[Federal Register Volume 77, Number 31 (Wednesday, February 15, 2012)]
[Proposed Rules]
[Pages 8960-9020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2311]
[[Page 8959]]
Vol. 77
Wednesday,
No. 31
February 15, 2012
Part II
Department of Labor
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Wage and Hour Division
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29 CFR Part 825
The Family and Medical Leave Act; Proposed Rule
Federal Register / Vol. 77 , No. 31 / Wednesday, February 15, 2012 /
Proposed Rules
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB76, RIN 1235-AA03
The Family and Medical Leave Act
AGENCY: Wage and Hour Division, Department of Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Labor's Wage and Hour Division proposes to
revise certain regulations of the Family and Medical Leave Act of 1993
(FMLA or the Act), primarily to implement recent statutory amendments
to the Act. This Notice of Proposed Rulemaking (NPRM) proposes
regulations to implement amendments to the military leave provisions of
the FMLA made by the National Defense Authorization Act for Fiscal Year
2010, which extends the availability of FMLA leave to family members of
members of the Regular Armed Forces for qualifying exigencies arising
out of the servicemember's deployment; defines those deployments
covered under these provisions; and extends FMLA military caregiver
leave to family members of certain veterans with serious injuries or
illnesses. This NPRM also proposes to amend the regulations to
implement the Airline Flight Crew Technical Corrections Act, which
established new FMLA leave eligibility requirements for airline flight
crewmembers and flight attendants. In addition, the proposal includes
changes concerning the calculation of leave; reorganization of certain
sections to enhance clarity; the removal of the forms from the
regulations; and technical corrections of inadvertent drafting errors
in the current regulations.
DATES: Comments must be received on or before April 16, 2012.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1235-AA03, by electronic submission through
the Federal eRulemaking Portal http://www.regulations.gov. Follow
instructions for submitting comments. You may also submit comments by
mail. Address written submissions to Mary Ziegler, Director of the
Division of Regulations, Legislation, and Interpretation, Wage and Hour
Division, U.S. Department of Labor, Room S-3510, 200 Constitution
Avenue NW., Washington, DC 20210.
Instructions: Please submit only one copy of your comments by only
one method. All submissions must include the agency name and RIN,
identified above, for this rulemaking. Please be advised that comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided, and should not include any
individual's personal medical information. For questions concerning the
application of the FMLA provisions, individuals may contact the Wage
and Hour Division (WHD) local district offices (see contact information
below). Mailed written submissions commenting on these provisions must
be received by the date indicated for consideration in this rulemaking.
For additional information on submitting comments and the rulemaking
process, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments, go to the Federal eRulemaking Portal at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mary Ziegler, Director of the Division
of Regulations, Legislation, and Interpretation, Wage and Hour
Division, U.S. Department of Labor, Room S-3510, 200 Constitution
Avenue NW., Washington, DC 20210; telephone: (202) 693-0406 (this is
not a toll-free number). Copies of this rule may be obtained in
alternative formats (large print, Braille, audio tape or disc), upon
request, by calling (202) 693-0675 (this is not a toll-free number).
TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information
or request materials in alternative formats.
Questions of interpretation and/or enforcement of the agency's
regulations may be directed to the nearest WHD district office. Locate
the nearest office by calling the WHD's toll-free help line at (866)
4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time
zone, or log onto the WHD's Web site for a nationwide listing of WHD
district and area offices at http://www.dol.gov/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Electronic Access and Filing Comments
Public Participation: This NPRM is available through the Federal
Register and the http://www.regulations.gov Web site. You may also
access this document via the WHD's Web site at http://www.dol.gov/whd/.
To comment electronically on Federal rulemakings, go to the Federal e-
Rulemaking Portal at http://www.regulations.gov, which will allow you
to find, review, and submit comments on Federal documents that are open
for comment and published in the Federal Register. You must identify
all comments submitted by including the RIN 1235-AA03 in your
submission. The RIN identified for this rulemaking changed with the
publication of the 2010 Spring Regulatory Agenda due to an
organizational restructuring. The previously identified RIN was
assigned to the Employment Standards Administration, which no longer
exists. A new RIN has been assigned to the WHD. Commenters should
transmit comments early to ensure timely receipt prior to the close of
the comment period (date identified above); comments submitted after
the comment period closes will not be considered. Submit only one copy
of your comments by only one method. Please be advised that all
comments received will be posted without change to http://www.regulations.gov, including any personal information provided, and
should not include any individual's personal medical information.
