir. 2004), the Court of Appeals 1995Report/Family.htm. cold into serious health conditions in invalidated § 825.111(a)(3), insofar as it 6 Westat is a statistical survey research is applied to the situation of an organization serving agencies of the U.S. the ordinary case (absent Government, as well as businesses, foundations, employee with a long-term fixed and State and local governments. 3See 71 FR at 69506. worksite at a facility of the secondary 7See http://www.dol.gov/esa/whd/fmla/fmla/ 4See 72 FR at 35563. employer. The First Circuit Court of toc.htm. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7879 observations of, the Department’s Human Services issued regulations that titles to each section of the existing administration of the law and the provide standards for the privacy of regulations are in the form of a question. effectiveness of the FMLA regulations. individually identifiable health The proposal would reword each The RFI’s questions and subject areas information, codified at 45 CFR Parts question into the more common format were derived from a series of 160 and 164 (‘‘HIPAA Privacy Rule’’). of a descriptive title and the Department stakeholder meetings the Department These standards apply to ‘‘covered invites comments on whether this conducted in 2002–2003, a number of entities,’’ defined as a health plan, a change is helpful. In addition, several rulings of the U.S. Supreme Court and health care clearinghouse, or a health sections have been restructured and other Federal courts as discussed above, care provider who transmits any health reorganized to improve the accessibility the Department’s own experience information in electronic form in of the information (e.g., guidance on administering the law, information from connection with a transaction as defined leave for pregnancy and birth of a child Congressional hearings, and public in the privacy regulations.10 is addressed in one consolidated comments filed with the Office of The HIPAA Privacy Rule has had an section; an employer’s notice Management and Budget (OMB) as impact on the FMLA’s medical obligations are combined in one described by OMB in three annual certification process in a number of section). reports to Congress on the FMLA’s costs ways. For example, the FMLA provides Section 825.102 (Effective date of the and benefits.8 More than 15,000 employers with the right to obtain Act) comments were received from workers, medical information to determine that a family members, employers, academics, requested leave qualifies as FMLA The proposal deletes this section, and other interested parties.9 This input leave, and the employee is required to which discussed when the Act became ranged from personal accounts, legal assure that this information, if effective, because it is no longer needed. reviews, industry and academic studies, requested, is provided to the employer The section number itself is reserved to and surveys to recommendations for to be entitled to FMLA leave for a avoid extensive renumbering of other regulatory and statutory changes to serious health condition. If an employee sections in the regulations. address particular areas of concern. The does not do this, the absence does not Section 825.103 (How the Act affects Department published its Report on the qualify for FMLA leave.11 While these leave in progress on, or taken before, the comments received in response to the rules are fairly straightforward, recent effective date of the Act) Department’s RFI in June 2007 (see 72 enforcement experience reveals that there is confusion with regard to the The proposal deletes and reserves this FR 35550 (June 28, 2007)). interaction of the HIPAA Privacy Rule section, which discussed how the Act G. Stakeholder Meeting and FMLA. For example, some affected leave in progress on, or taken The Department also conducted a employees incorrectly believe that the before, the Act’s effective date, because stakeholder meeting regarding the HIPAA Privacy Rule prevents employers it is no longer needed. medical certification process on from requiring FMLA certification. See Section 825.106 (Joint employer September 6, 2007. This meeting discussion of §§ 825.306–.308 for coverage) included representatives from employee further discussion of the impact of the Sections 825.106 and 825.111(a)(3) of organizations, employer organizations, HIPAA Privacy Rule on the medical the existing regulations govern and the health care provider certification process. employer coverage and employee community. Similarly, since the final FMLA eligibility in the case of joint regulations were implemented in 1995, employment and set forth the H. Other Statutory and Regulatory the Equal Employment Opportunity Developments responsibilities of the primary and Commission (EEOC), the agency secondary employers. Under As discussed in the RFI and the responsible for enforcing the Americans § 825.106(d), employees jointly Report on the RFI, in addition to with Disabilities Act (ADA), has issued employed by two employers must be developments in the courts, several guidance with regard to the privacy of counted by both employers in important legislative and regulatory employee medical information. See, e.g., determining employer coverage and developments have occurred that either Enforcement Guidance: Disability- employee eligibility. Thus, for example, directly or indirectly impact the FMLA Related Inquiries and Medical an employer who jointly employs 15 regulations. In 1996, Congress enacted Examinations of Employees Under the workers from a leasing or temporary the Health Insurance Portability and Americans with Disabilities Act (ADA) help agency and 40 permanent workers Accountability Act (HIPAA), Public Law (EEOC 2000). The FMLA looks to the is covered by the FMLA. Likewise, if an 104–191, which addresses in part the ADA for guidance on privacy of employer with 15 permanent workers privacy of individually identifiable employee medical information.12 jointly employs 40 workers from a health information. On December 28, III. Proposed Changes to the FMLA leasing company that employer is also 2000, and as amended on August 14, Regulations covered by the FMLA. 2002, the Department of Health and Although job restoration is the The following is a section-by-section primary responsibility of the primary 8 These OMB reports may be found at the discussion of the proposed revisions. following Web sites: 2001 report at: http:// employer, the secondary employer is Where a change is proposed to a www.whitehouse.gov/omb/inforeg/ responsible for accepting the employee regulatory section, that section is costbenefitreport.pdf; 2002 report at: http:// returning from FMLA leave if the www.whitehouse.gov/omb/inforeg/ discussed below. However, even if a secondary employer continues to utilize section is not discussed, there may be mstockstill on PROD1PC66 with PROPOSALS2 2002_report_to_congress.pdf; and 2004 report at: http://www.whitehouse.gov/omb/inforeg/ an employee from the temporary or minor editorial changes or corrections 2004_cb_final.pdf. leasing agency and the agency chooses that did not warrant discussion. The 9 All comments are available for viewing via the to place the employee with that public docket of the Wage and Hour Division of the secondary employer. The secondary 10See 45 CFR 160.102(a) and 45 CFR 160.03. Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, 11See Wage and Hour Opinion Letter FMLA2005– employer is also responsible for NW., Washington, DC 20210. Many comments are 2–A (Sept. 14, 2005). compliance with the prohibited acts also available on http://www.regulations.gov. 12See 29 CFR 825.500(g). provisions with respect to its VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7880 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules temporary/leased employees, and thus the ‘‘secondary employer,’’ whether a vary by organization and contract, but may not interfere with an employee’s covered employer or not under the that most are not involved in the day- attempt to exercise rights under the Act, FMLA, was prohibited from interfering to-day operations of their client’s or discharge or discriminate against an with a ‘‘leased’’ employee’s attempt to business and do not exercise the right to employee for opposing a practice that is exercise rights under the Act, or hire, fire, supervise or manage daily unlawful under FMLA. See the existing discharging or discriminating against an activities of employees. The firm urged § 825.106(e). employee for opposing a practice that is the Department to clarify that opinion In Wage and Hour Opinion Letter unlawful under the Act. letter FMLA–111 (Sept. 11, 2000) is FMLA–111 (Sept. 11, 2000), the While no specific questions about an atypical PEO that actually Department considered the application concerning PEOs were contained in the exercised control over the client’s of the FMLA regulations’ ‘‘joint RFI, the Department did seek employees. employment’’ test in current § 825.106 information on ‘‘any issues that may The Department proposes to amend to a ‘‘Professional Employer arise when an employee is jointly § 825.106(b) to clarify that PEOs that Organization’’ (PEO). The PEO in employed by two or more employers’’ contract with client employers merely to question had a contract with the client (71 FR at 69509). In response to the RFI, perform administrative functions, company under which it appeared to a number of stakeholders commented including payroll, benefits, regulatory enter into an employer-employee that it is not correct to consider PEOs paperwork, and updating employment relationship with the client’s employees (sometimes called ‘‘HR Outsourcing policies, are not joint employers with (who were leased back to the client and Vendors’’) to be joint employers with their clients, provided they merely continued to work at the client’s their client companies and explained perform such administrative functions. worksite pursuant to the terms of the the differences between a temporary On the other hand, if in a particular fact contract). The PEO in this case assumed staffing agency and a PEO. ‘‘A situation a PEO has the right to hire, substantial employer rights, temporary staffing agency is a labor fire, assign, or direct and control the responsibilities and risks, including the supplier. It supplies employees to a employees, or benefits from the work responsibility for personnel client while a PEO is a service provider that the employees perform, such a PEO management, health benefits, workers’ providing services to existing employees would be a joint employer with the compensation claims, payroll, payroll of a company.’’ See comments by client company. tax compliance, and unemployment Jackson-Lewis. Unlike a temporary Some of the comments concerning insurance claims. Moreover, the PEO in staffing agency, a PEO does not have the PEOs suggest confusion over how to this case had the right to hire, fire, ability to place an employee returning count employees jointly employed for assign, and direct and control the from FMLA leave with a different client purposes of employer coverage (‘‘over employees. employer. Id. 50 workers’’) and employee eligibility Based on the facts described in the The AFL–CIO commented that PEOs (‘‘over 50 employees within 75 miles’’). incoming letter, the Opinion Letter engage in a practice known as Some of these comments suggest that all concluded that the PEO was in a joint ‘‘payrolling,’’ in which the client of the employees of both the primary employment relationship with its client employers transfer the payroll and and secondary employers (and even companies for these reasons: related responsibilities for some or all of those of other secondary employers) their employees to the PEO, and that must be combined and counted together 1. The PEO was a separately owned and typically, the PEO also makes payments for purposes of these two tests. distinct entity under contract with the client to lease employees for the purpose of on behalf of the client employer into However, under the existing handling ‘‘critical human resource State workers’ compensation and § 825.106(d) only those employees who responsibilities and employer risks for the unemployment insurance funds, but the are jointly employed by the primary and client.’’ PEO does not provide placement each of the secondary employers are 2. The PEO was acting directly in the services. In contrast with temporary included in the employee counts of both interest of the client in assuming human staffing agencies, the AFL–CIO firms. The home office employees of the resource responsibilities. commented, PEOs do not match people primary employer and the employees 3. The PEO appeared to also share control to jobs. placed with other secondary employers of the leased employees consistent with the The law firm of Littler Mendelson are not included, for example, in the client’s responsibility for its product or advised that ‘‘Employee leasing employee counts for each secondary service. arrangements’’—like those involving employer. The Opinion Letter stated that ‘‘it temporary services firms and other For the reasons discussed above, would appear that’’ the PEO is the staffing companies—refer to existing paragraph (b) of § 825.106 is ‘‘primary employer’’ for those arrangements in which the staffing firm proposed to be changed to paragraph employees ‘‘leased’’ under contract with places its own employees at a (b)(1) and a new paragraph (b)(2) is the client. Thus, under existing customer’s place of business to perform proposed to be added to clarify how the § 825.106, the PEO would be services for the recipient’s enterprise. joint employment rules apply to PEOs. responsible for giving required FMLA The PEO, in contrast, assumes certain Under the proposal, PEOs that contract notices to its employees, providing administrative functions for its clients with client employers merely to perform FMLA leave, maintaining group health such as payroll and benefits coverage administrative functions—including insurance benefits during the leave, and and administration (including workers’ payroll, benefits, regulatory paperwork, restoring the employee to the same or compensation insurance and health and updating employment policies—are equivalent job upon return from leave. insurance). The PEO typically has no not joint employers with their clients, mstockstill on PROD1PC66 with PROPOSALS2 The ‘‘secondary employer’’ (i.e., the direct responsibility over the employees provided: (1) They do not have the right client company) would be responsible of its clients including ‘‘hiring, training, to exercise control over the activities of for accepting the employee returning supervision, evaluation, discipline or the client’s employees, and do not have from FMLA leave if the PEO chose to discharge, among other critical the right to hire, fire or supervise them, place the employee with the client employer functions.’’ or determine their rates of pay, and (2) company. The Opinion Letter The law firm of Fulbright & Jaworski do not benefit from the work that the concluded that the client company, as commented that PEO responsibilities employees perform. On the other hand, VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7881 if in a particular fact situation a PEO has are now covered by the CAA as the employee was maintained on the the right to hire, fire, assign, or direct administered by the Office of payroll for any part of a week, that week and control the employees, or benefits Compliance created by the CAA. counts towards the employee’s fulfilling from the work that the employees Section 202(c) of the CAA also the 12 months employment requirement perform, such a PEO would be a joint specifically provided that the General and that 52 weeks is deemed equal to 12 employer with the client employer. The Accounting Office (now named the months. proposal also includes a cross-reference Government Accountability Office) In its RFI, the Department sought in paragraph (d) to proposed (GAO) and Library of Congress (LOC) comment on whether and how to § 825.111(a)(3), which, as discussed are subject to Title I of the FMLA. For address the treatment of combining below, would change the determination those agencies, the FMLA is nonconsecutive periods of employment of the ‘‘worksite’’ for purposes of administered by the Comptroller to meet the 12 months of employment employee eligibility with respect to General and the Librarian of Congress, requirement. (71 FR at 69508) This employees who are placed by a primary respectively. See 29 U.S.C. eligibility criterion has been the subject employer at the worksite of a secondary 2611(4)(A)(iv) and 2617(f). of litigation. In Rucker v. Lee Holding, employer for more than 12 months. The CAA also called for a study of Co., 471 F.3d 6 (1st Cir. 2006), the court how the FMLA is administered for the considered whether an employee’s Section 825.108 (Public agency Government Printing Office (GPO), as previous employment of five years coverage) well as the GAO and LOC. 2 U.S.C. counted toward the 12-month This section addresses what 1371. The Congressional Office of employment eligibility requirement constitutes a ‘‘public agency’’ for Compliance issued its study on even though it was separated by a five- purposes of coverage under the Act. December 31, 1996. The study year break in service from his current Under the current regulations, the concluded that the GPO is covered by employment. The First Circuit Court of dispositive test for determining whether Title II and the Office of Personnel Appeals held that ‘‘the complete a public agency is a separate and Management’s regulations, rather than separation of an employee from his or distinct entity (and therefore a separate Title I and the Department of Labor her employer for a period of years, here employer for determining employee regulations. In a letter dated April 25, five years, does not prevent the eligibility) or simply is part of another 2000, the GPO asked the Department to employee from counting earlier periods public agency is the U.S. Bureau of the amend its FMLA regulations to delete of employment toward satisfying the 12- Census’ ‘‘Census of Governments.’’ See the reference to GPO coverage, because month requirement.’’ Id. at 13. In regard U.S. Census Bureau, 2002 Census of that agency is covered by Title II. In its to whether a break in service of more Governments, Volume 1, Number 1, response of January 31, 2001, the than five years would be permissible, Government Organization, GC02(1)–1, Department concurred with the the court stated that this important U.S. Government Printing Office, conclusion that the GPO is covered by policy issue should be resolved by the Washington, DC 20002 13 (http:// Title II and stated that it would amend Department in the first instance as a part www.census.gov/prod/2003pubs/ the regulations accordingly whenever of its exercise of its statutory authority. gc021x1.pdf). In contrast, regulations they were next modified. The proposal Id. issued under the Fair Labor Standards would amend paragraphs (a) and (d) of A number of commenters urged the Act (FLSA) use this test merely as one this section to reflect these changes. Department to support the Rucker factor in determining what constitutes a Pursuant to section 604(f) of the decision that prior months of service separate public agency for its purposes. Postal Accountability and Enhancement may be combined for eligibility See 29 CFR 553.102. The Department Act, Public Law 109–435, Dec. 20, 2006, purposes even when separated by proposes no changes to this section. 120 Stat. 3242, the Postal Rate breaks in service of many years. The Because the FMLA definition of ‘‘public Commission was redesignated as the National Partnership for Women & agency’’ refers to the definition under Postal Regulatory Commission, and the Families, for example, stated that ‘‘an the FLSA (29 U.S.C. 203(x)), however, proposed rule would amend paragraph arbitrary time limit on how long a the Department seeks public comment (b)(2) of this section to reflect this worker could leave the employment of on whether this test in the FMLA change. a particular employer would operate as regulations should be amended to an unfair and disproportionate burden Section 825.110 (‘‘Eligible’’ employee) on women workers. Many women leave conform with the test in the FLSA regulations. Current § 825.110 sets forth the work for extended periods of time, for eligibility standards employees must example, to stay home with young Section 825.109 (Federal agency meet in order to take FMLA leave. children during their formative years.’’ coverage) Specifically, current § 825.110(a) (See comments by National Partnership This section of the existing restates the statutory requirement that to for Women & Families.) regulations identifies the Federal be eligible for FMLA leave, an employee Employer comments received on this agencies that are covered by the must have been employed by an issue overwhelmingly disagreed with Department of Labor’s FMLA employer for at least 12 months, have the First Circuit ruling on combining regulations. Shortly after these been employed for at least 1,250 hours prior periods of service together. For regulations were promulgated, Congress of service during the 12 months example, the University of Notre Dame enacted the Congressional preceding the leave, and be employed at stated, ‘‘There is a tremendous Accountability Act of 1995, 2 U.S.C. a worksite where 50 or more employees administrative burden associated with 1301 (CAA), which in part amended the are employed by the employer within 75 adopting the First Circuit Court of mstockstill on PROD1PC66 with PROPOSALS2 FMLA by repealing Title V of the FMLA miles of the worksite. Appeals’ interpretation of section pertaining to Congressional employees. Current § 825.110(b) provides detail 825.110 that an employer has the duty See Section 504(b), Public Law 104–1. on the requirement that the employee to aggregate non-consecutive service to As a result, Congressional employees must have been employed by the establish ‘12 months of service.’ As we employer for at least 12 months, stating understand this possible interpretation, 13 The Census of Governments is taken at five- that the 12 months need not be the ability to aggregate past service with year intervals. consecutive. It further explains that if current service to equate to 12 months VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7882 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules is virtually unlimited.’’ Other comments under the proposed rule, if an employee interpretation of the statute and strikes received on this issue included in 2008 has worked five months for an an appropriate balance between suggestions for amending the employer and worked for the same providing re-employed workers with regulations to allow the employer to: employer for two full years in 1997–8, FMLA protections and not making the disregard prior employment periods if the employer would not have to administration of the Act unduly all ties between the company and consider the two years of prior burdensome for employers. worker were severed; follow company employment in determining whether the However, the Department also policy or State law regarding the employee currently is eligible for FMLA proposes new paragraph (b)(2) of this treatment of previous employment; and leave. The FMLA requires covered section to address two exceptions to the require that the 12 months of employers to maintain records for three general rule contained in proposed new employment be consecutive. Employer years. 29 CFR 825.500(b) (‘‘[E]mployers paragraph (b)(1): a break in service commenters cited the administrative must keep the records specified by these resulting from the employee’s burden associated with combining regulations for no less than three years fulfillment of military obligations; and a previous employment periods as the and make them available for inspection, period of approved absence or unpaid rationale for their recommendations copying, and transcription by leave, such as for education or child- including that the FMLA itself only representatives of the Department of rearing purposes, where a written requires recordkeeping for three years Labor upon request.’’). The Department agreement or collective bargaining and not indefinitely. is not proposing to change the three- agreement exists concerning the The Department received comments year record keeping requirements under employer’s intent to rehire the similar to these in response to the 1993 FMLA. Thus, employers would have employee. In these situations, interim final regulations, which documentation to confirm previous employment prior to the break in suggested limiting the period of time employment for a former employee who service must be used in determining used in determining whether the at the time of rehiring had a break in whether the employee has been employee had been employed by the service of three years or less. Where an employed for at least 12 months, employer for 12 months. In the final employee relies on a period of regardless of the length of the break in regulations, however, the Department employment that predates the service. declined to include such a limit, employer’s records, it will be incumbent The current discussion of how weeks reasoning that ‘‘[m]any employers upon the employee to put forth some are counted for fulfilling the 12 months require prospective employees to submit proof of the prior employment. This is requirement is proposed to be re- applications for employment which consistent with the employee’s designated as paragraph (b)(3) of this disclose employees’ previous obligation to establish he or she is an section. employment histories. Thus, the Further, the Department proposes to eligible employee. See Novak v. information regarding previous add a new paragraph (b)(4) in this MetroHealth Medical Center, 503 F.3d employment with an employer should section to note that nothing prevents an 572, 577 (6th Cir. 2007); Burnett v. LFW, employer from considering employment be readily available and may be Inc., 472 F.3d 471, 477 (7th Cir. 2006). confirmed by the employer’s records if prior to a continuous break in service of Of course, in determining whether an more than five years when determining a question arises.’’ (60 FR at 2185) employee has met the eligibility Furthermore, the Department did not if an employee meets the 12-month criterion, an employer may have a employment criterion provided the find a basis under the statute or its policy to consider employment prior to legislative history for adopting the employer does so uniformly with a longer break in service, but in that respect to all employees with similar recommendations received in response event must do so in a uniform manner breaks in service. to the Interim Final Rule. Id. Indeed, the for all employees with similar breaks in Paragraph (c) of § 825.110 is proposed statute does not directly address the service. to be revised to address hours an issue of whether the 12 months of employment must be consecutive, and The Department considered several employee would have worked for his or the legislative history provides limited alternatives in developing this proposed her employer but for the employee’s insight into Congressional intent change to § 825.110(b). Because the fulfillment of military service regarding extended breaks in legislative history states that the 12 obligations. This revision codifies the employment. The Senate Committee months of employment need not be protections and benefits offered by the Report in discussing the requirement consecutive, the Department could not Uniformed Services Employment and that the employee must have worked for adopt suggestions that any break in Reemployment Rights Act (USERRA). the employer for 12 months states service ‘‘resets’’ the count for In addition, the Department proposes ‘‘[t]hese 12 months of employment need determining whether the employee has several changes to § 825.110 in light of not have been consecutive.’’ S. Rep. No. met the 12 months employment the Ragsdale decision. Current 103–3, at 23 (1993). The House eligibility criterion. On the other hand, § 825.110(c) may result in some Committee Report uses the same the Department believes it is not instances in employees who are language in describing the 12-month reasonable that the time frame used for ineligible for FMLA leave nonetheless requirement. See H.R. Rep. No. 103–8, considering prior employment for being ‘‘deemed eligible’’ because of an pt. 1, at 35 (1993). eligibility should be without end. At the employer’s failure to meet its burden of Based on the Department’s experience same time, the Department is mindful of maintaining records needed to establish in administering the FMLA, the First the comment by the National the employee’s eligibility. Current Circuit’s ruling in Rucker, and Partnership for Women & Families § 825.110(d) may also result in an mstockstill on PROD1PC66 with PROPOSALS2 comments received in response to the about the burden on women workers employee who is not eligible for FMLA RFI, the Department proposes a new who may leave and reenter the leave being ‘‘deemed eligible’’ based on § 825.110(b)(1) to provide that although workforce after the formative years of the employer’s lack of (or incorrect) the 12 months of employment need not their children. But see S. Rep. No. 103– notice to the employee. Read in concert be consecutive, employment prior to a 3, at 16 (1993). The Department believes with Ragsdale, in which the U.S. continuous break in service of five years that the proposed outer limit of a five Supreme Court invalidated a similar or more need not be counted. Thus, year break in service is a permissible provision in the current § 825.700(a), VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7883 the Department believes these v. The Conveyor Co., 359 F.Supp.2d 813 Section 825.111 (Determining whether provisions in current § 825.110(c) and (N.D. Iowa 2005). The proposal clarifies 50 employees are employed within 75 (d) need to be modified. that when an employee is on leave at miles) On the other hand, the Court in the time he or she meets the 12-month Ragsdale suggested that if an employer Current § 825.111 sets forth the eligibility requirement, the period of fails to notify an employee of his or her leave prior to meeting the statutory standards for determining whether an FMLA rights, the employee may have a requirement is non-FMLA leave and the employer employs 50 employees within remedy if the employee can show that period of leave after the statutory 75 miles for purposes of employee the employer interfered with, restrained requirement is met is FMLA leave. eligibility. Paragraph (a)(3) of this or denied the employee the exercise of The Department proposes to delete section provides that when an employee his or her FMLA rights and that the current § 825.110(e), regarding counting is jointly employed by two or more employee suffered damages as a result. periods of employment prior to the employers, the employee’s worksite is See Ragsdale, 535 U.S. at 89. Therefore, effective date of the FMLA, because the the primary employer’s office from the Department has incorporated into revisions proposed in § 825.110(b) which the employee is assigned or the proposed text of § 825.300 a discussed above render the provision reports. statement that in these situations if an unnecessary. In Harbert v. Healthcare Services employee shows individualized harm The Department proposes no changes Group, Inc., 391 F.3d 1140 (10th Cir. because the employer interferes with, to current paragraph (f) (paragraph (e) in 2004), the Court of Appeals held that restrains or denies the employee of his the proposal) of this section, which § 825.111(a)(3), as applied to the or her FMLA rights, the employee is states that whether an employee works situation of an employee with a long- entitled to the remedies provided by the for an employer who employs 50 or term fixed worksite at a facility of the statute. The Department also proposes more employees within 75 miles of the secondary employer, was arbitrary and to add this language to § 825.220, which worksite is determined as of the date the capricious because it: (1) Contravened addresses how employees are protected leave request is made. In the RFI, the the plain meaning of the term when they assert their FMLA rights, and Department sought comment on the ‘‘worksite’’ as the place where an proposed § 825.301, which addresses differing regulatory tests used for employee actually works (as opposed to designation of FMLA leave. determining employee eligibility: the the location of the long-term care For organizational purposes, the determination of whether the employee placement agency from which Harbert notice provisions contained in current has been employed for at least 12 was assigned); (2) contradicted § 825.110(d) have been moved to months and for at least 1,250 hours in Congressional intent that if any proposed § 825.300(b) with other notice the 12 months preceding the leave is employer, large or small, has no requirements employers must provide to made as of the date the leave is to significant pool of employees nearby employees under the regulations. This commence; however, the determination (within 75 miles) to cover for an absent organizational change should make it of whether 50 employees are employed employee, that employer should not be easier for employees and employers to by the employer within 75 miles of the required to provide FMLA leave to that locate these requirements by worksite is made as of the date the leave employee; and (3) created an arbitrary consolidating them into one section. request is made (emphasis added). (71 distinction between sole and joint The proposal includes a cross-reference FR at 69508). Some of the comments employers. to § 825.300 in paragraph (d) of received in response to the RFI urged The court noted that Congress did not § 825.110. the Department to make these tests the define the term ‘‘worksite’’ in the The Department also proposes to same, namely, to require the FMLA, and it concluded that the clarify the language in current determination of employee eligibility in common understanding of the term § 825.110(d) stating that employee both cases as of the date the leave is to ‘‘worksite’’ is the site where the eligibility determinations ‘‘must be begin. The Department appreciates the employee works. With respect to the made as of the date leave commences.’’ difficulty experienced by many employee eligibility requirement of 50 This language has led to confusion employers in complying with these employees within 75 miles, the court when employees who have fulfilled the different regulatory tests; however, the noted that Congress recognized that 1,250 hours worked requirement for proposal does not adopt this suggestion even potentially large employers may eligibility, but not the 12 months of for the reasons discussed in the have difficulty finding temporary employment requirement, begin a block replacements for employees who work preamble to the 1995 final regulations: of leave. (Although periods of leave do at geographically scattered locations. not count towards the 1,250 hour [T]he purpose and structure of FMLA’s notice provisions intentionally encourage as The court stated that Congress requirement because leave is not ‘‘hours determined that if any employer (large much advance notice of an employee’s need worked,’’ periods of leave do count for leave as possible, to enable both the or small) has no significant pool of towards the 12 months of employment employer to plan for the absence and the employees in close geographic requirement because the employment employee to make necessary arrangements proximity to cover for an absent relationship continues, and has not been for the leave. Both parties are served by employee, that employer should not be severed, during the leave.) For example, making this determination when the employee requests leave. Tying the worksite required to provide FMLA leave to that where an employee who has worked for employee-count to the date leave commences employee. Therefore, the court an employer for 11 months and 1,300 as suggested could create the anomalous concluded: hours commences a three month block result of both the employee and employer An employer’s ability to replace a of leave for birth and bonding, planning for the leave, only to have it denied mstockstill on PROD1PC66 with PROPOSALS2 confusion exists as to whether that particular employee during his or her period at the last moment before it starts if fewer of leave will depend on where that employee portion of the leave that occurs after the than 50 employees are employed within 75 must perform his or her work. In general, employee reaches 12 months of miles of the worksite at that time. This would therefore, the congressional purpose employment is FMLA protected. entirely defeat the notice and planning underlying the 50/75 provision is not Compare Babcock v. BellSouth aspects that are so integral and indispensable effected if the ‘‘worksite’’ of an employee Advertising and Publishing Corp., 348 to the FMLA leave process. who has a regular place of work is defined F.3d 73 (4th Cir. 2003), with Willemssen (60 FR at 2186) as any site other than that place. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7884 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 391 F.3d at 1150. reasonable interpretation’’ and does not who is assigned to a fixed worksite and In comparing how the regulations result in arbitrary differences between a jointly-employed employee who has apply the term ‘‘worksite’’ to joint sole and joint employers under the no fixed worksite and changes worksites employers and sole employers, the court FMLA. The National Partnership regularly. ‘‘As for the former, the stated: commented that the purpose of worksite for purposes of determining The challenged regulation also creates an designating the primary office as the whether they are eligible employees arbitrary distinction between sole employers worksite is to ensure that the employer * * * would be the fixed worksite of and joint employers. For example, if the with the primary responsibility for the the secondary employer. As for the employer is a company that operates a chain employee’s assignment is the one held latter, the worksite would continue as of convenience stores, the ‘‘worksite’’ of an accountable for compliance with these stated in the regulation[.]’’ employee hired to work at one of those After weighing the comments on this regulations. The National Partnership convenience stores is that particular issue submitted in response to the RFI, convenience store. See 58 Fed. Reg. 31794, stated that the same principles 31798 (1993). If, on the other hand, the articulated in the regulations with the Department believes it needs to employer is a placement company that hires regard to ‘‘no fixed worksite’’ situations amend the regulations to reflect the certain specialized employees to work at also should apply to this factual decision in Harbert. The proposed rule convenience stores owned by another entity scenario. ‘‘In cases where employees would modify § 825.111(a)(3) to state (and therefore is considered a joint have long-term assignments, we believe that after an employee who is jointly employer), the ‘‘worksite’’ of that same the purposes of the FMLA are best employed is stationed at a fixed employee hired to work at that same worksite for a period of at least one year, convenience store is the office of the served by using the primary employer from which the employee is assigned as the employee’s worksite for purposes of placement company. the worksite for determining FMLA employee eligibility is the actual Id. coverage.’’ physical place where the employee Importantly, the court did not On the other hand, the law firm of works. No changes are proposed with invalidate the regulation with respect to Pilchak Cohen & Tice commented that, respect to employees whose worksite employees who work out of their under the current regulations, has not been fixed for at least one year. homes: ‘‘We do not intend this Also, no changes are proposed for employees at the same size statement to cast doubt on the portion § 825.111(a)(2) with respect to establishment are treated differently of the agency’s regulation defining the employees who work out of their because one works for a traditional sole ‘worksite’ of employees whose regular homes, except to update the current employer and the other works for a workplace is his or her home. See 29 language ‘‘as under the new concept of staffing firm: C.F.R. § 825.111(a)(2).’’ Id. at 1150 n.1. flexiplace’’ to give it a more modern Nor did the court invalidate the For example, where a small retail store meaning, ‘‘as under the concept of regulatory definition in § 825.111(a)(3) chain may have many employees nationwide, each store could employ fewer than 50 flexiplace or telecommuting.’’ with respect to employees of temporary The Department has not adopted the employees. Those employees clearly would help companies: ‘‘An employee of a not be eligible for FMLA in the traditional comment from Pilchak Cohen & Tice temporary help agency does not have a employment context. Yet, under the current that in order to qualify for FMLA job permanent, fixed worksite. It is regulation, if that same retail chain utilized restoration with the client company, a therefore appropriate that the joint contract employees from an entity which contract employee should have at least employment provision defines the employed more than 50 employees from its 12 months of service at that location. To ‘worksite’ of a temporary employee as home office and that is where the contract do so would take away the job the temporary help office, rather than employees received their assignments from restoration protections for an employee the various changing locations at which or reported to, those contract employees could have FMLA rights at the retail chain. who is entitled to FMLA leave under the the temporary employee performs his or This creates an arbitrary distinction between law. However, the primary her work.’’ Id. at 1153. sole and joint employers. . . .Under 29 C.F.R. responsibility for placement following The RFI requested specific § 825.106(e), an employer could contract for FMLA leave rests with the primary information, in light of the court’s an engineer, Employee A, for a six-month employer, the staffing firm in the decision in Harbert, on the definition in project, and then find out after the employee example given. The client company § 825.111 for determining employer has only been there for two weeks, that must consent to the placement only if it coverage under the statutory Employee A will need 12 weeks off due to has used another contract employee requirement that FMLA-covered the upcoming birth of his child. Upon from the same staffing firm to employers must employ 50 employees Employee A’s departure, the employer would then have to spend the time and expense temporarily fill the position during the within 75 miles. training Employee B only to [be] forced to period of the FMLA leave.14 Some commenters who argued that return Employee A to the position, even the current regulations are sound and do Section 825.112 (Qualifying Reasons for though it had already spent time training two Leave, General Rule) not require change pointed to the individuals. The employer would then have legislative history that the term to spend additional time and expense To make it easier to find information ‘‘worksite’’ is to be construed in the bringing Employee A ‘‘up to speed’’ on the in the regulations, the Department has same manner as the term ‘‘single site of project and complete the training initially employment’’ under the WARN Act and started. 14 See 29 CFR 825.106(e). In the preamble to the final rule, the Department agreed with comments the regulations under that Act. See Pilchak Cohen & Tice stated that the that joint employment relationships present special comments by AFL-CIO and National regulation would be more palatable if, to compliance concerns for temporary help and Partnership for Women & Families. The qualify for FMLA job restoration with leasing agencies in that the ease with which they mstockstill on PROD1PC66 with PROPOSALS2 AFL-CIO agreed with the dissent in the client company, the contract may be able to meet their statutory obligations under FMLA may depend largely on the nature of Harbert that the Secretary’s employee had to have at least 12 months the relationship they have established with their interpretation of ‘‘single site of of service at that location. client-employers. However, the Department found employment’’ under the WARN Act The National Coalition to Protect there were no viable alternatives that could be regulations as applying equally to Family Leave commented that the court implemented by regulation that would not also deprive eligible employees of their statutory rights employees with and without a fixed in Harbert was correct in distinguishing to job reinstatement at the conclusion of FMLA worksite is a ‘‘permissible and between a jointly-employed employee leave. See 60 FR at 2182. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7885 reorganized some sections, including 29 CFR 825.114(a)(2)(i)(A)–(B). Many of list be converted into a per se rule portions of current § 825.112, which sets the comments—including several from whereby these conditions can never be forth the qualifying reasons that entitle health care providers—reported that the covered under the Act. That is, the flu— an eligible employee to FMLA-protected current regulatory definition is ‘‘vague no matter how severe—could not be a leave. For example, there is no single and confusing.’’ The American College serious health condition. Second, some place in the current regulations for the of Occupational and Environmental commenters recommended that the provisions that address leave taken for Medicine stated, ‘‘The term ‘serious ‘‘more than three days’’ period of the birth of a child or placement of a health condition’ is unnecessarily incapacity in the objective test be child for adoption or foster care. Rather, vague. Employees, employers and measured by work days as opposed to these provisions are scattered medical providers would be well served calendar days. Here, too, the throughout several sections of the if the FMLA were to more clearly define commenters cited to legislative history current regulations, including the criteria for considering a health to support their position: ‘‘[w]ith respect paragraphs (c) and (d) of current condition serious.’’ The American to an employee, the term ‘serious health § 825.112. Academy of Family Physicians agreed: condition’ is intended to cover No changes have been made to ‘‘The definition of a serious health conditions or illnesses that affect an current paragraphs (a) and (b) of this condition within the Act creates employee’s health to the extent that he section except for the addition of new confusion not only for the or she must be absent from work on a paragraph titles. Language from current administrators of the program and recurring basis or for more than a few paragraphs (c) and (d) addressing leave employers but also for physicians. days for treatment or recovery.’’ H.R. taken prior to the birth of a child or Requiring a physician to certify that a Rep. No. 103–8, at 40 (1993); S. Rep. No. placement of a child for birth or gastrointestinal virus or upper 103–3, at 28 (1993) (emphasis added). adoption has been moved to new respiratory infection is a serious health Third, a number of stakeholders sections in the proposed regulations that condition in an otherwise healthy commented that the two health care cover pregnancy, birth, adoption and individual is incongruous with medical provider visits in § 825.114(a)(2)(i)(B) foster care. See proposed §§ 825.120 and training and experience. * * * . must occur during the ‘‘more than three 825.121. [Moreover, t]he categories of ‘Serious days’’ period of incapacity. Finally, a Current paragraph (e) of this section Health Conditions’ are overly number of comments recommended that that addresses foster care has been complicated and * * * contradictory.’’ the required period of incapacity be moved to proposed § 825.122, which Many in the employer community extended from ‘‘more than three days’’ provides definitions for the various focused their comments on the to five or seven or ten days or more. family relationships covered by the Act. perceived lack of ‘‘seriousness’’ inherent At the same time, the Department also Similarly, current paragraph (g) of this in certain conditions the definition received many comments from section, which addresses leave for covers. The Coolidge Wall Company employees and employee groups who substance abuse treatment and an stated: ‘‘The DOL needs to limit the felt that the current objective test is a employer’s ability to take disciplinary definition of serious health condition to good, clear test that is serving its action in connection with substance what it was originally intended by intended purpose. For example, the abuse, has been moved to proposed Congress. For example, while a common National Partnership for Women & § 825.119 that specifically addresses cold or flu were never intended to be Families stated, ‘‘[T]he current leave in connection with substance serious health conditions, in case law regulations are crafted appropriately to abuse. courts have essentially done away with provide guidance on what constitutes a all the exclusions from the original serious health condition without Sections 825.113, 825.114, and 825.115 definition by stating that ‘complications’ imposing overly rigid criteria that could (Serious Health Condition, Inpatient (without defining this) could cause hinder the ability of workers to take Care, and Continuing Treatment) virtually anything (a cold, an earache, a leave when necessary.’’ Families USA In response to the RFI, the cut on finger) to become a serious health concurred: ‘‘To protect employers from Department received extensive condition.’’ ORC Worldwide concurred: employee abuse of this provision, the commentary on the regulatory definition ‘‘Uniformly, employers have found the regulations establish an objective of a serious health condition. The full definition of ‘serious health condition’ criteria to be used to determine whether range of comments is discussed in detail and the criteria for determining whether conditions presented qualify for leave. in Chapters III and IV of the or not an employee has a ‘serious health This criteria creates a standard that can Department’s 2007 Report on the RFI condition’ to be extremely broad and be applied in individual cases with comments (see 72 FR at 35563; 35571). very confusing.’’ The City of sufficient flexibility to adjust for There are six separate definitions of Philadelphia wrote, ‘‘What constitutes a differences in how individuals are serious health condition in the serious health condition? The definition affected by illness. It also specifies that regulations. Many stakeholders is not clear.’’ routine health matters cannot be addressed their comments toward what Stakeholders proposed a number of considered serious health conditions, is called the ‘‘objective test’’ contained potential revisions to the current unless complications arise.’’ in the regulations at § 825.114(a)(2), definition of serious health condition. After a review of the statute, the which defines ‘‘continuing treatment’’ First, many commenters focused on the legislative history, and the significant as: list of ailments in § 825.114(c), which feedback received from stakeholders in states ‘‘Ordinarily, unless complications response to the RFI, the Department has (i) A period of incapacity * * * of more arise, the common cold, the flu, ear not identified an alternative approach to mstockstill on PROD1PC66 with PROPOSALS2 than three consecutive calendar days * * * aches, upset stomach * * * etc., are the definition that would still cover all that also involves: examples of conditions that do not meet the types of conditions Congress (A) Treatment two or more times by a health care provider * * * or the definition of a serious health intended to cover under the FMLA, but (B) Treatment by a health care provider on condition.’’ These commenters without also including some conditions at least one occasion which results in a recommended that, consistent with the that many believe the legislative history regimen of continuing treatment under the legislative intent that these conditions indicated should not be covered. The supervision of the health care provider. are not FMLA-covered conditions, this Department is well aware, as evidenced VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7886 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules by the extensive comments on this issue covered by a company’s sick leave on this issue from both employer and to the RFI, that many of the policy policy. See H.R. Rep. No. 103–8, at 40 employee groups but has not been able choices made in defining a serious (1993); S. Rep. No. 103–3, at 28 (1993). to construct an alternative regulatory health condition have not been without The difficulty is in adequately drawing definition better than the objective test consequence. For example, the the line between conditions that usually of more than three days incapacity plus Department could put a higher degree of resolve in a few days, and those that are treatment. The language of current ‘‘seriousness’’ into the regulatory ‘‘serious.’’ Medical conditions that are § 825.114(c) listing common ailments definition if we chose to adopt any one benign to some may be truly and conditions—‘‘Ordinarily, unless of the suggestions offered by employers incapacitating to others. For example, complications arise, the common cold, to increase the required number of days the Communication Workers of America the flu, ear aches, upset stomach, * * * of incapacity or to simply adopt a work submitted a comment to the RFI noting etc., are examples of conditions that do days rather than a calendar days an employee who had a severe reaction not meet the definition of a serious standard. Doing so would also go a long to poison oak and was incapacitated for health condition’’—was intended to be way to eliminate what many employers more than three days even though most merely illustrative of the types of believe to be the ‘‘weekend’’ problem— individuals would have only a mild conditions that would not ordinarily that is, employers’ inability to know or reaction to poison oak. As a result of all qualify as serious health conditions. verify that an employee, who works a these factors, the Department has This sentence was not intended to regular Monday through Friday retained essentially the current create its own substantive definition of schedule, is off on Saturday and definition of ‘‘serious health condition,’’ serious health condition that Sunday, then calls in sick on Monday with some slight modifications as categorically excluded the listed claiming an FMLA absence, was in fact discussed below. conditions. Section 825.114(c) did not incapacitated during the two days he or The Department has reorganized the create a definition of covered conditions she was off work for the weekend, and structure of the definition so both separate and apart from the regulatory meets the more than three consecutive employees and employers can better definitions of serious health condition calendar days standard (see e.g., understand what constitutes a serious in § 825.114(a). comment by Southwest Airlines Co., health condition. As noted above, serious health condition is currently The Department’s original opinion ‘‘Unscheduled intermittent leave, which letter in 1995 stated that a minor illness is typically based on recurring episodes defined in six different ways, and only one of the alternatives actually requires such as the common cold could not be of minor health conditions, gives a serious health condition because colds employees many opportunities to an absence of more than three consecutive calendar days under the were on the regulatory list of non- misuse FMLA leave—to take vacations covered ailments. ‘‘The fact that an or a long weekend when they otherwise current regulations. The Department believes that the new proposed structure employee is incapacitated for more than would be unable to do so * * *.’’). three days, has been treated by a health However, Congress itself did not will make the definition clearer. care provider on at least one occasion provide a statutory ‘‘bright line’’ of Section 825.113 (Serious Health which has resulted in a regimen of demarcation for ‘‘seriousness.’’ The Act Condition) continuing treatment prescribed by the defines serious health condition as Current § 825.113 addresses the health care provider does not convert either ‘‘an illness, injury, impairment, or definition of a parent, spouse, son or minor illnesses such as the common physical or mental condition that daughter. In the proposed regulations, cold into serious health conditions in involves—(A) inpatient care in a the Department has moved this to the ordinary case (absent hospital, hospice, or residential medical § 825.122 for purposes of organization. complications).’’ Wage and Hour care facility; or (B) continuing treatment Proposed § 825.113 is titled ‘‘Serious Opinion Letter FMLA–57 (Apr. 7, 1995). by a health care provider.’’ 29 U.S.C. health condition’’ and provides the Unfortunately, this was an incorrect 2611(11). ‘‘Continuing treatment’’ is not general rules and accompanying statement of the law. As the Department further defined by the Act and Congress definitions governing what constitutes a explained in its subsequent 1996 declined to establish any bright-line serious health condition. Proposed opinion letter: rules of what was covered and what was § 825.113(a) provides the basic not. See discussion infra about chronic The FMLA regulations * * * provide definition of what constitutes a serious examples, in section 825.114(c), of conditions specifically. health condition currently found in conditions that ordinarily, unless A review of the Preamble § 825.114(a). Proposed paragraph (b) complications arise, would not meet the accompanying the current regulations contains a definition of what constitutes regulatory definition of a serious health reflects the struggle then, as now, to ‘‘incapacity’’ and incorporates language condition and would not, therefore, qualify craft such an objective definition of from current § 825.114(a)(2)(i) and (ii) for FMLA leave: the common cold, the flu, serious health condition that covers all without change. Proposed paragraph (c) ear aches, upset stomach, minor ulcers, the conditions intended to be covered contains the definition of ‘‘treatment’’ headaches other than migraine, routine by the Act while still giving meaning to found in current § 825.114(b) without dental or orthodontia problems, periodontal the legislative history that minor change. disease, etc. Ordinarily, these health ailments like colds and flus generally Proposed paragraph (d) addresses the conditions would not meet the definition in not be covered. It also reflects the choice types of treatments and conditions not 825.114(a)(2), as they would not be expected then, as now, between an objective test ordinarily expected to be covered by the to last for more than three consecutive calendar days and require continuing versus a list of types of health definition and incorporates language mstockstill on PROD1PC66 with PROPOSALS2 treatment by a health care provider as conditions that would qualify as from current § 825.114(c). As discussed defined in the regulations. If, however, any serious. See 60 FR at 2191. There is no above, this section has been the focus of of these conditions met the regulatory criteria question, as explained by the legislative considerable debate as to when the list for a serious health condition, e.g., an history, that Congress expected minor of conditions enumerated (colds, flus, incapacity of more than three consecutive conditions (those that last less than a etc.) are or are not serious health calendar days that also involves qualifying few days) to not be covered by the conditions. The Department received treatment, then the absence would be FMLA because they would likely be many comments in response to the RFI protected by the FMLA. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7887 Wage and Hour Opinion Letter FMLA– remains and a cross-reference to practical matter, that leaving the 86 (Dec. 12, 1996) (emphasis in § 825.113(b) has been included. treatment requirement open-ended does original). This objective regulatory not provide sufficient guidance for Section 825.115 (Continuing Treatment) definition was upheld as a reasonable determining when the employee has a implementation of the Act by two Proposed § 825.115, titled qualifying serious health condition. For United States Courts of Appeals even ‘‘Continuing treatment,’’ defines example, under the current definition, though the definition may sweep into its continuing treatment for purposes of an employer could decide that an coverage some conditions Congress did establishing a serious health condition. employee does not qualify for FMLA not necessarily anticipate would be The five different definitions are coverage a week after an employee has covered. See Miller v. AT&T Corp., 250 contained in § 825.115(a)–(e). Proposed been to see a health care provider on F.3d 820, 835 (4th Cir. 2001) (‘‘It is § 825.115(a) (‘‘Incapacity and one occasion and has had more than possible, of course, that the definition treatment’’) incorporates language from three days of incapacity but no follow- adopted by the Secretary will, in some current § 825.114(a)(2)(i)(A) and (B), up visit during that week-long time cases— and perhaps even in this one— which establishes that an employee can period. If the employee had a follow-up provide FMLA coverage to illnesses that meet this definition if, in connection visit three months later, however, the Congress never envisioned would be with a period of incapacity of more than test would be met but the employer may protected. We cannot say, however, that three consecutive calendar days, the not be aware of that fact. The the regulations adopted by the Secretary employee or family member has one Department does not believe the are so manifestly contrary to visit to a health care provider and a regulations should leave such congressional intent as to be considered regimen of continuing treatment, such determinations open-ended and arbitrary.’’); Thorson v. Gemini, Inc., as a prescription, or two visits to a unresolved indefinitely. Rather, the 205 F.3d 370, 380 (8th Cir. 2000) health care provider. period of incapacity and the timing of As discussed further below the health care provider’s treatment (‘‘Under the DOL’s definition, it is concerning proposed § 825.125, the regimen should be connected in a possible that some absences for minor Department proposes a conforming temporal sense to meet the definitional illnesses that Congress did not intend to change in the definition of ‘‘continuing requirement and not left undefined as be classified as ‘serious health treatment’’ to generally recognize under the current rule. conditions’ may qualify for FMLA physician assistants as health care The Department received many protection. But the DOL reasonably providers, which eliminates the need to comments to the record on this issue, decided that such would be a legitimate refer to them separately in this section including a number suggesting that the trade-off for having a definition of as performing ‘‘under direct supervision Department adopt into regulation the ‘serious health condition’ that sets out of a health care provider’’ (see current an objective test that all employers can interpretation offered by the United §§ 825.114(a)(2)(i)(A) and (iii)(A)). States Court of Appeals for the Tenth apply uniformly.’’). Otherwise, the current definition has Circuit that the two treatments actually The Department considered whether been retained with one further proposed occur during the period of more than the list of examples of non-serious clarification. The Department proposes three days’ incapacity in order to qualify ailments such as colds and flus in to specify that the two visits to a health as a serious health condition. See Jones current § 825.114(c) should be deleted care provider must occur within 30 days v. Denver Pub. Sch., 427 F.3d 1315, as surplusage. Both the Fourth and of the beginning of the period of 1323 (10th Cir. 2005) (‘‘[U]nder the Eighth Circuit courts treated the list of incapacity unless extenuating regulations defining ‘continuing examples of non-serious ailments in circumstances exist, instead of the treatment by a health care provider,’ the current § 825.114(c) as merely clarifying completely open-ended time frame ‘[t]reatment two or more times’ that common ailments such as colds and under the current regulations. described in 825.114(a)(2)(i)(A) must flu normally will not qualify for FMLA Accordingly, if an ill employee visits take place during the ‘period of leave because they generally will not his/her health care provider, is told not incapacity’ required by satisfy the regulatory criteria for a to report to work for more than 3 days 825.114(a)(2)(i).’’). However, the serious health condition. The due to the health condition but is not Department believes the proposed 30- Department continues to believe that the prescribed any medication, whether the day limitation is more appropriate in § 825.114(c) list serves a baseline condition is considered a serious health that it guards against employers making purpose as explanatory language similar condition for FMLA purposes will quick judgments that deny FMLA leave to that which is included in a preamble. depend on whether the health care when employees otherwise should Therefore, the sentence has been provider determines that additional qualify for FMLA protections. The retained in the proposed regulations. treatment is needed within 30 days of Department is also aware that Nevertheless, the Department agrees the beginning of the initial period of occasionally an employee may need a with the Fourth and Eighth Circuit incapacity (for example, whether the second visit to a health care provider or Courts of Appeals and restates its view provider determines that an additional further diagnostic testing within a 30- that the Department’s objective follow-up appointment should be day period but may experience regulatory definition is dispositive. scheduled in two weeks or two months). difficulty scheduling the second Section 825.114 (Inpatient Care) The beginning of the period of appointment in time. The regulations incapacity will usually correspond with therefore acknowledge an ‘‘extenuating Proposed § 825.114, titled, ‘‘Inpatient the date of the employee’s first absence, circumstances’’ exception to the 30-day care,’’ defines what constitutes inpatient however, as under the current rule in proposed § 825.115(a)(1). mstockstill on PROD1PC66 with PROPOSALS2 care. As noted above, the Department regulations, the more than three The Department is not proposing to proposes a stand-alone definition of calendar day period of incapacity may extend the 30-day rule to treatment by ‘‘incapacity’’ in § 825.113(b) in contrast commence on a day on which the a health care provider on at least one to the current regulations. Therefore, the employee is not scheduled to work. See occasion, which results in a regimen of definitional language of incapacity has 60 FR 2195. continuing treatment under the been removed from the definition of The Department proposes this supervision of the health care provider. ‘‘inpatient’’ care, but the requirement clarification because it believes, as a The Department’s enforcement VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7888 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules experience suggests that the doctor visit where ‘the underlying health condition is advised to stay home and inside due to the which results in a regimen of continuing or treatment for it requires that the pollen count being too high). The definition treatment generally occurs close in time employee be absent from work on a has, therefore, been revised to include such conditions as serious health conditions, even to the more than three days of recurring basis * * * [A] patient with if the individual episodes of incapacity are incapacity. Accordingly, the 30-day severe arthritis may require periodic not of more than three days duration. limitation is not needed and could, in treatment such as physical therapy.’ ’’ 72 fact, extend the time period for FR at 35572 (internal citations omitted). 60 FR at 2195. receiving the regimen of treatment well Many employer commenters were Although the Department beyond what is current practice. The highly critical of the choice made by the acknowledges employers’ concerns Department, however, seeks comments Department in the 1995 final rule to regarding the inability to verify the on this approach, and whether this allow employees to ‘‘self-treat’’ for medical necessity for an absence regulatory provision should be changed. ‘‘any’’ period of incapacity due to involving self-treatment, to eliminate Proposed § 825.115(b), titled chronic conditions. See current coverage for such absences at this time ‘‘Pregnancy or prenatal care,’’ § 825.114(e): ‘‘Absences attributable to would, like changing the calendar days incorporates language from current incapacity under paragraphs (a)(2)(ii) or standard to a work days standard, § 825.114(a)(2)(ii) without change effectively render many currently- (iii) [chronic conditions] qualify for except for a reference to the new covered employees who have received FMLA leave even though the employee consolidated section found in proposed the protections of the law ineligible. As or the family member does not receive § 825.120 addressing leave for the Department acknowledged in the treatment from a health care provider pregnancy and childbirth discussed in Report on the RFI, it has no way to during the absence, and even if the detail below. The Department wishes to distinguish between those employees absence does not last more than three emphasize, however, that the phrase with chronic conditions who may be, in days.’’ Indeed, many employer ‘‘incapacity due to pregnancy, or for their employers’ views, taking commenters believe that coverage for prenatal care’’ includes time spent with advantage of the self-treatment standard absences due to chronic conditions a health care provider for prenatal care and those who are not and for whom the which are accompanied only by self- standard has worked very well. purposes. By definition, while an treatment impermissibly undercuts the employee is visiting a health care The Department does propose one statutory requirement that intermittent modification to the definition of a provider for prenatal care purposes (i.e., leave may be taken only when a doctor’s appointment), the employee chronic serious health condition. medically necessary (29 U.S.C. Current § 825.114(a)(2)(iii) provides that is unable to work and therefore 2612(b)(1)) as there is no way to verify incapacitated. In contrast, however, an a chronic serious health condition the medical necessity of an absence for ‘‘[r]equires periodic visits for treatment’’ employee is not entitled to FMLA leave self-treatment. (See, e.g., discussion of to visit the store to purchase infant (§ 825.114(a)(2)(iii)(A)). The current Workplace Consequences of regulations do not define the term clothes because the employee is not Unscheduled Intermittent Leave in the incapacitated in such circumstances. In ‘‘periodic.’’ The Department Report on the RFI comments, 72 FR at understands that some employers have a case where a male employee is needed 35575.) Employee representatives to care for (as defined by proposed chosen to provide their own definition commenting on the RFI, however, of the term ‘‘periodic’’ for FMLA § 825.124) a pregnant spouse who is stressed that self-treatment is incapacitated or requires prenatal care, purposes to the detriment of employees. appropriate for many chronic conditions For example, one employer defined the the male employee will be entitled to and that coverage for such absences is FMLA leave. For example, a male term to require a visit to a health care crucial to ensuring that employees with provider at least once a month in order employee’s pregnant spouse may have chronic serious health conditions are severe morning sickness and need his to satisfy this prong of the continuing able to maintain their employment. Id. treatment definition. The Department assistance. Similarly, a male employee at 35575; 35580. may be entitled to FMLA leave to believes that not all serious health While many employers urged the conditions Congress intended to cover accompany his pregnant spouse to a Department to alter the definition so doctor’s appointment for prenatal care. require such frequent visits. For that only chronic conditions that they example, an employee may have In this case, physical care may not be perceive to be ‘‘serious’’ will be covered, needed, but psychological care may be epilepsy, which renders the employee and to eliminate the self-treatment unable to work periodically but does not involved. provision, the Department declines to Proposed § 825.115(c), titled ‘‘Chronic require monthly doctor visits since the do so. As explained in the preamble employee knows how to self-medicate. conditions,’’ incorporates language from when the current rule was adopted in At the same time, because ‘‘periodic’’ is current § 825.114(a)(2)(iii) with one 1995, left open-ended in the current modification. The Department received extensive comments about the The Department concurs with the regulations, employers have struggled definition of ‘‘chronic’’ serious health comments that suggested that special with the ‘‘periodic’’ requirement. The recognition should be given to chronic Department believes such a lack of conditions in response to the RFI. As a conditions. The Department recognizes that result, the Department provided certain conditions, such as asthma and definition leaves employers and extensive discussion and explanation in diabetes, continue over an extended period of employees in an untenable situation. its Report on the RFI to the evolution of time (i.e., from several months to several (See Executive Summary and Chapters the ‘‘chronic’’ serious health condition years), often without affecting day-to-day IV and VI of the Department’s 2007 definition. See Chapter IV of the RFI ability to work or perform other activities but Report on the RFI comments, 72 FR at mstockstill on PROD1PC66 with PROPOSALS2 Report, 72 FR at 35571. may cause episodic periods of incapacity of 35550, 35571, 35588.) The Department As the Department explained in the less than three days. Although persons with proposes to define the term ‘‘periodic’’ Report on the RFI comments, ‘‘[t]here is such underlying conditions generally visit a as twice or more a year, based on an health care provider periodically, when no definition or specific mention of a subject to a flare-up or other incapacitating expectation that employees with ‘chronic’ serious health condition in the episode, staying home and self-treatment are chronic serious health conditions Act. The House and Senate Committee often more effective than visiting the health generally will visit their health care Reports do, however, refer to conditions care provider (e.g., the asthma sufferer who providers with that minimum VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7889 frequency, but they may not visit them Section 825.120 (Leave for Pregnancy or related to pregnancy, and the mother’s more frequently, especially if their Birth) serious health condition following the conditions are stable. The Department The Department proposes to create a birth of a child. believes this is reasonable but seeks single section that addresses FMLA Proposed § 825.120(a)(6) has been public comments on whether the rights and responsibilities related to added to reemphasize that both spouses proposed definition of the term may each take their full 12 weeks of pregnancy and birth of a child. The ‘‘periodic’’ is appropriate. leave to care for a child with a serious current regulations contain regulatory Proposed § 825.115(d), titled health condition, regardless of whether guidance pertaining to pregnancy and ‘‘Permanent or long-term conditions,’’ the spouses work for the same birth throughout a number of regulatory incorporates language from current employer. sections. This new proposed section Proposed § 825.120(b), titled § 825.114(a)(2)(iv) without change. collects the existing guidance from the ‘‘[i]ntermittent and reduced schedule Proposed § 825.115(e), titled various regulatory sections into one leave,’’ combines language from current ‘‘Conditions requiring multiple comprehensive section. §§ 825.203(b) and 825.204(a) on the use treatments,’’ incorporates language from Section 825.120(a)(1) of the proposed current § 825.114(a)(2)(v), which of intermittent or reduced schedule rule, titled ‘‘[g]eneral rules,’’ restates leave for pregnancy and birth of a child. provides coverage for any period of language from current § 825.112(b) that See 29 U.S.C. 2612(b)(1). Current absence to receive multiple treatments both the mother and father are entitled § 825.203(b) provides that leave taken by a health care provider for restorative to FMLA leave for the birth of their after the birth of a healthy newborn surgery after an accident or other injury, child. Proposed paragraph (a)(2) of this child may only be taken on an or for a condition that would likely section restates language from current intermittent or reduced leave schedule result in a period of incapacity of more § 825.201 explaining that leave if the employer agrees. Current than three consecutive calendar days in following the birth of a healthy child § 825.204(a) explains that in these cases, the absence of medical intervention or treatment for conditions such as cancer, (‘‘bonding time’’) must be completed an employer may temporarily transfer severe arthritis, and kidney disease. within a year from the birth unless State an employee to an available alternative Multiple treatments are required to law provides for a longer period of time position that better accommodates the satisfy this prong of the continuing or with an employer’s agreement. Based need for intermittent or reduced treatment definition. on the statutory requirements (see 29 schedule leave if the employer does in U.S.C. 2612(a)(2)), if leave is extended fact agree to such a leave schedule. See Sections 825.116 Through 825.118 beyond a year from the birth per State 29 U.S.C. 2612(b)(2). The hours not (Reserved) law or employment agreement, the worked due to a reduced leave schedule Provisions in current § 825.116 additional leave would not receive the in this situation are considered defining the phrase ‘‘needed to care for’’ FMLA protections. Proposed paragraph intermittent FMLA leave and are a family member are moved to proposed (a)(3) of this section incorporates counted toward the employee’s FMLA § 825.124, discussed below. Provisions language from current § 825.202(a), that leave entitlement (see proposed in current § 825.117 addressing the husbands and wives who work for the § 825.205). Proposed § 825.120(b) ‘‘medical necessity’’ for taking and same employer may be limited to a emphasizes that if intermittent or scheduling intermittent or reduced combined 12 weeks of FMLA leave for reduced schedule leave is medically schedule leave are moved to proposed the birth or placement for adoption or necessary for a serious health condition §§ 825.202 and .203, discussed below. foster care of a healthy child, or to care of the mother or the newborn child, no Current § 825.118 defining ‘‘health care for an employee’s parent with a serious employer agreement is necessary. provider’’ is renumbered as § 825.125 of health condition. (See 29 U.S.C. the proposed rule. Section numbers 2612(f).) This limitation does not apply Section 825.121 (Leave for Adoption or .116–.118 of the current rule are, if only one spouse is eligible for FMLA Foster Care) therefore, reserved to reflect these leave. For example, if a wife For the same reasons discussed above, organizational changes, as discussed commenced employment with the the Department also proposes a single further below. employer only 6 months earlier and section that discusses FMLA rights and therefore does not meet the 12-month/ obligations with regard to adoption and Section 825.119 (Leave for Treatment of 1,250-hour eligibility requirement, but foster care. The current regulations Substance Abuse) the husband has worked for the contain guidance pertaining to adoption The Department proposes to create a employer for five years and otherwise and foster care throughout a number of single, consolidated section to address meets the eligibility requirements, the sections. This new proposed section substance abuse, which is currently husband could take twelve weeks of collects the existing guidance from the addressed in two different sections of leave to be with the newborn child. various regulatory sections into one the regulations, specifically However, if the husband and wife have comprehensive section on adoption and §§ 825.112(g) and .114(d). Current both worked for the same employer for foster care. § 825.112(g) provides that while FMLA five years and the husband already has Proposed § 825.121(a) is titled leave is available for substance abuse used six weeks of his entitlement to care ‘‘[g]eneral rules’’ and provides that leave treatment, treatment does not prevent an for his parent, the wife may be limited for adoption or foster care may begin employer from taking employment to six weeks to be with the newborn prior to the actual birth or adoption. action against an employee for violating child (the wife would also be entitled to Examples incorporated from current the employer’s substance abuse policy, leave for her own serious health § 825.112(d) include leave to attend mstockstill on PROD1PC66 with PROPOSALS2 such as being intoxicated at work. The condition related to the birth). counseling sessions, appear in court, section further explains when such Proposed § 825.120(a)(4) combines consult with an attorney or doctor, or action is appropriate. Current language from current submit to a physical examination. The § 825.114(d) states that substance abuse §§ 825.114(a)(2)(ii), 825.114(e), and proposed section also cross-references treatment may be covered as a serious 825.112(a) and (c) to make clear that a proposed paragraph (b) of this section, health condition in certain mother may be entitled to FMLA leave which explains the statutory limitation circumstances. for both prenatal care and incapacity that leave following the placement for VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7890 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules adoption and foster care of a healthy Section 825.122 (Definition of Spouse, paragraph (f) to clarify that the example child can only be taken on an Parent, Son or Daughter, Adoption and of a statement by the employee as intermittent or reduced schedule basis if Foster Care) documentation should be a sworn, the employer agrees. See 29 U.S.C. Current § 825.113 provides definitions notarized statement. This provides 2612(b)(1). of spouse, parent, and son or daughter consistency with the other examples for purposes of determining whether an used in the current regulations. Second, Proposed § 825.121(a)(2) contains employee qualifies for FMLA leave. the Department proposes to add the language from current § 825.201 example of a submitted and signed tax explaining that leave for adoption or These definitions are repeated in current and proposed § 825.800. The return as evidence of a qualified family foster care must be completed within a relationship because in the case of an in year from the placement unless State Department proposes to move the loco parentis relationship, it may be law provides for a longer period of time existing section to proposed § 825.122 difficult to determine what kind of proof or with an employer’s agreement. Such for purposes of organization. Proposed may be reasonable to establish such a leave taken under State law or with an § 825.122(a) and (b) defining spouse and relationship. employer’s agreement beyond the one parent are unchanged except for minor editorial changes in paragraph (b) to the Section 825.123 (Unable to Perform the year period is not protected as FMLA definition of ‘‘parent.’’ Functions of the Position) leave. Section 825.121(a)(3) also Proposed § 825.122(c) that addresses, incorporates language from current The Department proposes to and is now titled, ‘‘[s]on or daughter,’’ renumber current § 825.115 as § 825.123 § 825.202(a), that husbands and wives has been rewritten for clarity. The one working for the same employer are in the proposed regulation due to other substantive addition the Department organizational changes made. Proposed limited to a combined 12 weeks of leave proposes is to specify that the paragraph (a), titled ‘‘[d]efinition,’’ for purposes of bonding with the determination of whether an adult child defines the statutory requirement that healthy adopted or foster child, to care has a disability should be made at the an individual be unable to perform the for the healthy child following the birth time leave is to commence. In Bryant v. functions of a job in order to qualify for of the child, and to care for an Delbar, 18 F.Supp.2d 799 (M.D. Tenn. FMLA leave. The current regulatory employee’s parent with a serious health 1998), the court conducted an analysis definition states that the employee must condition. As discussed above under of whether an adult child had a be ‘‘unable to work at all’’ or be unable proposed § 825.120, this limitation does disability for purposes of FMLA to perform ‘‘one or more of the essential not apply if only one spouse is eligible coverage based on facts and functions of the job.’’ The Department for FMLA leave. See 29 U.S.C. 2612(f). circumstances that occurred well after proposes no substantive changes to this Proposed § 825.121(a)(4) has been the leave commenced. In the definition. added to emphasize that both spouses Department’s view, employers should The Department proposes no decide FMLA eligibility based on substantive changes to current may each take their full twelve weeks of information at the time the leave begins. paragraph (b), now titled ‘‘[s]tatement of FMLA leave to care for an adopted or A rule that takes into account functions,’’ except to include language foster child with a serious health information acquired after-the-fact from current § 825.115 to clarify that the condition, regardless of whether the causes confusion about coverage for employer may provide a statement of spouses work for the same employer. both employees and employers. The the employee’s essential functions to the Proposed § 825.121(b), titled ‘‘[u]se of Department aims to eliminate such employee’s health care provider, and to intermittent and reduced schedule confusion by adding the proposed clarify that the employer may require leave,’’ combines language from current language. that the health care provider’s medical §§ 825.203(b) and 825.204(a) on the use Proposed § 825.122(c)(1), (2) and (3) certification specify what functions the of intermittent or reduced schedule remain unchanged from current employee cannot perform. This leave for adoption and foster care. § 825.113(c)(1), (2) and (3). information is part of the ‘‘medical Current § 825.203(b) provides that leave A new § 825.122(d) has been added facts’’ the statute states an employer taken after the placement of a healthy that defines ‘‘adoption.’’ The current may obtain as part of the medical child for adoption or foster care may regulations do not define the term, and certification. See 29 U.S.C. only be taken on an intermittent or the Department believes that providing 2613(b)(4)(B). reduced leave basis if the employer such guidance will benefit both employees and employers. Language Section 825.124 (Needed to Care for a agrees. See 29 U.S.C. 2612(b)(1). Current Family Member) from current § 825.112(d) has been § 825.204(a) explains that in such cases, retained to clarify that the adoption The current regulations define the an employer may temporarily transfer phrase ‘‘needed to care for’’ a family source is not relevant to FMLA leave an employee to an available alternative member in § 825.116. The Department eligibility. position that better accommodates the Proposed § 825.122(e), titled ‘‘[f]oster proposes to move this section to need for intermittent or reduced care,’’ incorporates the definition of proposed § 825.124 and clarify that the schedule leave. See 29 U.S.C. foster care from the current § 825.112(e) employee need not be the only 2612(b)(2). The hours not worked due to without change. individual or family member available a reduced leave schedule in this Proposed § 825.122(f) addresses the to care for the qualified family member. situation are considered intermittent documentation of relationships and A number of comments received in FMLA leave and are counted toward the incorporates the current language from response to the RFI recommended that mstockstill on PROD1PC66 with PROPOSALS2 employee’s FMLA leave entitlement (see § 825.113(d) with two clarifications. the Department impose some sort of proposed § 825.205). Proposed First, the current regulation states that limitation on what it means for an § 825.121(b) provides that if intermittent in addition to a child’s birth certificate employee to be ‘‘needed to care for’’ a or reduced schedule leave is needed for or a court document, a simple statement family member. A number of a serious health condition of the from an employee is sufficient to commenters, including the National adopted or foster child, no employer establish a family relationship. The Council of Chain Restaurants suggested agreement is necessary. Department adds language in proposed that ‘‘care’’ be limited to actual physical VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7891 care only. The National Council of Physician Assistants noted that employee [would] be off under FMLA if Chain Restaurants also recommended physician assistants (PAs) are usually they had to make sure to subtract any that the employee be required to recognized as authorized health care holidays that the employee is eligible provide a written certification ‘‘that providers for FMLA purposes under the for during the time period they need to explains why the employee cannot rely existing provision that recognizes ‘‘[a]ny be off.’’ The State of Ohio said it upon other family members to care for’’ health care provider from whom an ‘‘supports the current regulations in this the qualifying family member. employer or the employer’s group area, and believes that scheduled Similarly, the law firm of Blank Rome health plan’s benefits manager will holidays should continue to be counted suggested that the regulations ‘‘be accept certification of the existence of a against an employee’s 12 weeks of modified to allow for leave under these serious health condition to substantiate FMLA leave when the employee is out circumstances only when there is no a claim for benefits’’ (current a full week. This provision would allow other alternative care giver or provider.’’ § 825.118(b)(4)). Other language in employee’s 12 weeks of FMLA leave to The Pepsi Bottling Group recommended § 825.118(c) of the current rule has be treated consistently with employees that employers be ‘‘able to deny or delay created confusion over the status of PAs, participating in other Ohio benefit leave if an employee has a family however, where the phrase ‘‘authorized programs.’’ The National Partnership for member at home who is available to to practice in the State’’ is defined to Women & Families disagreed: ‘‘Under provide necessary medical care.’’ The mean that ‘‘the provider must be the current regulations, such holidays United Parcel Service suggested authorized to diagnose and treat are counted as part of an employee’s ‘‘add[ing] language requiring that physical or mental health conditions FMLA leave. We believe such a policy requests for intermittent leave to care for without supervision by a doctor or other is inconsistent with how holidays are a family member be supported by a health care provider.’’ The Department typically treated in other leave contexts. representation that the employee is the proposes to clarify the status of PAs as If an employee is out on FMLA leave only family member available to provide health care providers under proposed and a scheduled holiday occurs, we such care.’’ Finally, Manufacturers § 825.125(b)(2) (formerly § 825.118(b)(2) believe the employee should be able to Alliance recommended the Department in the current rule) by adding use holiday leave just like other clarify that the term ‘‘needed to care’’ ‘‘physician assistants’’ to the list of employees rather than losing a day of for a family member means ‘‘that it [is] recognized health care providers and by FMLA leave. Thus, we would urge DOL necessary for the employee to actually deleting the requirement that PAs to modify the regulations accordingly.’’ be providing care during * * * work operate ‘‘without supervision by a A number of commenters noted a time.’’ doctor or other health care provider.’’ serious problem that would occur if After review of these comments, the The Department has made holidays were not counted toward Department has declined to adopt any of corresponding changes to proposed FMLA leave when an employee is out these proposals. The statute provides § 825.115 (Continuing treatment) and on a weekly block of leave; that is, such leave ‘‘[i]n order to care for the spouse, § 825.800 (Definitions) to reflect this a rule could result in the employee or a son, daughter, or parent, of the change that PAs would now generally obtaining greater than 12 weeks of employee, if such spouse, son, daughter, be considered health care providers. FMLA leave per year. One commenter or parent has a serious health stated: ‘‘For some employees counting condition.’’ 29 U.S.C. 2612(a)(1)(C). Section 825.200 (Amount of Leave) holidays or days not worked during a There is no additional limitation that This section explains the basic leave full week of absence, may mean the employee be the only available care entitlement provided under the Act, as employees could be gone beyond the 12 giver in order to take FMLA leave. well as how to determine the 12-month weeks/60 days if it is determined that Indeed, it will often be the case that period during which the FMLA leave non-work days or holidays are not there are multiple potential care entitlement may be used. The counted as part of the work week thus givers—none of whom is the only care Department asked in its December 2006 pro-longing an FMLA beyond the 60 giver without alternative—but all of RFI whether ‘‘scheduled holidays days/12 weeks[.]’’ The United Parcel whom would need to take FMLA leave [should] count against an employee’s 12 Service concurred: ‘‘DOL should in order to provide care. Moreover the weeks of FMLA leave when the maintain its current position that legislative history to the Act indicates employee is out for a full week as they holidays occurring during an that the ‘‘phrase ‘to care for’ * * * be do now?’’ (71 FR at 69509) The employee’s scheduled work-week count read broadly to include both physical Department heard from all sides on this against the 12 weeks of leave. That and psychological care.’’ H.R. Rep. No. issue. The Unum Group stated, position is supported by the plain 103–8, at 36 (1993); S. Rep. No. 103–3, ‘‘Changing this process could add language of the FMLA, which provides at 24 (1993). The Department intends to difficulty to the already complex for 12 weeks of unpaid leave, not 12 retain the psychological care language method of calculating FMLA leave weeks of leave plus all holidays falling and to make clear that employers cannot entitlements.’’ The Pennsylvania therein.’’ The Commonwealth of impose an additional requirement upon Turnpike Commission agreed: ‘‘We feel Pennsylvania noted, ‘‘Because the law employees for FMLA leave purposes that scheduled holidays should references the absence period in terms that the employee needs to be the only continue to count against the 12 weeks of weeks, rather than days, and individual, or even family member, of FMLA. That block of time is covered considers calendar days rather than available to provide care to the qualified in the employee request—it is incidental work days, the practice of counting family member with a serious health that they would not have had to work holidays seems to be within the spirit of condition. due to a holiday. Because of differing the Act and regulations.’’ mstockstill on PROD1PC66 with PROPOSALS2 holiday eligibility for different Upon review of the comments Section 825.125 (Definition of Health employee groups (i.e. mgmt/union), it received to the record, the Department Care Provider) would greatly complicate the believes it may lack the authority to Current § 825.118 is renumbered as calculation of eligible days if holidays change this regulation to not count § 825.125 in the proposed rule to reflect were excluded. It would be more time against the FMLA entitlement holidays organizational changes. In its comments consuming for an FMLA administrator that fall within weeks-long blocks of to the RFI, the American Academy of to calculate the amount of time/days an FMLA leave. The statute grants VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7892 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules employees ‘‘12 workweeks of leave’’ being required to report to work on the § 825.203 is proposed to be titled which the Department has interpreted to Friday holiday. ‘‘[d]efinition,’’ but no other changes are mean 12 weeks of the employee’s proposed. Section 825.201 (Leave To Care for a normal work schedule. See 60 FR at Language from current paragraph (b) Parent) 2203. (‘‘The statute uses the ‘workweek’ of § 825.203 governing the use of as the basis for the leave entitlement, Current § 825.201 on leave for the intermittent or reduced schedule leave and an employee’s normal ‘workweek’ birth or placement for adoption or foster after the birth, adoption, or foster care prior to the start of the FMLA leave is care of a child has been incorporated placement of a child has been moved to the controlling factor for determining into proposed §§ 825.120 and 825.121 proposed paragraph (c), titled ‘‘[b]irth or how much leave an employee uses discussed above. The current § 825.202 placement,’’ in proposed § 825.202, when switching to a reduced leave addresses how much leave a husband which also cross-references the birth schedule.’’) Holidays regularly occur and wife may take if they are employed and adoption/foster care placement during normal workweeks. Discounting by the same employer, in situations sections in proposed §§ 825.120 and the holidays that regularly fall within where an employee wants to be with a 825.121. those weekly blocks of leave could well healthy child following a birth or placement for adoption or foster care, or Proposed paragraph (b) now defines impermissibly extend an employee’s ‘‘medical necessity’’ and is so titled. It leave period beyond the statutory 12 to care for a parent with a serious health condition. The portions of current combines existing language from current normal workweeks of leave that the Act § 825.117 and illustrations from current permits. Moreover, the current rule is § 825.202 pertaining to leave for birth or placement of a child have been moved § 825.203(c). A cross-reference to clear and apparently working well. See, proposed § 825.306 also is proposed in e.g., Mellen v. Trustees of Boston to proposed §§ 825.120 and 825.121, respectively. The remainder of the paragraph (b), which explains what University, 504 F.3d 21, 25 (1st Cir. constitutes sufficient information on the 2007) (‘‘[The Department’s regulations section has been renumbered as § 825.201. Consistent with the current medical certification form. governing] [w]hether holidays are to be counted against intermittent leave taken regulatory provisions, proposed Current paragraph (d), which explains in an interval of a week or more * * * § 825.201 now highlights when leave how to count increments of leave taken, fit together naturally.’’). can be taken to care for a parent, as well has been moved to proposed § 825.205, as the statutory limitations on taking to be explained below. However, consistent with the such leave when a husband and wife discussion regarding § 825.205 below, work for the same employer. Section 825.203 (Scheduling of when an employee is taking leave in Intermittent or Reduced Schedule increments of less than one week, the Section 825.202 (Intermittent Leave or Leave) pertinent question for both overtime and Reduced Leave Schedule) holidays is whether the employee is Current § 825.117 discusses an Current § 825.203 explains that FMLA employee’s statutory obligation to required to be at work. If an employee leave can be taken in blocks or on an is not required to be at work because of schedule foreseeable intermittent or intermittent or reduced leave schedule a holiday on the day he or she requested reduced schedule leave for planned basis. Current paragraph (a) of this leave, then no leave would be charged medical treatment so as to not unduly section explains that FMLA leave can be to the employee’s FMLA entitlement. disrupt an employer’s operations. See taken intermittently or on a reduced Thus, the Department proposes 29 U.S.C. 2612(e)(2). The Department leave schedule due to a qualifying language in § 825.200(f) to clarify that, proposes to move this discussion to reason, and defines what constitutes if an employee needs less than a full proposed § 825.203 for organizational intermittent and reduced schedule week of FMLA leave, and a holiday falls purposes. The statute does not limit this leave. Current paragraph (b) explains within the partial week of leave, the obligation to intermittent or reduced that leave taken after the birth or hours that the employee does not work schedule leave, but rather applies it to placement for adoption or foster care of on the holiday cannot be counted all foreseeable leave for planned a healthy child may only be used against the employee’s FMLA leave medical treatment. Proposed intermittently or on a reduced leave entitlement if the employee would not § 825.302(e) (addressing employee schedule with the employer’s otherwise have been required to report notice requirements for foreseeable agreement. Current paragraph (c) for work on that day. If an employee leave) sets forth the requirement as to explains that leave may be taken on an needs a full week of leave in a week any foreseeable leave for planned intermittent or reduced leave schedule with a holiday, however, the hours the medical treatment. when medically necessary for planned employee does not work on the holiday and/or unanticipated medical treatment Proposed § 825.203 clarifies that an will count against the employee’s FMLA of a related serious health condition or employee who takes intermittent leave entitlement. Accordingly, for an for recovery therefrom, and to provide when medically necessary has a employee with a Monday through care or psychological comfort to an statutory obligation to make a Friday work week schedule, in a week immediate family member with a ‘‘reasonable effort’’ as opposed to an with a Friday holiday on which the serious health condition. Current ‘‘attempt’’ to schedule leave so as not to employee would not normally be paragraph (d) explains what limitations disrupt unduly the employer’s required to report, if the employee exist with regard to tracking increments operations. needs FMLA leave only for Wednesday of intermittent leave and states that The preamble accompanying current through Friday, the employee would use employers may limit leave increments § 825.203 also discussed whether mstockstill on PROD1PC66 with PROPOSALS2 only 2/5 of a week of FMLA leave to the shortest period of time that the overtime hours not worked may be because the employee is not required to employer’s payroll system uses to counted against an employee’s FMLA report for work on the holiday. account for absences or use of leave, entitlement. See 60 FR at 2202. This However, if the same employee needed provided it is one hour or less. issue is discussed in the preamble FMLA leave for Monday through Friday This section has been renumbered as below concerning proposed changes to of that week, the employee would use proposed § 825.202 for purposes of § 825.205, which addresses how to a full week of FMLA leave despite not organization. Current paragraph (a) from determine the amount of leave used. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7893 Section 825.204 (Transfer of an Section 825.205 (Increments of Leave for compromised, negatively affecting the Employee to an Alternative Position Intermittent or Reduced Schedule quality of service or, in hospital settings, During Intermittent Leave or Reduced Leave) actual patient care because of Schedule Leave) Current § 825.205 explains how to unscheduled intermittent leave.’’ Third, determine the amount of leave used as documented in the Department’s Current § 825.204 explains when an 2007 Report on the RFI comments, when an employee takes intermittent or employer may transfer an employee to ‘‘intermittent FMLA leave can have reduced schedule leave. Current an alternative position in order to paragraph (a) makes clear that ‘‘only the significant impacts on time-sensitive accommodate intermittent leave or a amount of leave actually taken may be business models. In many situations, the reduced leave schedule. The counted toward the 12 weeks of leave’’ absence of just a few employees can Department proposes no substantive to which an employee is entitled. have a significant impact.’’ 72 FR at changes to this section, but proposes to Current paragraph (b) explains how to 35632; see generally 72 FR 35632–35638 add subheadings for clarity. calculate the use of intermittent or (discussing impacts of unscheduled Specifically, proposed paragraph (a) is reduced schedule leave when an intermittent leave on certain time- titled ‘‘transfer or reassignment,’’ employee works part-time or variable sensitive industries). For example, the proposed paragraph (b) is titled hours. Current paragraph (c) explains City of New York stated that when its ‘‘compliance,’’ proposed paragraph (c) is how to calculate leave when an 911 operators do not show up for work titled ‘‘equivalent pay and benefits,’’ employee’s permanent schedule due to a chronic FMLA condition, the proposed paragraph (d) is titled changes and current paragraph (d) remaining employees must work longer ‘‘employer limitations,’’ and proposed explains how to calculate leave when an to maintain appropriate staffing and paragraph (e) is titled ‘‘reinstatement of employee’s schedule varies from week response levels: ‘‘The number of to week. overtime hours being worked leads to employee.’’ Other than editorial The Department proposes to add overtired people making critical life and changes, the Department proposes no language from current § 825.203(d), death decisions in an emergency driven other changes to this section. The environment.’’ As a result of all these Department asked no questions about which explains how to count increments of intermittent FMLA leave, factors, many employers suggested the transfer in its RFI but received a number Department allow employers to require of comments criticizing the current to paragraph (a) of this section, titled ‘‘Minimum increment.’’ Current that intermittent leave be taken in regulations particularly as regards greater increments (e.g., two or four paragraphs (b) through (d) of § 825.205 employees who have a recurring need hour blocks or one day or one week have been renumbered as for unscheduled intermittent leave. The blocks). § 825.205(b)(1), (2), and (3) for purposes full range of comments is discussed in of clarity, but no changes have been Conversely, a number of commenters Chapter VIII of the Report on the RFI made to the text of those sections. defended the current rule on minimum comments (see 72 FR at 35608). Some Paragraph (b) is proposed to be titled increments of leave. The Legal Aid commenters saw no basis to ‘‘[c]alculation of leave.’’ Society’s Employment Law Center asked differentiate between foreseeable and The Department received comments the Department to ‘‘please be mindful of unforeseeable need for leave in the expressing concerns about the size of the employee who, in an ideal world, context of this provision. ‘‘We do not increments of intermittent leave that would not suffer from such devastating see any basis for distinguishing between may be taken. No issue received more illnesses that wreck havoc on their own foreseeable vs. unforeseeable leaves for substantive commentary to the RFI than lives. Employees, too, struggle with purposes of such temporary transfers.’’ employee use of unscheduled chronic and episodic illnesses. The See comments by United Parcel Service, intermittent leave. Employers identified FMLA was specifically designed to Inc. Similarly, The Southern Company a number of problems with current provide leave in these instances.’’ The stated: § 825.203(d), which permits FMLA National Partnership for Women & leave to be taken in increments as small Families noted its strong support for the [Section 825.204 provides n]o similar as the employer’s payroll system will current regulations and specifically option * * * for employers to transfer or capture. These difficulties include basic urged the Department to resist making otherwise alter the duties of an employee who needs unscheduled or unforeseeable administrative problems. Several any changes in the minimum increment intermittent leave. Even if the employee’s commenters, including a supervisor at of leave that an employee could take: unscheduled intermittent absences may International Auto Processing, noted ‘‘Intermittent leave was designed to help result in substantial safety risks to the public that their payroll systems capture time employers by ensuring that workers are or co-employees, or could cause serious down to one minute, ‘‘Since our clocks not absent any longer than necessary. disruption to the operations of the employer, track time to the minute, I find myself While some employers now argue for such employee’s duties or position cannot be spending an unusual amount of time half-day increments of intermittent altered as a result of the unscheduled determining how many hours and leave, enforcing a four-hour leave intermittent leave. minutes the employee has used by using requirement would mean forcing his weekly time sheet. * * * This is a employees to miss more work than The Edison Electric Institute echoed the nightmare and I sometimes feel like the necessary, which is contrary to the same concern that under the current only thing I accomplish during the day statute and harmful to both employees regulatory scheme ‘‘[e]mployers do not is tracking intermittent leave.’’ Second, and employers.’’ The organization 9to5, have [the option] to transfer or employers also stated that the current National Association of Working mstockstill on PROD1PC66 with PROPOSALS2 otherwise alter the duties of an rule does not allow them to adequately Women also stated it ‘‘opposes any employee who needs unscheduled or staff their businesses, as it is very regulatory change that would impose unforeseeable intermittent leave.’’ The difficult to find replacement employees additional obstacles or requirements on Department requests further comments to cover absences that are less than one workers seeking to utilize intermittent on whether this regulatory provision half-day. The Detroit Medical Center FMLA leave. Currently, workers may should be changed and if so how. commented that, ‘‘Scheduling of take just the time needed for treatments, sufficient staff is regularly minimizing their own loss of pay and VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7894 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules the strain on employers and co- of America, Inc. and the Airline whether the employee would be workers.’’ Industrial Relations Conference required to use some form of leave to The Department understands the commented, cover those hours in a non-FMLA burdens imposed on employers by In this industry, a six-minute absence can situation. (60 FR at 2202) The preamble employees using unscheduled result in a flight attendant avoiding a three- also distinguished between mandatory intermittent leave as demonstrated by day trip to which she or he was assigned. overtime, voluntary overtime, and the comments received in response to Most airlines ‘‘bank’’ flights or schedule overtime on an ‘‘as needed’’ basis. The the RFI. At the same time, the multiple flights to arrive and depart in a Department’s enforcement experience Department is aware of the importance concentrated time frame, followed by a and responses to the RFI lead us to of such leave to employees with serious relative lull in activity. An employee could use intermittent FMLA leave to miss the believe that the distinction between health conditions. The Department is these three types of overtime, and the heavy flight bank, causing the carrier to not proposing to increase the minimum either operate short-handed or to call in a focus on whether leave would normally increment of intermittent leave at this replacement worker who likely must be paid need to be used to cover the hours not time. a shift premium, then come in to work the worked, has caused confusion. See The Department also seeks comment rest of the shift during which no flights may Wage and Hour Opinion Letter FMLA– as to whether, in situations in which arrive or depart, leaving the carrier now over- 107 (July 19, 1999) (‘‘If overtime hours physical impossibility prevents an staffed. are on an ‘as needed’ basis and are not employee using intermittent leave or The Regional Transportation District part of the employee’s usual or normal working a reduced leave schedule from in Denver, Colorado commented that workweek, or is voluntary, such hours commencing work mid-way through a ‘‘due to the particular needs of the would neither be counted to calculate shift, an exception should be made to industry, [there is] difficulty scheduling the amount of the employee’s FMLA allow the entire shift to be designated as intermittent leave for bus and light rail leave entitlement nor charged to the FMLA leave and counted against the operators, particularly if the operator employee’s FMLA leave entitlement.’’) employee’s FMLA entitlement. For must be relieved in the middle of the (emphasis in original). The confusion example, if a railroad conductor is run. [We] would like clear guidance on has been compounded by language in required to conduct a train from one the limitations it can place on an the preamble discussing § 825.205 of the point to another, the employee cannot operator to avoid scheduling current rule, which states ‘‘[a]n begin or stop work in the middle of the intermittent leave during a run.’’ This employee’s FMLA leave entitlement trip. Similarly, an employee who works situation is also prevalent in the rail may only be reduced for time which the in a lab sealed at the start of the day industry. The Association of American employee would otherwise be required cannot enter the lab later or the work Railroads commented, to report for duty, but for the taking of performed would be lost. The the leave.’’ (60 FR at 2203) Department has addressed this scenario Railroads typically establish ‘‘pools’’ (and ‘‘extra boards’’) comprised of train service The Department recognizes that in prior guidance. See Wage and Hour employees who report to duty when called Opinion Letter FMLA–42 (Aug. 23, overtime by its nature is generally by the employer, based on train operations. assigned on an as needed basis, and the 1994). In that 1994 Opinion Letter, the When called in, the worker leaves on the Department stated that when a flight train and must be gone for the entire trip; fact that it is assigned as needed has no attendant needed only three hours of given the nature of the work, the worker bearing on whether the employee has intermittent leave to care for her sick cannot work a ‘‘reduced schedule leave’’ or volunteered to work or is being required mother every Friday, preventing her intermittently for less than the entire trip. If to work the additional hours. The from working a Friday flight assignment the employee cannot work the entire trip, he Department believes the correct focus during a two month period, only the or she must miss the entire trip no matter should be not on whether the employee how much FMLA leave the worker needs. would normally be required to use leave three hours of leave needed each week could be charged to FMLA, and the Instead of proposing specific to cover the overtime hours, but on remainder of the time may be charged language, the Department seeks whether the employee would otherwise to some other form of paid or unpaid comment from the public on this issue be required to report for duty but for the leave. Upon further review, the and what if any language should be taking of FMLA leave. If the employee Department questions whether such an included in the final rule to address would be required to work the overtime interpretation is appropriate. While the these situations within the statutory hours were it not for being entitled to Department’s interpretation allows requirements. FMLA leave, then the hours the employees to preserve their FMLA The Department also wishes to clarify employee would have been required to entitlement, it may expose them to the application of FMLA leave to (but did not) work may be counted disciplinary action based on the overtime hours. An employee may be against the employee’s FMLA additional hours of unprotected leave limited to working eight hours per day entitlement. Where, in such a case, the that they must take. The Department or 40 hours per week due to a serious employee works a part-time or reduced seeks comment on whether it is more health condition and, under FMLA, has leave schedule, the employee’s leave appropriate to extend FMLA protection the right not to work overtime hours usage in any given week is to the entire period of leave taken from without being subject to any discipline. proportionate to the employee’s the employee’s assigned schedule in It is a reduced leave schedule. scheduled hours in the week in which this situation. Employers continue to have questions, the leave is used. For example, if an A number of commenters to the however, as to whether and how the employee has a certified serious health record addressed this phenomenon. overtime hours not worked due to the condition limiting the employee’s work mstockstill on PROD1PC66 with PROPOSALS2 Southwest Airlines stated, ‘‘When serious health condition may be hours to 40 per week and that employee * * * employees are absent, flights do counted against the employee’s FMLA is scheduled for 48 hours in a week, the not take off without another employee entitlement. The preamble employee would take 8 hours of FMLA taking their place.’’ Therefore, even a accompanying current § 825.203 stated protected leave that week. This few minutes of FMLA leave can result that whether overtime hours not worked translates into 8/48ths or 1/6th of a in the employee missing an entire flight. can be counted against the employee’s week of FMLA leave. For ease of Similarly, the Air Transport Association FMLA entitlement is determined by tracking, an employer may convert these VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7895 fractions to their hourly equivalent so leave program applies less stringent In the current regulations, the long as the conversion equitably reflects procedural standards for taking leave Department interpreted the clarifying the employee’s total normally scheduled than the FMLA. Current paragraph (i) clause regarding paid sick and medical hours. addresses the interaction between the leave in section 102(d)(2)(B) of the Act Where the employee’s schedule so use of compensatory time off in the as indicating congressional intent to varies from week to week such that no public sector and the use of FMLA allow employers to enforce their normal ‘‘normal’’ schedule or pattern can be leave. rules regarding the use of paid medical discerned, a weekly average of the hours The Department’s enforcement and sick leave when such leave was worked for the 12 weeks prior to the experience and responses to the RFI substituted for unpaid FMLA leave. The start of the FMLA leave is used to lead us to believe that current § 825.207 Department further interpreted the lack calculate the employee’s normal may be confusing to employees and of a similar clarifying clause in workweek as in proposed employers. For example, the differing paragraph (A) of that section of the § 825.205(b)(3) (current § 825.205(d)). In treatment of ‘‘medical leave,’’ ‘‘family statute to indicate that employers were all instances, the employer must select leave,’’ ‘‘sick leave,’’ and ‘‘vacation not permitted to enforce normal rules employees for mandatory overtime in a leave’’ makes it difficult both for regarding the use of paid vacation leave manner that does not discriminate employers to administer these or personal leave when such leave was against workers who need to use FMLA provisions and for employees to know substituted for unpaid FMLA leave. See leave (see § 825.220). The Department is what their rights and obligations are in preamble to current FMLA rule, 60 FR not proposing any regulatory changes substituting paid leave for unpaid at 2205 (‘‘There are no limitations, related to the overtime issue, which is FMLA leave. Additionally, both however, on the employee’s right to not addressed in the text of the current employees and employers have elect to substitute accrued paid vacation regulations and is discussed only in the expressed confusion as to the or personal leave for qualifying FMLA 1995 preamble to the current rule (see application of the employer’s normal leave, and the employer may not limit 60 FR at 2202). leave rules when paid leave is the timing during the year in which substituted for unpaid FMLA leave. paid vacation may be substituted for Section 825.207 (Substitution of Paid In response to the RFI, many Leave) FMLA-qualifying absences or impose employees and employee advocacy other limitations.’’). Current § 825.207 addresses the groups commented that the ability to interaction between unpaid FMLA leave substitute paid leave for any portion of The Department’s interpretation of the and employer provided paid leave. an otherwise unpaid FMLA leave in substitution of paid leave provision has Current paragraph (a) repeats the many cases was essential to the evolved over time, as has been reflected statutory language that paid leave may employee’s ability to take leave at all. in the Department’s opinion letters on be substituted for unpaid FMLA leave. Several employers and employer the subject. For example, while the Current paragraph (b) addresses groups, however, commented that the preamble to the current regulations substitution of accrued paid vacation, substitution provisions of the specifically stated that employers could personal, or family leave for unpaid regulations require that employees not restrict the time during the year in FMLA family leave for the birth or seeking to use accrued paid leave which an employee could substitute placement of a child for adoption or concurrently with FMLA leave be paid vacation leave for unpaid FMLA foster care or to care for a spouse, child treated more favorably than those who leave, the Department has clarified in or parent with a serious health use paid leave for other reasons. Still Opinion Letter FMLA–75 that where condition. Current paragraph (c) other employers stated that the various vacation leave was accrued pursuant to addresses when accrued paid vacation, rules for substituting different types of a generally applied restriction on when personal, or medical/sick leave can run paid leave have added to the costs of it could be used, an employee did not concurrently with the employee’s administering FMLA leave and have the right to substitute vacation unpaid FMLA leave for the employee’s discouraged the employers from leave for unpaid FMLA leave at any own serious health condition or when adopting or retaining leave policies that other time. Wage and Hour Opinion the employee is needed to care for a are more generous than required by the Letter FMLA–75 (Nov. 14, 1995) spouse, child or parent with a serious FMLA. (‘‘[W]here an employee may only use health condition. Current paragraph (d) Section 102(d)(2) of the FMLA leave under the employer’s plan during addresses the interaction between a governs the substitution of paid leave a specified period when the plant is disability plan and unpaid FMLA leave, for unpaid FMLA leave. 29 U.S.C. shut down, the employee has not fully as well as the interaction of unpaid 2612(d)(2). Paragraph (A) of that section vested in the right to substitute that FMLA leave with a workers’ of the statute addresses substitution of leave for purposes of FMLA.’’). In two compensation absence. Current ‘‘accrued paid vacation leave, personal other opinion letters on the substitution paragraph (e) addresses the use of paid leave, or family leave’’ for unpaid FMLA of paid vacation leave, the Department vacation or personal leave when taking leave for the birth or placement of a has recognized that both an employee’s FMLA leave. Current paragraph (f) child, or to care for a covered family right to use paid leave and an confirms that if paid leave is not member. Paragraph (B) of that section employer’s right to require substitution substituted at the option of the addresses substitution of ‘‘accrued paid are subject to the policies pursuant to employer or the employee, the vacation leave, personal leave, or which the leave was accrued. See Wage employee remains entitled to all medical or sick leave’’ for unpaid FMLA and Hour Opinion Letter FMLA–81 accrued paid leave. Current paragraph leave to care for a covered family (June 18, 1996) (‘‘[T]he Department mstockstill on PROD1PC66 with PROPOSALS2 (g) explains that paid leave used for member or for the employee’s own interprets these provisions to mean that purposes not covered by the FMLA serious health condition. Language in the employee has both earned the cannot count against the employee’s paragraph (B) clarifies that the FMLA [vacation] leave and is able to use that FMLA entitlement. Current paragraph does not require employers to provide leave during the FMLA leave period.’’); (h) states that an employer cannot apply paid sick or medical leave in any Wage and Hour Opinion Letter FMLA– the FMLA requirements if paid leave is situation in which they would not 61 (May 12, 1995) (‘‘The Department substituted and the employer’s paid normally do so. interprets these provisions to mean that VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7896 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules the employee has both earned the leave requirements under the Act or any voluntarily waive the application of and is able to use that leave during the amendment made by it. See 29 U.S.C. such restrictions on an employee’s use FMLA period. * * * [I]n the particular 2653. Additionally, while the FMLA of paid leave, but they are not required situation that you describe, the prohibits discrimination against FMLA by the FMLA to do so. employer could not require the leave users, there is nothing in the Act The Department believes the employee to substitute [vacation] leave that requires employers to treat FMLA proposed language on the substitution that is not yet available to the employee users more favorably than other of paid leave for unpaid FMLA leave to use under the terms of the employer’s employees with regard to the provision also is more consistent with the trend leave plan.’’). of paid leave. Furthermore, while the toward employers providing employees On further consideration, the Act’s protections prohibit an employee with ‘‘paid time off’’ (PTO) policies that Department now believes that the better from losing any accrued benefits as a do not distinguish the right to leave interpretation of paragraph (B) of result of taking FMLA leave, nothing in based on the reason (vacation versus section 102(d)(2) of the Act is that it that section entitles an FMLA leave- illness) but instead give employees a simply clarifies the limits on the taker to any right or benefit other than pool of leave to use for whatever reason employer’s obligation to allow the that to which the employee would have they choose. PTO plans generally allow substitution of paid sick or medical been entitled had the employee not employees to take paid leave for any leave. For example, it clarifies that an taken the leave. See 29 U.S.C. 2614(a)(2) reason as long as the employer’s employer is not obligated to allow an and (3). procedures are satisfied. Under the employee to substitute paid sick leave To more consistently apply these current FMLA regulations, such PTO for unpaid FMLA leave when the principles, the Department proposes to policies were treated the same as paid employee is caring for a child with a combine current paragraphs (a), (b), and vacation or personal leave and serious health condition if the (c) of § 825.207 into one paragraph (a), employers were therefore not allowed to employer’s normal sick leave rules which now clearly states that the terms apply their normal leave rules to the allow such paid leave to be used only and conditions of an employer’s paid substitution of such leave for unpaid for the employee’s own illness. leave policies apply and must be FMLA leave. As several commenters to However, as the language in both followed by the employee in order to the RFI noted, this interpretation sections of the statute makes clear, in all substitute any form of accrued paid prohibited an employer who chose to cases the substitution of paid leave leave—including, for example, paid use a PTO leave plan from applying its pursuant to section 102(d)(2) of the Act vacation, personal leave, family leave, existing policies for taking leave when is limited to the substitution of accrued ‘‘paid time off’’ (PTO), or sick leave. the leave was being used for sick or paid leave. See FMLA’s legislative Additionally, the Department proposes family leave purposes. history: ‘‘Section 102(d) assures that an to clarify what is meant in § 825.207 by In addition to the language proposed employee is entitled to the benefits of the term ‘‘substitution,’’ which normally in this section as described above, the applicable paid leave, plus any means replacing one thing with another, Department also believes certain remaining leave time made available by but does not comfortably bear that safeguards for employees are necessary. the act on an unpaid basis.’’ H.R. Rep. meaning in the context of the FMLA. Therefore, the Department also proposes No. 103–8, Pt. 1, at 38 (1993); see also Thus, the Department proposes to add to add language clarifying that, when S. Rep. No. 103–3, at 27–28 (1993). language clarifying that for FMLA providing notice of eligibility for FMLA Additionally, as several commenters purposes ‘‘substitution’’ means that the leave to an employee pursuant to to the RFI noted, by prohibiting unpaid FMLA leave and the paid leave proposed § 825.300, an employer must employers from applying their normal provided by an employer run make the employee aware of any leave policies to employees substituting concurrently. This is standard practice additional requirements for the use of paid vacation and personal leave for under the current regulations and is not paid leave and must inform the unpaid FMLA leave, the current a change in enforcement policy. employee that he/she remains entitled regulations may have provided an Just as employees do not have the to unpaid FMLA leave even if he/she incentive to employers to scale back on right to use leave which has not yet chooses not to meet the terms and their provision of vacation and personal accrued, an employee’s ability to use conditions of the employer’s paid leave leave because they are unable to control accrued leave is also limited by the policies (such as using leave only in full its usage. Moreover, as other leave policies pursuant to which the day increments or completing a specific commenters pointed out, by allowing ‘‘applicable’’ leave is accrued (i.e., leave request form). The Department employees to substitute such paid leave available for use pursuant to the non- invites comment as to whether this for unpaid FMLA leave without meeting discriminatory terms and conditions of proposal appropriately implements their employer’s normal leave rules, the the employer’s policy). Therefore, for Congressional intent regarding regulations have placed employees example, if an employer’s paid vacation substitution of paid leave. See 29 U.S.C. using FMLA leave in a more favored leave policy prohibits the use of 2612(d)(2). position regarding the use of employer vacation leave in less than full day Language from current provided paid leave than their increments, employees would have no § 825.207(d)(1), explaining that coworkers taking vacation or personal right to use less than a full day of employers may apply more stringent leave for non-FMLA reasons. vacation leave regardless of whether the requirements for receipt of disability The Department agrees that an vacation leave was being substituted for payments, has been moved to new unintended consequence of the current unpaid FMLA leave. Similarly, if an proposed § 825.306(c). The remaining regulations on substitution has been to employer’s paid personal leave policy language from current § 825.207(d)(1), mstockstill on PROD1PC66 with PROPOSALS2 create tension with the plain language of requires two days notice for the use of making clear that substitution of paid the FMLA, which states that nothing in personal leave, an employee seeking to leave does not apply where the the Act or any other amendments made substitute personal leave for unpaid employee is receiving paid disability by it shall be construed to discourage FMLA leave would need to meet the leave, is retained in the proposed employers from adopting or retaining two-day notice requirement prior to section. However, the Department also leave policies more generous than any receiving the paid personal leave. wishes to clarify that while the policies that comply with the Employers, of course, have the right to substitution provisions are not VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7897 applicable when an employee receives to the employee, by minimizing the The Department received a number of disability benefits while taking FMLA financial impact of unpaid leave, and to comments regarding this section. For leave, if the employer and employee the employer, by allowing the two example, the Disability Management agree to have paid leave also run benefits to run concurrently. Employer Coalition requested that the concurrently with FMLA leave to Furthermore, the Department believes Department better explain how supplement disability benefits, such as the proposed revision is consistent with employers should respond to an in the case where an employee only the U.S. Supreme Court’s decision in employee’s failure to pay his or her receives two-thirds of his or her salary Christensen v. Harris County, 529 U.S. share of health insurance premiums from the disability plan, such an 576 (2000), in which the Court found while on FMLA leave. In particular, the agreement is permitted under FMLA to that public employers always have the Coalition stated that while many the degree that it is allowable under right to cash out a public sector employers pay the employee’s share of applicable State law. This is in keeping employee’s compensatory time or health insurance premiums because of with the statutory mandate not to require the employee to use the time. concerns regarding continuation of discourage more generous leave policies coverage, employers have concerns Section 825.208 (Reserved) voluntarily provided by employers. about the cost of doing so. Other The language from current Current § 825.208 has been commenters raised similar concerns, § 825.207(d)(2), addressing the renumbered as proposed § 825.301, to especially when individuals do not interaction between workers’ be discussed below. The section is return to work after their FMLA leave compensation, light duty and the therefore reserved to avoid extensive has expired, and requested clarification FMLA, has been moved to proposed renumbering of other sections. regarding the timing of termination of § 825.207(e). Additional discussion of Section 825.210 (Employee Payment of an individual’s coverage for failure to light duty also can be found in Group Health Benefit Premiums) make payment. § 825.220(c) of the proposed rule as The Department proposes to add discussed below. Current § 825.207(e), This section addresses an employee’s language to current paragraph (c) of this which states that no limitations may be obligation to pay his or her share of section to make clear that if an employer placed by the employer on substitution group health plan premiums while on allows an employee’s health insurance of paid vacation or personal leave, FMLA leave. The Department received to lapse due to the employee’s failure to including leave earned or accrued under few comments regarding this specific pay his or her share of the premium as PTO plans, has been deleted in light of section in response to the RFI. Some set forth in the regulations, the the discussion of paragraph (a) above. commenters stated that it was difficult employer still has a duty to reinstate the Current § 825.207(h), which states that to obtain payment for an employee’s employee’s health insurance when the when an employer’s procedural share of health benefit premiums during employee returns to work and can be requirements for taking paid leave are the period the employee is on FMLA liable for harm suffered by the employee less stringent than the requirements of leave. Employer representatives also if it fails to do so. Alternatives exist in the FMLA, employees cannot be expressed concern about their ability to most cases to terminating an employee’s required to comply with higher FMLA recoup their portion of health insurance health insurance when premium standards, has been deleted because it premiums when an employee decides payments are not made. For instance, an does not properly implement section not to return from FMLA leave. Other employer could make payroll 103 of the FMLA, which states that commenters requested that the deductions to recoup such payments employers may require sufficient FMLA Department clarify an employer’s when an employee returns to work certification in support of any request responsibility to maintain health without violating the FMLA. To the for FMLA leave for either the insurance coverage when an employee extent recovery is allowed, the employer employee’s own serious health on FMLA leave fails to pay his or her may recover the costs through condition or a covered family member’s portion of the premiums. deduction from any sums due to the serious health condition. It also is in The Department is proposing to revise employee (e.g., unpaid wages, vacation conflict with section 102(e) of the paragraph (f) of this section by deleting pay, profit sharing, etc.), provided such FMLA, which requires employees to the word ‘‘unpaid.’’ As noted in deductions do not otherwise violate provide 30 days notice for foreseeable § 825.207(e), an individual who is applicable Federal or State wage leave whenever possible for the birth or simultaneously taking FMLA leave and payment or other laws. See § 825.213 of placement of a child or for planned receiving payments as a result of a the current and proposed regulations. medical treatment. Current § 825.207(f) workers’ compensation injury is not on Section 825.213 (Employer Recovery of and (g) remain unchanged but have been unpaid leave. No further changes are Benefit Costs) redesignated as paragraphs (b) and (c) of proposed for this section. For further this section. discussion of an employer’s This section explains what process an Finally, the Department proposes to responsibility to maintain the health employer must follow to recoup revise current § 825.207(i) to allow the insurance coverage of an employee on insurance premiums from an employee use of compensatory time accrued by FMLA leave, see proposed § 825.212 as when the employee does not return public agency employees under the Fair discussed below. from leave in certain circumstances. A Labor Standards Act (FLSA) to run few employer representatives responded concurrently with unpaid FMLA leave Section 825.212 (Employee Failure To to the Department’s RFI with concerns when leave is taken for an FMLA- Make Health Premium Payments) about this process, with some suggesting qualifying reason. Although the Current § 825.212 explains that an that employees on FMLA leave be mstockstill on PROD1PC66 with PROPOSALS2 Department did not receive many employer may terminate an employee’s provided coverage under the comments dealing specifically with the health insurance coverage while the continuation coverage requirements of issue of compensatory time in response employee is on FMLA leave if the Title X of the Consolidated Omnibus to the RFI, those received indicate a employee fails to pay the employee’s Budget Reconciliation Act of 1986, as general agreement that the substitution share of the premiums, the grace period amended, 29 U.S.C. 1161–1168 of compensatory time for otherwise has expired, and the employer provides (COBRA). These commenters were unpaid FMLA would be beneficial both sufficient notification to the employee. particularly concerned that the current VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7898 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules system requires that employers provide having to worry whether their job was This issue has also been the subject of health insurance, and pay the majority secure, was critical to their being able to many requests for clarification to the of the premium, for individuals on manage their own serious health Department over the years. Employers, FMLA leave who have no intention of condition or caregiving responsibilities. and their representatives, almost returning to work once their leave The National Partnership for Women & uniformly stated that the current entitlement expires. The Department Families stated that the job restoration regulatory distinction between an understands these concerns, but cannot provisions of FMLA ‘‘promote[ ] greater attendance bonus and a production adopt the suggested change under workforce continuity and stability by bonus has a ‘‘chilling effect on employer current law. helping employees retain their jobs incentive plans.’’ These commenters The Department proposes to move when an emergency strikes.’’ argued that the current regulatory language from existing § 825.310(h), The Department believes that this requirements are illogical and unfair, which deals with certification regulatory provision meets the intent of and have caused many companies to requirements when an employee fails to Congress in this area, by providing modify, or eliminate altogether, perfect return to work due to the continuation, employees with job protection while attendance reward programs. Other recurrence, or onset of a serious health allowing employers some flexibility to employers stated that they would not condition, to this section, as it believes return the employee to the same or an consider implementing a perfect it is more appropriately placed here equivalent position, and that no changes attendance program because, by with other issues involving repayment are appropriate under current law. requiring that employers provide of health premiums. This language The Department proposes minor awards to individuals with less than states that the cost of the certification an clarifications along with organizational perfect attendance, these commenters employee must obtain to avoid the changes to this section. First, the believe that the Department has placed repayment of health insurance Department proposes to add a heading employees taking FMLA leave in a premiums when the employee does not titled ‘‘[g]eneral rule,’’ emphasizing that better position than those who take no return from leave must be borne by the the section sets forth the general rule on leave. Many employees also commented employee, as well as any travel costs. reinstatement obligations under the on the perceived unfairness of providing FMLA. Proposed § 825.214 retains the a ‘‘perfect attendance’’ award to Section 825.214 (Employee Right to language from current § 825.214(a) Reinstatement) individuals who had been absent from without change. Language from current work for up to 12 weeks of the eligible Current § 825.214 addresses an paragraph (b) on limitations on time period. Several employer employee’s reinstatement rights upon reinstatement has been moved to representatives suggested that the returning to work. This section also proposed § 825.216(c) and combined Department permit employers to makes clear that even if an employee is with language from current § 825.216(d) administer attendance incentives and unable to return to work as a result of on concurrent workers’ compensation reward perfect attendance without the serious health condition and would absences during FMLA leave, for regard to the reason for an absence, thus not have FMLA reinstatement rights, the organizational and clarification allowing employers to treat all employee may have rights under the purposes. individuals absent for work in the same ADA. manner. In response to the Department’s RFI, Section 825.215 (Equivalent Position) Several employee organizations stated employers expressed concern about the Current § 825.215 defines what that the current regulatory scheme impact on their business operations of constitutes an ‘‘equivalent position’’ for appropriately recognizes that employees reinstating an individual to his or her purposes of reinstatement. Current should not be penalized for exercising same position. Many of these paragraph (a) explains that an their FMLA rights. These commenters commenters were particularly equivalent position is one ‘‘virtually believed that permitting employers to concerned about the interplay between identical’’ to the employee’s former exclude employees on FMLA leave from the use of intermittent leave by an position. Current paragraph (b) instructs award programs would discourage employee and that employee’s right to employers to give an employee a employees from taking FMLA leave. reinstatement. These commenters ‘‘reasonable opportunity’’ to fulfill any The Department proposes several argued that, in many cases, such conditions the employee needs to fulfill, changes to this section. No substantive individuals should not be entitled to job such as attending a course, if the changes have been made to proposed restoration under current § 825.214(b) employee is no longer qualified for his paragraph (a), titled ‘‘[e]quivalent because they are unable to perform an or her position as a result of an FMLA position,’’ proposed paragraph (b), titled essential function of their position, such absence. Current paragraph (c) defines ‘‘[c]onditions to qualify,’’ or current as to work overtime or meet regular and equivalent pay, including when an paragraph (c)(1). The Department reliable attendance requirements. employee is entitled to pay increases proposes changes to current paragraph Commenters in certain industries, such and certain types of bonuses when (c)(2) regarding bonuses to allow an as those where individuals are trained taking FMLA leave. Current paragraph employer to disqualify an employee to work with particular consumers, and (d) defines what constitutes ‘‘equivalent from a bonus or award predicated on the smaller employers stated that returning benefits.’’ Current paragraph (e) defines achievement of a goal where the an individual to his or her same what constitutes ‘‘equivalent terms and employee fails to achieve that goal as a position can be difficult, even when the conditions’’ of employment, and current result of an FMLA absence. Of course, individual takes block leave. These paragraph (f) confirms that the an employer could not disqualify only employers often have to hire an definition of ‘‘equivalency’’ does not those individuals on FMLA-qualified mstockstill on PROD1PC66 with PROPOSALS2 individual to replace the employee extend to de minimis or intangible, leave and allow other employees on taking FMLA leave, and are uncertain unmeasurable aspects of the job. other forms of non-FMLA leave to how to manage the employee’s return to The Department received extensive receive such an award without violating work and their obligation to provide feedback regarding the impact of the the FMLA’s non-discrimination reinstatement. On the other hand, requirements of this regulatory section requirement. numerous employees stated that the on employer incentive programs, The Department proposes this change ability to take FMLA leave, without especially perfect attendance awards. because the wording of current VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7899 § 825.215(c)(2) on bonuses is confusing FMLA leave to receive these awards. take intermittent leave for chronic and because of the unfairness perceived The Department did not intend, nor serious health conditions. For example, by both employees and employers as a does the Act itself intend, that the FNG Human Resources argued that an result of allowing an employee to obtain FMLA regulations result in a reduction employer should have the right to a perfect attendance award when the of benefits to all employees. replace employees who ‘‘consistently employee has been absent on FMLA Therefore, the Department proposes to use up to 11+ weeks of FMLA for year leave. The confusion stems from eliminate the existing language of after year.’’ One commenter requested language in the current section, which current § 825.215(c)(2) and replace it that the Department more clearly define distinguishes between bonuses for job with the following: the employer’s obligations should a performance, such as those based on Equivalent pay includes any bonus or layoff occur. A law firm asked that the production goals, versus bonuses based payment, whether it is discretionary or non- Department clarify the interaction on the absence of certain events discretionary, made to employees consistent between § 825.216(a), which ‘‘suggests occurring, and includes as examples with the provisions of paragraph (c)(1) of this that a seniority provision in a [collective both bonuses for perfect attendance and section. However, if a bonus or other bargaining agreement] would not yield for working safely with no accidents. payment is based on the achievement of a to the FMLA’’, and § 825.700, which, Moreover, the language of the current specified goal such as hours worked, the commenter indicated, suggests the products sold or perfect attendance, and the regulation incorrectly groups together employee has not met the goal due to FMLA opposite result. bonuses for perfect attendance and leave, then the payment may be denied, The Department is not proposing any safety as not requiring performance by unless otherwise paid to employees on an changes to this section to address the the employee but rather the absence of equivalent non-FMLA leave status. For use of intermittent leave for chronic occurrences. This defies the plain example, if an employee who used paid serious health conditions. Likewise, the meaning of attendance. Employers are vacation leave for a non-FMLA purpose Department believes the current uncertain whether their employee would receive the payment, then the regulatory language in this section and incentive plans will be in violation of employee who used vacation leave for an current § 825.700 adequately explains FMLA-protected purpose also must receive the interaction between the job the current regulation. See Wage and the payment. Hour Opinion Letter FMLA–110 (Sept. restoration provisions of FMLA and 11, 2000) (Employer inquiry regarding a The Department believes this proposed collectively-bargained seniority plan the employer believed to be a language better reflects the requirements provisions. ‘‘production incentive’’ plan, which the of the statutory scheme. Minor changes have been made to this Department found analogous to a perfect The Department has re-titled section for purposes of greater clarity. attendance program). paragraphs (e) and (f) in the proposed The only change the Department Section 825.215(c)(2), containing this rule. The final sentence of the current proposes to current paragraph (a)(1) is to confusing distinction between a bonus section, which reminds employers that incorporate the last sentence of for perfect attendance or safety versus putting an employee in a job slated for § 825.215(f) which, as discussed above, meeting or exceeding production goals, lay-off when the employee’s original states that restoration to a job slated for also seems to conflict with the language position would not be eliminated would lay-off would not meet the requirements in current § 825.215(d)(5), which states not meet the definition of an equivalent of an equivalent position. This is that an employee is ‘‘entitled to changes position, has been moved to proposed proposed for organizational and in benefits plans, except those which § 825.216(a)(1) where related issues are clarification purposes, but no may be dependent upon seniority or discussed, for organizational and substantive change is intended. accrual during the leave period, clarification purposes. Similarly, the Department proposes to immediately upon return from leave or re-order current paragraph (b) as Section 825.216 (Limitations on an to the same extent they would have paragraph (a)(3) for purposes of employee’s right to reinstatement) qualified if no leave had been taken. For organizational structure and clarity. The example, if the benefit plan is Current § 825.216 addresses the Department proposes a new paragraph predicated on a pre-established number limitations on an employee’s right to (c) to address an employer’s obligations of hours worked each year and the reinstatement. Specifically, current when an employee cannot return to employee does not have sufficient hours paragraph (a)(1) addresses what work after FMLA leave is exhausted as a result of taking unpaid FMLA leave, happens when an employee is laid off because the serious health condition the benefit is lost.’’ Current or the employee’s shift is eliminated continues. This section combines § 825.215(d)(5) is more consistent with while the employee is on FMLA leave. language from current §§ 825.214(b) and 29 U.S.C. 2614(a)(3), which provides Current paragraph (b) addresses what 825.216(d), because both sections that nothing in that section shall be happens when an employee taking address limitations on reinstatement construed to entitle any restored FMLA leave was only hired for a when an employee has exhausted his or employee to—(A) the accrual of any specific term or project. Current her FMLA leave entitlement and is seniority or employment benefits during paragraph (c) addresses limitations on unable to perform the essential any period of leave; or (B) any right, reinstatement with regard to ‘‘key functions of his or her job, but no benefit, or position of employment other employees.’’ Current paragraph (d) substantive changes are intended. The than any right, benefit, or position to addresses rules governing the Department has not made any changes which the employee would have been interaction between FMLA leave and a to current paragraph (c) except to re- entitled had the employee not taken the workers’ compensation absence when designate it as paragraph (b). Current leave. the employee is unable to return to work § 825.312 (g) and (h), which address the mstockstill on PROD1PC66 with PROPOSALS2 The Department also is concerned at the end of the 12-week FMLA leave fraudulent use of FMLA leave and that the regulatory language in current period. outside employment during FMLA § 825.215(c)(2) provides the wrong The Department’s RFI generated a leave, respectively, and therefore also incentive to employers to eliminate handful of comments regarding this address limitations on reinstatement, perfect attendance awards because of section. Several of the comments have been renumbered as proposed the inequity perceived by coworkers of focused on the difficulty in providing § 825.216 (d) and (e) for organizational allowing employees who have taken job restoration rights to individuals who purposes. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7900 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules Sections 825.217 through 825.219 this section, and to clarify two other retains rights under FMLA to job restoration (Explanation of key employees and their provisions. to the same or an equivalent position held rights) First, the Department proposes new prior to the start of the leave for a cumulative language to current paragraph (b) that period of up to 12 workweeks. This Taken together, current §§ 825.217, sets forth the remedy for interfering ‘‘cumulative period’’ would be measured by 825.218 and 825.219 define the term the time designated as FMLA leave for the with an employee’s rights under the workers’ compensation leave of absence and ‘‘key employee’’; explain the meaning of FMLA. While this language also has the time employed in a light duty the phrase ‘‘substantial and grievous been included in proposed § 825.300, assignment. The period of time employed in economic injury’’ to the employer’s which deals specifically with employer a light duty assignment cannot count, operations; and provide an explanation notice obligations, and proposed however, against the 12 weeks of FMLA of the rights of a key employee. A § 825.301, which addresses what leave. handful of comments received in triggers an employer’s designation response to the Department’s RFI Wage and Hour Opinion Letter FMLA– obligations, the Department believes it 55 (Mar. 10, 1995). requested that the Department allow is important that the general rule employers greater flexibility to Numerous employers, and their governing an employer’s obligations representatives, urged the Department to designate ‘‘key employees’’, particularly under the Act also provide guidance on in the safety industry. A law firm apply the current regulatory language to the remedy for such violations. First, both voluntary and mandatory light representing employers also requested numerous commenters to the RFI asked that the Department provide guidance duty assignments. The National the Department to strengthen or clarify regarding the responsibility of a Association of Convenience Stores, the the regulatory provisions implementing placement agency to provide job U.S. Chamber of Commerce, the Society the Act’s prohibitions on interference restoration rights when the secondary for Human Resource Management, and and discrimination. 29 U.S.C. 2615(a)(1) employer refuses to reinstate the others asked the Department to require and (2). For example, the University of individual because the position was that employees accept light duty California, Hastings College of Law, ‘‘mission-critical.’’ assignments, consistent with their Center for Worklife Law requested that medical restrictions, in lieu of taking The exemption for highly the Department ‘‘clarify that FMLA leave. The College and compensated employees is defined by interference with an employee’s right to University Professional Association for statute as applying only to a salaried take FMLA leave includes not only withholding information but also Human Resources stated that ‘‘[i]n many eligible employee who is among the cases, light duty may be a better highest paid 10 percent of the deterring employees from exercising their rights. * * *’’ The Center for alternative than placing the employee employees employed by the employer on leave, as it allows the employer within 75 miles of the facility at which Worklife Law asserted that ‘‘employees returning from [FMLA] leave have been greater flexibility in meeting its staffing the employee is employed. See 29 needs’’ while the Society for Human U.S.C. 2614(b)(2). While the Department given poorer quality assignments, been subjected to heightened scrutiny of their Resource Management noted that understands that requiring job ‘‘[e]xperience has shown that employees restoration for some lower-paid work and received undeservedly negative evaluations.’’ Similarly, the with minor injuries generally recover positions in public safety and other more quickly if they are working, industries may cause ‘‘substantial and law firm of Kennedy, Reeve & Knoll and several individual workers asserted that gradually returning to their former grievous economic injury’’ in particular capabilities.’’ As an alternative, many situations or may cause hardship to the some employers actively discourage the taking of FMLA leave, especially employers suggested that the employer, the Department believes that Department revise the regulation to any revisions to address such situations intermittent leave, or penalize those employees who take such leave. make clear that light duty work counts would require a change in the statute. against an employee’s 12-week FMLA Second, the Department also received Minor changes to § 825.217(b) have comments about the language contained entitlement. The American Bakers been made to update the reference to the in current § 825.220(d) stating that Association, the National Coalition to definition of ‘‘salary basis’’ as now where an employee has voluntarily Protect Family Leave, the National contained in 29 CFR 541.602 accepted a light duty position in lieu of Business Group on Health, the Retail (previously codified in 29 CFR 541.118) taking FMLA leave, the employee’s right Industry Leaders Association, the and to add ‘‘computer employees’’ to to restoration to the same or an National Restaurant Association, several the list of employees who may qualify equivalent position is available until 12 management-side law firms, and for exemption from the minimum wage weeks have passed within the 12-month individual employers and human and overtime requirements of the FLSA period, including all FMLA leave taken resource professionals urged the under those regulations if they meet and the period of ‘‘light duty.’’ The Department to rescind Opinion Letter certain duties and salary tests. The Department is aware that at least two FMLA–55 and explicitly provide ‘‘that Department did not receive any courts have interpreted this language to time spent in light duty away from the comments specific to §§ 825.218 and mean that an employee uses up his or employee’s usual job counts against the 825.219 in response to the RFI and is her twelve week FMLA leave 12 weeks of FMLA entitlement for all not proposing any changes to these entitlement while performing work in a purposes.’’ provisions. light duty assignment. See Roberts v. Other commenters, including the Section 825.220 (Protection for Owens-Illinois, Inc., 2004 WL 1087355 AFL-CIO, the Coalition of Labor Union Employees Who Request Leave or (S.D. Ind. 2004); Artis v. Palos Women, Families USA, the Maine mstockstill on PROD1PC66 with PROPOSALS2 Otherwise Assert FMLA Rights) Community Hospital, 2004 WL 2125414 Department of Labor, and the University (N.D. Ill. 2004). These holdings differ of Michigan Center for the Education of Current § 825.220 explains what from the Department’s interpretation of Women, argued that counting light duty actions taken by employers constitute the current regulation, as further work as FMLA leave is not appropriate. an interference with an employee’s expressed in a 1995 DOL opinion letter Some employers, and organizations rights under the FMLA. The Department which states that an employee who representing human resource proposes to change two provisions in voluntarily accepts a light duty position: professionals, also shared this view. For VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7901 example, MedStar Health, Inc. stated Many RFI commenters asked that the urged the Department to prohibit both that ‘‘[w]hen an employee works, even Department clarify the language in prospective and retrospective waivers, in an alternate light duty capacity, subsection (d) that states ‘‘[e]mployees stating that requiring Departmental or he/she is not absent under the meaning cannot waive, nor may employers court approval of voluntary settlements of the FMLA.’’ induce employees to waive, their rights in no way jeopardizes the public policy Some commenters, such as the under FMLA.’’ Some courts have in favor of settlement and protects National Partnership for Women & disagreed as to whether this language vulnerable workers who might be Families, argued that the Department’s prohibits only the prospective waiver of induced to waive their FMLA rights current position, which counts the time FMLA rights, such as the right to 12 rather than forfeit income. spent in a light duty position for weeks of leave, or also prohibits the The Department proposes to clarify purposes of job restoration rights but not retrospective settlement of FMLA claims the language in paragraph (d) in light of FMLA leave entitlement, struck the based on past employer conduct, such the Fourth Circuit’s decision in Taylor appropriate balance. Still others, such as as through a settlement agreement. which held that employees cannot the University of California, Hastings Compare Taylor v. Progress Energy, 493 voluntarily settle their past FMLA College of Law, Center for Worklife Law, F.3d 454 (4th Cir. 2007), petition for claims. The Department disagrees with expressed concern that counting light cert. filed, 75 U.S.L.W. 3226 (Oct. 22, that reading of the regulations. As the duty work against an employee’s FMLA 2007) (No. 07–539) (Department’s example in the current regulations leave entitlement or reinstatement rights regulation prevents employees from reveals, this provision was intended to could negatively impact pregnant independently settling past claims for apply only to the waiver of prospective women. The National Retail Federation FMLA violations with employers rights. In the interest of clarity, suggested that light duty not count without the approval of the Department however, the Department proposes to against FMLA leave, unless the or a court) with Faris v. Williams WPC– make explicit in paragraph (d) that individual’s medical restrictions I, Inc., 332 F.3d 316 (5th Cir. 2003) employees and employers should be required reduced hours, in which case (plain reading of the Department’s permitted to voluntarily agree to the any reduction in normal work hours regulation is that it prohibits settlement of past claims without having would count against the individual’s prospective waiver of rights only and to first obtain the permission or FMLA leave entitlement. not retroactive settlement of claims). approval of the Department or a court. Upon further review, the Department The Department does not believe this is believes that the current regulatory A majority of commenters to the RFI, a change in the law as it has never been language does not serve the Act’s including the Connecticut Department the Department’s practice, since the purpose to provide job protection when of Labor, the Ohio Department of enactment of the FMLA, to supervise FMLA leave is taken. Accordingly, the Administration, the National Coalition such voluntary settlements. Department proposes deleting the final to Protect Family Leave, the National sentence of current § 825.220(d), which Retail Federation, the Association of Section 825.300 (Employer Notice states that job restoration rights are Corporate Counsel, the United Parcel Requirements) available until 12 weeks have passed Service, American Electric Power, and The Act imposes notice obligations on within the 12-month period including the University of California, argued that both employers and employees. Current all FMLA leave taken and the period of § 825.220(d) should be amended to §§ 825.300 and 825.301 outline light duty. This change will ensure that explicitly allow waivers and releases in employers’ responsibilities to notify employees retain their right to connection with the settlement of FMLA employees of their FMLA rights. Several reinstatement for a full 12 weeks of claims, that is, claims for past additional notice requirements, such as leave instead of having the right violations. Commenters supporting this notifying employees of their FMLA diminished by the amount of time spent view stated that any interpretation eligibility and designation of their in a light duty position. The Department preventing the waiver or release of past FMLA leave, also appear elsewhere in also is not proposing to require claims unnecessarily encourages current §§ 825.110 and 825.208. employees to accept light duty work in litigation and interferes with the public Current § 825.300(a) addresses the lieu of taking FMLA leave. If an policy favoring private resolution of statutory posting requirement (see 29 employee is voluntarily performing a disputes, is neither practical nor U.S.C. 2619(a)). Under current light duty assignment and performing efficient (particularly in a reduction-in- § 825.300(b), an employer that willfully work, the employee is not on FMLA force), may discourage companies from violates the posting requirement may be leave and the employee should not be providing severance or separation assessed a civil money penalty not to deprived of future FMLA-qualifying packages, and is not required by the exceed $100 for each separate offense leave when performing such work. By statutory language, which contains no (see 29 U.S.C. 2619(b)). Where an deleting this language, the Department indication that Congress intended to employer’s workforce is comprised of a in no way intends to discourage prevent such waivers. Many of these significant portion of workers who are employees and employers from commenters, such as the Connecticut not literate in English, the employer is engaging in such light duty work Department of Labor, the Indiana responsible for providing notice in a arrangements. Rather, the Department Chamber of Commerce, the Detroit language in which the employees are simply wishes to make clear that when Medical Center, Clark Hill PLC, and the literate. See § 825.300(c). an employee is performing a light duty Human Resource Management Current § 825.301(b) requires the assignment, that employee’s rights to Association of Southeastern Wisconsin, employer to provide the employee with FMLA leave and to job restoration are suggested that the Department adopt written notice detailing the specific mstockstill on PROD1PC66 with PROPOSALS2 not affected by such light duty minimum standards for knowing and expectations and obligations of the assignment. The Department invites voluntary waivers, similar to those employee and explaining the comment on whether the deletion of provided for under the Age consequences of a failure to meet these this language may negatively impact an Discrimination in Employment Act of obligations. The written notice must be employee’s ability to return to his or her 1967, 29 U.S.C. 621, 626(f). Other RFI provided in a language in which the original position from a voluntary light commenters, such as the National employee is literate and must include, duty position. Employment Lawyers Association, as appropriate: VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7902 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules (i) That the leave will be counted against relate to employee awareness of their Communications Workers of America the employee’s annual FMLA leave rights and responsibilities. reiterated that employees need to entitlement (see § 825.208); Increasing employee and employer receive guidelines that ‘‘explain their (ii) Any requirements for the employee to awareness of FMLA rights and annual leave entitlement and the furnish medical certification of a serious responsibilities continues to be a process for making application for health condition and the consequences of challenge based on comments submitted FMLA leave.’’ failing to do so (see § 825.305); to the RFI. International Auto (iii) The employee’s right to substitute paid Processing, Inc., suggested that Proposed Revisions leave and whether the employer will require employees may be unaware of their The Department believes that a key the substitution of paid leave, and the component of making the FMLA a FMLA rights due to the timing of when conditions related to any substitution; they receive information about FMLA: success is effective communication (iv) Any requirement for the employee to between employees and employers. To ‘‘If employees continue to be unaware of make any premium payments to maintain their FMLA rights, it may be because improve the process, the Department health benefits and the arrangements for making such payments (see § 825.210), and most employers will cover this at proposes to collect the notice the possible consequences of failure to make orientation. On the first day of the job, requirements into one comprehensive such payments on a timely basis (i.e., the new employees are nervous and are section that better captures the circumstances under which coverage may overwhelmed with paperwork and work appropriate communications that need lapse); rules. Since FMLA won’t affect them to occur between an employer and (v) Any requirement for the employee to until they have in the requisite 12 employee in the FMLA process. present a fitness-for-duty certificate to be months with the company, they may Specifically, the Department proposes to restored to employment (see § 825.310); shove that information to the back combine components of current (vi) The employee’s status as a ‘‘key burner.’’ §§ 825.300, 825.301, 825.208, and employee’’ and the potential consequence Some comments addressed the 825.110 into one comprehensive section that restoration may be denied following sufficiency of the information provided. addressing an employer’s notice FMLA leave, explaining the conditions The United Transportation Union stated obligations. required for such denial (see § 825.218); that the ‘‘posting requirements for Proposed § 825.300 is divided into (vii) The employee’s right to restoration to employers under FMLA do not go far separate paragraphs that address the the same or an equivalent job upon return enough in that they do not actively major topics of ‘‘(a): [g]eneral notice’’; from leave (see §§ 825.214 and 825.604); and educate employees on their rights under ‘‘(b): [e]ligibility notice’’; ‘‘(c): (viii) The employee’s potential liability for FMLA. In addition to posting FMLA [d]esignation notice’’; and ‘‘(d): payment of health insurance premiums paid basic facts as required by the regulation, [c]onsequences of failing to provide by the employer during the employee’s notice’’. The ‘‘general notice’’ employers should be required to give unpaid FMLA leave if the employee fails to the information to employees, in requirement requires an employer to return to work after taking FMLA leave (see § 825.213). writing, once they become eligible post a notice explaining the Act’s under the regulations with that provisions and complaint filing 29 CFR 825.301(b)(1). The specific employer. Contact phone numbers for procedures, and to provide this same notice may include other information— the employer as well as detailed appeals notice in employee handbooks or by e.g., whether the employer will require process afforded to the employee should distributing a copy annually. The periodic reports of the employee’s status be provided, as well as recourse ‘‘eligibility notice’’ provides notice to and intent to return to work, but is not information for possible retaliatory the employee that he or she is an required to do so (§ 825.301(b)(2)). The practices by the employer.’’ The eligible employee under FMLA (as notice must be given within a International Association of Machinists defined in § 825.110), has FMLA leave reasonable time after notice of the need and Aerospace Workers recommended available, and has certain rights and for leave is given by the employee- that ‘‘employees should be expressly responsibilities. Within five business within one or two business days if notified of their right to take days of having obtained sufficient feasible (§ 825.301(c)). The written intermittent leave. * * * This has information to determine whether the notification to the employee that the proven a real problem for some of our requested leave is being taken for a leave has been designated as FMLA members. * * * An employee who qualifying reason, the employer must leave may be in any form, including a suffers from a condition that is still provide the employee with a notice notation on the employee’s pay stub being diagnosed, but doctors believe it regarding designation of FMLA leave— (§ 825.208(b)(2)). is either lupus, a connective tissue referred to as the ‘‘designation notice.’’ The Department noted in its RFI that disorder or rheumatoid arthritis, arrived The designation notice informs the one consistent concern expressed by the late to work due to her condition on a employee whether the particular leave employee representatives during number of occasions [and] was requested will be designated as FMLA stakeholder meetings was that completely unaware that she could take leave. employees need to be better aware of FMLA on an intermittent basis. She While the current regulations contain their rights under the FMLA. The RFI thought if she took any FMLA leave, she the ‘‘provisional designation’’ concept, solicited public input on the would have to stop working altogether, the Department believes that this effectiveness of these various regulatory something her illness did not process may cause confusion over notice provisions in promoting necessitate and something she could not whether leave is protected prior to the communications between employees afford to do.’’ actual designation. In some cases, the and employers and on what more could The AFL–CIO urged the Department leave may not eventually qualify for the mstockstill on PROD1PC66 with PROPOSALS2 be done to improve the general state of to consider ‘‘requiring employers to Act’s protections. Thus, the awareness of FMLA rights and provide an individualized notice Department’s proposal restructures the responsibilities by both employees and provision to employees on an annual regulations to recognize that employers employers. The Department sought basis,’’ and referred to another may not be able to designate leave as information in response to several commenter who suggested requiring FMLA covered until the employee questions concerning the notice notice to employees at the point of provides additional information. The provisions and how those provisions hiring and annually thereafter. The Department specifically invites VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7903 comment on whether this proposal will assessed a civil money penalty (CMP) notice to individual employees even if effectively communicate the required not to exceed $100 for each separate no employees are eligible for FMLA information to employees about their offense. This CMP amount was set by leave. For example, an employer may FMLA rights while relieving some of the the Congress as part of the original employ 60 employees located in all 50 administrative burdens for employers FMLA of 1993. The regulations, at states, and no employee meets the under the current process. § 825.300(b), currently provide for eligibility requirement of working at a assessment of a $100 penalty for willful site to which 50 or more employees General Notice Requirements violations of the posting requirement. report within 75 miles. See 29 U.S.C. Proposed § 825.300(a) is a ‘‘general The Department proposes to increase 2611(2)(B)(ii) and 29 CFR 825.110. In notice requirement’’ that merges the the civil money penalty for violation of such a case, an employer still would poster/notice requirement contained in this posting to $110.00 to meet have to comply with the posting current § 825.300 with the written requirements of the Debt Collection requirement. This is a statutory posting guidance required in current Improvement Act of 1996 (Pub. L. 104– requirement, see 29 U.S.C. 2611(4) and § 825.301(a). Proposed § 825.300(a)(1) 134, Title III, § 31001(s)(1), Apr. 26, 2619(a), although some confusion exists maintains the statutory requirement that 1996, 110 Stat. 1321–373). The Debt on this point since it is not obvious that every covered employer post and keep Collection Improvement Act amended such a notice is required when an posted in conspicuous places on its the Federal Civil Penalties Inflation employer does not have any eligible premises a notice providing information Adjustment Act of 1990 (Public Law employees. The Department aims to about the FMLA. Given the growth of 101–410, Oct. 5, 1990, 104 Stat. 890) to minimize such confusion by the Internet since the Department issued require that Federal agencies issue highlighting this requirement in a the 1995 regulations, however, as well regulations to adjust certain CMPs for separate section. as the practical realities that more and inflation. As amended, the law requires Proposed § 825.300(a)(3) states that more employees do not physically each agency to initially adjust for covered employers with eligible report to a central location, the inflation all covered CMPs, and to employees also must distribute the Department proposes that this posting periodically make further inflationary general notice described in proposed requirement may be satisfied through an adjustments thereafter. The adjustment § 825.300(a) either by including it in an electronic posting of the notice as long prescribed in the amended Act is based employee handbook or by distributing a as it otherwise meets the requirements on a cost-of-living formula according to copy to each employee at least once a of this section. To provide sufficient the percentage determined by the year, either in paper or electronic form. notice required by the statute (see 29 Department of Labor’s Consumer Price This provision incorporates the existing U.S.C. 2619), the employer must make Index (CPI). The statute provides for notice distribution requirement found in sure that the information is accessible to rounding the penalty increases. Once current § 825.301(a)(1), which requires applicants as well as employees, so the percentage change in the CPI is an employer to place in an employee simply posting such information on an calculated, the amount of the handbook, if one exists, a notice of intranet that is not accessible to adjustment is rounded according to a FMLA rights and responsibilities and applicants will not meet the table in the Federal Civil Penalties the employer’s policies on the FMLA. requirements. Electronic posting could Inflation Adjustment Act, which is Current § 825.301(a)(2) states that if an be accomplished, for example, by scaled based on the dollar amount of the employer does not have a handbook, posting the notice in a conspicuous current penalty. For penalties less than when an employee gives specific notice manner on the employer’s Internet web- or equal to $100, the increase is rounded of the need for leave, the employer must page inviting applicants to apply if the to the nearest multiple of $10. The provide written guidance to an employer accepts applications only statute applies a cap, for the initial employee concerning all the employee’s through the Internet. If the employer adjustment only, which limits the rights and obligations under the FMLA, also accepts applications on-site, amount of the first penalty increase to and the DOL Fact Sheet can meet this however, the notice would have to be 10 percent of the current penalty requirement. The information found in physically posted for applicants to view amount. Any increase under the Act the DOL Fact Sheet mirrors, in part, on-site unless the employer had a applies prospectively to violations that information contained in the poster. computer kiosk available for applicants occur after the date the increase takes To streamline the notice requirement to view the poster on-line. Similarly, in effect in amendments to the regulations. currently found in § 825.301(a)(1) and order for electronic-only posting to The amount by which the current the posting requirement, the Department provide sufficient notice to employees, CPI–U exceeds the CPI–U for June of proposes that one document containing all employees must have access to 1993 is more than the statutory cap of identical information be both posted company computers that post the 10 percent. Consequently, due to and distributed, thereby satisfying the information in a conspicuous manner. inflation since this CMP amount was posting and distribution requirement. For example, the company may make first established in 1993, the adjustment The Department intends that this computer kiosks available for use in permitted by law is limited to the proposed change will more effectively employee lunch rooms. The Department maximum 10 percent initial cap. It is convey consistent, relevant information specifically seeks comment on whether proposed, therefore, to amend to employees. Moreover, the this ‘‘posting’’ alternative is considered § 825.300(a) to provide for assessment of Department’s proposed prototype notice workable and will ensure that a penalty of $110 for willful violations is revised to provide employees more employees and applicants obtain the of the posting requirement. useful information on their FMLA rights required FMLA information. and responsibilities. mstockstill on PROD1PC66 with PROPOSALS2 Clarification of Covered Employer To further address the concern that Poster Civil Money Penalty Responsibilities employees are unaware of their rights as Section 109(b) of the FMLA (29 U.S.C. For purposes of clarity, the explained above, the Department 2619(b)) provides that any employer Department proposes to separate out proposes that if the proposed notice is who willfully violates the Act’s into a new paragraph the language from not contained in an employee requirement to post the FMLA notice as existing § 825.300(a) that requires a handbook, it must be distributed required by section 109(a) may be covered employer to post the general annually, regardless of specific VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7904 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules employee requests for leave. This new worked for 1,250 hours of service in the and responsibilities, such as any frequency requirement exceeds that of preceding 12 months) is not triggered requirement to provide sufficient the current regulations, but the until the employee has provided the medical certification, pay premiums for Department is responding to the employer with at least verbal notice continuing benefits, and job restoration concern that employees may not be sufficient to indicate that the employee rights upon expiration of FMLA leave. aware of their FMLA rights in many needs FMLA-qualifying leave. See The Department proposes to add cases, and the Department believes that §§ 825.302 and 825.303. The proposed language to clarify in § 825.300(b)(3)(iii) this requirement will promote increased regulations require that the eligibility when an employer notifies an eligible awareness. In addition, the notice be conveyed within five business employee of the right to substitute communication will be more effective if days after the employee either requests employer-provided paid leave and the the notice is provided routinely and leave or the employer acquires conditions related to any such annually rather than only when an knowledge that the employee’s leave substitution that the employer also employee is facing a significant family may be for an FMLA-qualifying reason. inform the employee that he/she may event like the birth or adoption of a While this proposal is a change from the take unpaid FMLA leave if the child or a serious medical emergency current timeframe of two business days, employee does not comply with the affecting the employee or a family the Department is responding to terms and conditions of the employer’s member. significant comments noting that the paid leave policies (see discussion The Department’s proposal does not two-day turnaround time is in practice supra at § 825.207). The Department require that a covered employer with no very difficult to meet, and the also proposes to add language to eligible employees distribute the general Department does not believe that § 825.300(b)(3)(v) indicating that notice, although the employer would extending this time frame to five employers should include a statement of have to comply with this requirement business days will compromise an the employee’s essential job functions even if it only has one eligible employee’s FMLA rights. The with the eligibility notice if they will employee. The Department specifically Department specifically seeks comment require that those functions be seeks comments on all aspects of these on whether this timeframe will both addressed in a fitness-for-duty proposed notice provisions. impart sufficient information to certification. employees in a timely manner and The remainder of proposed Prototype General Notice whether it is workable for employers. § 825.300(b) relies upon existing Proposed § 825.300(a)(4) explains that Proposed paragraph (b)(2) of this language in current § 825.301 with the Department has included a section specifies what information an limited modifications. Specifically, prototype notice in Appendix C for employer must convey when proposed § 825.300(b)(4) adopts employers to use and that copies will be communicating with the employee as to language from current § 825.301(b)(2), available from Wage and Hour offices eligibility status. While not required which provides that the eligibility and from the Department’s Internet under the current regulations, the notice may include other information on website. Consistent with current proposal requires the employer to notify an employee’s rights and §§ 825.300(c) and 825.301(b)(1), the employee whether leave is still responsibilities such as providing proposed § 825.300(a)(4) requires that available in the applicable 12-month periodic reports of the employee’s status an employer provide the poster and period. If the employee is not eligible or and intent to return to work. Consistent general notice to employees in a has no FMLA leave available, then, with language from current § 825.301(c), language in which they are literate pursuant to proposed paragraph (b)(2), proposed § 825.300(b)(6) states that the when the employer employs a the notice must indicate the reasons eligibility notice need not be provided significant portion of employees who why the employee is not eligible or that more frequently than once every six are not literate in English. The the employee has no FMLA leave months unless the specific information Department intends to make such available. For example, an employer in the notice changes. If leave has notices available in alternative might need to indicate that an employee already begun, the notice should be languages in accordance with the has not worked long enough to meet the mailed to the employee’s address of requirements of this section on the 12-month eligibility requirement. record. Proposed § 825.300(b)(7) states Internet and through local Wage and The Department proposes these new that if information changes, the Hour district offices. This section also notification requirements to address the employer should provide notice to the includes language from current concern that employees are not aware of employee of any information that has § 825.301(e) requiring notice to sensory- their rights. The Department believes changed within five business days, a impaired individuals as required under that a better understanding on the part change from the current two-day applicable Federal and State law. of both employees and employers as to requirement. The proposal also contains their respective FMLA rights and new language stating that the employer Eligibility Notice obligations will better ensure that should include the medical certification Proposed § 825.300(b) consolidates employees who qualify for FMLA leave form, if the employer requires such the notice provisions contained in obtain such leave. In proposing these information, along with the eligibility existing §§ 825.110(d) and 825.301(b) new notice requirements, the notice. into a paragraph entitled ‘‘eligibility Department believes that the additional Consistent with the current notice.’’ Consistent with current burden will be minimal, since the regulations, proposed § 825.300(b)(8) § 825.110, the employer continues to be employer is already required to provides that if an employer requires responsible under proposed paragraph calculate such information in any case medical certification or a fitness-for- mstockstill on PROD1PC66 with PROPOSALS2 (b)(1) of this section for communicating to determine eligibility in order to meet duty report, written notice of the eligibility status. As under the current the requirements of the statute. requirement shall be given with respect regulations, the employer’s obligation to If the employee is eligible for FMLA to each employee notice of a need for notify the employee of his or her leave, then proposed paragraph (b)(3) leave, unless the employer eligibility to take FMLA leave (i.e., also requires, consistent with current communicates in writing to employees whether the employee has been § 825.301(b), that the employer inform that such information will always be employed for 12 months and has the employee of the employee’s rights required in connection with certain VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7905 absences and then oral notice must still LLP (fifteen days from receipt of a aware when such leave is designated as be given. certification form); National Coalition to FMLA leave in a timely fashion. Proposed paragraph (b)(9) is Protect Family Leave (ten business Further, the proposed section contains a unchanged from current § 825.301(d) days); Association of Corporate Counsel new requirement that an employer and provides that employers will (five working days); Courier Corporation notify the employee if the leave is not responsively answer employees’ (five days); United States Postal Service designated as FMLA leave due to questions on their rights and (same); Northrop Grumman Newport insufficient information or a non- responsibilities under FMLA. News Shipbuilding and Dry Dock qualifying reason. Proposed paragraph (b)(10) provides Company (same). As noted above, the Department that an optional prototype eligibility International Auto Processing, Inc., proposes to change the timeframe in notice is included in Appendix D. This stated that while some decisions can be which an employer must designate proposed prototype reflects changes in made in two days, even a week might leave as FMLA leave from two business the proposed regulation. The not be sufficient in other cases, days to five business days. As discussed Department also has attempted to depending upon the amount of above with respect to the change in simplify the form for easier use and information supplied by an employee timeframe for providing the eligibility adaptability. and whether clarification is needed notice, the Department believes this will Designation Notice from the health care provider. Hinshaw result in more accurate notice given to & Culbertson LLP commented similarly employees. Moreover, this change is Proposed § 825.300(c) outlines the that the two-day time frame for proposed in concert with new notice proposed requirements of the providing notification to employees that requirements that would require designation notice an employer must FMLA leave has been approved or employers to provide employees with provide to an employee, currently denied is inadequate, ‘‘as there are more substantive information than that located in § 825.208(b). This proposed many factors which result in delays in required under the current regulations. designation notice requires that an both obtaining information and The Department does not believe that employer notify the employee within processing requests.’’ these new information requirements five business days (a change from the In light of the comments received, the should be burdensome for employers current requirement of two business proposed rule requires the employer to since the employer will already need to days) that leave is designated as FMLA provide the employee notice of the determine in any event whether or not leave once the employer has sufficient designation of FMLA leave within five the leave should be designated and information to make such a business days of receiving sufficient counted against the employee’s 12-week determination. information from the employee to FMLA leave entitlement. The proposed The RFI sought comments on whether designate the leave as FMLA leave. The requirement merely requires the the current two business day time frame proposed designation notice also employer to expressly communicate this was adequate for employers to notify contains an additional provision that information to the employee. The employees that their request for FMLA expressly requires the employer to Department specifically seeks comment leave has been approved or denied. The inform the employee of the number of on whether these proposed revisions majority of comments on this topic hours, days or weeks, if possible, that both adequately protect employee rights indicated that the current two-day time will be designated as FMLA leave. and are workable for employers. Neither frame was too restrictive. United Parcel Although current § 825.208(b)(1) the proposed nor current regulations Service commented, ‘‘In most cases, the requires employers to inform employees mandate a specific format for the initial notification of an absence or need that leave ‘‘is designated and will be written notice. The proposed paragraph for leave is received by front-line counted as FMLA leave,’’ it does not (c)(2), consistent with current management, who conveys the specifically require employers to § 825.208(b)(2), indicates that this information up the chain of command provide employees with information information may be communicated on a and to the local HR representative, who detailing the amount of leave so pay stub. notifies the FMLA administrator, who is designated. When an employee requests Proposed § 825.300(c)(3) improves the ultimately responsible for making a a block of foreseeable leave and notices employers must provide to determination. It is not unusual for it to provides appropriate notice to the employees. It explicitly permits an take one to two business days just for employer, it should be relatively employer to provide an employee with the right personnel to receive the straightforward for the employer to both the eligibility and designation information, much less make a provide the employee with the amount notice at the same time in cases where determination and communicate it back of leave that will be designated as the employer has adequate information to the employee.’’ Courier Corporation FMLA. However, to the extent that to designate leave as FMLA leave when noted similarly, ‘‘The two-day future leave will be needed by the an employee requests the leave. This is timeframe is way too short for notifying employee for a condition but the exact an acknowledgement that in some cases employees about their leave request, amount of leave is unknown (as is often there will be no question that a leave since as employers we are often chasing the case with unforeseeable intermittent request qualifies as FMLA leave and the information from the employee or leave for a chronic serious health proposal encourages an employer to physician.’’ Spencer Fane Britt & condition), the employer must inform designate the leave as soon as possible. Browne LLP agreed: ‘‘For most the employee every 30 days that leave Section 825.300(c)(4) states that a employers, this is virtually impossible. has been designated and protected prototype designation notice is Although most employers designate under the FMLA and advise the contained in Appendix E. This form is mstockstill on PROD1PC66 with PROPOSALS2 leave within a reasonable time frame, it employee as to the amount so a new optional ‘‘designation notice’’ is usually well outside the two-day time designated if the employee took leave that an employer can use to satisfy its frame, thus creating a risk that the during the 30-day period. Currently, the obligation to notify an employee that designation will be ineffective.’’ regulations do not specifically address leave is being designated as FMLA leave Employers suggested varying designation of unforeseen, intermittent because it is being taken for a qualifying timeframes to replace the two-day limit. leave, and the Department believes that reason, as required by proposed See, e.g., comments by Fisher & Phillips it is important for employees to be § 825.300(c)(1). VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7906 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules Remedy Provision information that leave is taken for an mirrors changes made to §§ 825.302 and Proposed paragraph (d) has been FMLA-qualifying reason, the employer 825.303. The proposed paragraph cross- added in light of Ragsdale, and expands must designate the leave as FMLA leave. references §§ 825.302 and 825.303 that on current § 825.301(f). Consistent with Paragraph (b)(2) explains that the address what constitutes sufficient the Department’s discussion of designation may be oral or in writing information an employee must proposed § 825.301, the Department and must be confirmed in writing no communicate to an employer when believes that the U.S. Supreme Court’s later than the following payday. Current needing FMLA leave, as further Ragsdale decision requires a remedy paragraph (c) of that section provides explained below. Proposed § 825.301(b) provision for a notice violation that is that paid leave must be designated as also incorporates the substance of the tailored to individualized harm. FMLA-covered leave within two provision in current § 825.208(a)(2) that business days of when the employee an employee need not invoke the FMLA Therefore, as noted in the discussion of gives notice of leave, or when the when asserting rights under the Act. As §§ 825.110, 825.301, and 825.220, the employer has sufficient information to a matter of clarification, the word Department has added a provision make such a determination if not ‘‘unpaid’’ is deleted, as these employee explaining that failure to comply with available until later. It also requires the responsibilities apply whether the leave the notice requirements set forth in this employer to advise the employee if is paid or unpaid. The proposed section section could result in the interference substitution of paid leave will be also explains that the consequences for with, restraint of, or denial of the use of required. The section also explains that an employee’s failure to satisfy these FMLA leave. If the employee is able to if the employer knows that paid leave is responsibilities may include delay as demonstrate harm as a result of the for an FMLA reason when the employee well as denial of FMLA leave. employer’s failure to provide notice of advises of the need for leave or when The substance of current § 825.208(b) eligibility or designation of FMLA leave the leave commences and does not at has been moved to proposed as required, an employer may be liable that time designate (and notify the § 825.300(c) that addresses the other for the harm suffered as a result of the employee) that the leave is being notice obligations of employers. As violation, such as lost compensation charged to the employee’s FMLA leave noted above, current § 825.208(c) and benefits, other monetary losses, and entitlement, the leave may not be explains an employer’s designation appropriate equitable or other relief, designated as FMLA leave retroactively obligations with regard to paid leave including employment, reinstatement, and may only be designated as FMLA and the consequences that apply when or promotion. leave prospectively. In such case, none an employer fails to properly and timely Section 825.301 (Employer Designation of the absence preceding the notice to designate leave. In light of Ragsdale, the of FMLA Leave) the employee of the designation may be Department cannot prohibit the counted against the employee’s 12-week retroactive designation of FMLA leave The Department proposes to delete absent a showing of individual harm. By FMLA leave entitlement, but ‘‘the current § 825.301, which addresses the same token, the Department believes employee is subject to the full employer notices to employees, because that it is important that employers protections of the Act’’ during that its requirements have been incorporated period of absence. timely designate FMLA leave so that into proposed § 825.300 as discussed Current paragraph (d) of that section both employees and employers are above. Current § 825.208 addressing explains the rules for designating leave aware as to what employee rights attach designation of FMLA leave has been after leave has begun. Current paragraph when a specific FMLA leave period is moved to proposed § 825.301. Current (e) explains that leave may not be at issue. Indeed, in the preamble § 825.208 explains under what retroactively designated except in accompanying the current regulations, circumstances an employer can limited circumstances such as when a the Department explained that this designate leave as FMLA leave. non-FMLA leave turns into an FMLA- section was intended to resolve the Paragraph (a) of that section explains qualifying leave or when an employee question of FMLA designation as early that it is the employer’s obligation to has taken leave for a short duration and as possible in the leave request process, designate leave as FMLA leave. only notifies the employer when the to eliminate protracted ‘‘after the fact’’ Paragraph (a)(1) of that section explains employee returns from leave. disputes. (60 FR at 2207) The that the employee has an obligation to The proposed revisions maintain the Department has received comments, provide the employer with enough basic requirement from current however, that in certain cases, the information to determine if the leave is § 825.208 that employers designate prohibition on retroactive designation potentially FMLA-qualifying. Paragraph qualifying leave as FMLA promptly and actually may harm the employee. (a)(2) explains that the employee need notify employees of that designation. The Department has reevaluated the not specifically request FMLA leave, See the Department’s 2007 Report on original rationale for this rule and still although if an employee requests paid the RFI comments, Chapter V, Section D believes it is beneficial to both leave for an FMLA reason and the (72 FR at 35585). The revisions, employees and employers to know in employer denies the request, the however, account for the Supreme advance, or at least as soon as possible, employee must provide the employer Court’s ruling in Ragsdale prohibiting when leave is considered FMLA- with sufficient information to make the categorical penalties based on an protected leave. Therefore, the determination that the leave is for an employer’s failure to appropriately Department proposes to make clear that FMLA-qualifying reason. Paragraph (a) designate FMLA leave. an employer has an obligation to timely also explains that if the employer does The Department also proposes a new designate leave (within five business not have sufficient information to paragraph (b) in this section that days, absent extenuating circumstances) mstockstill on PROD1PC66 with PROPOSALS2 designate paid leave as FMLA-covered, specifically addresses employee as proposed in § 825.301(a). However, in the employer has an obligation to responsibilities. The substance of the light of Ragsdale and the comments the inquire further in order to ascertain language contained in current paragraph Department has received, proposed whether the paid leave is potentially (a) of § 825.208 that addresses such paragraph (d) of this section covered by the FMLA. Current responsibilities has been retained and acknowledges that retroactive paragraph (b)(1) of that section states moved to this new section, but the designation may occur, but that if an that once an employer has enough proposal simplifies the language and employer fails to timely designate leave VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7907 as specified in § 825.300 and paragraph retroactively designated under the was not practicable to give 30 days’ (a) of this section, and if an employee current regulations have been deleted. notice. establishes that he or she has suffered The Department proposes to delete Section 825.302 (Employee Notice harm as a result of the employer’s the second sentence of current Requirements for Foreseeable FMLA actions, a remedy may be available. The Leave) paragraph (b) of this section, which Department provides examples in defines ‘‘as soon as practicable’’ as paragraph (e) to illustrate the type of Current § 825.302(a) explains what notice an employee must give an ‘‘ordinarily * * * within one or two circumstance where an employee may business days of when the need for or may not be able to show that harm employer when the need for FMLA leave is foreseeable. The requirement, as leave becomes known to the employee.’’ has occurred as a result of the While the ‘‘one to two business days’ ’’ employer’s actions. In many cases set forth in the statute, 29 U.S.C. 2612(e), is that an employee must give timeframe was intended as an where an employee’s own serious health illustrative outer limit, Wage and Hour condition is involved, the Department at least 30 days’ notice if the need for FMLA leave is foreseeable. If 30 days’ Opinion Letter FMLA–101 (Jan. 15, believes it will be difficult to show harm 1999), in effect, mistakenly read the as a result of the employer’s failure to notice is not possible, the employee must give notice ‘‘as soon as regulation as allowing employees two timely designate FMLA leave, as the business days from learning of their employee will frequently be unable to practicable.’’ The current regulations define ‘‘as soon as practicable’’ in need for leave to provide notice to their delay or forgo the leave. Cf. Downey v. employers, regardless of whether it Strain,—F.3d—, 2007 WL 4328487 (5th § 825.302(b) to mean ‘‘as soon as both possible and practical, taking into would have been practicable to provide Cir. 2007) (finding employee was notice more quickly. In that letter, the harmed by employer’s failure to account all of the facts and circumstances in the individual case.’’ It Department found that an absence designate leave as FMLA leave). On the policy that required employees to report other hand, if an employee knows he or further states that ‘‘ordinarily’’ as soon as practicable would mean ‘‘at least their absences within one hour after the she would need the FMLA leave later in start of their shift, unless they were the year for planned medical treatment, verbal notification to the employer within one or two business days of unable to do so due to circumstances he or she may choose to have another beyond their control, was contrary to family member provide care for a child when the need for leave becomes known to the employee.’’ Current paragraph (c) the FMLA’s notice procedures. The with a serious health condition instead Department provided the following explains the form and content of notice of taking leave at a certain point if the example of the employee’s notice an employee must provide when taking employee knew that the time off would obligation: leave and the obligations of employers count against the employee’s FMLA to obtain follow-up information when For example, an employee receives notice entitlement. In addition, this proposal needed. Current paragraph (d) explains on Monday that his/her therapy session for can benefit employees who did not that an employer can require an a seriously injured back, which normally is fulfill their FMLA notice obligations at scheduled for Fridays, must be rescheduled employee to comply with its usual and the time of taking leave, by allowing for Thursday. If the employee failed to customary notice procedures, but that employers to retroactively designate provide the employer notice of this an employer cannot disallow or delay leave to prevent disciplinary action. scheduling change by close of business leave if such procedures are not The last sentence in proposed Wednesday (as would be required under followed if timely notice is given. FMLA’s two-day notification rule), the paragraph (d) states that in all cases Current paragraph (e) explains that an where a leave is FMLA-qualifying, an employer could take an adverse action employee has a duty to plan medical against the employee for failure to provide employer and an employee can treatment so as to not unduly disrupt an timely notice under the company’s mutually agree that leave be employer’s operations; current attendance policy. retroactively designated as FMLA leave. paragraph (f) explains an employee’s Proposed paragraph (e), titled notification obligations with regard to Comments received in response to the ‘‘[r]emedies,’’ mirrors the statutory intermittent leave; and current RFI indicated that the ‘‘two-day rule’’ scheme and provides that failure to paragraph (g) explains that while an has created significant problems for timely designate could constitute an employer can waive an employee’s employers in maintaining appropriate interference with, restraint of, or denial FMLA notice requirements, an employer staffing levels. See, e.g., Southwest of, the exercise of an employee’s FMLA cannot require an employee to comply Airlines Co. (‘‘[T]he DOL’s informal rights. Specifically, if the employee is with stricter FMLA requirements if a two-day notice practice is an arbitrary able to establish prejudice as a result of collective bargaining agreement, State standard that fails to recognize an the employer’s failure to designate leave law, or the employer’s leave policies employer’s legitimate operational need properly, an employer may be liable for allow less notice. for timely notice and that contradicts compensation and benefits lost by with an employee’s statutory duty to reason of the violation, for other Timing of Notice provide such notice as is practicable.’’); monetary losses sustained as a direct Proposed § 825.302(a) retains both the National Coalition to Protect Family result of the violation, and for current requirement that an employee Leave (‘‘The phrase ‘as much notice as appropriate equitable relief, including must give at least 30 days’ notice when is practicable’ is not well-defined. The employment, reinstatement, promotion, the need for FMLA leave is foreseeable current phrase puts employers in the or any other relief tailored to the harm at least 30 days in advance, and the difficult position of having to approve suffered. This language mirrors the requirement that notice be provided ‘‘as leaves where questionable notice has mstockstill on PROD1PC66 with PROPOSALS2 statutory remedies set forth in 29 U.S.C. soon as practicable’’ if leave is been given. The current regulatory 2617, as well as language in the foreseeable but 30 days’ notice is not definition—within one or two business Ragsdale decision. practicable. The Department further days—has been applied by the In light of proposed paragraphs (d) proposes to add that when an employee Department to both foreseeable and and (e) discussed above, current gives less than 30 days’ advance notice, unforeseeable leaves, and to protect paragraphs (d) and (e) of § 825.208 the employee must respond to a request employees who provide notice within discussing when leave can be from the employer and explain why it two days, even if notice could have been VerDate Aug<31>2005 19:27 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7908 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules provided sooner under the particular have to specifically mention the FMLA. the FMLA to put the employer on notice facts and circumstances.’’). See, e.g., Edison Electric Institute, Miles of the need for FMLA leave, but at the The Department is aware that timely & Stockbridge, P.C., Pierce County, same time employees must provide notice of an employee’s need for FMLA Washington, Spencer Fane Britt & sufficient information to make an leave is critical to the balance struck in Browne LLP, and DST Systems, Inc. The employer aware that FMLA rights may the Act between the employee’s ability South Central Human Resource be at issue. The Department proposes to ‘‘to take reasonable leave for medical Management Association suggested: clarify that sufficient information must reasons, for the birth or adoption of a It would eliminate many disputes if an indicate that the employee is unable to child, and for the care of a child, employee were required to request leave in perform the functions of the job (or that spouse, or parent who has a serious writing or to follow up an oral request with a covered family member is unable to health condition’’ and ‘‘the legitimate a written request within a reasonable time participate in regular daily activities), interests of employers.’’ 29 U.S.C. (such as within two work days after returning the anticipated duration of the absence, 2601(b). Absent emergency situations, to work in the case of intermittent leave, or and whether the employee (or family where an employee becomes aware of a five work days after requesting leave in the event of unforeseen continuous leave). * * * member) intends to visit a health care need for FMLA leave less than 30 days provider or is receiving continuing It would help both parties immensely if the in advance, the Department expects that employee were required to mention the treatment. it will be practicable for the employee FMLA when making such a request. The Department believes that this to provide notice of the need for leave proposal will provide employers with either the same day (if the employee Other stakeholders expressed a desire for more information from employees, the information necessary to determine becomes aware of the need for leave whether absences may be covered by the during work hours) or the next business but stopped short of suggesting a requirement that the employee must FMLA, without being overly day (if the employee becomes aware of prescriptive in the wording that an the need for leave after work hours). specifically ask for FMLA leave. The Williams Mullen law firm suggested employee must use to request leave. The Accordingly, the Department proposes proposal will also facilitate the early to add examples to proposed paragraph that the Department should implement detailed regulations that provide identification of potentially FMLA- (b) clarifying the employee’s obligation protected absences. Finally, the to provide notice ‘‘as soon as necessary language or actions that must be taken by employees to put their increased specificity in the proposed practicable.’’ rule will protect employees from losing employers on notice of their intent to Content of Notice take FMLA leave. The U.S. Chamber of FMLA rights by inadvertently failing to Many commenters responding to the Commerce suggested that employees put the employer on notice of the need RFI identified issues relating to the should be required to specify the for FMLA leave. The Department also sufficiency of the information provided purpose of any instance of FMLA leave, proposes to include such information in by employees when notifying their such as a doctor’s appointment, the general notice that employers are employers of the need for FMLA leave, physical treatment, etc., so that required to post and either to provide in which is addressed in current employers can assess veracity when an employee handbook or distribute at § 825.302(c). For example, the National employees appear to be abusing the least annually, as specified in proposed Coalition To Protect Family Leave stated leave policy. The Association of § 825.300(a), to ensure that employees that ‘‘employees who call in because of Corporate Counsel proposed that the are aware of the information they must their own or a family member’s medical DOL should revise the regulations to provide. condition do not necessarily provide make clear that an employee’s notice to This proposed section continues to sufficient information for an employer the employer must go beyond merely require employers to inquire further if to [determine whether the leave requesting leave and must provide a they need additional information in qualifies for FMLA protection]. Since basis for the employer to conclude that order to obtain the necessary details what constitutes ‘sufficient’ information the requested leave is covered by the about the leave. The proposed rule also is not clearly defined anywhere in the FMLA. states that employees must respond to regulations, both employees and One reason employees may provide employers’ inquiries designed to employers face difficulties in meeting less notice than employers want may be determine whether leave is FMLA- their rights and responsibilities under employees’ lack of awareness of their qualifying or risk losing FMLA the FMLA.’’ Jackson Lewis LLP rights and obligations. As noted above, protection if the employer is unable to similarly noted that employers numerous commenters to the RFI determine whether the leave qualifies. sometimes have difficulty in identifying emphasized that employees remain The Department seeks comment as to FMLA-qualifying absences: ‘‘Employers unaware of their rights under the FMLA. whether a different notice standard are not ‘mind readers’ and they often See comments by National Partnership requiring employees to expressly assert refrain from asking employees why they for Women & Families, Madison Gas their FMLA rights should apply in are absent for fear that they may invade and Electric Company, Legal Aid situations in which an employee has an employee’s medical privacy. It is also Society-Employer Law Center. As the previously provided sufficient notice of ¨ naive to think that employers can AARP commented, even employees who a serious health condition necessitating effectively train front line supervisors have some general awareness of the law leave and is subsequently providing on the myriad of health conditions and do not know the details of the law or notice of dates of leave due to the personal family emergencies that might whether it applies to them. These condition that were either previously qualify for FMLA protection.’’ commenters also noted that employers unknown or changed. For example, mstockstill on PROD1PC66 with PROPOSALS2 A number of commenters offered fail to provide employees with effective where an employee has taken two weeks suggestions for how the Department information about their rights. of FMLA leave for surgery and recovery, could clarify what information In light of these comments, the and then learns that he or she will need constitutes sufficient notice. Some Department proposes to retain in to undergo physical therapy once a commenters suggested that an § 825.302(c) the standard that an week for four to six weeks upon employee’s leave request should have to employee need not assert his or her returning to work, should the employee be in writing, or that the request should rights under the FMLA or even mention be required to specifically notify the VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7909 employer that the additional leave is at 2221. Cases addressing various types failing to provide timely notice, and not due to the FMLA-covered condition? of employee call-in procedures, a change in current law. For example, if including employer requirements that an employee could have provided two Usual and Customary Employer employees report absences to specific weeks notice of a doctor’s appointment Procedures individuals or offices and that they keep for treatment of a serious health A number of commenters responding employers updated regarding their need condition, but instead provides only one to the RFI also addressed the provisions for leave, have analyzed the issue week’s notice of the appointment, the in § 825.302(d) regarding compliance differently. Compare, e.g., Bones v. employer may delay FMLA-protected with employers’ usual and customary Honeywell Int’l Inc., 366 F.3d 869, 878 leave for one week (i.e., if the employee notice procedures for requesting leave. (10th Cir. 2004) (‘‘[Employee’s] request could have provided notice on the 7th Many employers specifically asserted for an FMLA leave does not shelter her day of the month of an appointment on that call-in procedures, which are from the obligation, which is the same the 21st day, but instead only provides enforced routinely outside the FMLA as that of any other Honeywell notice on the 14th day, the employer context, can serve as a crucial element employee, to comply with Honeywell’s may delay FMLA leave until the 28th of an attendance program and are often employment policies, including its day (two weeks after the notice was critical to an employer’s ability to absence policy.’’); Cavin v. Honda of provided)). If the employee does not ensure appropriate staffing levels. In America Mfg., Inc., 346 F.3d 713, 723 delay the taking of the leave, the discussing the effect call-in (6th Cir. 2003) (‘‘[E]mployers cannot absence will be unprotected and the requirements have on State agencies in deny FMLA relief for failure to comply employer can treat the absence in the particular, the Ohio Department of with their internal notice requirements same manner as any unexcused absence Administrative Services commented [to call a specified department].’’); Lewis (i.e., if the employee in the example that such procedures are especially v. Holsum of Fort Wayne, Inc., 278 F.3d above is absent on the 21st day, instead critical in institutional agencies that 706, 710 (7th Cir. 2002) (failure to of delaying the absence until the notice provide direct care and supervision of follow three-day no-call rule legitimate period is met, the employer may treat inmates or patients. A number of basis for termination and did not violate the absence as an unexcused absence commenters urged reforming the FMLA); Gilliam v. UPS, 233 F.3d 969 under its normal leave policies). regulations to allow employers to (7th Cir. 2000) (upholding application of Alternatively, the employer would have enforce attendance policies that require three-day no-call rule). the option of accepting the employee’s employees to observe reasonable call-in Accordingly, the Department late notice and counting the leave procedures, including policies that proposes that, absent unusual against the employee’s FMLA require employees to call in to their circumstances, employees may be entitlement. See § 825.302(g). direct supervisors or to a designated required to follow established call-in Proposed § 825.302(g) retains person in human resources, and to procedures (except one that imposes a language stating that employers may allow a penalty for noncompliance. See, more stringent timing requirement than waive employees’ FMLA notice e.g., comments by American Electric the regulations provide), and failure to requirements. The Department proposes Power, Ohio Public Employer Relations properly notify employers of absences to delete language, however, stating that Association, and National Association may cause a delay or denial of FMLA employers cannot enforce FMLA notice of Convenience Stores. The University protections (as explained in § 825.304). requirements if those requirements are of Wisconsin-Milwaukee stated that Unusual circumstances would include stricter than the terms of a collective requiring employees to comply with situations such as when an employee is bargaining agreement, State law or regular attendance policies unless there hospitalized and his/her spouse calls employer leave policy. The example is a medical emergency would be the supervisor to report the absence, provided in current § 825.302(g) of an helpful, because the simple need for unaware that the attendance policy employee substituting paid vacation FMLA leave does not mean that regular requires that the human resources leave and the employer not being able notification is impossible. department be called instead of the to require notice from the employee In response to these comments, the supervisor. However, FMLA-protected under the FMLA because the vacation proposed revision of § 825.302(d) leave cannot be delayed or denied for leave policy does not require advance retains the current rule providing that failure to meet the employer’s timing notice has proved confusing because it an employer may require an employee standard where the standard is more is inconsistent with the employer’s right to comply with the employer’s usual stringent than those established in to require notice under the FMLA. notice and procedural requirements for § 825.302(a). This proposed revision of Accordingly, this language has been calling in absences and requesting leave. § 825.302(d) recognizes that call-in deleted. Sections 825.700 and 825.701 However, the Department proposes to procedures are necessary for employers address in more detail the interaction eliminate the current language stating to provide proper coverage to run their between the FMLA and the provisions that an employer cannot delay or deny businesses. The proposal also benefits of collective bargaining agreements, FMLA leave if an employee fails to employees by ensuring early State law, and employer policies. follow such procedures. The identification and protection of combination of requiring employees to Section 825.303 (Employee notice absences covered by the FMLA. comply with employer absence policies, Where FMLA protection is requirements for unforeseeable FMLA yet prohibiting employers from delaying appropriately delayed because the leave) or denying leave if such procedures are employee did not provide timely notice Current § 825.303 explains what not met in the current regulation, has of the need for leave, and the employee notice an employee must give in the mstockstill on PROD1PC66 with PROPOSALS2 proved confusing. This confusion has has an absence during the period in case of unforeseeable leave. Specifically, been exacerbated by language in the which he/she accordingly is not entitled current paragraph (a) explains the ‘‘as preamble accompanying the current rule to FMLA protection, that absence is soon as practicable’’ required timing of stating that while employers may not unprotected and can be treated in the the notice, and current paragraph (b) delay or deny FMLA leave for failure to same manner the employer would treat sets forth the method by which notice follow absence policies, they may ‘‘take any other unexcused absence. This is a can be given. The Department has heard appropriate disciplinary action.’’ 60 FR clarification of the ramifications of from numerous employers that the VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7910 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules taking of unforeseeable leave is central Numerous other employer required to handle her needs without the to the administrative problems they commenters asserted that the ‘‘two day threat of being * * * terminated. experience with the FMLA, and the rule’’ interpreted in Wage and Hour In light of the apparent confusion SHRM FMLA Survey revealed that in its Opinion Letter FMLA–101 (see with regard to timing and sufficiency of members’ experiences, 60 percent of all discussion in § 825.302) is even more the required notice, and the critically FMLA leave is unforeseeable leave. unworkable in the context of unforeseen important nature of this topic, the Indeed, the significant number of cases FMLA leave because the employee is Department proposes to further clarify that have been litigated as to what not required to report the absence prior what constitutes timely and sufficient constitutes sufficient notice from an to the start of his/her shift even where notice when the need for leave is not employee in the case of unforeseeable it is practicable to do so. See, e.g., foreseeable. leave confirms the difficulties both Southwest Airlines Co. (the two-day Timing of Notice When ‘‘Not employers and employees experience rule allows employees to remain silent Foreseeable’’ under the current regulation. See when they have the knowledge and Spangler v. Federal Home Loan Bank, ability to give timely notice, and it ‘‘fails In the case of unforeseeable leave, the 278 F.3d 847, 852 (8th Cir. 2002) to recognize an employer’s legitimate Department proposes to maintain the (employee, who had made employer operational need for timely notice’’); requirement that an employee provide aware that she had problems with National Association of Manufacturers notice as soon as practicable under the depression, gave sufficient notice when (employees taking ‘‘unscheduled facts and circumstances of the particular she called in and indicated she was out intermittent leave routinely ignore case. While this is the same standard as because of ‘‘depression again’’); Gay v. mandatory shift call-in procedures (even notice for FMLA leave that is Gilman Paper Co., 125 F.3d 1432, 1434– if they are fully able to comply), wait foreseeable less than 30 days in 35 (11th Cir. 1997) (husband calling for two working days * * * and then report advance, the Department is aware that employee and indicating wife in the their absence as FMLA-qualifying’’). the employer’s need for prompt notice hospital having some tests run was not of the need for leave is heightened in The National Partnership for Women situations in which the need for leave is sufficient notice); Carter v. Ford Motor & Families and other employee Co., 121 F.3d 1146, 1148–49 (8th Cir. not foreseeable. It is critical in such advocates agreed that employees should situations that the employer be notified 1997) (employee’s wife calling and notify their employers about their need indicating he would be out because of of the employee’s absence promptly so for leave as quickly as is reasonably that the employer can assure family problems did not provide possible, but asserted that it also is sufficient notice); Barr v. New York City appropriate staffing. Accordingly, the important to ensure that employees are Department expects that in all but the Transit Auth., 2002 WL 257823, at *7– not penalized unfairly when confronted 8 (E.D.N.Y. 2002) (employee calling in most extraordinary circumstances, with unexpected emergencies. The employees will be able to provide notice sick reporting ‘‘swelling and tightness’’ Center for WorkLife Law similarly noted in legs and follow-up doctor’s note to their employers of the need for leave that for ‘‘working caregivers with a at least prior to the start of their shift. indicating swelling in legs and rapid seriously ill child or family member, To emphasize the importance of heart beat provided sufficient notice); medical emergencies are a way of life. notice when the need for FMLA leave Mora v. Chem-Tronics, Inc., 16 F. Supp. Intermittent FMLA leave allows these was unforeseen, the Department 2d 1192, 1216–17 (S.D. Cal. 1998) employees to be available to their proposes to add language to § 825.302(a) (invalidating call-in rule requiring families when they are needed most to clarify that it is expected employees employees to call in 30 minutes prior to without the stress of losing their jobs.’’ will provide notice to their employers shift in all circumstances); Hendry v. The Legal Aid Society’s Employment promptly. For example, if an employee’s GTE North, Inc., 896 F. Supp. 816, 828 Law Center noted that chronic illnesses child has a severe asthma attack and the (N.D. Ind. 1995) (employee calling in ill are devastating and wreak havoc on employee takes the child to the with a migraine headache provided employees’ lives also, and that the emergency room, the employee would sufficient notice). FMLA was specifically designed to not be required to leave his/her child in Employers and their representatives cover such episodic absences. The AFL- order to report the absence while the also mentioned the timing of employee CIO and the Association of Professional child is receiving emergency treatment; notification of the need for Flight Attendants emphasized that once the child’s medical situation has unforeseeable intermittent leave as a employees who experience stabilized, the employee can be particular problem in their unforeseeable absences due to chronic expected to report the absence. administration of the FMLA. For conditions are precisely those most in However, if the child’s asthma attack is example, Spokane County commented need of the FMLA’s protections, because resolved by the use of an inhaler at that it is often not notified that an their jobs are more in jeopardy than home followed by a period of rest, the employee is out for a serious health those of employees who suffer from a employee would be expected to call the condition until after the employee longer illness only once every two or employer promptly after ensuring the returns to work. The Pennsylvania three years. In explaining the difficulties child has used the inhaler. The Turnpike Commission stated: for employees who live with Department believes that this proposal The issue of [employees] failing to notify unforeseeable health conditions, an better balances the needs of employees their supervisors promptly that they are employee described her personal to take unforeseeable FMLA leave with taking FMLA leave is very prevalent in our experiences with her daughter’s chronic the interests of employers and other company. Some employees that are approved serious health condition: employees. mstockstill on PROD1PC66 with PROPOSALS2 for intermittent FMLA simply don’t show up for work, and then email or call their My daughter had a major asthma attack Content of Notice When ‘‘Not supervisor when the work day is almost over which caused a bronchial infection, swelling Foreseeable’’ to inform them that they are taking FMLA. and bacteria in her throat. * * * No one is This is extremely frustrating as an employer, capable of predicting an[ ] asthma attack or In proposed paragraph (b), the and there does not ever seem to be a valid the severity of the attack; I just would like Department retains the standard that an reason that the employee could not notify the the assurance of knowing that if or when the employee need not assert his or her supervisor earlier. situation should arise, I have the time off rights under the FMLA or even mention VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7911 the FMLA to put the employer on notice medical treatment. For example, an FMLA notice obligations or its own of the need for FMLA leave. However, employee who seeks emergency internal rules. Current paragraph (b) consistent with the proposed changes treatment at a hospital may not be able explains that if 30 days notice is not discussed above with respect to to comply with the employer’s absence provided to the employer for foreseeable § 825.302, the Department proposes to reporting procedures if the employee leave, an employer may delay the taking require that the employee provide the does not have the telephone number for of FMLA leave for 30 days after the date employer with sufficient information to reporting absences with him or her and notice is given if no reasonable excuse put the employer on notice that the therefore leaves a message on the is provided. Current paragraph (c) states absence may be FMLA-protected. See supervisor’s voicemail (the employee that leave cannot be delayed if the Sarnowski v. Air Brook Limousine, Inc., may also be unable to comply with the employee was not aware of his or her F.3d—, 2007 WL 4323259, at *3 (3rd employer’s timing requirements due to notice requirements or the need for Cir. 2007) (‘‘In providing notice, the the emergency treatment). In contrast, leave and its timing were not clearly employee need not use any magic an employee who suffers a flare-up of a foreseeable to the employee 30 days in words. The critical question is how the chronic condition for which rest and advance. information conveyed to the employer is self-medication are the appropriate The proposal states the rules reasonably interpreted.’’). Sufficient treatment should be able to comply with applicable to leave foreseeable at least information is defined in the same the employer’s normal absence 30 days in advance, foreseeable less manner as proposed § 825.302(c), which reporting procedure. than 30 days in advance, and is information that indicates that the If an employee fails to follow the unforeseeable in different paragraphs for employee is unable to perform the employer’s call-in procedures (assuming purposes of clarity. Specifically, the functions of the job, the anticipated any required timing is not more Department proposes language that duration of the absence, and whether stringent than required by § 825.303(a)), provides practical examples of what it the employee intends to visit a health except under extraordinary means to delay FMLA leave in cases of care provider. In addition, because circumstances, then the employee is both foreseeable and unforeseeable issues are frequently raised with subject to whatever discipline the leave, such as a case where an employee employees giving notice of unforeseen employer’s rules provide for such a reasonably should have given the absences by simply calling in ‘‘sick,’’ failure and the employer may delay employer two weeks notice but instead proposed § 825.303(b) clarifies that FMLA coverage until the employee only provided one week notice. The calling in with the simple statement that complies with the rules. For example, proposal provides that in such a case, the employee or the employee’s family an employer requires that workers the employer may delay FMLA member is ‘‘sick’’ without providing needing unscheduled leave call a protected leave for one week. The more information will not be considered designated call-in number instead of proposal also provides that an employer sufficient notice to trigger an employer’s leaving a message on the supervisor’s can take disciplinary action for the obligations under the Act in the case of voicemail. An employee with a medical employee’s violation of the employer’s unforeseeable leave. Of course, many certification under FMLA for migraines internal call-in procedures, as long as unforeseeable conditions do develop leaves a message on the supervisor’s such procedures and discipline are and deteriorate over a period of a few voicemail indicating that the employee applied equally to employees taking days, and a condition that did not will be absent due to a migraine. Unless leave for non-FMLA reasons and the initially appear to be a serious health some extraordinary circumstance procedures do not require more advance condition may develop into one. The prevented the employee from complying notice than the standard in § 825.303. employee would be expected to provide with the employer’s requirement that Finally, the Department proposes to the employer the additional information the employee call the designated call-in retain language from current paragraph needed to determine if the serious number, the employer may treat the (c) stating that FMLA leave cannot be health condition standard is met as it employee’s failure to comply with the delayed due to lack of required notice became available. call-in rule in the same manner it would if the employer has not complied with The Department seeks comment as to normally handle such an infraction. The its notice requirements, which now will whether a different notice standard employer may also delay FMLA also include providing the general requiring employees to expressly assert protected leave until the employee notice in an employee handbook or their FMLA rights should apply in complies with the call-in procedure. Of annual distribution, as set forth in situations in which an employee has course, if the employer chooses to delay proposed § 825.300. previously provided sufficient notice of the employee’s FMLA leave until the Section 825.305 (Medical certification, a serious health condition necessitating employee complies with the call-in general rule) leave and is subsequently providing procedure, any leave that is not FMLA notice of dates of leave due to the protected may not be counted against Current § 825.305(a) sets forth the condition that were either previously the employee’s FMLA entitlement. general rule as to when an employer unknown or changed. Proposed § 825.303(c) also contains may request that an employee provide a language from current § 825.303(a) medical certification form to Complying With Employer Policy When substantiate the need for FMLA leave in stating that employers may not enforce ‘‘Not Foreseeable’’ connection with a serious health advance written notice requirements Proposed § 825.303(c) clarifies that an where the leave is due to a medical condition. employee must comply with the emergency. Current § 825.305(b) states that when employer’s usual procedures for calling leave is foreseeable and at least 30 mstockstill on PROD1PC66 with PROPOSALS2 in and requesting unforeseeable leave, Section 825.304 (Employee failure to (calendar) days notice has been given, except when extraordinary provide notice) ‘‘the employee should provide the circumstances exist (or the procedure Current § 825.304 addresses what medical certification before the leave imposes a more stringent timing employers may do if an employee fails begins.’’ If that is not possible, then the requirement than the regulations to provide the required notice for FMLA employer must give the employee at provide), such as when the employee or leave. Specifically, current paragraph (a) least 15 calendar days to provide the a family member needs emergency states that an employer may waive certification, unless it is not practicable VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7912 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules to do so despite the employee’s diligent, five-business day standard and the leave. The Department believes that by good-faith efforts. requirement has been incorporated into defining these terms, employers will To help ensure that both employees proposed paragraph (b). better understand what triggers their and employers better understand this The Department proposes to create a obligations to give employees further requirement, the Department proposes new paragraph (c) entitled ‘‘complete opportunity to provide sufficient that the time-frame in this section for and sufficient certification,’’ certification, which will in turn protect submitting a medical certification be incorporated in part from paragraph (d) employees from having employers modified to clearly apply the 15-day of the current regulation. The immediately deny them FMLA standard for both foreseeable and Department has retained the standard protections based on the initial unforeseeable leave, consistent with the from the current regulations, which certification provided or deny their language in current § 825.311(a) and (b). advises employers that in the case of an certifications based on technicalities. The Department solicits comments on incomplete certification, they must give For example, under the current whether language should be added to regulation, an employer could interpret the employee a reasonable period of paragraph (b) of this section that would a ‘‘vague’’ answer to simply be time to cure any deficiency. The state that an employer must notify the insufficient and a basis to deny FMLA Department proposes new language that employee if the certification has not leave. Under the proposed regulation, states ‘‘a certification is considered been returned in the 15-day time period, an employer must allow an employee an incomplete if the employer receives a and give the employee another seven opportunity to provide sufficient certification, but one or more of the calendar days to provide the certification when the initial applicable entries have not been certification unless it is not practicable certification is either incomplete or completed.’’ In response to the RFI, under the particular circumstances to do insufficient. many commenters, including so despite the employee’s diligent, good faith efforts. The Department believes employers, employees, and health care The Department also proposes to that this proposed requirement may be providers, expressed dissatisfaction clarify the process for curing an necessary in light of Urban v. with the current medical certification incomplete or insufficient certification. Dolgencorp of Texas, Inc., 393 F.3d 572 process. The Department held a The Department received many (5th Cir. 2004), a decision which found stakeholder meeting with comments in response to the RFI an employee was not entitled to FMLA representatives of each of these groups indicating that employers were unsure leave because a certification was not in September 2007. Multiple employers how many opportunities an employee returned to the employer after a 15-day commented to the RFI that a must be given to cure an insufficient extension was granted to the employee certification should require not just that certification. See, e.g., Waste to submit the certification. In Urban, the the form is completed, but that Management, Inc. (‘‘The current employee argued that she did not realize meaningful responses are given to the regulation is open to interpretation that her health care provider had not questions. See, e.g., National Coalition regarding when information is due and returned the certification to the To Protect Family Leave (‘‘If health care how much additional time should be employer. She argued that since it was providers * * * do not provide direct afforded to employees who do not share not sent to her employer, she provided responses to the questions, the the FMLA certification forms timely.’’); an ‘‘incomplete’’ certification, and regulations should be modified to Federal Reserve Bank of Chicago therefore should have had an specify that the certification is not (‘‘There should be an absolute cut off opportunity to ‘cure’ the deficiency considered ‘complete’ for purposes of when an employer can require the under § 825.305(d). The court rejected the employee’s certification obligations, employee to submit a completed this argument, finding that a thereby not qualifying the employee for certification form and the consequence certification that was never given to the FMLA leave.’’); South Central Human of not meeting that deadline is that the employer was not ‘‘incomplete,’’ and Resource Management Association (‘‘We absence(s) is not covered by FMLA.’’); therefore the employee could not avail recommend the Regulations make clear Society for Human Resource herself of the provisions in § 825.305(d). that a ‘complete’ certification is Management (‘‘HR professionals often The court also observed that, as a policy required, that meaningful answers have have difficulty in determining how matter, the stated purpose of the FMLA to be furnished for all questions, and many times an employer must give an was to ‘‘balance the demands of the that a certification is ‘incomplete’ if a employee an opportunity to ‘cure’ a workplace with the needs of families’’ doctor provides ‘unknown’ or ‘as deficiency, and how long to allow them and ‘‘to entitle employees to take needed’ to any question.’’). The to provide such a complete reasonable leave for medical reasons’’ in Department agrees that an adequate certification.’’). Employees and their a ‘‘manner that accommodates the FMLA certification requires responsive representatives expressed a related legitimate interests of employers.’’ The answers and therefore also proposes to concern that some employers repeatedly court reasoned that ‘‘it would seem define an insufficient certification as indicated that certifications were illogical to require an employer to one where the information provided is incomplete but failed to specify what continually notify an employee who ‘‘vague, ambiguous or non-responsive.’’ additional information was necessary, failed to submit medical certification The Department proposes to define oftentimes necessitating that the within a specified deadline,’’ observing these terms because it is aware that employee make repeated appointments that in the case of Urban, a 15-day employers are unsure in many with the health care provider in an extension had already been granted. Id. circumstances what the distinction is effort to obtain a complete and sufficient at 577. between an incomplete versus an certification. See, e.g., An Employee mstockstill on PROD1PC66 with PROPOSALS2 Current § 825.305(c) provides that an insufficient certification, and whether Comment (‘‘[I]nsurmountable hurdle employer should request medical they must give an employee another which many employees encounter is, certification from the employee within opportunity to provide sufficient upon application for family leave, the two business days of receiving the certification when the initial Company returns the forms asking for employee notice. Consistent with the certification does not establish that the ‘more information’. Even though the modifications made to proposed employee has a serious health condition employee’s Health Care Provider has § 825.300, the Department proposes a or whether they can simply deny FMLA filled out the application sections VerDate Aug<31>2005 19:27 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7913 relevant to the illness/injury, the providing the certification with any deleted text of current § 825.305(e), the Company is able to delay, and many necessary authorization from the Department proposes to add a provision times deny, for many weeks and months employee or the employee’s family allowing for annual medical the benefits and protections which the member—such as that required by the certifications in those cases in which Act affords.’’); Association of Health Insurance Portability and the serious health condition extends Professional Flight Attendants (‘‘[I]t is Accountability Act (HIPAA) Privacy beyond a leave year. This proposal simply unfair to send FMLA leave Regulations, 45 CFR Part 160 and 164, incorporates in the regulation the requests back to the employees and their or any other applicable law—in order Department’s statement in Wage and treating health care providers for more for the health care provider to release a Hour Opinion Letter FMLA2005–2–A medical facts, without ever indicating sufficient and complete certification to (Sept. 14, 2005) that a new medical what kinds of additional medical facts the employer to support the employee’s certification may be required once each are required before the employer will FMLA request. See Wage and Hour leave year. make a determination of medical Opinion Letter FMLA2005–2–A (Sept. Section 825.306 (Content of medical eligibility or medical ineligibility.’’); 14, 2005) (‘‘When requested, medical certification) International Association of Machinists certification is a basic qualification for and Aerospace Workers (‘‘We have FMLA-qualifying leave for a serious The information necessary for a many members who have their doctors health condition, and the employee is sufficient certification is set forth in fill out the paper work only to be told responsible for providing such section 103 of the Act. See 29 U.S.C. it is not properly filled out. The certification to his or her employer. If an 2613(b). The statute states that a employee fixes that problem and the employee fails to submit a requested medical certification ‘‘shall be Company tells them there is another certification, the leave is not FMLA- sufficient’’ if it states the following: the problem with the paper work. This protected leave.’’). date the condition commenced; the occurs over and over until finally the probable duration of the condition; Finally, current § 825.305(e) explains ‘‘appropriate medical facts’’ regarding doctor or the employee, or both give the interaction between the employer’s up.’’) (emphasis in original). To address the condition; a statement that the sick or medical leave plan and the employee is needed to care for a covered these concerns, proposed § 825.305(c) FMLA when paid leave (of any type) is requires that when an employer family member or a statement that the substituted for unpaid FMLA leave. The employee is unable to perform the determines that a certification is current regulation explains that if less functions of his/her position (as incomplete or insufficient, the employer stringent medical certification standards applicable); dates and duration of any must state in writing what additional apply to the sick leave plan, those planned treatment; and a statement of information is necessary and provide standards must be followed when paid the medical necessity for intermittent the employee with seven calendar days leave is substituted. The Department leave or leave on a reduced leave to cure the deficiency. Additional time proposes to delete this section. The schedule and expected duration of such must be allowed where the employee Department has heard feedback that it is leave. Id. notifies the employer within the seven unclear what constitutes less stringent Current § 825.306 addresses how calendar day period that he or she is information and how that information much information an employer can unable to obtain the additional would allow an employer to determine obtain in the medical certification to information despite diligent good faith if the leave should be designated as substantiate the fact that a serious efforts. The current regulations provide FMLA leave. For example, a plan that health condition exists. This section an employee ‘‘a reasonable opportunity’’ requires a doctor’s note may be currently explains that DOL has but no timeframe for curing an considered less stringent or more developed an optional form (Form WH– insufficient certification and the stringent depending on what type of 380) for employees or their family Department believes that a clear information is provided on the note, and members to use in obtaining medical timeframe will be helpful to employees that information may or may not certifications and second and third and employers. If the deficiencies indicate whether the leave is FMLA- opinions from a health care provider to specified by the employer are not qualified. See Wage and Hour Opinion substantiate the existence of a serious corrected in the resubmitted Letter FMLA–108 (Apr. 13, 2000) health condition for purposes of FMLA. certification, the employer may deny the (finding that certification requirements taking of FMLA leave. Finally, in light the employer asserted were ‘‘less Passage of HIPAA of the Urban decision discussed above stringent’’ were, in fact, more stringent Since the current FMLA regulations and the confusion that exists on this than FMLA requirements). Given this were issued in 1995, Congress enacted issue, language also is proposed that confusion, and the fact that Congress the Health Insurance Portability and specifies that a certification never clearly provided in 29 U.S.C. 2613 that Accountability Act (HIPAA) in 1996. submitted to the employer does not an employer could request a medical HIPAA addresses in part the privacy of qualify as an incomplete or insufficient certification to substantiate a ‘‘serious individually identifiable health certification but constitutes a failure to health condition’’ as a prerequisite to information. The Department of Health provide certification. being required to provide FMLA leave, and Human Services (HHS) Proposed paragraph (d), titled the Department proposes to eliminate promulgated regulations in December ‘‘[c]onsequences,’’ now sets forth the this language. Under the proposed rule, 2000 found at 45 CFR Parts 160 and 164 consequences if an employee fails to if an employee seeks the protections of that provide for the privacy of provide a complete and sufficient FMLA leave for a serious health individually identifiable medical mstockstill on PROD1PC66 with PROPOSALS2 medical certification, and reiterates the condition of the employee or qualifying information.15 These regulations apply standard under the existing regulations family member, an employer has a right only to ‘‘covered entities,’’ defined as a that an employer may deny leave. It to have the medical information health plan, a health care clearinghouse, clarifies that it is the employee’s permitted by the statute. Such or a health care provider who transmits responsibility either to provide such a information will best enable an any health information in electronic complete and sufficient certification or employer to determine if the leave is in to furnish the health care provider fact FMLA-qualified. In place of the 15 See 65 FR 82462 (Dec. 28, 2000). VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7914 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules form in connection with a transaction as Paragraph (b)(2)(ii) of this section asks asks if the employee’s family member defined in the privacy regulations. See whether it will be necessary for the will need care only intermittently or on 45 CFR 160.102(a), 160.103. HHS has employee to take leave intermittently or a reduced leave schedule basis (i.e., stated that the statute does not include to work on a reduced leave schedule part-time), and the probable duration of ‘‘employers per se as covered entities.’’ basis (i.e., part-time) as a result of the the need. Therefore, the HHS regulations do not serious health condition (see current The RFI sought comments on how the regulate an employer, ‘‘even when it is §§ 825.117, 825.203), and if so, the current form WH–380 is working and a covered entity acting as an employer.’’ probable duration of such schedule. what improvements could be made to it See 67 FR 53192 (Aug. 14, 2002). Current paragraph (b)(2)(iii) asks if the to facilitate the certification process. The final regulations issued by HHS condition is pregnancy or a chronic The Department received significant may have an impact, either directly or condition within the meaning of current feedback from the stakeholder indirectly, on the medical certification § 825.114(a)(2)(iii), whether the patient community, including health care process for FMLA purposes. Under the is presently incapacitated and the likely providers, that the existing form is HIPAA Privacy Rule, the health care duration and frequency of episodes of confusing. See, e.g., American Academy provider is permitted to disclose incapacity. of Family Physicians (‘‘The form WH– protected health information directly to Current paragraph (b)(3)(i)(A) asks if 380 is overly complicated and confusing the patient. Therefore, if the employee additional treatments will be required in its format.’’); United Parcel Service, has the health care provider complete for the condition, and an estimate of the Inc. (‘‘The current WH–380 form is the medical certification form or a probable number of such treatments. poorly drafted and confusing.’’); document containing the equivalent Paragraph (b)(3)(i)(B) asks if the Association of Corporate Counsel (‘‘The information and personally requests a patient’s incapacity will be intermittent, current form is confusing and often copy of that form to take or send to the or will require a reduced leave results in incomplete or vague responses employer, the HIPAA Privacy Rule does schedule, an estimate of the probable by health care providers that are not and should not impede the number of and interval between such insufficient to assess the employee’s disclosure of the protected health treatments, actual or estimated dates of eligibility for leave or the timing of the information. If the employee asks the treatment if known, and period required leave.’’). Indeed, stakeholders have health care provider to send the for recovery if any. Paragraph (b)(3)(ii) shared with the Department that in a completed certification form or medical asks if any of the treatments will be number of cases, health care providers information directly to the employer or provided by another provider of health have refused to complete the the employer’s representative, however, services (e.g., physical therapist), and certification form. As the employee has the HIPAA Privacy Rule will require the the nature of the treatments. Paragraph the statutory burden of providing health care provider to receive a valid (b)(3)(iii) asks if a regimen of continuing sufficient medical information to authorization from the employee before treatment by the patient is required substantiate the need for FMLA leave, the health care provider can share the under the supervision of the health care this confusion poses a serious hardship protected medical information with the provider, and if so, a general description to the employee. Several stakeholders employer. As employers have a of the regimen (see current also have criticized the form for asking statutory right to require sufficient § 825.114(b)). health care providers to render legal medical information to support an Paragraph (b)(4) asks, if medical leave conclusions by certifying whether a employee’s request for FMLA leave for is required for the employee’s absence serious health condition exists as a serious health condition, if an from work because of the employee’s defined by the FMLA. employee does not fulfill his or her own condition (including absences due Several commenters suggested that obligation to provide such information to pregnancy or a chronic condition), the form could be simplified if it was upon request, the employee will not whether the employee: (i) is unable to broken into multiple forms, with qualify for FMLA leave. See Wage and perform work of any kind; (ii) is unable separate forms either for intermittent Hour Opinion Letter FMLA2005–2–A to perform any one or more of the and block leave, or for leave for the (Sept. 14, 2005). essential functions of the employee’s employee and leave for the employee’s position, including a statement of the family member. See, e.g., Yellow Book Current Certification Requirements essential functions the employee is USA (suggesting separate forms for With regard to what constitutes unable to perform (see current block and intermittent leave); National sufficient medical certification, current § 825.115), based on either information Council of Chain Restaurants § 825.306(b)(1) states that the health provided on a statement from the (suggesting separate forms for employee care provider must identify which part employer of the essential functions of and family members); Spencer Fane of the definition of ‘‘serious health the position or, if not provided, suggesting forms for: ‘‘(a) continuous condition,’’ if any, applies to the discussion with the employee about the leave for employee’s own serious health patient’s condition, and the medical employee’s job functions; or (iii) must condition; (b) continuous leave for facts which support the certification, be absent from work for treatment. serious health condition of a family including a brief statement as to how Paragraph (b)(5)(i) asks, if leave is member; (c) reduced schedule/ the medical facts meet the criteria of the required to care for the employee’s intermittent leave for employee’s own definition. Current § 825.306(b)(2)(i) family member with a serious health serious health condition; and (d) asks for the approximate date the condition, whether the patient requires reduced schedule/intermittent leave for serious health condition commenced, assistance for basic medical or personal serious health condition of a family and its probable duration, including the needs or safety, or for transportation; or member.’’). A physicians group mstockstill on PROD1PC66 with PROPOSALS2 probable duration of the patient’s if not, whether the employee’s presence suggested that use of a standard form, as present incapacity (defined to mean to provide psychological comfort would opposed to individual employer inability to work, attend school or be beneficial to the patient or assist in variations, would reduce the burden on perform other regular daily activities the patient’s recovery. The employee is health care providers. See American due to the serious health condition, required to indicate on the form the care Academy of Family Physicians; see also treatment therefor, or recovery he or she will provide and an estimate Kennedy Reeve & Knoll (‘‘The model therefrom) if different. of the time period. Paragraph (b)(5)(ii) certification form must be simplified, VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7915 and then it must be the required form medication has been prescribed, allowed on the FMLA leave certification for employers to use.’’). referrals for evaluation or treatment form. However, the Department does not In reviewing the criticisms of the (physical therapy, for example) or any intend to suggest, by including such medical certification form, the other regimen of continuing treatment. language, that a diagnosis is a necessary Department notes that employers have a These examples of what constitutes component of a complete FMLA statutory right to obtain sufficient sufficient medical facts streamline the certification. If the medical facts set medical certification from an employee certification form by eliminating the forth by the health care provider’s to substantiate the existence of a serious need to ask several other questions that medical certification establish the health condition. See 29 U.S.C. 2613(a), are contained in the current regulations, necessity for leave due to a serious (b). However, the Department believes specifically those listed in health condition without reference to that the form can be simplified to make § 825.306(b)(2)(iii), (b)(3)(i)(A), (b)(3)(ii), the employee’s diagnosis, a diagnosis is it easier for health care providers to and (b)(3)(iii), and are intended to not necessary and may not be required. understand and complete. The simplify the certification process for The health care provider determines the Department proposes the following health care providers. appropriate relevant medical facts in revisions to the medical certification Proposed § 825.306(a)(3) also states any case and the employer determines form, to implement the statutory that the health care provider may if the certification is complete and requirements for ‘‘sufficiency’’ of the provide information on the diagnosis of sufficient to meet the regulatory medical certification as set forth in 29 the patient’s health condition. The term definition of a serious health condition. U.S.C. 2613(b). The Department has ‘‘diagnosis’’ was specifically not Proposed § 825.306(a)(4) requires that declined at this time to create multiple the health care provider provide included in the 1995 final regulations forms. However, the Department seeks sufficient information to establish that due to concerns expressed under the feedback as to whether multiple forms the employee cannot perform the Americans with Disabilities Act. See would be clearer than the revised Form functions of the employee’s job and the Preamble to Final FMLA Regulations, 60 WH–380 proposed in this rulemaking likely duration of such inability, FR at 2222. As noted, in response to the (see Appendix B to these proposed consistent with current § 825.306(b)(4). RFI, several commenters specifically Proposed § 825.306(a)(5) retains the regulations). requested that the Department require requirement currently found in Proposed Certification Requirements the employee’s health care provider to § 825.306(b)(5)(i) that information be Before detailing the proposed changes specify a diagnosis. See, e.g., South provided sufficient to establish that the to this section, the Department notes Central Human Resource Management employee is needed to care for a family that the medical certification process Association (‘‘an employer should be member, if applicable. remains optional for the employer. That permitted to obtain diagnosis and Proposed § 825.306(a)(6), (7), and (8) is, an employer is always free to prognosis’’); Detroit Medical Center (‘‘It address the need for certification in designate qualifying leave as FMLA is critical that the regulations and WH– connection with the need for reduced leave without requiring medical 380 form be changed to require actual schedule or intermittent leave for the certification of the underlying diagnoses to determine whether an employee’s own serious health condition. See 29 CFR § 825.305(a). employee’s absences correlate with the condition or that of a family member. Proposed § 825.306(a)(1) still requires medical certification.’’); MedStar These paragraphs incorporate the that the name and address of the health Health, Inc. (‘‘[T]he FMLA’s current requirements set forth in current care provider and type of medical restriction on obtaining a diagnosis § 825.306(b)(2)(i) and (ii), (b)(3)(i)(B), practice be identified, but also requires creates an unnecessary and awkward and (b)(5)(ii). In response to the RFI, that the pertinent specialization and fax limitation on the employee’s health care several commenters noted that current number of the health care provider be provider in completing the medical § 825.306 and the WH–380 model provided. This addition allows the certification form and the employer’s certification form do not require the employer to more efficiently contact the health care provider in seeking health care provider to certify the health care provider for purposes of clarification of information contained in medical necessity for intermittent leave, clarification and authentication as that form. Generally, meaningful which is a statutory requirement for the appropriate and in accordance with communications between the health taking of such leave under section proposed § 825.307 (discussed below). care providers cannot take place 102(b) of the Act. See, e.g., National The question of the approximate date on without some discussion about the Coalition to Protect Family Leave (‘‘In which the serious health condition actual diagnosis, particularly if second the case of intermittent leave, the commenced and the probable duration and third opinions are involved.’’). In medical necessity for the intermittent or has been retained in proposed practice, in many cases it may be reduced schedule also should be § 825.306(a)(2). difficult to provide sufficient medical specified in accordance with 29 C.F.R. Consistent with the statute, the facts without providing the actual § 825.117 (not currently asked on the Department proposes to retain the diagnosis, and in some cases the model form).’’); Society for Human requirement that a complete employee may prefer that a diagnosis be Resource Management (same); American certification contain appropriate provided as opposed to more detailed Electric Power (‘‘Unfortunately, the medical facts regarding the patient’s medical facts. The Department is also statutory requirement that ‘medical health condition for which FMLA leave aware that the diagnosis may often be necessity’ be demonstrated by is requested. See 29 U.S.C. 2613(b)(3). provided in practice under the current employees seeking intermittent leave The Department also has added regulation. For example, many health has been effectively eliminated by the mstockstill on PROD1PC66 with PROPOSALS2 guidance in this regulatory section as to care providers may currently write a Department’s regulations.’’). Consistent what constitutes sufficient medical facts diagnosis such as ‘‘asthma’’ on the with the statutory and the current for purposes of responding to this certification form instead of describing regulatory requirements, the proposed question. Specifically, the Department symptoms such as ‘‘intermittent section would now clarify that the proposes that such medical facts may difficulty in breathing due to inflamed health care provider must certify that include information on symptoms, airways.’’ The Department proposes, intermittent or reduced schedule leave hospitalization, doctors visits, whether therefore, that such information be is medically necessary. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7916 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules Interaction Between FMLA and what is contained in existing (‘‘In some cases, a medical release is Employer Policies § 825.207(d)(1) with regard to temporary attached to the FMLA form requesting Current paragraph (c) of this section disability benefit plans and proposed leave, with no explanation of its provides that an employer cannot § 825.207(a), although the existing purpose. As a result, many employees request all of the information set forth regulations do not define what unwittingly forego their right to medical above to substantiate the existence of a constitutes a disability plan. For privacy and agree to the unlimited serious health condition if an consistency and clarity, the Department disclosure of their entire medical employer’s sick leave plan requires less proposes that all disability and paid history, believing that they must sign information. Consistent with the change leave plans be covered by this the release in order to qualify for the made to § 825.305(e), the Department provision. FMLA.’’); United Steel, Paper and proposes to eliminate this language. Forestry, Rubber, Manufacturing, Interaction Between FMLA Certification Instead, the proposal incorporates Energy, Allied Industrial and Service and ADA Medical Inquiries language from current § 825.307(a)(1), Workers International Union (‘‘The The Department received comments USW asks the DOL to clarify that which explains the interaction between in response to the RFI indicating that workers’ compensation and the FMLA employees are not required to provide a employers were frustrated and confused release of medical information to the with regard to the clarification of by the differing processes for gathering medical information. Specifically, the employer as a condition of applying for medical information under the FMLA or receiving FMLA leave.’’). In the current regulation provides that if a and the ADA. See generally RFI Report, preamble to the current regulations, the workers’ compensation statute provides Chapter VII, Interplay Between the Department specifically rejected for an employer to have direct contact Family and Medical Leave Act and the suggestions that employees be required with the workers’ compensation health Americans With Disabilities Act, 72 FR to sign a release or waiver as part of the care provider, the employer may do so at 35599. The United Parcel Service, medical certification process. See 60 FR even if the leave also may be designated Inc. explained the dilemma faced by 2222 (‘‘The Department has not adopted FMLA leave. The Department proposes employers: ‘‘When an FMLA-qualifying the suggestion that a waiver by the to amend this language to state that if ‘serious health condition’ is also a employee is necessary for FMLA the employer is permitted ‘‘to request potential ‘disability’ under the ADA, purposes.’’). The Department continues additional information’’ from the [§ 825.306’s] restriction on medical to believe that employees should not be workers’ compensation health care information is in conflict with the ADA required to sign a release as a condition provider, the FMLA does not prevent interactive process, which allows—and of taking FMLA leave and has added a the employer from following the arguably requires—an employer to new § 825.306(e) to clarify this issue. Of workers’ compensation provisions. The gather far more medical information course, when certification is requested, Department notes that for purposes of regarding an employee so that it can the employee is required to provide the HIPAA, ‘‘individuals do not have a right make an informed decision regarding employer with a complete and sufficient under the Privacy Rule at 56 CFR possible accommodations.’’ See also certification and failure to do so may 164.522(a) to request that a covered Temple University (‘‘FMLA restrictions result in the delay or denial of FMLA entity restrict a disclosure of protected particularly are problematic when leave. health information about them for employers face a request from an workers’ compensation purposes when employee that triggers obligations under Section 825.307 (Authentication and that disclosure is required by law or both the FMLA and ADA, given that the clarification of medical certification) authorized by, and necessary to comply latter requires the employer to engage in Current § 825.307(a) explains that a with, a workers’ compensation or interactive processes to accommodate health care provider working for an similar law.’’ See Department of Health the employee.’’). The Department employer can contact the employee’s and Human Services, Office of Civil recognizes that an employee’s request health care provider with the Rights Publication, ‘‘Disclosures For for leave due to a serious health employee’s permission for purposes of Workers’ Compensation Purposes: condition may also trigger the clarification and authentication of the Frequently Asked Questions,’’ interactive process under the ADA to medical certification. Commenters December 3, 2002. determine whether the condition is also raised two major areas of concern in The Department also proposes to add a disability. The Department therefore their response to the RFI regarding the language to this section that clarifies the proposes to add a new § 825.306(d), authentication and clarification process: interaction between paid leave or which clarifies that where a serious (1) The requirement that employers benefit plans and FMLA leave. health condition may also be a obtain employee permission to contact Consistent with Wage and Hour disability, employers are not prevented the employee’s health care provider, Opinion Letter FMLA2004–3–A (Oct. 4, from following the procedures under the and (2) the requirement that a health 2004), the proposed language in this ADA for requesting medical care provider working for the employer section clarifies that if an employee information. be utilized to contact the employee’s ordinarily is required to provide Finally, the Department received health care provider, rather than additional medical information to comments from employees and their allowing direct employer contact. receive payments under a paid leave representatives indicating that Several commenters asserted that the plan or benefit plan, an employer may employers are incorporating medical requirement that an employer obtain the require that the employee provide the releases into their FMLA certification employee’s permission prior to seeking additional information to receive those forms and requiring employees to sign authentication of the certification from mstockstill on PROD1PC66 with PROPOSALS2 payments, as long as it is made clear to the release as a condition of providing the employee’s health care provider the employee that the additional FMLA leave. See An Employee makes it extremely difficult for information is requested only in Comment (‘‘Also, my employer [has] employers to investigate suspected connection with qualifying for the paid requested me to sign a medical release fraud related to medical certifications. leave benefit and does not affect the form for my son’s medical records, or I See, e.g., Robert Haynes, HR— employee’s unpaid FMLA leave wouldn’t be certified for FMLA.’’); Legal Compliance Supervisor, Pemco entitlement. This language reiterates Aid Society—Employment Law Center Aeroplex, Inc. (noting difficulty in VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7917 investigating fraud when employee’s information than current § 825.307(a). employers commented that the consent is necessary for the employer to For example, a valid authorization requirement that they communicate authenticate form with employee’s under the HIPAA Privacy Rule requires, only through a health care practitioner health care provider); United States in part, a written document containing: resulted in significant cost and delay. Postal Service (suggesting that a ‘‘simple (1) A description of the information that See, e.g., Milwaukee Transport Services, and fair way to remedy this problem is may be disclosed; (2) the name or Inc. (‘‘In 2006 alone, MTS spent to allow an employer to make contact specific identification of the person(s) to $23,000.00 for the services of a with the provider for the purpose of whom the requested disclosure may be designated health care provider because confirming authenticity’’); Taft, made; (3) a description of the purpose it was not itself permitted under the Stettinius & Hollister LLP (‘‘Where of the requested disclosure; (4) an FMLA regulations to ask questions authenticity is suspect, the employer’s expiration date or event for the which that provider was then forced to inquiry is not medically related but authorization; and (5) a signature of the ask on its behalf.’’); City of Portland rather, is intended to determine whether individual and date. 45 CFR (‘‘The Act requires employers to use the the employee’s health care provider 164.508(c)(1). In any instance in which employee as an intermediary to issued the certificate and that it has not the employee’s health care provider is communicate with doctors or incur been altered. In such circumstances, the disclosing medical information to the substantial costs hiring additional restrictions contained in Section employer, the HIPAA Privacy Rule doctors to consult with employee 825.307(a) serve no useful purpose, requires that the employee execute a physicians or, in narrow circumstances, impose unnecessary expense on valid authorization prior to the to give second and third opinions.’’); employers, and are not justified by any disclosure. The Department agrees with Hewitt Associates LLC (‘‘The employer’s language in the Act.’’). The Department those commenters who suggested that engagement of its own health care notes that authentication involves only the protections afforded to employee provider is expensive, takes additional verifying that the certification was medical information by the HIPAA time and ultimately delays the decision completed, or authorized, by the Privacy Rule have supplanted the to approve or deny a leave request.’’). employee’s health care provider and requirement in current § 825.307(a) for Other commenters suggested that their does not involve disclosure of any employee permission to clarify the human resources professionals could additional medical information. certification. See Ohio Public Employer more efficiently clarify the certification Accordingly, proposed § 825.307(a) Labor Relations Association (‘‘With with the employee’s health care clarifies the limited nature of the HIPAA laws protecting confidential provider because they were both better authentication process and removes the medical information, the excessive versed in the FMLA and more familiar requirement of employee consent to restrictions found in 29 C.F.R. § 825.307 with the employee’s job duties and the authenticate the certification. are unnecessary and should be work environment than the employer’s Unlike authentication, clarification removed.’’); Taft, Stettinius & Hollister health care provider. See, e.g., does involve communication with the LLP (‘‘HIPAA and similar laws provide Association of Corporate Counsel employee’s health care provider ample protection for personal health (‘‘[T]he employer’s staff members—often regarding the substance of the medical data and the employee’s health care its Human Resources employees—are information contained in the provider can always refuse to disclose usually more knowledgeable about the certification. Several commenters noted information if he or she considers a specific job requirements and other that the passage of HIPAA (discussed request for clarification to implicate information that may be relevant or above in § 825.306) has complicated the privacy issues.’’); Hewitt Associates LLC helpful to the employee’s health care process of clarification of FMLA (‘‘[G]iven HIPAA concerns, it’s likely provider in making his/her certifications. See, e.g., Methodist that the employee will still have a check assessment.’’). Commenters also noted Hospital, Thomas Jefferson University over the process as the health care that the ADA does not contain a similar Hospital (‘‘With [HIPAA] regulations provider would require the employee’s restriction requiring employers to physicians are reluctant to share permission before he or she would engage medical providers to contact information with Employers who are speak with the employer.’’). employees’ doctors. See, e.g., trying to accommodate Employee Accordingly, in lieu of the requirement Commonwealth of Pennsylvania; Clark medical conditions to minimize in current § 825.307(a) that the Hill PLC; City of New York; Edison absence.’’); American Academy of Family Physicians (‘‘We agree with employee provide permission for the Electric Instituted. The AFL–CIO, comments that the Health Insurance employer to clarify the medical however, commented that the use of a Portability and Accountability Act certification, the Department proposes health care provider was necessary to (HIPAA) has created confusion about language highlighting that contact preserve employee privacy. the disclosure of information on the between the employer and the The Department has considered the FMLA form. As employers are not employee’s health care provider for the comments on this issue particularly in covered entities, disclosure directly to purpose of clarifying the medical light of the HIPAA Privacy Rule, and the employer is prohibited without an certification must comply with the has determined that employers should authorization by the patient.’’); AIG HIPAA Privacy Rule. Language has also be allowed to directly contact the Employee Benefit Solutions’ Disability been added to make clear that if such employee’s health care provider for the Claims Center (‘‘More than one Provider consent is not given, an employee may purposes of authenticating and has written ‘HIPAA’ across the Form jeopardize his or her FMLA rights if the clarifying the medical certification. and returned it.’’); Briggs & Stratton information provided is incomplete or Accordingly, proposed § 825.307(a) mstockstill on PROD1PC66 with PROPOSALS2 Corporation (‘‘[M]any physicians still insufficient. eliminates the requirement that the insist that they are prohibited by The second major area of concern employer’s health care provider, as [HIPAA] from responding to questions raised in the comments to the RFI opposed to the employer itself, make the on the Certification.’’). regarding § 825.307(a) was the contact to an employee’s health care The Department notes that the HIPAA requirement that the employer utilize a provider. The Department believes that Privacy Rule provides far more health care provider to contact the this change would significantly address protection for employee medical employee’s health care provider. Many the unnecessary administrative burdens VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7918 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules the current requirement creates and, in which leave is sought from the Section 825.308 (Recertifications) light of the protections provided by the employee’s (or family member’s) health Current § 825.308 specifies when an HIPAA Privacy Rule, will not care provider to the second or third employer may request subsequent significantly impact employee privacy. opinion provider. recertifications of medical conditions. In The Department notes again, however, The final issue in § 825.307 that cases of pregnancy, chronic, or that such contact by the employer may permanent/long-term conditions, garnered significant comments and an only take place after the employee has recertifications may be requested no issue which the Department is hearing been afforded the opportunity to cure more often than every 30 days (and only any deficiencies with the certification. about more is the requirement in current § 825.307(f) that under certain in connection with an absence) unless Current § 825.307(a)(1), which circumstances, the employer shall circumstances described in the initial addresses rules governing access to accept the medical certification and certification have changed significantly, medical information when a workers’ second and third opinions from a or the employer receives information to compensation absence also is at issue, foreign health care provider. In response cast doubt on the employee’s stated has been moved to proposed § 825.306 to the RFI, several commenters stated reason for the absence. If the time because that section also addresses what that this requirement has caused period specified by the health care medical information an employer can obtain in connection with an FMLA numerous problems. See, e.g., Spencer, provider for the duration of the absence. Fane, Britt & Browne LLP (‘‘First, incapacity or its treatment is longer than Current § 825.307(a)(2) and (b) cover 30 days, an employer may not request employers have no idea whether the the requirements an employer must recertification until the minimum health care provider has training and meet when obtaining a second opinion. duration has passed, unless the credentials equivalent to U.S.-licensed The existing language of current employee requests an extension of health care providers. Second, it is leave, circumstances have changed § 825.307(a)(2) and (b) has been difficult to verify that the foreign health incorporated into proposed § 825.307(b), significantly, or an employer has care provider even completed the form. received information that casts doubt on titled ‘‘[s]econd opinion’’. Employers * * * Third, obtaining a second and expressed significant frustration with the validity of the certification. This third opinion is next to impossible same rule applies to intermittent leaves the second and third opinion process in * * * .’’); U.S. Chamber of Commerce responding to the RFI— and questioned of absence. If no time period is specified (‘‘These companies have had to obtain and the condition is other than its utility. Specifically, several the services of translators and health pregnancy, chronic, or long-term or employers commented on the expense involved in the second and third care providers with foreign language permanent, an employer can request opinion process. See, e.g., Honda skills to discuss the certification with recertification every 30 days or more (‘‘Based upon Honda’s experience, foreign doctors.’’); Fairfax County Public frequently if the employee requests an second and third opinions average over Schools (‘‘Approximately 20% of the extension of leave, circumstances have $700 per second or third opinion, and FCPS FMLA requests are for leave for changed significantly, or an employer cost the employees their time.’’); Yellow immediate family members who live has received information that casts Book USA (asserting that second outside the U.S. and have received doubt on the validity of the certification. opinions are so expensive they are not medical diagnoses from individuals of The Department proposes to re- used). Other commenters noted unclear medical qualifications.’’). structure § 825.308 for the sake of practical concerns regarding finding Commenters suggested that there should clarity. Proposed paragraphs (a), (b), and physicians to perform second opinions. be additional requirements for (c) now clearly apply to all medical See, e.g., United States Postal Service certifications for foreign health care conditions and work in conjunction (‘‘We are experiencing increasing providers. See, e.g., Spencer, Fane, Britt with each other. Paragraph (a), titled difficulty finding physicians who will & Browne LLP; U.S. Chamber of ‘‘30-day rule,’’ merely states a general perform a second opinion medical Commerce; Fry’s Electronics, Inc. At the rule that an employer may request exam.’’); FNG Human Resources present time, the substance of recertification no more often than every (‘‘Requesting a second opinion is § 825.307(f) remains unchanged. 30 days and only in connection with the neither economically feasible nor Nevertheless, the Department seeks absence of the employee. This rule is beneficial in our area. We do not find further public comment about what subject to the more specific occurrences healthcare providers willing to state that specific changes would allow for better described in paragraphs (b) and (c). another provider is incorrect in his/her authentication in this area. Paragraph (b), titled ‘‘[m]ore than 30 diagnosis.’’). The Department notes that days,’’ explains, consistent with the In order to assist individuals referring existing regulation, that if a minimum the statute itself mandates the second and third opinion process, including to the regulations on second and third duration for the period of incapacity is that the employer cannot use a health opinions, proposed changes have been specified, the employer may not request care provider it regularly employs to made to add titles to each paragraph in recertification until that time period has render the second opinion, and that the this section. Paragraph (c) is now titled, expired, but adds that in all cases, employer bears the costs of the second ‘‘[t]hird opinion,’’ paragraph (d) is recertifications may be requested every and third opinions. 29 U.S.C. 2613(c), titled, ‘‘[c]opies of opinions,’’ paragraph six months. An example has been (d). Thus, the Department has (e) is titled ‘‘[t]ravel expenses,’’ and provided to give further guidance on determined that it is not appropriate to paragraph (f) is titled, ‘‘[m]edical this issue. This proposal addresses change the current regulation. In order certification abroad.’’ The timeframe for situations where a certification is mstockstill on PROD1PC66 with PROPOSALS2 to increase the utility of the second and employers to provide employees with provided that states an employee may third opinion process, however, the copies of second and third medical be incapacitated and in need of Department proposes to add language to opinions upon the employees’ request intermittent leave for an extended § 825.307(b)(1) and (c) requiring the under paragraph (d) is proposed to be period. There is confusion under the employee (or family member) to extended from two to five business existing requirements as to whether an authorize the release of relevant medical days, to be uniform with other similar employer would be able to obtain information regarding the condition for timeframes. recertification in a given year absent a VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7919 significant change in circumstance or a employee and physician.’’). The have changed significantly based on the reason that casts doubt on the validity American Academy of Family duration or frequency of the absence or of the absence where the certification Physicians also objected to allowing the nature or severity of the illness, or indicates that the duration of the recertifications every 30 days for if the employer receives information condition is ‘‘lifetime.’’ Conversely, conditions that are medically stable: that casts doubt upon the employee’s under current law, where an employee ‘‘This is a burden to physicians who stated reason for the absence or the has a chronic condition certified to last must spend time completing the form to continuing validity of the certification. an ‘‘indefinite’’ period of time, that indicate that a chronic condition is still The remaining provisions of the existing certification may be treated as having no being managed. It would lessen this regulation have been incorporated durational timeframe and the employer burden to allow recertification only for without any substantive changes. may require a recertification every 30 those conditions which are not However, examples have been added to days in connection with an absence. See categorized as chronic care or illustrate what constitutes a change in Wage and Hour Opinion Letter permanent disability.’’ See also Mark circumstances or information that FMLA2004–2–A (May 25, 2004). Blick DO, Rene Darveaux MD, Eric would ‘‘cast doubt.’’ See also Wage and In response to the RFI, some Reiner MD, Susan R. Manuel PA-C Hour Opinion Letter FMLA2004–2–A employers argued that recertification (‘‘One employer requires us to complete (May 25, 2004) (noting that a pattern of should be permitted every 30 days even the form every 60 days (ATT/SBC), one Friday/Monday absences would permit where the certification indicates that the employer every 90 days and another an employer to request recertification in condition will last for an extended every year. Chronic conditions less than 30 days provided that there duration. See, e.g., University of extending a patient’s lifetime such as was no evidence of a medical basis for Minnesota (‘‘In all cases, employers diabetes and hypertension are not going the timing of the absences). to change and there is no reason the No changes have been proposed to should have the right to request form has to be updated multiple times paragraph (d) from the current recertification from an employee on throughout the year.’’); An Employee regulations except it is titled, FMLA leave every thirty days.’’); Comment (‘‘[E]ven though my mother’s ‘‘[t]iming.’’ Carolyn Cooper, FMLA Coordinator, A new paragraph (e) has been illness is terminal and my father’s City of Los Angeles (‘‘A remedy to this proposed, titled ‘‘[c]ontent,’’ that condition is considered lifetime, I still manipulation or gaming of the medical confirms an employer may ask for the am required to fill out forms and have recertification restriction pertaining to same information when obtaining a doctor sign them every 3 months. The intermittent/reduced work schedule recertification as that permitted for the physician’s office now charges me $20 leaves is to allow employers to request original certification as set forth in for each form I have to have them sign. recertification every 30 days, regardless current § 825.306. In addition, As you can imagine, this takes a lot of if the duration indicated in the initial consistent with Wage and Hour Opinion time and money.’’). medical certification is greater than 30 Taking all of the comments into Letter FMLA2004–2–A (May 25, 2004), days.’’) (emphasis in original); United consideration, the Department believes the proposed regulation states that as Parcel Service, Inc. (‘‘As currently that it would be reasonable for part of the information allowed to be drafted, [the] language permits employers to obtain recertifications obtained on recertification, the employees to evade the 30-day every six months in circumstances in employer may provide the health care recertification requirement by having which the certification indicates that the provider with a record of the employee’s their health care provider specify a condition will last for an extended absence pattern and ask the health care longer period of time.’’). Employees and period of time. An extended period of provider if the serious health condition their representatives, however, time includes not only specific months and need for leave is consistent with commented that frequent recertifcations or years (e.g., one year) but certified such a pattern. are burdensome for employees. See, e.g., durations of ‘‘indefinite,’’ ‘‘unknown,’’ Proposed paragraph (f) sets forth International Association of Machinists or ‘‘lifetime.’’ This is a change in the without change the requirements of and Aerospace Workers (‘‘[O]ur law from the current construction as current § 825.308(e) that the employee is members find that the requirement to explained above and expounded in responsible for the costs associated with recertify every 30 days is incredibly Wage and Hour Opinion Letter the recertification and that no second or burdensome. * * * [I]t is very FMLA2004–2–A (May 25, 2004). The third opinion may be required. The expensive for employees to get re- Department feels six months is a Department notes that several certifications. Some employees, reasonable timeframe for permitting employers responding to the RFI particularly in rural areas, have to travel recertification of such conditions but requested that the Department allow long distances to even see their doctor. requests comments on this proposal. second and third opinions on It is ironic that often these employees This is also consistent with the recertifications. See, e.g., United States actually have to miss more work time Department’s proposal in § 825.115(c) Postal Service (‘‘[A] second opinion just to get the recertification.’’); An that ‘‘periodic’’ visits to a health care should be allowed during the lifetime of Employee Comment (‘‘For an employer provider for a chronic serious health an employee’s condition, so long as to repeatedly request for recertifications condition is defined as at least twice per there is reason to doubt the validity of every 30 days, for an chronic Asthmatic year. the information in the certification.’’); who has an unforeseeable mild flare-up Proposed paragraph (c) of this section Air Transport Association of America, that can be taken care of with explains, with some modifications to Inc. and Airline Industrial Relations prescription medication, seems the current rule, what circumstances Conference (‘‘Second and third opinions mstockstill on PROD1PC66 with PROPOSALS2 unreasonable and repetitious.’’); must exist to request medical should also be available to employers on Kennedy Reeve & Knoll (‘‘The frequency recertification in less than 30 days and a medical recertification.’’). The with which some employers are is now titled ‘‘[l]ess than 30 days.’’ The National Partnership for Women & requiring notes and recertification is proposed paragraph explains that Families, however, argued that the fact both logistically (due to the availability recertification may be requested in less that the statute only refers to second and of doctor’s appointment times) and than 30 days if the employee requests an third opinions on initial certifications financially burdensome on the extension of leave, the circumstances supports the current regulatory VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7920 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules prohibition on second and third statement of ability to return to work. It involved.’’ The Coalition and a number opinions on recertification. However, also provides that a health care provider of other commenters stated that the both Honda and the AFL-CIO noted that employed by the employer can contact return to work process under the FMLA employers are already permitted to the employee’s health care provider conflicts with the return to work process reinitiate the certification process on an with the employee’s permission for under the ADA, with the latter annual basis, which offers the employer purposes of clarifying the employee’s providing a better model because it the opportunity to seek a second fitness to return to work, that no allows both more substantive opinion annually. See supra discussion additional information may be acquired, information and physical examinations. of proposed § 825.305(e). The and that the employee’s reinstatement In contrast, as explained in more Department believes that allowing may not be delayed while contact with detail with regard to paragraph (g) of employers to request a new medical the health provider is made. A number this section, several commenters certification on an annual basis (and a of commenters responding to the RFI representing employees, including the second and third opinion, if addressed the ‘‘simple statement’’ rule. National Partnership for Women & appropriate) allows employers sufficient Some employers noted that particular Families, cautioned that altering the opportunity to verify the serious health safety concerns inherent in their fitness for duty certification procedures condition. Accordingly, the Department workplaces necessitated that they obtain under the FMLA would place an has retained the regulatory prohibition clear information regarding an ‘‘unwarranted burden’’ on employees. on second and third opinions on employee’s ability to safely return from The proposed regulation retains the recertification, but seeks comment about leave. For example, Union Pacific basic fitness-for-duty certification this in light of the restructuring of Railroad Company noted that clear procedures, but states that for purposes § 825.308. information regarding its employees’ of authenticating and clarifying the ability to work is critical as ‘‘those very fitness-for-duty statement, the employer Section 825.310 (Fitness-for-duty may contact the employee’s health care certification) employees are entrusted with jobs that affect the safety and security of the provider consistent with the procedures Current § 825.310 explains when an general public.’’ The Association of set forth in § 825.307 above. The employer may require an employee to American Railroads also stated that proposal also replaces the requirement provide a fitness-for-duty certification. ‘‘returning an employee to work is not that the certification must only be a Current paragraph (a) of this section a ‘simple’ process in cases where the ‘‘simple statement’’ with the statutory explains that employers may have a employee performs a safety sensitive language that the employee must obtain uniformly applied policy or practice a certification from his or her health job.’’ Therefore, it recommended that that requires similarly situated care provider that the employee is able the Department should ‘‘define a return employees who take leave to provide a to resume work. The employer may to work ‘certification’ in such a way as certification that they are able to resume provide the employee with a list of the to allow employers to require a detailed work. The Department proposes to add employee’s essential job duties together certification similar to what is required a sentence to paragraph (a) clarifying with the eligibility notice, in which (as when an employee first requests FMLA that employees have the same obligation provided for in proposed leave.’’ Similarly, the Maine Pulp & to provide a complete certification or § 825.300(b)(3)(v)) the employer advises Paper Association stated: provide sufficient authorization to the the employee of the necessity for a health care provider to provide the Employees in the paper industry routinely fitness-for-duty certification. If the information directly to the employer at work with hazardous materials in close employer provides such a list of the fitness-for-duty stage as they do in proximity to heavy machinery. Forcing essential functions, it may require the employers to accept the employee’s medical the initial certification stage. employee’s health care provider to provider’s simple statement that the No changes have been proposed to employee ‘‘is able to resume work,’’ or worse, certify that the employee can perform paragraph (b), which explains that if in the case of an intermittent leave-taker, them. When providing a fitness-for-duty State or local law or the terms of a accept the employee’s word alone with no certification, the health care provider collective bargaining agreement govern medical verification whatsoever jeopardizes therefore must assess the employee’s an employee’s return to work, those the safety of co-workers and increases ability to return to work against these provisions apply, and that the ADA exposure to expensive workers’ identified essential functions. However, requires that any return-to-work compensation claims. MPPA’s members have if the employer wants the health care physical be job-related and consistent strong safety programs which should not be provider to consider a list of essential with business necessity. The court in undercut by administrative requirements of functions, it must provide them with the Harrell v. USPS, 445 F.3d 913, 926–27 the FMLA. eligibility notice; providing the list at a (7th Cir.), cert. denied, 127 S. Ct. 845 Jackson Lewis LLP stated that the later date could force the employee to (2006), deferred to this regulation, ‘‘simple statement’’ provision allows make an extra visit to the health care holding that it reasonably implements employees to present ‘‘cursory and provider or to incur extra expense or the statute and is consistent with the conclusory notes asserting, without any delay. The statement in the current legislative history by providing that a factual explanation, that they are regulations that no additional collective bargaining agreement ‘‘may ‘cleared to return to work without information may be acquired has been impose more stringent return-to-work restrictions.’ Employers must ignore deleted, as the process of clarifying the requirements on the employee than facts suggesting employees are not fitness-for-duty certification may result those set forth in the statute.’’ qualified to perform their jobs or might in the employer obtaining additional Current paragraph (c) of this section pose a direct threat of harm to information not initially provided on mstockstill on PROD1PC66 with PROPOSALS2 explains the procedures for obtaining a themselves or others.’’ The National the fitness-for-duty certification. But the fitness-for-duty certification and states Coalition To Protect Family Leave also employer may not request or require that an employer may seek certification noted that ‘‘the inability of an employer additional information in a certification only with regard to the condition that to obtain more than a ‘statement’ that to establish fitness-for-duty than is caused the employee’s need for leave. the employee can return to work, and specified under these regulations. The existing regulation provides that the lack of opportunity to challenge such a The Department also requests further certification itself need only be a simple statement, creates risk for everyone input concerning the appropriate level VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7921 of information that may be obtained and employer has a handbook, the employer puts the employee and his/her co- the process that employers may follow should include its general policy with workers at risk and requires the in connection with a fitness-for-duty regard to fitness-for-duty certifications. employer to assume a legal risk for certification. This includes, but is not The current regulations further provide liability, if there is an accident caused limited to, whether additional that no second or third opinions on by the reinstated employee.’’ Therefore, information or procedures (such as a fitness-for-duty certifications may be Honda suggested that employers should second and third opinion process) required. The Department proposes to be permitted to require a fitness-for-duty should be permitted where an employer modify this section by specifying that form for employees returning from has reason to doubt the validity of the the notice of the fitness-for-duty intermittent leave, but only ‘‘when it is fitness-for-duty certification. Although certification requirement is to be consistent with the employer’s the Department did not ask specific provided in the eligibility notice set ‘uniformly-applied policy or practice’ questions regarding these topics in the forth in proposed § 825.300(b). applicable to all similarly-situated RFI, some commenters did address Current paragraph (f) of this section employees [the general standard for them. For example, the Association of provides that an employer may delay fitness-for-duty certifications in Corporate Counsel suggested that restoration to employment until an § 825.310(a)].’’ The City of New York employers should be permitted to employee submits a required fitness-for- commented that ‘‘Fitness for Duty require an employee returning from duty certification unless the employer Certifications for employees in safety- FMLA leave to undergo a return to work has failed to provide the notice required sensitive positions who are physical conducted by the employer’s by paragraph (e). This language has been intermittently absent should be an physician, so long as the employer retained in the proposed regulations. option for employers. For example, if a regularly requires such a physical for all The Department proposes, however, to sanitation worker responsible for employees returning to work. The Ohio add language, consistent with current driving a two-ton truck on public Department of Administrative Services § 825.311(c), to make clear that the roadways takes intermittent leave to and the National Council of Chain employee is not entitled to the treat high blood pressure, a fitness for Restaurants stated that employers reinstatement protections of the Act if duty certification should be required should be allowed to get a second he or she does not provide such a before the employee is restored to the opinion on a return to work certification requested certification or request position which carries an extreme when they have reason to doubt the additional FMLA leave. responsibility to the public.’’ Dallas validity of the release. Briggs & Stratton Current § 825.310(g) provides that an Area Rapid Transit similarly stated that Corporation similarly suggested that an employer cannot obtain a fitness-for- allowing employers ‘‘to request a employer should be permitted, ‘‘at its duty certification when an employee Fitness for Duty certification [for expense, to require verification of the returns from an intermittent leave employees returning from intermittent treating health care providers’ return to absence. Numerous commenters leave] would protect the safety of both work certification,’’ arguing that the responding to the request for the employee and the public, and current prohibition impedes an information addressed this provision. support the employer’s efforts and employer’s ability to fulfill its OSHA The employer comments indicate that regulatory requirement to provide a safe obligation to provide a safe work place. the primary purpose of requiring a workplace, while also providing a safe The National Coalition To Protect fitness-for-duty certification is to make efficient service to its customers.’’ Such Family Leave also stated that the sure the employee is able to resume employers suggested that the FMLA prohibition on second and third work safely without harming the return to work process undercuts opinions on fitness for duty employee, co-workers, or the public. legitimate employer safety programs. certifications is ‘‘problematic from a When leave is taken intermittently, Therefore, numerous commenters, safety perspective’’ and conflicts with employers state that they may need to including Willcox & Savage, Foley & the ADA process. Therefore, it suggested determine whether the employee is fit Lardner LLP, the National Retail that employers should be able to for duty when safety concerns are at Federation, the National Council of challenge a certification obtained from issue, the same as when an employee Chain Restaurants, and the National an employee’s health care provider and returns from a block of leave. For Coalition to Protect Family Leave, ‘‘to delay the employee’s return to work example, the United States Postal suggested that the Department should pending receipt of a second opinion if Service stated: delete or revise this section of the the employer has a reasonable basis to Exempting chronic conditions from return regulations so that employers would believe that the employee may not be to work clearance seems to make little sense have the same right to seek fitness for able to safely return to work and because those conditions are just as likely as duty certifications from employees perform all the essential functions of the any other to compromise the health or safety returning to work from intermittent job.’’ The Department is proposing no of the workforce. Indeed, some chronic leave as they do for block leave. changes in this area, but requests further conditions are even more likely to give rise Hinshaw & Culbertson LLP suggested comments on these issues. to a justifiable need for return to work The Department proposes no changes that fitness-for-duty certifications clearance than the other serious health to current paragraph (d) of this section, conditions under the FMLA. For example, an ‘‘could be regulated to prevent abuse by which explains who bears the cost of employer may have little concern about the the employer by limiting such the fitness-for-duty certification. Under clerical assistant returning to work after statements to certain time frames, such both the current and proposed giving birth, but far more (and legitimate) as once a quarter. It could also be based regulations, the employee is responsible concern about allowing a utility worker to on the frequency of the intermittent mstockstill on PROD1PC66 with PROPOSALS2 for the cost of obtaining a fitness-for- return after a series of epileptic seizures on leave; the more frequent the leave, the the job. more frequent the statement.’’ duty certification. Current paragraph (e) of this section Honda similarly stated that, ‘‘[i]n However, numerous commenters explains that advance notice of the need manufacturing, many of the jobs include representing employees vigorously to provide a fitness-for-duty certification safety-sensitive duties. Therefore, the supported the existing regulation. The must be given when an employee goes current regulation prohibiting a fitness- National Partnership for Women & out on leave. It also requires that if an for-duty form for intermittent leaves Families commented that requiring VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7922 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules employees returning from intermittent significant safety risks that can exist was ‘‘delayed’’ is not FMLA-protected. leave to provide fitness for duty when some employees return from To make sure both employees and certifications—which are at the intermittent leave absences indicate that employers understand the intended employee’s expense—would the current regulation does not meaning of this provision, the significantly undermine the statutory appropriately address those concerns. Department proposes to amend the purpose behind allowing employees to Therefore, the Department proposes that wording to state that the employer may take intermittent leave. It stated that an employer be permitted to require an ‘‘deny FMLA coverage’’ for the period at ‘‘[a]ny benefit to the employer of employee to furnish a fitness-for-duty issue. This proposed language ensures obtaining fitness for duty statements certificate every 30 days if an employee that there is no misunderstanding as to from intermittent leave-takers is far has used intermittent leave during that the impact of the ultimate failure to outstripped by the unwarranted burden period and reasonable safety concerns provide a medical certification in a that such a change in the regulations exist. For example, if an employee is out timely manner, but substantively this is would impose on employees. * * * The periodically for high blood pressure, not a change from the current intermittent leave option helps to take and the employee operates heavy regulation. See current § 825.312(b) (‘‘If some of the financial strain off equipment as part of the employee’s the employee never produces the employees by enabling them to continue essential functions, an employer may certification, the leave is not FMLA earning a paycheck while addressing have reason to get certification that the leave.’’); see also Sherman & Howard serious health or family needs, and employee can perform the essential LLC (‘‘The regulations should make allows employees to preserve as much functions of the job. The employer may clear that if an employee does not of the twelve weeks of leave as not terminate the employment of the ultimately qualify for FMLA leave, or possible.’’ The American Federation of employee while awaiting such a fails to provide medical certification to Teachers, Local 2026, stated that certification of fitness for duty for an support the requested leave, the ‘‘[t]here is no reason to disturb the intermittent or reduced schedule leave employee’s absence will be unprotected. current rule barring employers from absence. The Department is cognizant of This means that the employer may requesting fitness for duty statements the potential burdens on employees appropriately enforce its attendance from workers who take intermittent who may need to provide both a policy which may result in disciplinary leave.’’ The AFL–CIO noted that recertification and a fitness-for-duty action being taken against the ‘‘[r]equiring employees who take certificate within a short period of time. employee.’’). Proposed paragraph (a) is intermittent leave to present fitness for The Department specifically seeks titled ‘‘[f]oreseeable leave.’’ Current duty certifications for potentially every comment on ways to minimize this § 825.311(b) contains similar language absence is burdensome and burden and asks whether this proposal to current paragraph (a) with regard to unnecessary.’’ The Pennsylvania Social strikes the appropriate balance. unforeseeable leave. The Department Services Union, SEIU 668, concurred, Current paragraph (h) of this section proposes language similar to that stating that there is no reason to disturb would be deleted to avoid redundancy. proposed in paragraph (a), to be titled the current rule. Kennedy Reeve & Knoll This paragraph, which provides an ‘‘[u]nforeseeable leave,’’ in proposed commented that ‘‘the logistical explanation as to the repayment of § 825.311(b). Section 825.311(b) is impossibility and financial burdens of health insurance premiums if the proposed to be reworded for purposes of allowing employers to require fitness- employee is unable to return to work as clarity, but no other substantive changes a result of a continuation of a serious have been made. The Department for-duty statements for each and every health condition, is duplicative of the proposes a new paragraph (c), to be day of absence make such a policy not provisions set forth in § 825.213. The titled ‘‘[r]ecertification,’’ that addresses feasible.’’ The National Business Group last sentence of current § 825.310(h), the consequences of failing to provide a on Health also stated that ‘‘[i]t would be which explains who bears the cost of timely recertification when requested by an administrative headache to require a the certification in such circumstances, the employer. The proposed regulations fitness for duty statement from an is moved to proposed § 825.213(a)(3). provide that if a recertification is not employee who is absent intermittently. Section 825.311 (Failure to provide provided within 15 days of the request, The added paperwork to cover this medical certification) or as soon as practicable, the employer would be overly burdensome.’’ The may deny the continuation of the FMLA Indiana State Personnel Department, Current § 825.311(a) provides that, in leave protections until the Employee Relations Division, also the case of foreseeable leave, if an recertification is provided. Former recognized that the burden of providing employee fails to provide medical paragraph (c) is moved to proposed fitness for duty certifications after every certification in a timely manner, the paragraph (d) but no changes have been intermittent absence would be employer may delay the taking of FMLA made in the requirement to provide significant for employees and health leave until it has been provided. In medical certification that an employee care providers, but beneficial to response to the RFI, Foley & Lardner is fit for duty and able to return to work employers. In an attempt to address the LLP noted that the regulation ‘‘does not when seeking reinstatement following cost concern, the United Parcel Service explain how long the delay may last or FMLA leave for a serious health suggested that employers bear the cost what the consequences of a ’delay’ can condition. of fitness for duty certifications when be.’’ The Department agrees and the employee is returning from proposes to explain more clearly the Section 825.312 (When can an employer intermittent leave. implications of an employee’s failure to refuse reinstatement) The Department believes, as the provide the medical certification in a Current § 825.312(a) through (f) mstockstill on PROD1PC66 with PROPOSALS2 comments from employee timely manner. Currently, the regulation address when an employer can delay or representatives assert, that it would be states that an employer may ‘‘delay the deny FMLA leave to an employee, or unduly burdensome on employees to taking of FMLA leave.’’ If the employee deny reinstatement after FMLA leave, have to provide a fitness-for-duty takes leave without timely providing a when an employee fails to timely certificate for each intermittent leave sufficient medical certification for provide the required notifications and absence. However, the numerous foreseeable leave, then any leave during certifications set forth in the regulations. employer comments addressing the the time period that the certification As these sections are duplicative of VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7923 other regulatory sections, they have notification obligations,’’ the Existing paragraph (g) would become been deleted from the proposed rule. Department would appropriately proposed paragraph (h) in this section. Current paragraphs (g) and (h) of respond to Ragsdale. The National Proposed paragraph (g) incorporates a § 825.312, which address the fraudulent Partnership for Women & Families discussion of the interaction between use of leave and outside employment, stated that while the Supreme Court the Uniformed Services Employment have been renumbered as § 825.216(d) struck down the ‘‘categorical penalty’’ and Reemployment Rights Act of 1994 and (e), which also deal with limitations in the current regulations, it left intact (USERRA) and the FMLA. The current on reinstatement, but no substantive the requirement that employers regulations contain no such reference, changes have been made. designate leave, and it ‘‘did not prohibit and the interaction between these two DOL from imposing any penalties on laws has been confusing to employees Sections 825.400 through 825.600 employers for failing to properly and employers alike. On July 22, 2002, No changes are proposed in designate and notify employee about the Department issued guidance stating §§ 825.400 through 825.600 other than leave’’ (emphasis in original). (Related that, based upon the reinstatement to the titles of the sections and very comments from both employer and rights provided by USERRA, an minor editorial changes (adding a employee representatives addressing employee is entitled to credit for FMLA reference to the Department’s website in possible changes to the notice and eligibility purposes for the months and proposed § 825.401(a), updating the designation of leave requirements are hours that the employee would have reference in proposed § 825.500(c)(4) to addressed in the preamble discussing worked during the 12 months preceding the new employer eligibility notice changes to § 825.208.) the start of the leave but for his or her requirement proposed in § 825.300(b), In light of these comments, the qualifying active duty uniformed and deleting a cross-reference in Department proposes to delete the last service. See http://www.dol.gov/vets/ proposed section 825.601(b)). sentence from paragraph (a) of this media/fmlarights.pdf. This guidance has section struck down by Ragsdale. Other been incorporated into paragraph (g) of Subpart G—Effect of Other Laws, than this change required by the Court’s the proposed regulations. The only Employer Practices, and Collective decision, the Department proposes no other change the Department is Bargaining Agreements on Employee changes to current paragraph (a). proposing is to conform the cross- Rights Under FMLA The Department proposes no changes reference in paragraph (d)(2) to the Section 825.700 (Interaction with to current § 825.700(b), which provides proper paragraph in proposed § 825.207. employer’s policies) that an employer may amend existing The Department received numerous leave programs, so long as they comply comments in response to the RFI that Current § 825.700(a) provides that an with the FMLA, and that nothing in the discussed the relationship between the employer may not diminish the rights Act is intended to discourage employers FMLA and the ADA. Many of those established by the FMLA through an from adopting or retaining more comments were discussed in Chapter employment benefit program or plan, generous leave policies. VII of the Department’s 2007 Report on but that an employer may provide The Department proposes to delete the RFI comments (see 72 FR at 35599), greater leave rights than the FMLA § 825.700(c)(1) and (2) from the current and other sections of this preamble requires. As noted previously, the U.S. regulations, as they discuss the initial address comments that are relevant to Supreme Court in Ragsdale invalidated applicability of the statute and periods those sections (see, e.g., §§ 825.306– the last sentence of current § 825.700(a), of employment prior to the statute’s .307). The Department also received which states that if an employee takes effective date, which are no longer comments regarding the interaction paid or unpaid leave and the employer necessary. between the FMLA and the ADA that does not designate the leave as FMLA are relevant to the job modification, leave, the leave taken does not count Section 825.702 (Interaction with light duty, and reassignment issues against an employee’s FMLA Federal and State anti-discrimination addressed in this section. entitlement. laws) A number of organizations A number of commenters responding Current § 825.702 addresses the commented on the differences between to the RFI addressed the effect of interaction between the FMLA and the FMLA’s and ADA’s treatment of Ragsdale. For example, the National other Federal and State anti- light duty work. Sections 825.702(d)(2) Coalition to Protect Family Leave stated discrimination laws. Current paragraph and 825.220(d) of the FMLA regulations that § 825.700(a) should be removed (a) confirms that the FMLA and other provide that an employee may from the regulations. The Air Transport Federal or State laws are wholly distinct voluntarily accept a ‘‘light duty’’ Association of America, Inc. and the and must be complied with assignment while recovering from a Airline Industrial Relations Conference independently. Paragraphs (b), (c), (d) serious health condition, but cannot be suggested that the regulations should be and (e) primarily focus on the coerced to do so. Under the ADA, an revised in light of Ragsdale, because interaction between the FMLA and the employer does not have to create a light employers do not know which Americans with Disabilities Act (ADA), duty position for an individual with a regulations they must follow and which particularly with regard to leave rights, disability but, if a vacant, light duty are no longer valid, and employees who job modification, light duty, position already exists, the employer read them also are confused about reassignment, and reinstatement. must reassign the individual with a which regulations their employers must Paragraph (f) focuses on the interaction disability to the position if there is no follow. The Association of Corporate of the FMLA with Title VII of the Civil other effective accommodation available Counsel similarly suggested that Rights Act of 1964, as amended by the and the reassignment would not pose an mstockstill on PROD1PC66 with PROPOSALS2 § 825.700(a) should be deleted to clarify Pregnancy Discrimination Act, and undue hardship. See EEOC, Workers’ that an employer’s failure to timely paragraph (g) states that the U.S. Equal Compensation Guidance, at Questions designate leave does not increase the Employment Opportunity Commission 27 and 28. In addition, if the only statutory leave period. Hewitt can provide further information on Title effective accommodation available is Associates LLC commented that ‘‘by VII and the ADA. similar or equivalent to a light duty deleting the ‘penalty’ provision and The Department proposes to add a position, an employer must provide that simply reinforcing employer new paragraph (g) in this section. accommodation, absent undue VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7924 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules hardship. See EEOC, Workers’ accommodation that would pose an business. Undue hardship is defined as Compensation Guidance, at Question ‘‘undue hardship’’ on the operation of an action requiring significant difficulty 27. the employer’s business. Neither the or expense when considered in light of The Department also received FMLA regulations nor the statute limits factors such as an employer’s size, comments regarding the differing the availability of FMLA leave to financial resources, and the nature and standards under the FMLA and the ADA situations where the employee’s absence structure of its operation. Reasonable for transferring or reassigning does not impose an ‘‘undue hardship’’ accommodation may include adapting employees to alternative positions. The on the employer. existing facilities, job restructuring, FMLA permits an employer to Although the Department received modifying work schedules, acquiring or temporarily transfer an employee who many comments seeking greater modifying equipment or devices, or needs foreseeable intermittent or consistency between the FMLA and the adjusting or modifying policies. reduced schedule leave for planned ADA, the Department can do nothing to Reasonable accommodation can include medical treatment to an alternative alter the fact that the two statutes serve reassignment to a vacant equivalent position; however, the position must distinctly different purposes, provide position, if available, or to a lesser have equivalent pay and benefits. The different rights, and have different position if an equivalent one is position also must be one for which the eligibility criteria. Moreover, the FMLA unavailable or causes undue hardship. employee is qualified and which better legislative history clearly states that the An employer must provide an effective accommodates recurring periods of ‘‘purpose of the FMLA is to make leave reasonable accommodation that does leave. Under the ADA, part-time work available to eligible employees and not pose an undue hardship, but need or occasional time-off may be a employers within its coverage, and not not provide the employee’s preferred reasonable accommodation. As a general to limit already existing rights and accommodation. matter, reassignment is the protection,’’ and it specifically Generally, an individual with a accommodation of last resort under the recognizes that ‘‘the leave provisions of disability (or his or her representative) ADA. However, if or when an the [FMLA] are wholly distinct from the must notify the employer of a request employee’s need for part-time work or reasonable accommodation obligations for reasonable accommodation. An reduced hours in his or her current of employers covered under the [ADA].’’ individual may use ‘‘plain English’’ and position creates an undue hardship for S. Rep. No. 103–3, at 38 (1993). the request need not be in writing or an employer, the employer must transfer Therefore, the Department proposes no mention the ADA or the phrase the employee to a vacant, equivalent changes to this section (other than the position for which the employee is addition of a new section addressing ‘‘reasonable accommodation.’’ Instead, qualified, unless doing so would present USERRA and the changed internal an individual must let the employer an undue hardship for the employer. If cross-reference, as described know that he or she needs an an equivalent position is not available, previously). However, the Department adjustment or change at work for a the employer must look for a vacant believes that both employees and reason related to a medical condition. position at a lower level. Further employers would benefit from a better After receiving a request for reasonable accommodation is not required if a understanding of the interaction accommodation, an employer and the lower level position is also unavailable. between the ADA and FMLA, and individual with a disability should See EEOC, Fact Sheet: ‘‘The Family and provides the following additional engage in an informal, ‘‘interactive Medical Leave Act, the Americans with description of that interaction. process’’ to clarify what the individual Disabilities Act, and Title VII of the Although the FMLA adopts the ADA needs and identify the appropriate Civil Rights Act of 1964’’ (hereafter definition of ‘‘essential functions,’’ an reasonable accommodation. See 29 CFR ‘‘EEOC FMLA and ADA Fact Sheet’’), at FMLA ‘‘serious health condition’’ is not pt. 1630 app. § 1630.9. As part of this Question 13. Under the ADA, employers necessarily an ADA ‘‘disability.’’ An ‘‘interactive process,’’ the employer may who place employees in lower level ADA ‘‘disability’’ is an impairment that ask the individual relevant questions positions are not required to maintain substantially limits one or more major that will enable it to make an informed the employee’s salary at the level of the life activities, a record of such an decision about the request. This higher grade, unless the employer does impairment, or being regarded as having includes asking what type of reasonable so for other employees. See EEOC such an impairment. 42 U.S.C. 12102(2). accommodation is needed. When the Technical Assistance Manual § 3.10.5. Some FMLA ‘‘serious health disability and/or the need for Commenters also focused on the conditions’’ may be ADA disabilities, accommodation is not obvious, the differences between the FMLA and the for example, most cancers and serious employer may ask the individual for ADA with regard to the use of leave. strokes and some chronic conditions. reasonable documentation about his or Under current § 825.115, an eligible Other ‘‘serious health conditions’’ may her disability and functional limitations. employee may use leave ‘‘where the not be ADA disabilities, for example, See ‘‘EEOC Enforcement Guidance: health care provider finds that the pregnancy or a routine broken leg or Reasonable Accommodation and Undue employee is unable to work at all or is hernia. This is because the condition is Hardship Under the Americans with unable to perform any one of the not an impairment (e.g., normal Disabilities Act,’’ revised Oct. 17, 2002, essential functions of the employee’s pregnancy), or because the impairment at Questions 1, 3, 5, and 6. This is position.’’ Other provisions of the is not substantially limiting (e.g., a similar to the rule under the FMLA (see FMLA allow an employee to take leave routine broken leg or hernia). See EEOC § 825.302), where an employee need not intermittently or on a reduced schedule. FMLA and ADA Fact Sheet, at Question assert his or her rights under the FMLA See 29 U.S.C. 2612(b); 29 CFR 825.203– 9. or even mention the FMLA to put the mstockstill on PROD1PC66 with PROPOSALS2 .205. Under the ADA, an employee is Under the ADA, an employer is employer on notice of the need for entitled to reasonable accommodation, required to make a reasonable FMLA leave, but must provide sufficient including medical leave, only if he or accommodation to the known physical information to an employer so that the she has an impairment that or mental limitations of an otherwise employer is aware that FMLA rights ‘‘substantially limits’’ one or more major qualified employee with a disability if it may be at issue. The proposed rule life activities. Moreover, an employer is would not impose an ‘‘undue hardship’’ states that sufficient information not required to provide any on the operation of the employer’s includes information that indicates that VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7925 the employee is unable to perform the EEOC FMLA and ADA Fact Sheet, at active duty or has been notified of an functions of the job, the anticipated Question 13. impending call to active duty status in duration of the absence, and whether Under the ADA, an employer must support of a contingency operation the employee intends to visit a health continue health insurance coverage for (collectively referred to herein as the care provider. Once the employer is put an employee taking leave or working military family leave provisions of H.R. on notice of a FMLA leave request, the part-time only if the employer also 4986). The provisions of H.R. 4986 regulations specify what information provides coverage for other employees providing FMLA leave to care for a must be exchanged between the in the same leave or part-time status. covered servicemember became employee and employer, rather than The coverage must be on the same terms effective on January 28, 2008, when the them engaging in an informal, normally provided to those in the same law was enacted. The provisions of H.R. ‘‘interactive’’ process. leave or part-time status. See EEOC 4986 providing for FMLA leave due to Unpaid leave is a potential reasonable FMLA and ADA Fact Sheet, at Question a qualifying exigency arising out of a accommodation that an employer might 15. Under the FMLA, an employer must covered family member’s active duty (or need to provide to an otherwise maintain the employee’s existing level call to active duty) status are not qualified individual with a disability, of coverage (including family or effective until the Secretary of Labor unless (or until) it imposes an undue dependent coverage) under a group issues regulations defining ‘‘qualifying hardship on the operation of the health plan during the period of FMLA exigencies.’’ Because a significant employer’s business. See 29 CFR pt. leave, provided the employee pays his number of United States military 1630 app. § 1630.2(o). An otherwise or her share of the premiums. 29 CFR servicemembers are currently on active qualified individual with a disability 825.209–.210. An employer may not duty or call to active duty status, the may be entitled to additional unpaid discriminate against an employee using Department is fully aware of the need to leave as a reasonable accommodation FMLA leave, and therefore must also issue regulations under the military under the ADA, beyond the 12 weeks of provide such an employee with the family leave provisions of H.R. 4986 as unpaid leave available under the FMLA, same benefits (e.g., life or disability soon as possible. Towards that end, the if the additional leave would not impose insurance) normally provided to an Department began preliminary an undue hardship on the operation of employee in the same leave or part-time consultations with the Departments of the employer’s business. Generally, status. 29 CFR 825.220(c). Defense and Veterans Affairs and the unpaid leave is explored as a reasonable Under the ADA, an employer and U.S. Office of Personnel Management accommodation only after examining, employee may agree to a transfer, on (which will administer similar through the interactive process, whether either a temporary or a permanent basis, provisions regarding leave to care for a reasonable accommodations can be if both parties believe that such a covered servicemember for most Federal made to the employee’s job to keep the transfer is preferable to accommodating employees) prior to the passage of H.R. employee at work. No set amount of the employee in his or her current 4986. leave is required as a reasonable position. Note that a qualified As it did in the initial notice of accommodation under the ADA. The individual with a disability who is proposed rulemaking under the FMLA existence of the FMLA does not mean using FMLA leave to work reduced in 1993, 58 FR 13394 (Mar. 10, 1993), that more than 12 weeks of unpaid leave hours, and/or has been temporarily and in the interest of ensuring the automatically imposes an undue transferred into another job under the expedient publication of regulations, the hardship for purposes of the ADA. To FMLA, may also need a reasonable Department is including in this Notice evaluate whether additional leave accommodation (e.g., special a description of the relevant military would impose an undue hardship, the equipment) to perform an essential family leave statutory provisions, a employer may consider the impact on function of the job. See 29 CFR discussion of issues the Department has its operations caused by the employee’s 825.204(b). identified, and a series of questions initial 12-week absence, along with the seeking comment on subjects and issues undue hardship factors specified in the Section 825.800 (Definitions) that may be considered in the final ADA and its regulations found at 29 Current § 825.800 contains the regulations. 5 U.S.C. 553(b)(3) (notice of CFR 1630.2(p). See EEOC FMLA and definitions of significant terms used in proposed rulemaking shall include ADA Fact Sheet. the regulations. Changes to definitions ‘‘either the terms or substance of the Under the ADA, a qualified that were affected by the Department’s proposed rule or a description of the individual with a disability may work proposed changes and clarifications subjects and issues involved’’). Because part-time in his or her current position, have been made. Specifically, changes of the need to issue regulations as soon or occasionally take time off, as a and clarifications have been made to the as possible so that employees and reasonable accommodation if it would terms ‘‘continuing treatment,’’ ‘‘eligible employers are aware of their respective not impose an undue hardship on the employee,’’ ‘‘employee,’’ ‘‘health care rights and obligations regarding military employer. If (or when) reduced hours provider,’’ ‘‘serious health condition,’’ family leave under the FMLA, the create an undue hardship in the current ‘‘parent,’’ and ‘‘son or daughter.’’ Department anticipates that the next position, the employer must see if there step in the rulemaking process, after full is another effective accommodation or if Family Leave in Connection With consideration of the comments received there is a vacant, equivalent position for Injured Members of the Armed Forces in response to this Notice, will be the which the employee is qualified and to and Qualifying Exigencies Related to issuance of final regulations. which the employee can be reassigned Active Duty The Department strongly encourages without undue hardship while working Section 585(a) of H.R. 4986, the the submission of any comments or mstockstill on PROD1PC66 with PROPOSALS2 a reduced schedule. If an equivalent National Defense Authorization Act for concerns which should be considered in position is not available, the employer FY 2008, amends the FMLA to provide the course of developing the final must look for a vacant position at a leave to eligible employees of covered regulations. Commenters are encouraged lower level for which the employee is employers to care for covered to identify any issues related to military qualified. Continued accommodation is servicemembers and because of any family leave they believe need to be not required if a vacant position at a qualifying exigency arising out of the addressed—even if the Department has lower level is also unavailable. See fact that a covered family member is on not identified such issues—and to offer VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7926 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules their views, with supporting rationale, ‘‘Contingency operation’’ is defined definition does not require further as to how such issues should be by the military family leave provisions clarification, and is considering addressed by the Department. of H.R. 4986 as a military operation including it in proposed FMLA Commenters also are invited to submit designated by the Secretary of Defense regulatory § 825.800 as currently drafted data relating to the economic impact of as provided under 10 U.S.C. 101(a)(13). in Section 585(a)(1) of H.R. 4986. the FMLA provisions in H.R. 4986. The This definition will be codified in the ‘‘Next of kin’’ is defined by the Department will undertake to FMLA at 29 U.S.C. 2611(15). The military family leave provisions of H.R. implement the new military family Department believes that the 4986 as the ‘‘nearest blood relative’’ of leave provisions so as to maximize the Department of Defense’s definition of an individual. This definition will be benefits and minimize the burdens on ‘‘contingency operation’’ found in Title codified in the FMLA at 29 U.S.C. both employees and employers 10 does not require further clarification; 2611(18). The Department is consulting consistent with the purposes of the therefore, the Department is considering with the Department of Defense FMLA. including a definition of ‘‘contingency regarding this definition. Preliminary operations’’ in proposed FMLA information suggests that, for Summary of the Military Family Leave regulatory § 825.800 as currently disposition of remains, personal effects Provisions and Regulatory Issues defined in Section 585(a)(1) of H.R. and the release of records, the The FMLA amendments in Section 4986, and cross-referencing 10 U.S.C. Department of Defense generally 585(a) of H.R. 4986 are summarized 101(a)(13). considers the following individuals below. In addition to creating new leave ‘‘Covered servicemember’’ is defined ‘‘next of kin’’ of a servicemember in the entitlements, the FMLA provisions of by the military family leave provisions following order: (1) Unremarried H.R. 4986 include conforming of H.R. 4986 as a member of the Armed surviving spouse; (2) natural and amendments to incorporate the new Forces (including National Guard or adopted children; (3) parents; (4) leave entitlements into the current Reserves) ‘‘who is undergoing medical remarried surviving spouses (except FMLA statutory provisions relating to treatment, recuperation, or therapy, is those who obtained a divorce from the the use of leave and to add certain new otherwise in outpatient status, or is servicemember or who remarried before terms to the FMLA’s statutory otherwise on the temporary disability a finding of death by the military); (4) definitions. The FMLA amendments in retired list, for a serious injury or blood or adoptive relatives who have H.R. 4986 raise a number of issues about illness.’’ This definition will be codified been granted legal custody of the which the Department seeks comment. in the FMLA at 29 U.S.C. 2611(16). The servicemember by court decree or Although specific issues for public Department believes that determining statutory provisions; (5) brothers or comment are listed below after the whether a member of the Armed Forces sisters; (6) grandparents; (7) other discussion of each FMLA statutory is in outpatient status or is otherwise on relatives of legal age in order of amendment in H.R. 4986, commenters the temporary disability retired list for relationship to the individual according are encouraged to identify any issues a serious illness or injury is likely to be to civil laws; and (8) persons standing relatively straightforward. There may be in loco parentis to the servicemember. they believe need to be addressed. issues, however, regarding what it The Department seeks comments on Section 101—Definitions means for a servicemember to be whether it should adopt the above list ‘‘undergoing medical treatment, of next of kin for purposes of the The military family leave provisions recuperation, or therapy’’ for a serious military family leave provisions. The of H.R. 4986 add certain new terms to illness or injury. The Department’s Department also seeks comments on the FMLA’s definitions. The Department initial view is that any treatment, whether a definition of ‘‘next of kin’’ is considering adding these definitions recuperation, or therapy provided to a that relies on differing State law to proposed FMLA regulatory § 825.800 servicemember for a serious injury or interpretations is appropriate, and as follows: illness, and not just that provided by the whether a certification of ‘‘next of kin’’ The term ‘‘Active duty’’ is defined by Armed Forces, should be covered. The status should be required. If such a H.R. 4986 as duty under a call or order Department solicits public comments on certification is required, the Department to active duty under a provision of law this issue. Should there be a temporal seeks comments on who should issue referred to in 10 U.S.C. 101(a)(13)(B). proximity requirement between the such a certification, and its contents. This definition will be codified in the covered servicemember’s injury or The Department also seeks public FMLA at 29 U.S.C. 2611(14). The illness and the treatment, recuperation, comments on the requirement in the Department believes that the or therapy for which care is required? military family leave provisions of H.R. Department of Defense is in the best Should the Department rely on a 4986 that the next of kin be the position to determine when a determination made by the Department ‘‘nearest’’ blood relative. Should the servicemember has been called to active of Defense as to whether a Department interpret this provision to duty. Title 10 provides extensive servicemember is undergoing medical mean that each covered servicemember information regarding a treatment, recuperation, or therapy for a may only have one next of kin who is servicemember’s active duty or call to serious injury or illness? eligible to take FMLA leave to provide active duty status, the terms of which, ‘‘Outpatient status’’ for a covered care if the servicemember is undergoing as noted in H.R. 4986, are referenced in servicemember is defined by the medical treatment, recuperation, or Section 101(a)(13)(B) of that Title. military family leave provisions of H.R. therapy, is otherwise in outpatient Accordingly, the Department believes 4986 as the status of a member of the status, or is otherwise on the temporary that the definition of ‘‘active duty’’ in Armed Forces assigned to (a) a medical disability retired list, for a serious mstockstill on PROD1PC66 with PROPOSALS2 the military family leave provisions of treatment facility as an outpatient or (b) illness or injury? The Department seeks H.R. 4986 does not require further a unit established to provide command comments on how to determine if an clarification and is considering adding it and control of members of the Armed employee is the nearest blood relative of to proposed FMLA regulatory § 825.800 Forces receiving medical care as a covered servicemember when a as currently defined in H.R. 4986, and outpatients. This definition will be servicemember has several relatives of cross-referencing 10 U.S.C. codified in the FMLA at 29 U.S.C. close consanguinity still alive, and 101(a)(13)(B). 