II. Background
Subsequent to this rulemaking first appearing on the Department's
Fall 2009 Regulatory Agenda, the FMLA was amended by the National
Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), Public
Law 111-84, and the Airline Flight Crew Technical Corrections Act
(AFCTCA), Public Law 111-119. This rulemaking, therefore, proposes
regulatory changes to implement these statutory amendments. The
Department continues to review the impact of regulatory revisions
published in the Family and Medical Leave Act of 1993, Final Rule on
November 17, 2008 (2008 final rule). 73 FR 67934.
A. What the FMLA Provides
The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq.,
was enacted on February 5, 1993, and became effective for most covered
employers on August 5, 1993. As originally enacted, the FMLA entitles
eligible employees of covered employers to take job-protected, unpaid
leave, or to substitute appropriate accrued paid leave, for up to a
total of 12 workweeks in a 12-month period for the birth of the
employee's son or daughter and to care for the newborn child; for the
placement of a son or daughter with the employee for adoption or foster
care; to care for the employee's spouse, parent, son, or daughter with
a serious health condition; or when the employee is unable to work due
to the employee's own serious health condition.
The FMLA was amended in January 2008 by enactment of the National
[[Page 8961]]
Defense Authorization Act for FY 2008 (FY 2008 NDAA). Public Law 110-
181. Section 585(a) of FY 2008 NDAA expanded the FMLA to allow eligible
employees of covered employers to take FMLA leave because of any
qualifying exigency (as determined by the Secretary of Labor) when that
employee's spouse, son, daughter, or parent is a member of the National
Guard or Reserves who is on, or has been notified of an impending call
or order to, active duty in the Armed Forces in support of a
contingency operation (referred to as ``qualifying exigency leave'').
Additionally, the FY 2008 NDAA amendments provided up to 26 workweeks
of leave in a ``single 12-month period'' for an eligible employee to
care for a covered servicemember with a serious injury or illness if
the employee is the spouse, son, daughter, parent, or next of kin of
the covered servicemember (referred to as ``military caregiver
leave''). These two leave entitlements are collectively referred to as
``military family leave''.
The FMLA was again amended in 2009 with the enactment of the FY
2010 NDAA on October 28, 2009, and the AFCTCA on December 21, 2009.
Section 565(a) of the FY 2010 NDAA amended the military family leave
provisions of the FMLA by extending qualifying exigency leave to
eligible family members of the Regular Armed Forces, and military
caregiver leave to include care provided to certain veterans. The
AFCTCA amended the FMLA to include special eligibility requirements for
airline flight crewmembers and flight attendants (referred to
collectively as ``airline flight crew employees''). A new definition of
hours of service as it applies to airline flight crew employees was
included in the eligibility provisions. Each of these provisions is
discussed in detail in the section-by-section analysis that follows.
FMLA leave may be taken in a block, or under certain circumstances,
intermittently or on a reduced leave schedule. In addition to providing
job protected family and medical leave, employers must also maintain
any preexisting group health plan coverage for an employee on FMLA
protected leave under the same conditions that would apply if the
employee had not taken leave. 29 U.S.C. 2614. Once the leave period is
concluded, the employer is required to restore the employee to the same
or an equivalent position with equivalent employment benefits, pay, and
other terms and conditions of employment. Id. If an employee believes
that his or her FMLA rights have been violated, the employee may file a
complaint with the Department of Labor or file a private lawsuit in
Federal or State court. If the employer has violated the employee's
FMLA rights, the employee is entitled to reimbursement for any monetary
loss incurred, equitable relief as appropriate, interest, attorneys'
fees, expert witness fees, and court costs. Liquidated damages also may
be awarded. 29 U.S.C. 2617.
Title I of the FMLA is administered by the U.S. Department of Labor
and applies to private sector employers of 50 or more employees, public
agencies, and certain Federal employers and entities, such as the U.S.
Postal Service and Postal Rate Commission. Title II is administered by
the U.S. Office of Personnel Management and applies to civil service
employees covered by the annual and sick leave system established under
5 U.S.C. Chapter 63 and certain employees covered by other Federal
leave systems. Title III established a temporary Commission on Leave to
conduct a study and report on existing and proposed policies on leave
and the costs, benefits, and impact on productivity of such policies.
Title IV contains provisions governing the effect of the FMLA on more
generous leave policies, other laws, and existing employment benefits.
Finally, Title V originally extended the leave provisions to certain
employees of the U.S. Senate and House of Representatives; however,
such coverage was repealed and replaced by the Congressional
Accountability Act of 1995. 2 U.S.C. 1301.
B. Who the Law Covers
The FMLA generally covers employers with 50 or more employees. To
be eligible to take FMLA leave, an employee must meet specified
criteria, including employment with a covered employer for at least 12
months, performance of a specified number of hours of service in the 12
months prior to the start of leave, and work at a location where there
are at least 50 employees within 75 miles.
C. Regulatory History
The FMLA required the Department to issue initial regulations to
implement Title I and Title IV of the FMLA within 120 days (by June 5,
1993) with an effective date of August 5, 1993. The Department
published an NPRM in the Federal Register on March 10, 1993. 58 FR
13394. The Department received comments from a wide variety of
stakeholders, and after considering these comments the Department
issued an interim final rule on June 4, 1993, effective August 5, 1993.
58 FR 31794.
After publication, the Department invited further public comment on
the interim regulations. 58 FR 45433. During this comment period, the
Department received a significant number of substantive and editorial
comments on the interim regulations from a wide variety of
stakeholders. Based on this second round of public comments, the
Department published final regulations to implement the FMLA on January
6, 1995. 60 FR 2180. The regulations were amended February 3, 1995 (60
FR 6658) and March 30, 1995 (60 FR 16382) to make minor technical
corrections. The final regulations went into effect on April 6, 1995.
On December 1, 2006, the Department published a Request for
Information (RFI) in the Federal Register requesting public comment on
its experiences with and observations of the Department's
administration of the FMLA and the effectiveness of the regulations. 71
FR 69504. The Department received comments from workers, family
members, employers, academics, and other interested parties, ranging
from personal accounts, surveys, and legal reviews, to academic studies
and recommendations for regulatory and statutory changes to the FMLA.
The Department published its Report on the comments in the Federal
Register on June 28, 2007. 72 FR 35550.
The Department published an NPRM in the Federal Register on
February 11, 2008 proposing changes to the FMLA's regulations based on
the Department's experience administering the law, two Department of
Labor studies and reports on the FMLA issued in 1996 and 2001, several
U.S. Supreme Court and lower court rulings on the FMLA, and a review of
the comments received in response to the RFI. 73 FR 7876. The
Department also sought comments on the recently enacted military family
leave statutory provisions. In response to the NPRM, the Department
received thousands of comments from a wide variety of stakeholders. The
Department issued a final rule on November 17, 2008, which became
effective on January 16, 2009. 73 FR 67934.
D. Updates to the Military Family Leave Provisions
Section 565(a) of the FY 2010 NDAA, enacted on October 28, 2009,
amends the military family leave provisions of the FMLA. Public Law
111-84. The FY 2010 NDAA expands the availability of qualifying
exigency leave and military caregiver leave. Qualifying exigency leave,
which was made available to family members of the National Guard and
Reserve components under the FY 2008 NDAA, is expanded to include
family members of the Regular Armed
[[Page 8962]]
Forces. The entitlement to qualifying exigency leave is expanded by
substituting the term ``covered active duty'' for ``active duty'' and
defining covered active duty for a member of the Regular Armed Forces
as ``duty during the deployment of the member with the Armed Forces to
a foreign country'', and for a member of the Reserve components of the
Armed Forces as ``duty during the deployment of the member with the
Armed Forces to a foreign country under a call or order to active duty
under a provision of law referred to in section 101(a)(13)(B) of title
10, United States Code.'' 29 U.S.C. 2611(14).\1\ Prior to the FY 2010
NDAA amendments, there was no requirement that members of the National
Guard and Reserves be deployed to a foreign country.
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\1\ As with the FY 2008 NDAA, the FY 2010 NDAA references 10
U.S.C. 101(a)(13)(B), which covers call ups of the National Guard
and Reserves and certain retired members of the Regular Armed Forces
and Reserves in support of contingency operations. 73 FR 67954-55.
For simplicity, the terms ``National Guard and Reserve'' and
``Reserve components'' are used interchangeably throughout this
document and refer to these categories of military members.