2611(17). The Department believes this whether this language could be VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7927 interpreted to provide military caregiver would one determine whether the injury [W]hat this legislation does is allow family leave to any eligible next of kin of a or illness renders, or may render, the members of our brave men and women covered servicemember. If the nearest servicemember medically unfit to serving in the Guard and Reserve to use Family and Medical Leave Act time to see blood relative of a covered perform the duties of the member’s off, to see the deployment, or to see the servicemember is unable or unwilling to office, grade, rank, or rating, when the members return when they come back, and provide care, should the next nearest servicemember is no longer serving in to use that, importantly, to deal with blood relative of the covered the military? economic issues, and get the household servicemember be eligible to take FMLA The military family leave provisions economics in order * * * leave to care for the wounded of H.R. 4986 appear to rely on certain It will allow military families to use family servicemember? The Department also of the FMLA’s existing definitions (e.g., and medical leave time to manage issues seeks comments on whether it would be such as childcare and financial planning that ‘‘parent’’, ‘‘son or daughter’’, and arise as a result of the deployment of an appropriate to permit a covered ‘‘spouse’’). Although H.R. 4986 does not immediate family member. servicemember to designate any blood change these definitions, the legislative relative, or other individuals such as history includes statements by members 153 Cong. Rec. H5258 (daily ed. May 16, those recognized by the Department of of Congress that suggest that the term 2007); 153 Cong. Rec. H15325 (daily ed. Defense as the servicemember’s ‘‘son or daughter’’ should be given a Dec. 12, 2007); 153 Cong. Rec. H15349 Committed And Designated broader meaning under the military (daily ed. Dec. 12, 2007) (statements of Representative (CADRE), as next of kin family leave provisions to include adult Representative Altmire). for purposes of FMLA leave taken to children. As discussed in greater detail In addition to Representative care for the servicemember. below, the Department seeks comment Altmire’s statements, in remarks on the ‘‘Serious injury or illness’’ in the case on whether it would be appropriate to Floor, Representative Tom Udall stated: of members of the Armed Forces, define some of these terms differently For every soldier who is deployed National Guard, or Reserves is defined for purposes of leave taken because of overseas, there is a family back home faced by the military family leave provisions a qualifying exigency or to care for a with new and challenging hardships. The toll of H.R. 4986 as ‘‘an injury or illness covered servicemember under the extends beyond emotional stress. From raising a child to managing household incurred by the member in line of duty military family leave provisions of H.R. finances to day-to-day events, families have on active duty in the Armed Forces that 4986. to find the time and resources to deal with may render the member medically unfit the absence of a loved one. * * * The Section 102(a)—Leave Entitlement to perform the duties of the member’s Altmire-Udall amendment would allow office, grade, rank, or rating.’’ This The military family leave provisions spouses, parents or children of military definition will be codified in the FMLA of H.R. 4986 add a new qualifying personnel to use Family and Medical Leave at 29 U.S.C. 2611(19). The Department reason to take FMLA leave: ‘‘[b]ecause Act benefits for issues related directly to the believes that the Departments of Defense deployment of a soldier. Current FMLA of any qualifying exigency (as the benefits allow individuals to take time off for or Veterans Affairs are likely in the best Secretary shall, by regulation, the birth of a child or to care for a family position to provide the standard for determine) arising out of the fact that member with a serious illness. The what constitutes a ‘‘serious illness or the spouse, or a son, daughter, or parent deployment of a soldier is no less of a crisis injury’’ that may ‘‘render the member of the employee is on active duty (or has and certainly puts new demands on families. medically unfit to perform the duties of been notified of an impending call or We should ensure that the FMLA benefits the member’s office, grade, rank, or order to active duty) in the Armed given in other circumstances are provided to rating.’’ Preliminary information Forces in support of a contingency our fighting families during their time of suggests that the military branches need. operation.’’ This provision will be already regularly provide, when codified in the FMLA at 29 U.S.C. 153 Cong. Rec. E1076 (daily ed. May 17, requested, a medical certification to 2612(a)(1)(E) and, by its terms, is not 2007) (statement of Representative family members of covered operative until the Secretary of Labor Udall). servicemembers certifying that the determines, by regulation, the qualifying Finally, Representative George Miller member is seriously injured or ill and is exigencies that will entitle an eligible stated that: actively receiving medical treatment. employee to take FMLA leave. The Department seeks comments on Under the amendment * * * a worker can Representative Jason Altmire, who take family and medical leave to deal with whether a certification from the introduced this provision, made the the issues that arise as a result of a spouse, Departments of Defense or Veterans following three statements on the House parent, or child’s deployment to a combat Affairs should be sufficient to establish Floor regarding leave taken for a zone like Iraq or Afghanistan. Under this whether a servicemember has a serious qualifying exigency: amendment family members can use the injury or illness that was incurred by leave to take care of issues like making legal the member in the line of duty while on This amendment allows the immediate and financial arrangements and making child family of military personnel to use Family care arrangements or other family obligations active duty status in the Armed Forces, Medical Leave Act time for issues directly as well as on other approaches to that arise and double when family members arising from deployment and extended are on active duty deployments * * * These determining whether a servicemember deployments. The wife of a recently deployments and extended tours are not easy has an injury or illness that may render deployed military servicemember could use on families, and two-parent households can a servicemember medically unfit. The the Family and Medical Leave Act to arrange suddenly become a single-parent household Department also seeks comments on for childcare. The husband of a and one parent is left alone to deal with whether H.R. 4986 permits eligible servicemember could use the Family Medical paying the bills, going to the bank, picking mstockstill on PROD1PC66 with PROPOSALS2 employees to take military caregiver Leave Act to attend predeployment briefings up the kids from school, watching the kids, leave under FMLA to care for a and family support sessions. The parents of providing emotional support to the rest of the a deployed servicemember could take Family family. You have got to deal with these servicemember whose serious injury or Medical Leave Act time to see their raised illness was incurred in the line of duty predeployment preparations. child off or welcome them back home. This but does not manifest itself until after amendment does not expand eligibility to 153 Cong. Rec. H5336 (daily ed. May 17, the servicemember has left military employees not already covered by the Family 2007) (statement of Representative service. In such circumstances, how Medical Leave Act * * * Miller). VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7928 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules Given the statements above and Additionally, should such a list be a per disability. One alternative would be for Webster’s Dictionary definition of se list of qualified exigencies? the Department to define ‘‘next of kin’’ ‘‘exigency’’ as ‘‘the quality or state of Although Representative Altmire’s as including children of covered requiring immediate aid or action, or a statements suggest that a parent of an servicemembers. The Department could state of affairs that makes urgent adult son or daughter should be then define the term ‘‘children’’ more demands,’’ how should the Department permitted to take FMLA leave for a expansively than the term ‘‘son or define qualifying exigencies for qualifying exigency arising out of the daughter’’ is currently defined in the purposes of the military family leave deployment of the son or daughter, the FMLA to allow adult children of provisions of H.R. 4986? Should military family leave provisions of H.R. covered servicemembers to take FMLA qualifying exigencies be limited to those 4986 do not alter the current FMLA leave to care for a covered items of an urgent or one-time nature definition of ‘‘son or daughter.’’ Under servicemember. Alternatively, the arising from deployment as opposed to this definition, a son or daughter must Department could define the term ‘‘son routine, everyday life occurrences? The either be (1) under the age of 18 or (2) or daughter of a covered 18 years of age or older and incapable servicemember’’ differently than the military family leave provisions of H.R. of self-care because of a mental or term ‘‘son or daughter.’’ The Department 4986 would allow leave for any physical disability. 29 U.S.C. 2611(12). seeks comments on these approaches, ‘‘qualifying’’ exigency arising out of the The Department recognizes that whether these approaches are allowed fact that the spouse, son, daughter, or applying this definition of ‘‘son or parent of an eligible employee is on by the military family leave provisions daughter’’ to leave taken because of a of H.R. 4986, and whether it is active duty (or has been notified of an qualifying exigency would mean parents impending call or order to active duty) appropriate to define the term ‘‘son or would only be able to take FMLA leave daughter’’ differently for purposes of in support of a contingency operation. because of a qualifying exigency if their Because the statute uses the word FMLA leave taken to care for a covered son or daughter is under the age of 18 servicemember. ‘‘qualifying’’, it is the Department’s or older than age 18 and incapable of initial view that not every exigency Second, the military family leave self-care because of a mental or physical necessarily will entitle a military family provisions of H.R. 4986 provide that disability. By Federal law, however, the member to leave. It also is the leave to care for a covered minimum age for enlistment in the Department’s initial view that there servicemember shall only be available United States Military is 17 (with must be some nexus between the ‘‘during a single 12-month period.’’ The parental consent). 10 U.S.C. 505. eligible employee’s need for leave and Moreover, children over the age of 18 amendments do not specify whether the servicemember’s active duty status. who are incapable of self-care are that 12-month period should be The Department solicits comments on unlikely to be found medically qualified calculated from the date of the the degree of nexus required to to perform military duties. Therefore, servicemember’s injury, the date of the demonstrate that the exigency arises out the Department seeks comments on determination that the servicemember whether it would be appropriate, given has a serious injury or illness, the first of the servicemember’s active duty the language of H.R. 4986, to define the date on which an eligible employee is status. In light of the fact that this new term ‘‘son or daughter’’ differently for needed to care for a seriously injured entitlement to leave would be in purposes of FMLA leave taken because servicemember, or on some other basis. addition to the existing qualifying of a qualifying exigency. Current and proposed § 825.200 of the reasons for FMLA leave, which already The military family leave provisions FMLA regulations permits an employer permit an eligible employee to take to choose any of the following methods FMLA leave to care for a son or of H.R. 4986 also establish an additional leave entitlement that permits an ‘‘an when determining the 12-month period daughter, parent, or spouse with a in which the current 12 weeks of FMLA serious health condition, the eligible employee who is the spouse, son, daughter, parent, or next of kin of leave entitlement occurs: (1) The Department’s initial view is that leave calendar year; (2) any fixed 12-month for qualifying exigencies should be a covered servicemember’’ to ‘‘a total of 26 workweeks of leave during a 12- ‘‘leave year,’’ such as a fiscal year, a year limited to non-medical related required by State law, or a year starting month period to care for the exigencies, as suggested by on an employee’s anniversary date; (3) servicemember.’’ This provision will be Representative Altmire’s statements. the 12-month period measured forward codified in the FMLA at 29 U.S.C. The Department seeks comment on 2612(a)(3). A number of issues regarding from the date any employee’s first these issues and on whether it would be the application of this new FMLA leave FMLA leave begins; or, (4) a ‘‘rolling’’ appropriate to develop a list of pre- entitlement are discussed below. The 12-month period measured backward deployment, deployment, and post- Department invites comments on these, from the date an employee uses any deployment qualifying exigencies. If so, and any other issues, related to the FMLA leave. The Department seeks should the following types of exigencies provision of FMLA leave to care for a comments on how the ‘‘single 12-month qualify: making arrangements for child covered servicemember. period’’ should be measured for care; making financial and legal First, as with leave taken for a purposes of determining entitlement to arrangements to address the qualifying exigency, the military leave to care for a covered servicemember’s absence; attending caregiver provision of H.R. 4986 does servicemember. For example, should an counseling related to the active duty of not alter the current FMLA definition of employer be permitted to choose a the servicemember; attending official ‘‘son or daughter’’ for purposes of method when determining the 12-month ceremonies or programs where the defining who is eligible to take leave to period in which the 26 workweeks of mstockstill on PROD1PC66 with PROPOSALS2 participation of the family member is care for a covered servicemember. Thus, leave entitlement to care for a covered requested by the military; attending to the only sons or daughters who will be servicemember occurs, as is the case for farewell or arrival arrangements for a eligible to take FMLA leave to care for other types of FMLA-qualifying leave? servicemember; and attending to affairs a seriously injured servicemember will What distinctions should the caused by the missing status or death of be those who are under the age of 18 or Department draw between calculating a servicemember? Are there other types age 18 or older and incapable of self- the 12-month period for leave to care for of exigencies that should qualify? care because of a mental or physical a covered servicemember and the other VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7929 qualifying reasons for FMLA leave? The employee. This interpretation would reduced leave schedule when medically Department also seeks comments on permit each eligible employee to take 26 necessary. Eligible employees also are how to reconcile this single 12-month workweeks of leave during any single permitted to take FMLA leave for a period to the employer’s regular FMLA 12-month period, but would not entitle qualifying exigency intermittently or on leave year, if different 12-month periods that employee to any additional periods a reduced leave schedule. These are used. of military family leave to care for the provisions will be codified in the FMLA Third, the military family leave same or other covered servicemembers at 29 U.S.C. 2612(b)(1). The military provisions of H.R. 4986 provide that the while still employed by the same family leave provisions of H.R. 4986 eligible employee is entitled to a total of covered employer. In this circumstance, also permit an employer to require an 26 workweeks of leave during a single does the 12-month limitation continue employee taking FMLA leave to care for 12-month period to care for a covered to apply to the employee in the event he a covered servicemember who is servicemember. Is the 26 workweek or she goes to work for a different undergoing planned treatment to leave entitlement to care for a covered employer? Under any of these examples, temporarily transfer to an available servicemember a one-time entitlement should an employee be permitted to alternative position with equivalent pay or may an employee have multiple take more than 26 workweeks of leave and benefits that better accommodates entitlements? The FMLA currently during a single 12-month period? The recurring periods of intermittent leave provides that an eligible employee is Department seeks comments on these or leave on a reduced leave schedule. entitled to a total of 12 workweeks of and any other options relating to how This is the case currently for FMLA leave during the relevant 12-month this provision should be interpreted. leave taken for planned medical period. The 12 workweeks of leave may Fourth, because leave to care for a treatment due to the employee’s own be taken for any qualifying FMLA covered servicemember with a serious serious health condition or the serious reason until the leave is exhausted in illness or injury may, in some health condition of a spouse, son, the relevant 12-month period. Assuming circumstances, also qualify as leave to daughter, or parent. The military family the employee continues to meet the care for a spouse, parent, or child with leave provisions of H.R. 4986 do not eligibility requirements, the employee a serious health condition, the specifically provide for such temporary may take leave again (up to 12 weeks) Department seeks comments on how transfers when FMLA leave is taken for for any qualifying FMLA reason in a such leave should be designated. In a qualifying exigency. The Department new leave year. The Department seeks particular, the Department seeks seeks comment on whether it would be comments on whether a similar comments on whether the employee or appropriate to permit temporary approach to leave taken to care for a employer should be able to select transfers when FMLA leave is taken on covered servicemember would be whether the leave is counted as FMLA an intermittent or reduced leave appropriate even though the leave leave taken to care for a covered schedule basis for a qualifying exigency. entitlement to care for a covered servicemember or FMLA leave taken to The Department also seeks comment on servicemember is limited to a ‘‘single care for a spouse, parent or child with how H.R. 4986’s provisions regarding 12-month period’’ under the military a serious health condition. The leave taken intermittently or on a family leave provisions of H.R. 4986. Department also seeks comments on reduced leave schedule should be Given the statutory language of H.R. whether an initial designation of this incorporated into proposed FMLA 4986, can the 26 workweek leave leave as one type of FMLA leave may be regulatory § 825.202, which generally entitlement be interpreted to apply per changed retroactively in any explains the taking of FMLA leave covered servicemember, i.e., each circumstances. intermittently or on a reduced leave eligible employee may take 26 Finally, the military family leave schedule, and proposed FMLA workweeks of leave to care for each provisions of H.R. 4986 provide for a regulatory § 825.204, which covers covered servicemember? Under this combined total of 26 workweeks of temporary transfers. reading, an eligible employee would be FMLA leave for an eligible employee permitted to take 26 workweeks of leave who takes leave to care for a covered Section 102(d)—Relationship to Paid to care for his or her spouse who is a servicemember as well as leave for other Leave covered servicemember in a 12-month FMLA-qualifying reasons during the The military family leave provisions period, and could take another 26 applicable 12-month period. The of H.R. 4986 amend the statutory workweeks of leave to care for his or her military family leave provisions of H.R. provisions for substitution of paid leave parent who is a covered servicemember 4986 do not limit the availability of to include the new FMLA leave in another 12-month period. Could an leave to an eligible employee for other entitlements. These amendments will be employee take leave to care for both a FMLA-qualifying reasons during any codified in the FMLA at 29 U.S.C. spouse and a child who are covered other 12-month period. These 2612(d). Under the military family leave servicemembers in the same 12-month provisions will be codified in the FMLA provisions of H.R. 4986, an eligible period? Alternatively, could the 26 at 29 U.S.C. 2612(a)(4). How should employee may elect, or an employer workweek leave entitlement be these provisions be implemented if may require, that an employee calculated per injury of a covered different methods are used to calculate substitute any accrued paid vacation servicemember, such that an eligible the 12-month period for leave taken to leave, personal leave, or family leave for employee may take 26 workweeks of care for a covered servicemember versus unpaid FMLA leave taken because of a leave during a single 12-month period to leave for other FMLA-qualifying qualifying exigency. In addition, the provide care to a covered reasons? military family leave provisions of H.R. servicemember and then may take 4986 permit an eligible employee to mstockstill on PROD1PC66 with PROPOSALS2 another 26 workweeks of leave during a Section 102(b)—Requirements Relating elect, or an employer to require, that an different 12-month period to provide to Leave Taken Intermittently or on a employee substitute any accrued paid care to the same covered servicemember Reduced Leave Schedule vacation leave, personal leave, family who is experiencing a second serious The military family leave provisions leave, or medical or sick leave for injury or illness? The 26 workweek of H.R. 4986 allow eligible employees to unpaid FMLA leave taken to care for a leave entitlement also may be viewed as take FMLA leave to care for a covered covered servicemember. The a one-time entitlement to each eligible servicemember intermittently or on a Department is considering how to VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7930 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules incorporate the military family leave employee taking FMLA leave to care for Department seeks comments on the type provisions into proposed FMLA a covered servicemember generally of information an employee should regulatory § 825.207, which addresses would be expected to provide the provide to the employer in order for the the substitution of paid leave for unpaid employer at least 30 days advance notice to be sufficient to make the FMLA leave. Because that section as notice before FMLA leave is to begin employer aware that the employee’s currently proposed in this NPRM refers when the need for the leave is need is FMLA-qualifying. generally to the substitution of paid foreseeable based on planned medical These changes also will likely require leave for unpaid FMLA leave, the treatment for the covered that the Department make conforming Department does not believe that servicemember. If 30 days notice is not changes to proposed FMLA regulatory specific reference to the new types of practicable, such as because of a lack of § 825.301(b), which generally addresses leave entitlement is required. The knowledge of approximately when leave employee responsibilities to provide Department also seeks comments on will be required to begin, a change in notice of the need for FMLA leave. The alternative approaches relating to circumstances, a medical emergency, or exact nature of the changes will depend substitution of paid leave for military because the leave is unforeseeable, on whether the same notice standards family leave provided under H.R. 4986. notice must be given as soon as are applied to all qualifying reasons for practicable under the particular facts FMLA leave. The Department believes Section 102(e)—Employee Notice that the general notice principles set and circumstances. The Department The military family leave provisions seeks comments on whether it should forth in proposed FMLA regulatory of H.R. 4986 extend to the new leave incorporate leave to care for a covered § 825.301 should apply to all qualifying provision related to care for a servicemember into the notice reasons for FMLA leave. The public is servicemember the FMLA’s existing provisions of proposed FMLA invited, however, to comment on this requirements for employees to provide regulatory §§ 825.302 and 825.303. The issue and provide alternative views. advance notice when the need for leave Department also is considering applying is foreseeable based on planned medical Section 102(f)—Leave Entitlements for the requirements in proposed FMLA Spouses Employed by the Same treatment, and for making reasonable regulatory §§ 825.302(c) and 825.303(b), efforts to schedule planned medical Employer which require that the employee treatment so as not to disrupt unduly Under the military family leave provide at least verbal notice sufficient the employer’s operations. The military provisions of H.R. 4986, an employer to make the employer aware that the family leave provisions of H.R. 4986 may limit the aggregate amount of leave employee needs FMLA-qualifying leave also provide for new notice to which eligible spouses employed by and provide information regarding the requirements for leave taken due to the same employer may be entitled in anticipated timing and duration of the some circumstances. H.R. 4986 provides qualifying exigencies whenever the leave, to the taking of FMLA leave to that a husband and wife employed by need for such leave is foreseeable. The care for a covered servicemember. the same employer are limited to a military family leave provisions of H.R. Finally, the Department requests combined total of 26 workweeks of 4986 require that eligible employees comments on whether proposed FMLA leave during the relevant 12-month provide notice to the employer that is regulatory §§ 825.203 and 825.302(e), period if the leave taken is to care for ‘‘reasonable and practicable’’ in these which address an employee’s obligation a covered servicemember or a circumstances. These amendments will to make a reasonable effort to schedule combination of leave taken to care for a be codified in the FMLA at 29 U.S.C. 2612(e)(2) and (e)(3). foreseeable leave for planned medical covered servicemember and leave for Under the proposed FMLA treatment so as not to disrupt unduly the birth or placement of a healthy child regulations in this NPRM, an employee the employer’s operations, should or to care for a parent with a serious must generally provide the employer at specifically reference the requirement in health condition. This provision does least 30 days advance notice before H.R. 4986 that servicemember family not alter the existing 12-week limitation FMLA leave is to begin if the need for leave that is foreseeable based on that applies to leave taken by a husband the leave is foreseeable based on an planned medical treatment be and wife employed by the same expected birth, placement for adoption scheduled in the same manner. employer for leave for the birth or or foster care, or planned medical The military family leave provisions placement of a healthy child or to care treatment for a serious health condition of H.R. 4986 provide that an employee for a parent with a serious health of the employee or of a family member. taking leave due to a qualifying condition (e.g., a husband and wife If 30 days notice is not practicable, such exigency provide ‘‘such notice to the employed by the same employer could as because of a lack of knowledge of employer as is reasonable and is take no more than a combined total of approximately when leave will be practicable.’’ The Department’s initial 12 weeks of FMLA leave for the birth or required to begin, a change in view is that the notice requirements in placement of a healthy child in a 12- circumstances, a medical emergency, or proposed FMLA regulatory §§ 825.302 month period, even if the husband and because the leave is unforeseeable, and 825.303 also should be applied to wife combined took fewer than 14 notice must be given as soon as leave taken due to qualifying exigencies. weeks of leave to care for a covered practicable under the particular facts If different notice requirements should servicemember, in that same period). and circumstances. For a further be used, the Department seeks These provisions will be codified in the discussion of the employee notice comments on what should be required. FMLA at 29 U.S.C. 2612(f). How should requirements proposed in this NPRM, For example, should the notice timing the Department incorporate the same see the preamble discussion of proposed requirements for leave taken due to employer limitation of the military mstockstill on PROD1PC66 with PROPOSALS2 FMLA regulatory §§ 825.302 and qualifying exigencies distinguish family leave provisions of H.R. 4986 825.303. between foreseeable leave and into the regulatory scheme proposed in The Department’s initial view is that unforeseeable leave, as proposed FMLA this NPRM? The Department these same notice requirements should regulatory §§ 825.302 and 825.303 do? specifically seeks comments on how be extended to leave taken to care for a Additionally, leave taken because of a H.R. 4986’s limitation on spouses covered servicemember. If the same qualifying exigency may not involve a employed by the same employer would notice requirements were adopted, an medical condition; therefore, the interact with FMLA’s existing limitation VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7931 on spouses employed by the same office, grade, rank, or rating. In light of there should be different timing employer if different 12-month periods this, the Department seeks comments on requirements that an employee must are used to determine eligibility for the appropriate certification follow when providing such leave taken to care for a covered requirements for military caregiver certification. Likewise, should the servicemember and other FMLA- leave, including whether it would be content of a sufficient medical qualifying leave. appropriate to interpret FMLA’s certification be different when it is Conforming regulatory changes likely statutory certification requirements required to support a leave request to will be required to proposed FMLA differently for purposes of leave taken to care for a covered servicemember? regulatory § 825.120(a)(3), which care for a covered servicemember. Should the clarification, authentication, discusses the applicability of the same Furthermore, FMLA currently and second and third opinion employer limit to FMLA leave taken for provides that an employer may request provisions of proposed FMLA pregnancy or birth; proposed FMLA a medical certification issued by the regulatory § 825.307 and the regulatory § 825.121(a)(3), applying the health care provider of the employee’s recertification provisions in proposed same employer limit to FMLA leave son, daughter, spouse, or parent in order FMLA regulatory § 825.308 be applied taken for adoption or foster care; and to support a request for FMLA leave to to certifications supporting FMLA leave proposed FMLA regulatory § 825.201(b), care for a spouse, parent, or child with taken to care for a covered which discusses the same employer a serious health condition. 29 U.S.C. servicemember, and, if so, how? limit in the context of FMLA leave taken 2613. Although the leave entitlement The military family leave provisions to care for a parent with a serious health provisions of H.R. 4986 permit an of H.R. 4986 also permit the Secretary condition. The Department requests eligible employee who is the next of kin of Labor to prescribe a new certification comments on how these sections should of a covered servicemember to take requirement for leave taken because of be changed to incorporate the same military family leave, H.R. 4986’s a qualifying exigency arising out of a employer limit in the military family certification requirements appear to servicemember’s active duty or call to leave provisions of H.R. 4986. permit an employer to obtain active duty. The Department is certification issued by the health care considering how to implement such a Section 103—Certification provider of the employee’s next of kin, requirement and seeks comments on the The military family leave provisions rather than the covered servicemember. following specific issues: of H.R. 4986 allow employers to apply The Department believes that an the FMLA’s existing medical (A) What type of information should employer should only be able to obtain be provided in a certification related to certification requirements for serious a certification from the health care health conditions to leave taken to care active duty or call to active duty status provider or military branch of the in order for it to be considered complete for a covered servicemember. In covered servicemember for whom the addition, the military family leave and sufficient? Should the certification eligible employee is caring. The provisions of H.R. 4986 provide for a merely require confirmation of the Department seeks comment on whether new certification related to leave taken covered servicemember’s active duty it is appropriate to interpret the military because of a qualifying exigency. Under status? family leave provisions of H.R. 4986 in the military family leave provisions of (B) Who may issue a certification this manner when a medical H.R. 4986, an employer may require that related to active duty or call to active certification is sought for leave taken by leave taken because of a qualifying an eligible employee who is the next of duty status? Should anyone other than exigency be ‘‘supported by a kin of a covered servicemember. the Department of Defense provide a certification issued at such time and in The Department is considering certification of the covered such manner as the Secretary may by whether a medical certification to servicemember’s active duty or call to regulation prescribe.’’ These provisions support leave taken to care for a covered active duty status? will be codified in the FMLA at 29 servicemember issued by the (C) The Department’s initial view is U.S.C. 2613. Departments of Defense or Veterans that an employee also must provide The military family leave provisions Affairs would, in all cases, eliminate the certification that an absence(s) is due to of H.R. 4986 amend FMLA’s current need to both define a sufficient medical a qualifying exigency. Because the certification requirements to permit an certification for purposes of taking leave military family leave provisions of H.R. employer to request that leave taken to to care for a covered servicemember and 4986 require that the qualifying care for a covered servicemember be develop a clarification, authentication, exigency arise out of the covered supported by a medical certification. validation, and recertification process servicemember’s active duty or call to FMLA’s current certification for leave taken for this purpose. The active duty status in support of a requirements, however, focus on Department also seeks comment on contingency operation, should any providing information related to a whether, and how, to incorporate the required certification specify that the serious health condition—a term that is new certification requirement for leave requested leave is a qualifying exigency not relevant to leave taken to care for a taken to care for a covered or that it arises out of the covered covered servicemember. At the same servicemember into proposed FMLA servicemember’s active duty or call to time, the military family leave regulatory § 825.305, which describes active duty status in support of a provisions of H.R. 4986 do not explicitly the general rule applicable to FMLA contingency operation? require that a sufficient certification for medical certifications; and proposed (D) Should an employee seeking purposes of military caregiver leave FMLA regulatory § 825.306, which FMLA leave due to a qualifying provide relevant information regarding addresses the required content of a exigency provide certification of the mstockstill on PROD1PC66 with PROPOSALS2 the covered servicemember’s serious FMLA medical certification. In light of qualifying exigency by statement or injury or illness, such as whether the the fact that many of the certifications affidavit? Who else might certify that a injury was incurred by the member in supporting leave taken to care for a particular request for FMLA leave is the line of duty while on active duty in covered servicemember may be issued because of a qualifying exigency? the Armed Forces, or whether the injury by the Departments of Defense or (E) Should the certification may render the member medically unfit Veterans Affairs, the Department requirements for leave taken because of to perform the duties of the member’s specifically seeks comment on whether a qualifying exigency vary depending on VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7932 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules the nature of the qualifying exigency for leave taken to care for a covered result of an employer’s violation of one which leave is being taken? servicemember. At the same time, the or more of the provisions of FMLA up (F) What timing requirements should military family leave provisions of H.R. to a total of 12 weeks of wages. In order be applied to certifications related to 4986 do not explicitly address whether to reflect that the leave provisions leave taken because of a qualifying an employer may recover premiums relating to care for a covered exigency? paid when an employee fails to return servicemember provide up to 26 weeks (G) Who should bear the cost, if any, to work because of the continuation, of leave, the Department anticipates of obtaining certifications related to recurrence, or onset of a serious injury changing FMLA regulatory § 825.400(c) leave taken because of a qualifying or illness of the covered servicemember. to provide that, in a case involving a exigency? Likewise, the military family leave violation of the military family leave (H) Should an employer be permitted provisions of H.R. 4986 do not provisions, an employee is entitled to to clarify, authenticate, or validate an specifically provide that an employer actual monetary losses sustained up to active duty or call to active duty may obtain a certification regarding the a total of 26 weeks of wages. The certification? Likewise, should an continuation, recurrence, or onset of the Department does not believe that further employer be permitted to clarify, servicemember’s serious injury or changes to the FMLA regulatory authenticate, or validate a certification illness if an employee does not return to provisions on enforcement are required that a particular event is a qualifying work after taking FMLA leave to care for in order to implement the military exigency? If so, what limitations, if any, a covered servicemember. In light of family leave provisions of H.R. 4986. should be imposed on an employer’s this, the Department seeks comments on The Department invites the public to ability to seek such clarification, how to appropriately implement these comment on this and any other authentication, or validation for both provisions of H.R. 4986. enforcement provisions that they types of certifications? The Department is considering believe may need to be revised. (I) Should a recertification process be revisions to proposed FMLA regulatory established for certifications related to § 825.213(a) to incorporate these new Section 108—Instructional Employees leave taken because of a qualifying requirements. The Department believes The military family leave provisions exigency? If so, how would that process that proposed FMLA regulatory of H.R. 4986 also extend the entitlement compare to the current FMLA § 825.213(a)(1) will need to be changed to take FMLA leave to care for a covered recertification process? in order to address an employee’s servicemember and because of a Section 104(c)—Maintenance of Health failure to return to work after taking qualifying exigency to eligible Benefits leave to care for a covered instructional employees of local servicemember. Proposed FMLA educational agencies. In order to Under the FMLA, an employer must regulatory § 825.213(a)(3) also will need implement this revision, H.R. 4986 maintain group health insurance to be changed to provide that an contains three statutory changes to the coverage for an eligible employee on employer may require an employee to FMLA, which will be codified in FMLA leave on the same terms as if the provide a certification issued by the subsections (c)(1), (d)(2), and (d)(3) of 29 employee continued to work. 29 U.S.C. health care provider of the covered U.S.C. 2618, and apply the current 2614(c). When an eligible employee servicemember being cared for by the FMLA rules regarding the taking of takes qualifying leave to care for a employee. The Department requests intermittent leave or leave on a reduced covered servicemember and fails to comments on how the requirements in leave schedule, or leave near the end of return from leave after the period of H.R. 4986 should be incorporated into an academic term, by employees of local leave entitlement has expired, under the these proposed FMLA regulatory educational agencies to certain leave FMLA amendments in H.R. 4986, the provisions, and whether any additional taken to care for a covered employer may recover the premiums guidance may be required on this topic. servicemember by these same paid for maintaining the employee’s employees. The Department believes group health plan coverage during any Section 107—Enforcement that three related regulatory changes are period of unpaid leave if the employee The military family leave provisions required to incorporate these provisions fails to return to work for a reason other of H.R. 4986 provide for conforming of H.R. 4986 into the FMLA regulatory than the continuation, recurrence, or amendments to the FMLA to include the scheme proposed in this NPRM, which onset of a serious health condition that new leave entitlements in the FMLA’s other than changes to titles and very entitles the employee to leave or other statutory enforcement scheme. These minor editorial changes is the same as circumstances beyond the control of the provisions will be codified in the FMLA the instructional employee provisions in employee. In addition, the military at 29 U.S.C. 2617 and amend FMLA’s the current FMLA regulations. family leave provisions of H.R. 4986 damages provision to provide for the First, the military family leave provide that an employer may require recovery of damages equal to any actual provisions of H.R. 4986 provide that an an employee to support a claim that he monetary losses sustained by the employer covered by 29 U.S.C. 2618 or she did not return to work after employee up to a total of 26 weeks could require that, in the case of an taking military caregiver leave because (rather than the current 12 weeks) in a instructional employee who requests of the continuation, recurrence, or onset case involving leave to care for a FMLA leave intermittently or on a of a serious health condition with a covered servicemember in which wages, reduced leave schedule for foreseeable certification issued by the health care salary, employment benefits or other planned medical treatment of a covered provider of the servicemember being compensation have not been denied or servicemember and who, as a result, cared for by the employee. These lost to the employee. will be on leave for greater than 20 mstockstill on PROD1PC66 with PROPOSALS2 provisions will be codified in the FMLA The Department believes that a percent of the total number of working at 29 U.S.C. 2614(c)(2)–(3). similar revision is required to FMLA days during the period of leave, the These new requirements focus on regulatory § 825.400(c). That regulatory employee choose to either (1) take leave whether an employee does not return to provision currently and as proposed in for a period or periods of particular work because of the continuation, this NPRM provides that an employee is duration; or (2) transfer temporarily to recurrence, or onset of a serious health entitled to actual monetary losses an available alternative position with condition—a term that is not relevant to sustained by an employee as a direct equivalent pay and benefits that better VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7933 accommodates recurring periods of an instructional employee to continue on how these notices should be revised leave. In order to incorporate this taking leave until the end of the term in order to incorporate these new FMLA change, the Department believes a where the employee begins leave which leave entitlements. minor technical revision is required to will last more than five working days for The Department seeks public current and proposed FMLA regulatory a purpose other than the employee’s comment on whether there are § 825.601(a)(1) to provide that the own serious health condition during the additional regulatory sections that provisions of that section apply when three-week period before the end of the should be reexamined in light of the an eligible instructional employee needs term. military family leave provisions of H.R. intermittent leave or leave on a reduced The Department invites comments on 4986. The questions set forth above are schedule to care for a covered whether additional revisions are not intended to be an exhaustive list of servicemember, in addition to applying required to the regulatory provisions issues that might arise when FMLA to situations where the employee takes governing local educational institutions leave is taken to care for a covered such leave to care for a family member in light of the military family leave servicemember or because of a or for the employee’s own serious health provisions of H.R. 4986. qualifying exigency. The Department condition. In all three cases, the encourages the public to identify any Incorporation of New FMLA Leave provision would continue to apply only other issues which should be Entitlements Into Proposed FMLA to intermittent leave or leave on a considered during the rulemaking Regulatory Scheme reduced leave schedule which is process. foreseeable based on planned medical In addition to the issues discussed above, the Department specifically Paperwork Reduction Act treatment and requires the employee to be on leave for more than 20 percent of requests comments on whether the In accordance with requirements of FMLA leave entitlements in H.R. 4986 the Paperwork Reduction Act (PRA), 44 the total number of working days over should generally be incorporated into U.S.C. 3501 et seq., and its attendant the period the leave would extend. the FMLA regulatory scheme proposed regulations, 5 CFR part 1320, the DOL Second, the military family leave in this NPRM, or whether stand-alone seeks to minimize the paperwork provisions of H.R. 4986 extend some of regulatory sections should be created for burden for individuals, small the limitations on leave near the end of one or both of the military family leave businesses, educational and nonprofit an academic term to leave requested provisions of H.R. 4986. The institutions, Federal contractors, State, during this period to care for a covered Department seeks comments on which local and tribal governments, and other servicemember. The Department of these approaches would be most persons resulting from the collection of believes that several FMLA regulatory beneficial for employees and employers. information by or for the agency. The sections will need to be changed in Although not specified in the military PRA typically requires an agency to order to apply the limitations on leave family leave provisions of H.R. 4986, the provide notice and seek public near the end of an academic term to Department believes that a number of comments on any proposed collection of military family leave. Current and additional conforming changes may be information contained in a proposed proposed FMLA regulatory required to the proposed FMLA rule. See 44 U.S.C. 3506(c)(2)(B); 5 CFR § 825.602(a)(2) provides that, where an regulations in this NPRM in order to 1320.8. Persons are not required to instructional employee begins leave for fully integrate the military family leave respond to the information collection a purpose other than the employee’s provisions into FMLA’s regulatory requirements as contained in this own serious health condition during the scheme. For example, proposed FMLA proposal unless and until they are five-week period before the end of the regulatory § 825.100 may need to be approved by the OMB under the PRA at term, the employer may require the changed to incorporate a discussion of the final rule stage. employee to continue taking leave until the new leave entitlements into the This ‘‘paperwork burden’’ analysis the end of the term if the leave will last general description of what the FMLA estimates the burdens for the proposed more than two weeks and the employee provides. Similarly, proposed FMLA regulations as drafted. In addition and would return to work during the two- regulatory § 825.112(a), which provides as already discussed, the military family week period before the end of the term. the general rule regarding the leave provisions of H.R. 4986 amend the Because the military family leave circumstances that will qualify for FMLA to provide leave to eligible provisions of H.R. 4986 only extend this leave, may need to be changed to employees of covered employers to care limitation on leave near the end of an reference the two qualifying reasons for for covered servicemembers and academic term to leave taken to care for FMLA leave in H.R. 4986. because of any qualifying exigency a covered servicemember, and not leave The Department also plans on arising out of the fact that a covered taken because of a qualifying exigency, changing the proposed poster and family member is on active duty or has the Department believes that this FMLA general notice to incorporate the been notified of an impending call to regulatory section may need to be military family leave provisions of H.R. active duty status in support of a changed in order to specifically 4986. The Department’s initial view is contingency operation. The new reference the types of leave that are that these new qualifying reasons for statutory provisions will be codified at subject to the limitation: (1) Leave FMLA leave should be incorporated into 29 U.S.C. 2612(e)(2) and (e)(3). The because of the birth of a son or daughter, the poster and general notice discussed earlier preamble discussion on Family (2) leave because of the placement of a in proposed FMLA regulatory Leave in Connection with Injured son or daughter for adoption or foster § 825.300(a). However, the Department Members of the Armed Forces and care, (3) leave taken to care for a spouse, seeks comments on whether a separate Qualifying Exigencies Related to Active mstockstill on PROD1PC66 with PROPOSALS2 parent, or child with a serious health poster and general notice should be Duty provides a fuller explanation of the condition, and (4) leave taken to care for created for military family leave. The specific provisions and issues on which a covered servicemember. A similar proposed eligibility and designation the Department seeks public comments. revision also may be required to FMLA notices in FMLA regulatory § 825.300(b) Because of the need to issue regulations regulatory § 825.602(a)(3), which and (c) also will need to incorporate as soon as possible so that employees currently and as proposed in this NPRM appropriate references to military family and employers are aware of the provides that an employer may require leave. The Department seeks comments respective rights and obligations VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7934 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules regarding military family leave under activities (e.g., in compiling and with its usual and customary notice and the FMLA, the Department anticipates maintaining business records). 5 CFR procedural requirements for requesting issuing, after full consideration of the 1320.3(b)(2). The PRIA, however, must leave. comments received in response to this consider the economic impact of any B. Notice to Employee of FMLA Notice, final regulations that will changes in the proposed regulation. Eligibility [29 CFR 825.219 and include necessary revisions to the Circumstances Necessitating 825.300(b)]. When an employee requests currently proposed FMLA information Collection: The FMLA requires private FMLA leave or when the employer collections. sector employers of 50 or more acquires knowledge that an employee’s As will be more fully explained later, employees and public agencies to leave may be for an FMLA-qualifying many of the estimates in the analysis of provide up to 12 weeks of unpaid, job- condition, the employer must notify the the ‘‘paperwork’’ requirements derive protected leave during any 12-month employee within five business days of from data developed for the Preliminary period to ‘‘eligible’’ employees for the employee’s eligibility to take FMLA Regulatory Impact Analysis (PRIA) certain family and medical reasons (i.e., leave and any additional requirements under E.O. 12866. However, the specific for birth of a son or daughter, and to for qualifying for such leave. This needs that the PRA analysis and PRIA care for the newborn child; for eligibility notice must provide are intended to meet often require that placement with the employee of a son information regarding the employee’s the data undergo a different analysis to or daughter for adoption or foster care; eligibility for FMLA leave, detail the estimate the burdens imposed by the to care for the employee’s spouse, son, specific responsibilities of the daughter, or parent with a serious health employee, and explain any ‘‘paperwork’’ requirements from the condition; and because of a serious consequences of a failure to meet these analysis used in estimating the effect the health condition that makes the responsibilities. The employer generally regulations will have on the economy. employee unable to perform the must provide the notice the first time in Consequently, the differing treatment functions of the employee’s job). FMLA each six-month period that an employee that must be undertaken in the PRA section 404 requires the Secretary of gives notice of the need for FMLA leave; analysis and the PRIA may result in Labor to prescribe such regulations as however, if the specific information different results. For example, the PRA necessary to enforce this Act. 29 U.S.C. provided by the notice changes with analysis measures the total burden of 2654. The proposed regulations provide respect to a subsequent period of FMLA the information collection; however, the for the following information leave, the employer would need to PRIA measures the incremental changes collections, many of which are third- provide an updated notice. expected to result from the proposed party notifications between employers C. Medical Certification and regulatory changes. Thus, the PRA and employees. Recertification [29 U.S.C. 2613, analysis will calculate a paperwork A. Employee Notice of Need for 2614(c)(3); 29 CFR 825.100(d) and burden for an information collection FMLA Leave [29 U.S.C. 2612(e); 29 CFR 825.305 through 825.308]. An employer that remains unchanged from the 825.100(d), 825.301(b), 825.302, and may require that an employee’s leave to current regulation and the PRIA will not 825.303]. An employee must provide care for the employee’s seriously-ill consider that item. Conversely, the the employer at least 30 days’ advance spouse, son, daughter, or parent, or due regulatory definition for ‘‘collection of notice before FMLA leave is to begin if to the employee’s own serious health information’’ for PRA purposes the need for the leave is foreseeable condition that makes the employee specifically excludes the public based on an expected birth, placement unable to perform one or more essential disclosure of information originally for adoption or foster care, or planned functions of the employee’s position, be supplied by the Federal government to medical treatment for a serious health supported by a certification issued by the recipient for the purpose of condition of the employee or of a family the health care provider of the eligible disclosure to the public. 5 CFR member. If 30 days’ notice is not employee or of the ill family member. 1320.3(c)(2). The PRIA, however, may practicable, such as because of a lack of The proposal provides that the need to consider the impact of any knowledge of approximately when leave employer may contact the employee’s regulatory changes in such notifications will be required to begin, a change in health care provider for purposes of provided by the government. For circumstances, or a medical emergency, clarification and authentication of the example, in the context of the proposed notice must be given as soon as medical certification (whether initial FMLA changes, the general notice that practicable under the facts and certification or recertification) after the employers currently must develop and circumstances of the particular case. In employer has given the employee an provide to their workers is proposed to neither case must an employee opportunity to cure any deficiencies. In be replaced with a notice using wording expressly assert rights under the FMLA addition, an employer must advise an provided by the DOL that employers or even mention the FMLA. The employee whenever it finds a must periodically provide to their employee must, however, provide certification incomplete or insufficient employees. This proposed DOL- information that indicates that a and state in writing what additional provided FMLA notice would not be a condition renders the employee unable information is necessary to make the ‘‘collection of information’’ for PRA to perform the functions of the job, or certification complete and sufficient. An purposes; therefore, the proposal if the leave is for a family member, that employer, at its own expense and reduces burden for PRA purposes. The the condition renders the family subject to certain limitations, also may PRIA, however, must address the member unable to perform daily require an employee to obtain a second economic impact of the frequency with activities; the anticipated duration of and third medical opinion. In addition, which employers must provide the the absence; and whether the employee an employer may also request mstockstill on PROD1PC66 with PROPOSALS2 DOL’s FMLA notice under the proposed or the employee’s family member recertification under certain conditions. change to the regulations. Finally, the intends to visit a health care provider or The employer must provide the PRA definition of ‘‘burden’’ can exclude has a condition for which the employee employee at least 15 calendar days to the time, effort, and financial resources or the employee’s family member is provide the initial certification and any necessary to comply with a collection of under the continuing care of a health subsequent recertification. The information that would be incurred by care provider. An employer, generally, proposed regulations would provide persons in the normal course of their may require an employee to comply that the employer must provide seven VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7935 calendar days (unless not practicable which the 12-week entitlement occurs facts at that time. If the employer under the particular circumstances for purposes of FMLA leave. An determines that substantial and grievous despite the employee’s diligent good employer wishing to change to another economic injury will result from faith efforts) to cure any deficiency alternative is required to give at least 60 reinstating the employee, the employer identified by the employer. days’ notice to all employees. must notify the employee in writing (in D. Notice to Employees of FMLA G. Key Employee Notification [29 person or by certified mail) of the denial Designation [29 CFR 825.300(c) and U.S.C. 2614(b)(1)(B); 29 CFR 825.219 of restoration. 825.301(a)]. When the employer has and 825.300(b)(3)(vi)]. An employer that H. Periodic Employee Status Reports enough information to determine believes that it may deny reinstatement [29 CFR 825.300(b)(4) and 825.309]. An whether the leave qualifies as FMLA to a key employee must give written employer may require an employee to leave (after receiving a medical notice to the employee at the time the provide periodic reports regarding the certification, for example), the employer employee gives notice of the need for employee’s status and intent to return to must notify the employee within five FMLA leave (or when FMLA leave work. business days of making such commences, if earlier) that he or she I. Notice to Employee of Pending determination whether the leave has or qualifies as a key employee. At the same Cancellation of Health Benefits [29 CFR has not been designated as FMLA leave time, the employer must also fully 825.212(a)]. Unless an employer and the number of hours, days or weeks inform the employee of the potential establishes a policy providing a longer that will be counted against the consequences with respect to grace period, an employer’s obligation employee’s FMLA leave entitlement. If reinstatement and maintenance of to maintain health insurance coverage it is not possible to provide the hours, health benefits if the employer should ceases under FMLA if an employee’s days or weeks that will be counted determine that substantial and grievous premium payment is more than 30 days against the employee’s FMLA leave economic injury to the employer’s late. In order to drop the coverage for an entitlement (such as in the case of operations would result if the employer employee whose premium payment is unforeseeable intermittent leave), then were to reinstate the employee from late, the employer must provide written such information must be provided FMLA leave. If the employer cannot notice to the employee that the payment every 30 days to the employee if leave immediately give such notice, because has not been received. Such notice must is taken during the prior 30-day period. of the need to determine whether the be mailed to the employee at least 15 If the employer requires paid leave to be employee is a key employee, the days before coverage is to cease and substituted for unpaid leave, or that employer must give the notice as soon advise the employee that coverage will paid leave taken under an existing leave as practicable after receiving the be dropped on a specified date at least plan be counted as FMLA leave, this employee’s notice of a need for leave (or 15 days after the date of the letter unless designation also must be made at the the commencement of leave, if earlier). the payment has been received by that time of the FMLA designation. If an employer fails to provide such date. E. Fitness-for-Duty Medical timely notice it loses its right to deny J. Documenting Family Relationship Certification [29 U.S.C. 2614(a)(4); 29 restoration, even if substantial and [29 CFR 825.122(f)]. An employer may CFR 825.100(d) and 825.310]. As a grievous economic injury will result require an employee giving notice of the condition of restoring an employee from reinstatement. need for leave to provide reasonable whose FMLA leave was occasioned by As soon as an employer makes a good documentation or statement of family the employee’s own serious health faith determination—based on the facts relationship. This documentation may condition that made the employee available—that substantial and grievous take the form of a child’s birth unable to perform the employee’s job, economic injury to its operations will certificate, a court document, a sworn an employer may have a uniformly- result if a key employee who has given notarized statement, a submitted or applied policy or practice that requires notice of the need for FMLA leave or is signed tax return, etc. The employer is all similarly-situated employees (i.e., using FMLA leave is reinstated, the entitled to examine documentation such same occupation, same serious health employer must notify the employee in as a birth certificate, etc., but the condition) who take leave for such writing of its determination; that the employee is entitled to the return of the conditions to obtain and present employer cannot deny FMLA leave; and official document submitted for this certification from the employee’s health that the employer intends to deny purpose. care provider that the employee is able restoration to employment on K. Recordkeeping [29 U.S.C. 2616; 29 to resume work. The employee has the completion of the FMLA leave. The CFR 825.500]. The FMLA provides that same obligations to participate and employer must serve this notice either employers shall make, keep, and cooperate in providing a complete and in person or by certified mail. This preserve records pertaining to the FMLA sufficient certification to the employer notice must explain the basis for the in accordance with the recordkeeping in the fitness-for-duty certification employer’s finding that substantial and requirements of Fair Labor Standards process as in the initial certification grievous economic injury will result, Act section 11(c), 29 U.S.C. 211(c), and process. The DOL is also proposing in and, if leave has commenced, must regulations issued by the Secretary of § 825.310(g) that an employer be provide the employee a reasonable time Labor. This statutory authority provides permitted to require an employee to in which to return to work, taking into that no employer or plan, fund, or furnish a fitness-for-duty certificate account the circumstances, such as the program shall be required to submit every 30 days if an employee has used length of the leave and the urgency of books or records more than once during intermittent leave during that period the need for the employee to return. any 12-month period unless the DOL and reasonable safety concerns exist. An employee may still request has reasonable cause to believe a mstockstill on PROD1PC66 with PROPOSALS2 F. Notice to Employees of Change of reinstatement at the end of the leave violation of the FMLA exists or is 12-Month Period for Determining FMLA period, even if the employee did not investigating a complaint. Entitlement [29 CFR 825.200(d)(1)]. An return to work in response to the Employers must maintain basic employer generally must choose a single employer’s notice. The employer must payroll and identifying employee data, uniform method from four options then determine whether there will be including name, address, and available under the regulations for substantial and grievous economic occupation; rate or basis of pay and determining the 12-month period in injury from reinstatement, based on the terms of compensation; daily and VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7936 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules weekly hours worked per pay period; must also maintain such records in and issues on which the Department additions to or deductions from wages; conformance with any applicable ADA seeks public comments. and total compensation paid; dates confidentiality requirements; except Purpose and Use: The WHD has FMLA leave is taken by FMLA eligible that: supervisors and managers may be created optional use Forms WH–380, employees (available from time records, informed regarding necessary WH–381, and the proposed WH–382 to requests for leave, etc., if so designated). restrictions on the work or duties of an assist employees and employers in Leave must be designated in records as employee and necessary meeting their FMLA third-party FMLA leave; leave so designated may accommodations; first aid and safety notification obligations. Form WH–380 not include leave required under State personnel may be informed, when allows an employee requesting FMLA law or an employer plan which is not appropriate, if the employee’s physical leave based on a serious health also covered by FMLA; if FMLA leave or medical condition might require condition to satisfy the statutory is taken by eligible employees in emergency treatment; and government requirement to furnish, upon the increments of less than one full day, the officials investigating compliance with employer’s request, a medical hours of the leave; copies of employee the FMLA, or other pertinent law, shall certification (including a second or third notices of leave furnished to the be provided relevant information upon opinion and recertification) from the employer under FMLA, if in writing, request. health care provider. See §§ 825.306 and and copies of all eligibility notices given The FLSA recordkeeping 825.307 and Appendices B, D, and E. to employees as required under FMLA requirements, contained in 29 CFR part Form WH–381 allows an employer to and these regulations; any documents 516, are currently approved under satisfy the regulatory requirement to (including written and electronic Office of Management and Budget provide employees taking FMLA leave records) describing employee benefits or (OMB) control number 1215–0017; with written notice detailing specific employer policies and practices consequently, this information expectations and obligations of the regarding the taking of paid and unpaid collection does not duplicate their employee and explaining any leaves; premium payments of employee burden, despite the fact that for the consequences of a failure to meet these benefits; records of any dispute between administrative ease of the regulated obligations. See § 825.301(b). Form WH– the employer and an eligible employee community this information collection 382 allows an employer to meet its regarding designation of leave as FMLA restates them. obligation to designate an absence as leave, including any written statement L. Military Family Leave [29 U.S.C. FMLA leave. See §§ 825.300(c) and 825 from the employer or employee of the .301(a). While the use of the DOL forms 2612(e), 2613]: The military family leave reasons for the designation and for the is optional, the regulations require provisions of H.R. 4986 extend to the disagreement. employers and employees to make the new leave provision related to care for Covered employers with no eligible third-party disclosures that the forms a servicemember the FMLA’s existing employees must maintain the basic cover. The FMLA third-party requirements for employees to provide payroll and identifying employee data disclosures ensure that both employers advance notice when the need for leave already discussed. Covered employers and employees are aware of and can is foreseeable based on planned medical that jointly employ workers with other exercise their rights and meet their treatment, and for making reasonable employers must keep all the records respective obligations under FMLA. efforts to schedule planned medical The recordkeeping requirements are required by the regulations with respect treatment so as not to disrupt unduly necessary in order for the DOL to carry to any primary employees, and must keep the basic payroll and identifying the employer’s operations. The military out its statutory obligation under FMLA employee data with respect to any family leave provisions of H.R. 4986 section 106 to investigate and ensure secondary employees. also provide for new notice employer compliance. The WHD uses If FMLA-eligible employees are not requirements for leave taken due to these records to determine employer subject to FLSA recordkeeping qualifying exigencies whenever the compliance. regulations for purposes of minimum need for such leave is foreseeable. The Information Technology: The wage or overtime compliance (i.e., not military family leave provisions of H.R. proposed regulations continue to covered by, or exempt from, FLSA), an 4986 require that eligible employees prescribe no particular order or form of employer need not keep a record of provide notice to the employer that is records. See § 825.500(b). The actual hours worked (as otherwise ‘‘reasonable and practicable’’ in these preservation of records in such forms as required under FLSA, 29 CFR circumstances. microfilm or automated word or data 516.2(a)(7)), provided that: eligibility for The military family leave provisions processing memory is acceptable, FMLA leave is presumed for any of H.R. 4986 allow employers to apply provided the employer maintains the employee who has been employed for at the FMLA’s existing medical information and provides adequate least 12 months; and with respect to certification requirements for serious facilities to the DOL for inspection, employees who take FMLA leave health conditions to leave taken to care copying, and transcription of the intermittently or on a reduced leave for a covered servicemember. In records. In addition, photocopies of schedule, the employer and employee addition, the military family leave records are also acceptable under the agree on the employee’s normal provisions of H.R. 4986 also permit the regulations. Id. schedule or average hours worked each Secretary of Labor to prescribe a new Aside from the basic requirement that week and reduce their agreement to a certification requirement to leave taken all third-party notifications be in written record. because of a qualifying exigency arising writing, with a possible exception for Employers must maintain records and out of a servicemember’s active duty or the employee’s FMLA request that mstockstill on PROD1PC66 with PROPOSALS2 documents relating to any medical call to active duty. depends on the employer’s leave certification, recertification or medical The earlier preamble discussion on policies, there are no restrictions on the history of an employee or employee’s Family Leave in Connection with method of transmission. Respondents family member, created for FMLA Injured Members of the Armed Forces may meet many of their notification purposes as confidential medical and Qualifying Exigencies Related to obligations by using DOL-prepared records in separate files/records from Active Duty provides a fuller publications available on the WHD Web the usual personnel files. Employers explanation of the specific provisions site. These forms are in a PDF, fillable VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7937 format for downloading and printing. the details of when employees and made a matter of public record, and The employers may keep recordkeeping employers must provide certain notices. posted without change to http:// requirements covered by this Employers must maintain employee www.regulations.gov, including any information collection in any form, medical information they obtain for personal information provided. including electronic. FMLA purposes as confidential medical An agency may not conduct an Minimizing Duplication: The FMLA records in separate files/records from information collection unless it has a information collections do not duplicate the usual personnel files. Employers currently valid OMB approval, and the other existing information collections. must also maintain such records in DOL has submitted the identified In order to provide all relevant FMLA conformance with any applicable ADA information collections contained in the information in one set of requirements, confidentiality requirements, except proposed rule to the OMB for review the recordkeeping requirements restate a that: supervisors and managers may be under the PRA under Control Number portion of the records employers must informed regarding necessary 1215–0181. See 44 U.S.C. 3507(d); 5 maintain under the FLSA. Employers do restrictions on the work or duties of an CFR 1320.11. While much of the not need to duplicate the records when employee and necessary information provided to the OMB in basic records maintained to meet FLSA accommodations; first aid and safety support of the information collection requirements also document FMLA personnel may be informed (when request appears in this preamble, compliance. The additional records appropriate) if the employee’s physical interested parties may obtain a copy of required by the FMLA regulations, with or medical condition might require the full supporting statement by sending the exception of specifically tracking emergency treatment; and government a written request to the mail address FMLA leave, are records that employers officials investigating compliance with shown in the ADDRESSES section at the ordinarily maintain for monitoring FMLA (or other pertinent law) shall be beginning of this preamble or by visiting employee leave in the usual and provided relevant information upon the http://www.reginfo.gov/public/do/ ordinary course of business. The request. PRAMain Web site. regulations do impose, however, a three- Public Comments: On December 1, In addition to having an opportunity year minimum time limit that 2006, the DOL published a Request for to file comments with the DOL, employers must make the records Information (RFI) in the Federal comments about the paperwork available for inspection, copying, and Register inviting public comment about implications of the proposed regulations transcription by the DOL. The DOL the FMLA paperwork requirements and may be addressed to the OMB. minimizes the FMLA information other issues. 71 FR 69504. On June 28, Comments to the OMB should be collection burden by accepting records 2007, the DOL published a report that directed to: Office of Information and maintained by employers as a matter of summarized the comments received in Regulatory Affairs, Attention OMB Desk usual or customary business practices. response to the RFI. 72 FR 35550. The Officer for the Employment Standards The DOL also accepts records kept due DOL also engaged various stakeholders Administration (ESA), Office of to requirements of other governmental representing the interests of employees, Management and Budget, Room 10235, requirements (e.g., records maintained employers, and healthcare providers to Washington, DC 20503, Telephone: for tax and payroll purposes). The DOL discuss the FMLA information 202–395–7316/Fax: 202–395–6974 has reviewed the needs of both collection requirements. The proposed (these are not toll-free numbers). employers and employees to determine FMLA regulations reflect the results of Confidentiality: The DOL makes no the frequency of the third-party these efforts. assurances of confidentiality to notifications covered by this collection The DOL seeks additional public respondents. Much of the information to establish frequencies that provide comments regarding the burdens covered by this information collection timely information with the least imposed by information collections consists of third-party disclosures. burden. The DOL has further minimized contained in this proposed rule. In Employers generally must maintain burden by developing prototype notices particular, the DOL seeks comments records and documents relating to any for many of the third-party disclosures that: evaluate whether the proposed medical certification, recertification, or covered by this information collection. collection of information is necessary medical history of an employee or Agency Need: The DOL is assigned a for the proper performance of the employee’s family members as statutory responsibility to ensure functions of the agency, including confidential medical records in separate employer compliance with the FMLA. whether the information will have files/records from usual personnel files. The DOL uses records covered by the practical utility; evaluate the accuracy Employers must also generally maintain FMLA information collection to of the agency’s estimate of the burden of such records in conformance with any determine compliance, as required of the proposed collection of information, applicable ADA confidentiality the agency by FMLA section 107(b)(1). including the validity of the requirements. As a practical matter, the 29 U.S.C. 2617(b)(1). Without the third- methodology and assumptions used; DOL would only disclose agency party notifications required by the law enhance the quality, utility and clarity investigation records of materials and/or regulations, employers and of the information to be collected; and subject to this collection in accordance employees would have difficulty minimize the burden of the collection of with the provisions of the Freedom of knowing their FMLA rights and information on those who are to Information Act, 5 U.S.C. 552, and the obligations. respond, including through the use of attendant regulations, 29 CFR part 70, Special Circumstances: Because of the appropriate automated, electronic, and the Privacy Act, 5 U.S.C. 552a, and unforeseeable and often urgent nature of mechanical, or other technological its attendant regulations, 29 CFR part the need for FMLA leave, notice and collection techniques or other forms of 71. mstockstill on PROD1PC66 with PROPOSALS2 response times must be of short information technology, e.g., permitting Hours Burden Estimates: The DOL duration to ensure that employers and electronic submissions of responses. bases the following burden estimates on employees are sufficiently informed and Commenters may send their views about the estimates the PRIA presented can exercise their FMLA rights and these information collections to the DOL elsewhere in this document, except as obligations. The discussion above in the same way as all other comments otherwise noted. The DOL estimates outlines the circumstances necessitating (e.g., through the regulations.gov Web 77.1 million employees were eligible for the information collection and provides site). All comments received will be FMLA leave in 2005. The FMLA applied VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7938 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules to approximately 415,000 private 5, http://www.dol.gov/esa/whd/fmla/ 27,875,000 total responses × 10 business establishments and State and fmla/chapter2.pdf. The DOL also minutes/60 minutes per hour = local governments in 2005. See County estimates 92 percent of these employees 4,645,833 hours Business Patterns, 2005, U.S. Census provide medical certifications. See 2000 E. Fitness-for-Duty Medical Bureau, http://censtats.census.gov/cgi- Westat Report at A–2–51. Additionally, Certification. The DOL estimates that bin/cbpnaic/cbpsel.pl; and Census of the DOL estimates that second or third 367,000 employees will each have to Governments, Volume 3, Public opinions and/or recertifications add 15 provide one fitness for duty certification Employment, Compendium of Public percent to the total number of and 44,000 employees will each have to Employment: 2002 at 248–249, http:// certifications and that employees spend provide three such certifications, for a www.census.gov/prod/2004pubs/ an average of 20 minutes in obtaining total of 499,000 certifications provided gc023x2.pdf. The PRIA data also suggest the certifications. Employers may have by 411,000 employees and that each 7 million employees took FMLA leave employees use optional Form WH–380 fitness for duty certification will require in 2005. to satisfy this requirement. ten minutes of the employee’s time. A. Employee Notice of Need for 7,000,000 employees taking FMLA leave FMLA Leave. While employees 499,000 responses × 10 minutes/60 × 81.5% rate for serious health minutes per hour = 83,167 hours normally will provide general condition × 92% asked to provide information regarding their absences, The DOL accounts for health care initial medical certifications = the regulations may impose provider burdens to complete these 5,248,600 employee respondents requirements for workers to provide 5,248,600 employee respondents × 1.15 certifications as a ‘‘maintenance and their employers with more detailed responses = 6,035,890 total responses operation’’ cost burden, discussed later. information than might otherwise be the 6,035,890 total responses × 20 minutes/ F. Notice to Employees of Change of case. The DOL estimates that providing 60 minutes per hour = 2,011,963 12-Month Period for Determining FMLA this additional information will take hours Entitlement. The DOL estimates that approximately two minutes per annually 10 percent of FMLA covered The DOL associates no paperwork employers choose to change their 12- employee notice of the need to take burden with the portion of this FMLA leave. In addition, Westat Report month period for determining FMLA information collection employers eligibility and must notify employees of data indicate about 75 percent of FMLA complete, since—even absent the users take leave in a single block, 15 the change, requiring approximately 10 FMLA—similar information would minutes per change. percent take leave in two blocks, and 10 customarily appear in their internal percent take leave in more than two 415,000 covered employers × 10% instructions requesting a medical blocks. See 2000 Westat Report at 2–3, response rate = 41,500 respondents certification or recertification. The DOL http://www.dol.gov/esa/whd/fmla/fmla/ 41,500 respondents × 10 minutes/60 accounts for health care provider chapter2.pdf. The DOL, consequently, minutes = 6917 hours burdens to complete these certifications estimates FMLA leave takers, on a per as a ‘‘maintenance and operation’’ cost G. Key Employee Notification. The capita basis, annually provide 1.5 burden, discussed later. ‘‘key employee’’ status notification to an notices of the need for FMLA leave. In D. Notice to Employees of FMLA employee is part of the employee addition, the PRIA estimates some Designation. The DOL estimates that eligibility notice; accordingly, the DOL employees who are not eligible for each written FMLA designation notice associates no additional burden for the FMLA protections will make some takes approximately ten minutes and initial notification. The DOL estimates 2,200,000 requests for FMLA leave. that there are 10,500,000 FMLA leaves that annually 10 percent of employers (7,000,000 FMLA covered employee taken each year. Employers can notify one employee of the intent not to respondents × 1.5 valid responses designate FMLA leave at the same time restore the employee at the conclusion [i.e., notices to employers]) + they provide the eligibility notice about of FMLA leave. In addition, the DOL 2,200,000 ineligible FMLA requests = 25 percent of the time, based on the estimates half of these cases will require 12,700,000 total responses number of instances where employers the employer to issue a second notice 12,700,000 total responses × 2 minutes/ request a medical certification. from the employer to address a key 60 minutes per hour = 423,333 hours According to a 2005 WorldatWork employee’s subsequent request for B. Notice to Employee of FMLA survey, 28.6 percent of absences result reinstatement. Finally, the DOL Eligibility. The DOL estimates that each from either chronic or permanent/long estimates each key employee written notice to an employee of FMLA term conditions. (See FMLA notification takes approximately 5 eligibility, rights, and responsibilities Perspectives and Practices: Survey of minutes. The DOL associates no takes approximately ten minutes. WorldatWork Members, April 2005, paperwork burden with the employee Consistent with the estimates for the WorldatWork, Figure 9a, p. 8.) requests, since these employees would number of notices employees provide, Assuming that this applies to FMLA ordinarily ask for reinstatement even if the DOL estimates that employers will leave takers, the DOL estimates that the the rule were not to exist. provide 12,700,000 FMLA eligibility notices will have to be sent to about 415,000 covered employers × 10% notices to employees. Employers may 2,000,000 workers (i.e., 28.6% of 7 response rate = 41,500 employer use optional Form WH–381 to satisfy million) taking FMLA for either chronic respondents this requirement. or permanent/long term conditions. For 41,500 employer respondents × 1.5 12,700,000 total responses × 10 purposes of estimating the paperwork responses = 62,250 total responses minutes/60 minutes per hour = burden, the DOL assumes that for 62,250 total responses × 5 minutes/60 mstockstill on PROD1PC66 with PROPOSALS2 2,116,667 hours workers with chronic conditions (either minutes = 5188 hours C. Medical Certification and temporary or permanent) ten additional H. Periodic Employee Status Reports. Recertification. The DOL estimates 81.5 notices will have to be provided each The DOL estimates employers require percent of employees taking FMLA year to each of these employees. periodic reports from 25 percent of leave do so because of their own serious 7,875,000 initial notices + 20,000,000 FMLA leave users (based on the health condition or that of a family additional notices = 27,875,000 total percentage of FMLA leave takers with member. See 2000 Westat Report at 2– responses absences lasting more than 30 days). See VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7939 2000 Westat Report at A–2–29, http:// J. Documenting Family Relationships. used the average hourly rate of non- www.dol.gov/esa/whd/fmla/fmla/ The DOL estimates 50% of FMLA leave supervisory workers on non-farm appendixa-2.pdf. The DOL also takers do so for ‘‘family’’ related payrolls for September 2007 of $17.62 estimates a typical employee would reasons, such as caring for a newborn or plus 40 percent for fringe benefits to normally respond to an employer’s recently adopted child or a qualifying estimate respondent costs. See The request for a status report; however, to family member with a serious health Employment Situation, November 2007, account for any additional burden the condition. See 2000 Westat Report at 2– at DOL, Bureau of Labor Statistics (BLS) regulations might impose, the DOL 5, http://www.dol.gov/esa/whd/fmla/ (http://www.bls.gov/news.release/ estimates a 10 percent response rate and fmla/chapter2.pdf. The DOL also archives/empsit_12072007.pdf). The a burden of two minutes per response. estimates employers require additional DOL estimates total annual respondent The DOL also estimates that each such documentation to support a family costs for the value of their time to be respondent annually provides two relationship in 5 percent of these cases, $236,652,088 ($17.62 × 1.4 × 9,593,485 periodic status reports. While the DOL and the additional documentation hours). believes most employers would only requires 20 minutes. seek these reports in accordance with Other Respondent Cost Burdens 7,000,000 employees taking FMLA leave (Maintenance and Operation): customary business practices, the × 50% rate for family leave × 5% agency has accounted for any potential Employees seeking FMLA leave for a response rate = 175,000 employee serious health condition must obtain, additional employer burden in the respondents ‘‘Eligibility Notice.’’ upon their employer’s request, a 175,000 × 20 minutes/60 minutes per certification of the serious health 7,000,000 FMLA leave takers × 25% rate hour = 58,333 hours of employer requests × 10% condition from a health care provider. K. General Recordkeeping. The DOL Often the heath care provider’s office regulatory burden = 175,000 estimates the FMLA imposes an employee respondents staff completes the form for the additional general recordkeeping provider’s signature. In other cases, the 175,000 employee respondents × 2 burden on each employer that equals responses = 350,000 total responses health care provider personally 1.25 minutes for each notation of an completes it. While most health care 350,000 total responses × 2 minutes/60 employee absence. providers do not charge for completing minutes per hour = 11,667 hours 10,500,000 total records × 1.25 minutes/ these certifications, some do. The DOL I. Notice to Employee of Pending 60 minutes per hour = 218,750 hours estimates completion of Form WH–380 Cancellation of Health Benefits. The DOL estimates the regulations require L. Military Family Leave. This to take about 20 minutes and a fitness- employers send notifications of not ‘‘paperwork burden’’ analysis estimates for-duty certification to require 10 having received health insurance the burdens for the proposed regulations minutes; thus, the time would equal the premiums to 2% of leave takers, based as drafted. The Department anticipates respondent’s time in obtaining the on the number of employees indicating issuing, after full consideration of the certification. The DOL has used the they have lost benefits. For purposes of comments received in response to the 2005 average hourly wage rate for a estimating the paperwork burden Proposed Rule, final regulations that physician’s assistant of $36.49 plus 40 associated with this information will include necessary revisions to the percent in fringe benefits to compute a collection, the DOL expects that unique currently proposed FMLA information $17.03 cost for Form WH–380 ($51.09 × respondents would send all responses. burden estimates to account for the 20 minutes/60 minutes per hour) and See 2000 Westat Report at 4–4, http:// military family leave provisions of H.R. $8.52 cost for fitness-for-duty www.dol.gov/esa/whd/fmla/fmla/ 4986. certifications ($51.09 × 10 minutes/60 chapter4.pdf. The DOL also estimates GRAND TOTAL ANNUAL BURDEN minutes per hour) See National each notification will take 5 minutes. HOURS = 9,593,485 HOURS Compensation Survey 2005, DOL, BLS. 7,000,000 FMLA leave takers × 2% rate Persons responding to the various The DOL also attributes an average notification = 140,000 respondents FMLA information collections may be $1.00 cost for each documentation of a and responses employees of any of a wide variety of family relationship to cover notary costs 140,000 responses × 5 minutes/60 businesses. Absent specific wage data when an employee does not have other minutes per hour = 11,667 hours regarding respondents, the DOL has documentation available. 6,035,890 total medical certifications x $17.03 cost per certification = ........................................................................................ $102,791,207 499,000 fitness-for-duty certifications x $8.52 cost per certification = .......................................................................................... 4,251,480 +175,000 documentations of family relationship x $1.00 each = ................................................................................................. 175,000 Total Maintenance and Operations Cost Burden for Respondents ....................................................................................... 107,217,687 Federal Costs: The Federal costs that of each form covered by this will offset some of the printing and the DOL associates with this information collection to each FMLA- duplicating costs in an equal amount; information collection relate to printing/ covered employer, and that the agency therefore, the agency is presenting only duplicating and mailing the subject will mail all forms simultaneously to the costs of the latter: forms. The DOL also estimates it will any given requestor. The DOL further annually provide an average of one copy estimates information technology costs mstockstill on PROD1PC66 with PROPOSALS2 415,000 WH–380s (Certification of Health Care Provider) × 4 pages = ............................................................................... 1,660,000 pages. 415,000 WH–381s (Notice to Employee of FMLA Eligibility) × 2 pages = ........................................................................... 830,000 pages. 415,000 WH–382s (Notice to Employee of FMLA Designation) × 1 page = ........................................................................ 415,000 pages. Total Forms = 1,245,000, Total pages = 2,905,000. 2,905,000 pages × $0.03 printing costs = ............................................................................................................... $87,150. 1,245,000 forms × $0.03 envelopes = .................................................................................................................... $37,350. VerDate Aug<31>2005 19:27 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7940 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 1,245,000 forms × $0.41 postage = ........................................................................................................................ $510,450. Total Estimated Annual Federal Costs = ......................................................................................................... $634,950. Displaying OMB Expiration Date: The annual number of FMLA leaves taken. If In 2006, the Department published a DOL will display the expiration dates these additional leaves significantly Request for Information (RFI) seeking for OMB clearances on the DOL forms increase the economic impacts imposed public comment on the Department’s cleared under this information by the FMLA regulation on a substantial administration and implementation of collection. number of small businesses, then a the FMLA regulations.19 To assist in Executive Order 12866, the Small regulatory flexibility analysis will be analyzing the impacts of the FMLA, the Business Regulatory Enforcement required. Department presented estimates of the Fairness Act, and the Regulatory The Department has prepared a coverage and usage of FMLA leave in Flexibility Act Preliminary Regulatory Impact Analysis 2005 in the ‘‘FMLA Coverage and Usage (PRIA) in connection with this rule, Estimates’’ section of the RFI (71 FR This rule has been drafted and 69510). That presentation updated which is presented below in its entirety. reviewed in accordance with Executive Westat’s estimates of the number of Order 12866, Section 1(b), Principles of Preliminary Regulatory Impact Analysis workers employed at establishments Regulation. The Department has of the Proposed Revisions to the Family covered by the FMLA, the number of preliminarily determined that this and Medical Leave Act Regulations workers eligible for FMLA leave at proposed rule is an ‘‘economically Chapter 1: Industry Profile covered establishments, and the number significant’’ regulatory action under of workers who took FMLA leave in Section 3(f)(1) of Executive Order Background 2005 (the latest year for which BLS 12866, based on the analysis presented The Family and Medical Leave Act employment data was available). It also below. As a result, the Office of established a bipartisan Commission on highlighted a number of important Management and Budget has reviewed this proposed rule. The Department also Family and Medical Leave to study findings in the 2000 Westat Report has concluded that this proposed rule is family and medical leave policies and including some of the limitations in a major rule under the Small Business their impact on workers and their using the estimates presented in the Regulatory Enforcement Fairness Act of employers. The Commission surveyed report that were noted by Westat and 1996 (5 U.S.C. 801 et seq.). In addition, workers and employers and issued a others. the Department has certified that the report in 1995.16 The methodology to calculate the proposed rule as drafted will not have In 1999, the Department contracted estimates presented in the RFI was to ‘‘a significant economic impact on a with Westat to update the employee and apply coverage, eligibility, and usage substantial number of small entities’’ establishment surveys conducted in rates from the 2000 Westat Report to and, therefore, has not prepared an 1995.17 The two surveys were employment estimates from the 2005 initial regulatory flexibility analysis completed in 2000. A report entitled Current Population Survey to produce under the Regulatory Flexibility Act of ‘‘Balancing the Needs of Families and national estimates of FMLA coverage, 1980 (see the Regulatory Flexibility Act Employers: Family and Medical Leave eligibility, and usage. The estimates the section below). However, the new Surveys, 2000 Update’’ (the ‘‘2000 Department developed using this military family leave provisions of H.R. Westat Report’’) was published in methodology are reproduced in Table 1 4986 will result in an increase in the January 2001.18 below. TABLE 1.—ESTIMATES OF NUMBER OF COVERED AND ELIGIBLE EMPLOYEES AND LEAVE TAKEN UNDER THE FAMILY AND MEDICAL LEAVE ACT IN 2005 [Millions of employees] Employees at FMLA-covered worksites ................................................................................................................................................ 94.4 Eligible Employees at FMLA-covered worksites ................................................................................................................................... 76.1 Non-eligible Employees at FMLA-covered worksites ............................................................................................................................ 18.4 Employees taking FMLA-protected leave .............................................................................................................................................. 6.1 Employees taking intermittent FMLA leave ** ....................................................................................................................................... 1.5 ** Note: Many of these 1.5 million workers repeatedly take intermittent leave. Source: U.S. Department of Labor, Request for Information, (71 FR 69510 and 69511). As discussed in the Department’s eligibility estimates, or the methodology In the RFI, the Department presented report entitled ‘‘Family and Medical it used to produce those estimates.20 three estimates of the percent (or rate) Leave Act Regulations: A Report on the However, the Department received of covered and eligible workers who Department of Labor’s Request for many comments regarding the FMLA took FMLA leave in 2005, and asked for Information’’ (the ‘‘RFI Report’’), the leave usage rates that the Department information and data on the estimates. Department did not receive any used. These estimates are reproduced in Table mstockstill on PROD1PC66 with PROPOSALS2 substantive comments on its coverage or 2 below. 16 ‘‘A Workable Balance: Report to Congress on Government, as well as businesses, foundations, 19 The Department received many comments Family and Medical Leave Policies.’’ The report is and State and local governments. about how the 2000 Westat Report in response to available at: http://www.dol.gov/esa/whd/ 18 The report is available at http://www.dol.gov/ the RFI. fmlacoments.htm. 17 Westat is a statistical survey research esa/whd/fmlacomments.htm. 20 The report is available at: www.dol.gov/esa/ whd/Fmla2007Report.htm and 72 FR at 35550. organization serving agencies of the U.S. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7941 TABLE 2.—PERCENT OF COVERED AND ELIGIBLE EMPLOYEES TAKING FMLA LEAVE IN 2005 Percent Upper-bound Estimate * ............................................................................................................................................................................... 17.1 Employer Survey Based Estimate ** ........................................................................................................................................................... 8.0 Lower-bound Estimate * ............................................................................................................................................................................... 3.2 * From the Westat Employee Survey. ** The Department used a rate of 6.5 percent of covered workers in the RFI. The rate presented here is the percentage of covered and eligible workers calculated by dividing 6.1 million by 76.1 million. Source: U.S. Department of Labor, ‘‘Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Informa- tion’’ (72 FR at 35622). In response to the RFI the Department Data Sources and Total Estimates by FMLA regulations, since the 50- received a significant amount of data on Industry employee cutoff above which the FMLA FMLA leave usage from a wide variety The estimates presented in this applies refers to the number of of sources, including nationally Preliminary Regulatory Impact Analysis employees at a particular firm within a representative survey data and detailed (PRIA) are primarily derived from an geographic area. The Statistics of U.S. information from specific employers, industry profile developed by CONSAD Business contains both the number of both large and small, in a wide variety Research.22 Just as the Department did firms and the number of establishments of industries. Although many of the for the RFI, CONSAD used data from the in those firms at the 2-digit industry comments concerning FMLA usage rates 2000 Westat Report as the basis for level. submitted data higher than the many of its estimates. However, rather CONSAD based its estimates of employer survey based estimate than applying the Westat coverage, revenues at the 2-digit industry level presented in Table 2 above, many of the eligibility, and usage rates to data from primarily on data from the U.S. Census comments included usage rates that the Current Population Survey (CPS), Bureau, 2002 Economic Census series were consistent with the range of CONSAD primarily used data from the (2005). Depending upon the particular estimates presented in the RFI and U.S. Census Bureau, 2005 County industry sector, CONSAD used the Table 2. Clearly, some employers in Business Patterns (CBP). The CBP data value of shipments, value of business was used because it provides data on done, receipts, sales, or revenues, in some industries will experience higher the number of employees, conjunction with the employment rates of usage just as other employers in establishments, and the size of the estimates in the Economic Census. In other industries may experience lower payroll in each industry, as well as addition, CONSAD obtained some rates. Indeed, a few comments to the RFI these data by size of establishment. revenue estimates directly from the suggested the Department develop However, since the CBP only covers Census of Agriculture, as well as in the industry specific estimates because the most non-agricultural businesses in the annual reports for the Bonneville Power issues related to the FMLA vary by private sector, CONSAD supplemented Authority, the Tennessee Valley industry. the CBP with data from other sources Authority, and the U.S. Postal Service.23 The RFI was a useful information including the U.S. Department of CONSAD developed estimates of net collection method that yielded a wide Agriculture, Census of Agriculture, income before taxes (profits) for each 2- variety of objective survey data and 2002, the U.S. Census Bureau, Census of digit industry primarily from the research, as well as a considerable Governments, Compendium of Public Employment, 2002, the annual reports Statistics of Income, 2004, published by amount of company-specific data and the Internal Revenue Service. In information. As explained in the RFI of certain Federal agencies (Bonneville Power Authority and Tennessee Valley addition, CONSAD obtained net income and the RFI Report, despite the estimates directly from the annual Authority), the Association of American criticisms and limitations of the 2000 reports for the Bonneville Power Railroads, Railroad Service in the Westat Report,21 the Department United States, 2005, and the U.S. Postal Authority, the Tennessee Valley believes that it provides a great deal of Service, Annual Report, 2006. Authority, and the U.S. Postal Service.24 useful information and data on FMLA CONSAD estimated the number of Table 3 below presents CONSAD’s leave-takers. Moreover, based upon that firms based upon the U.S. Census estimates of the total number of firms, data, coupled with the information Bureau, Statistics of U.S. Business, establishments, and employees in the 2- received in response to the RFI, the 2004. The Statistics of U.S. Business is digit industries in which Title I of the Department has significantly based upon the same underlying data as FMLA applies. It also presents the supplemented and updated its CBP, but presents the data on a firm annual payroll, revenues, and profits for knowledge of the impacts of FMLA basis rather than the establishment basis each 2-digit industry sector. See the leave, particularly intermittent FMLA presented in the CBP. This was an CONSAD Report for the complete leave. important consideration in studying the details on these estimates.25 mstockstill on PROD1PC66 with PROPOSALS2 21 For comments on, and critiques of, the 2000 agencies of the U.S. Government, as well as Public Transit and Transportation; Public Westat Report see Chapter XI, Section A, of the RFI businesses, foundations, and State and local Educational Services; and Public Administration. Report (72 FR at 35550). governments. 24 For certain industry sectors net income 22 CONSAD Research Corporation is an economic 23 Revenue estimates were not available for parts estimates were not available. and public policy analysis consulting firm serving of Forestry, Fishing, and Hunting; Public Utilities; 25 Available at: http://www.wagehour.dol.gov. VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 7942 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules TABLE 3.—NUMBER OF FIRMS, ESTABLISHMENTS, EMPLOYMENT, PAYROLLS, ANNUAL REVENUE, AND PROFITS, THAT TITLE I OF THE FMLA APPLIES TO, BY INDUSTRY, 2005 Number of Annual NAICS Number Number of Revenues Profits Industry description establish- payroll codes of firms employees ($million) ($million) ments ($million) 11 ........ Agriculture, Forestry, Fishing and Hunting .... 563,692 578,536 3,205,214 $23,664 $200,646 $16,001 21 ........ Mining, Quarrying, and Oil and Gas Extrac- 19,271 24,696 497,272 30,823 190,349 24,598 tion. 22 ........ Utilities ............................................................ 6,565 17,328 908,106 57,540 391,226 20,509 23 ........ Construction ................................................... 778,065 787,672 6,781,327 292,519 1,139,542 71,579 31–33 .. Manufacturing ................................................. 288,595 333,460 13,667,337 600,696 3,641,146 257,170 42 ........ Wholesale Trade ............................................ 337,905 429,823 5,968,929 308,918 4,706,128 181,334 44–45 .. Retail Trade .................................................... 737,188 1,123,207 15,338,672 348,047 3,200,607 119,040 48–49 .. Transportation and Warehousing ................... 168,769 249,211 6,067,022 257,686 556,815 27,340 51 ........ Information ..................................................... 76,138 141,290 3,402,599 203,130 812,244 88,977 52 ........ Finance and Insurance .................................. 255,273 476,806 6,431,837 446,740 2,741,213 416,135 53 ........ Real Estate and Rental and Leasing ............. 300,555 370,651 2,144,077 81,790 369,242 58,386 54 ........ Professional, Scientific, and Technical Serv- 754,580 826,101 7,689,366 456,456 941,493 87,964 ices. 55 ........ Management of Companies and Enterprises 27,353 47,593 2,856,418 243,267 119,588 20,295 56 ........ Administrative and Support and Waste Man- 320,615 369,507 9,280,282 255,400 459,221 28,777 agement and Remediation Services. 61 ........ Educational Services ...................................... 87,807 95,500 13,210,374 405,009 205,433 23,715 62 ........ Health Care and Social Assistance ............... 599,987 746,600 16,025,147 589,654 1,285,333 111,556 71 ........ Arts, Entertainment, and Recreation .............. 114,072 121,777 1,936,484 52,936 148,644 18,926 72 ........ Accommodation and Food Services .............. 462,956 603,435 11,025,909 156,041 489,690 33,202 81 ........ Other Services (except Public Administra- 676,401 740,034 5,390,954 127,481 476,300 31,751 tion). 92 ........ Public Administration ...................................... 74,067 74,067 7,534,000 222,832 .................... .................... All Industry Sectors Covered by Title 1 of the FMLA ...... 6,649,854 8,157,294 139,361,326 $5,160,628 $22,074,860 $1,637,255 Source: CONSAD 2007. —Data Not Available. The totals may not sum due to rounding. Note the total number of employees in more employees within a 75 mile radius and switching and terminal carriers. Table 3, 139.361 million, is very close of each other. Some additional data for Based on the average employment in to the total number of workers (less the operations not covered by the CBP each type of freight railroad, CONSAD Federal employees) in 2005 published and Statistics of U.S. Business (i.e., the assumed that Class I railroads and by the Bureau of Labor Statistics, estimates from Census of Agriculture, regional line haul railroads are, in 139.773 million. The difference is just Census of Governments, U.S. Postal general, covered under the FMLA, while 412,000, or 0.3 percent—not enough to Service, Association of American local line haul carriers and switching significantly affect the estimates Railroads, Bonneville Power Authority, and terminal carriers are generally not presented below. and Tennessee Valley Authority) were covered because they generally do not FMLA Coverage and Eligibility also used. employ 50 or more workers. Estimates All employers in primary and Data for the agricultural sectors are secondary education are covered. from the 2002 Census of Agriculture for Title I of the FMLA covers private- sector employers of 50 or more Although data for the U.S. Postal both crop production and animal employees, public agencies and certain Service, classified by the employment production combined. These data Federal employers and entities, such as size of the post office, are not available, identify those farms with 10 or more the U.S. Postal Service and the Postal CONSAD assumed that all career postal workers and those workers on these Rate Commission. To be eligible for workers are employed at worksites farms who are employed at least 150 FMLA benefits, an employee must: (1) where 50 or more employees work for days per year. To the extent that these Work for a covered employer; (2) have the U.S. Postal Service within 75 miles farms have a total of 50 or more worked for the employer for a total of of those locations and that all non- employees (and the data suggest that 12 months; (3) have worked at least career postal workers, which primarily they likely would when the average 1,250 hours over the previous 12 include casual workers and workers at number of workers employed on these months; and 4) work at a location where rural substations, likely do not meet the farms working less than 150 days per at least 50 employees are employed by coverage and eligibility requirements year is added into the average number the employer within 75 miles. relating to worksite location or to job of workers employed on these farms CONSAD’s best estimate of FMLA tenure and working hours (and are not working at least 150 days per year), mstockstill on PROD1PC66 with PROPOSALS2 coverage, by 2-digit industry, was included in these estimates). these farms would then be covered developed by summing the number of For the railroad industry (more under the FMLA. Their employees establishments with 50 or more specifically, the freight railroad include those workers employed at least employees from the CBP with data from industry), data for 2005 from the 150 days per year (and likely eligible for the U.S. Census Bureau, Statistics of Association of American Railroads FMLA leave), as well as workers U.S. Business for estimates of include Class I railroads, regional line employed less than 150 days per year employment in private firms with 50 or haul railroads, local line haul carriers, (and not eligible for FMLA leave). VerDate Aug<31>2005 18:04 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 E:\FR\FM\11FEP2.SGM 11FEP2 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7943 Table 4 below presents CONSAD’s covered establishments based upon this the RFI) based upon the 2005 CPS and estimates for covered establishments. methodology and data is close to the the methodology in the RFI. Note the 95.8 million estimate of the Department’s estimate of 94.4 million total number of workers employed at (presented in the RFI and the report on TABLE 4.—NUMBER OF FMLA COVERED FIRMS AND ESTABLISHMENTS, EMPLOYMENT, PAYROLLS, ANNUAL REVENUE, AND PROFITS BY INDUSTRY, 2005 Number of Annual NAICS Number of Number of Revenues Profits Industry description establish- payroll codes firms employees ($million) ($million) ments ($million) 11 ........ Agriculture, Forestry, Fishing and Hunting .... 7,893 16,399 1,008,802 $7,485 $62,902 $5,016 21 ........ Mining, Quarrying, and Oil and Gas Extrac- 881 3,914 336,604 21,389 128,848 16,651 tion. 22 ........ Utilities ............................................................ 570 4,773 796,896 50,865 324,319 16,933 23 ........ Construction ................................................... 16,650 24,291 2,741,450 133,635 460,676 28,937 31–33 .. Manufacturing ................................................. 29,765 66,333 11,065,335 501,498 2,947,941 208,210 42 ........ Wholesale Trade ............................................ 11,926 59,989 3,390,529 184,438 2,673,220 103,003 44–45 .. Retail Trade .................................................... 14,512 218,674 9,229,640 206,364 1,925,881 71,629 48–49 .. Transportation and Warehousing ................... 5,175 80,665 4,922,320 213,610 418,618 19,793 51 ........ Information ..................................................... 3,703 31,089 2,664,028 164,743 635,938 69,663 52 ........ Finance and Insurance .................................. 5,335 89,035 4,367,850 325,031 1,861,553 282,597 53 ........ Real Estate and Rental and Leasing ............. 3,726 62,188 1,033,014 39,438 177,900 28,130 54 ........ Professional, Scientific, and Technical Serv- 17,492 70,715 4,315,079 269,222 528,342 49,363 ices. 55 ........ Management of Companies and Enterprises 2,800 11,322 2,500,373 211,486 104,682 17,765 56 ........ Administrative and Support and Waste Man- 12,945 52,333 7,428,951 191,044 367,611 23,036 agement and Remediation Services. 61 ........ Educational Services ...................................... 18,130 27,610 12,655,139 391,513 165,820 19,142 62 ........ Health Care and Social Assistance ............... 22,161 89,592 11,330,723 400,431 908,806 78,877 71 ........ Arts, Entertainment, and Recreation .............. 3,626 14,661 1,276,356 34,243 97,973 12,475 72 ........ Accommodation and Food Services .............. 19,882 80,376 5,352,996 80,221 237,741 16,119 81 ........ Other Services (except Public Administra- 13,997 56,587 1,843,408 44,489 162,868 10,857 tion). 92 ........ Public Administration ...................................... 74,067 74,067 7,534,000 222,832 .................... .................... All Establishments Covered by Title 1 of the FMLA ....... 285,237 1,134,612 95,793,493 $3,693,976 $14,191,639 $1,078,197 Source: CONSAD 2007. —Data Not Available. Note: The totals may not sum due to rounding. Estimates of Workers Eligible To Take establishments covered by the FMLA by Department. CONSAD then assumed FMLA Leave and FMLA Leave Usage Westat’s estimate that 6.5 percent of that the extrapolation would look like a The estimates of the number of workers employed at establishments typical learning curve and plotted three workers eligible to take FMLA leave and covered by the FMLA took FMLA points corresponding to zero FMLA FMLA leave usage were developed by leave.27 However, the Department leave taking in 1993, 3.6 percent in applying estimates from the 2000 Westat received many comments in response to 1995, and 6.5 percent in 2000, and Report to the coverage estimates. The RFI that noted this estimate does not sketched a smooth, monotonically number of workers eligible to take represent current conditions because increasing curve through the points and FMLA leave in each industry was employees today are more aware of their projected it through 2007. On this basis, calculated by multiplying Westat’s FMLA rights than they were in 1999 CONSAD estimated that the curve estimate that 80.5 percent of workers when Westat conducted its survey. In would have a value of roughly 7.3 in employed at covered establishments are the RFI Report, the Department 2007 (i.e., 7.3 percent of workers eligible to take FMLA leave 26 by the concurred and stated that ‘‘awareness of employed at establishments covered by number of workers covered by the the FMLA appears to be higher in 2005 the FMLA currently take FMLA leave). FMLA in each industry. Note that than in 1999 when Westat conducted its Estimates of the number of workers CONSAD’s estimates of the total number surveys. So just as FMLA usage taking FMLA in each industry were then of workers covered by the FMLA is increased between the times the two calculated by multiplying the estimated relatively close to the Department’s surveys sponsored by the Department number of workers covered by the estimates published in the RFI, because were conducted in the 1990s, given the FMLA in each industry by 7.3 percent. both were developed by applying the comments received it is likely that See Table 5 below.