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The FY 2010 NDAA amendments expand the definition of a serious
injury or illness for military caregiver leave for current members of
the Armed Forces to include an injury or illness that existed prior to
service and was aggravated in the line of duty on active duty. 29
U.S.C. 2611(18)(A). These amendments also expand the military caregiver
leave provisions of the FMLA to allow family members to take military
caregiver leave to care for certain veterans. The definition of a
covered servicemember, which is the term the Act uses to indicate the
group of military members for whom military caregiver leave may be
taken, is broadened to include a veteran with a serious injury or
illness who is receiving medical treatment, recuperation, or therapy,
if the veteran was a member of the Armed Forces at any time during the
period of five years preceding the date of the medical treatment,
recuperation, or therapy. 29 U.S.C. 2611(15)(B). The amendments define
a serious injury or illness for a veteran as a ``qualifying (as defined
by the Secretary of Labor) injury or illness that was incurred by the
member in line of duty on active duty in the Armed Forces (or existed
before the beginning of the member's active duty and was aggravated by
service in line of duty on active duty in the Armed Forces) and that
manifested itself before or after the member became a veteran.'' 29
U.S.C. 2611(18)(B).
As was the case with the FY 2008 NDAA, the FY 2010 NDAA is silent
as to the effective date of the FMLA amendments. Because the FY 2008
NDAA required the Secretary of Labor to define the term ``qualifying
exigency'', the Department took the position that employers were not
obligated to provide qualifying exigency leave to employees until the
Department defined the term through regulation. 73 FR 7925. In
contrast, the Department viewed the military caregiver leave provisions
of the FY 2008 NDAA as being effective as of January 28, 2008, the
signing date of the amendment. Id. Like the FY 2008 NDAA, the FY 2010
NDAA also requires the Secretary of Labor to define a key term in the
amendment--``serious injury or illness of a veteran''. Public Law 111-
84, sec. 565(a)(3); 29 U.S.C. 2611(18)(B). It is the Department's
position that employers are not required to provide employees with
military caregiver leave to care for a veteran until the Department
defines a qualifying serious injury or illness of a veteran through
regulation. However, employers are not prohibited from providing leave
to employees to care for an injured or ill veteran if they choose to do
so before the Department issues a final rule defining those terms,
although any such leave would not be FMLA-protected and would not count
against the employees' FMLA entitlement. It is also the Department's
position that the provisions of the FY 2010 NDAA expanding qualifying
exigency leave to cover qualifying exigencies arising from the foreign
deployment of a family member in the Regular Armed Forces became
effective on the date of enactment, October 29, 2009.
E. Amendments to Eligibility Criteria for Airline Flight Crewmembers
and Flight Attendants
On December 21, 2009, the AFCTCA was enacted, establishing a
special minimum hours of service eligibility requirement for airline
flight crew employees. The AFCTCA provides that an airline flight crew
employee will meet the hours of service eligibility requirement if he
or she has worked or been paid for not less than 60 percent of the
applicable total monthly guarantee (or its equivalent) and has worked
or been paid for not less than 504 hours (not including personal
commute time or time spent on vacation, medical, or sick leave) during
the previous 12 months. Airline flight crew employees continue to be
subject to the FMLA's other eligibility requirements.
The AFCTCA is silent as to its effective date. Because the AFCTCA
is explicit about how to calculate the hours of service requirement for
airline flight crew employees, it is the Department's position that the
amendment became effective on the date of enactment. While the AFCTCA
authorizes the Department to promulgate regulations on how to calculate
the FMLA leave entitlement for airline flight crew employees, the
authorization is permissive and does not require the Department to
engage in rulemaking (unlike the FY 2010 NDAA provision requiring the
Department to define serious injury or illness of a veteran).
Because the Department is not statutorily required to issue
regulations to effectuate the AFCTCA, and employers can provide leave
to airline flight crew employees under the current FMLA regulations, it
is the Department's position that employees became entitled to take
leave under the AFCTCA as of December 21, 2009. Until the Department
issues a final rule specifically addressing calculating FMLA leave
usage for flight crew employees, the Department will exercise its
discretion in assessing employer compliance, in light of the individual
facts and circumstances, with current Sec. 825.205.
F. Regulatory Look Back Review
In complying with Executive Order 13563, ``Improving Regulation and
Regulatory Review,'' the Department sought public comment in March 2011
to inform its design of a framework to review its significant rules.
The review would determine whether these rules are obsolete,
unnecessary, unjustified, excessively burdensome, counterproductive, or
duplicative of other Federal regulations. Specifically, the Department
sought comment on which regulations should be considered for review,
expansion, or modification. The Department utilized an interactive Web
site (www.dol.gov/regulations/regreview.htm) and published a Request
for Information in the Federal Register (76 FR 15224) for the public to
provide comments.
The Department received three comments concerning the FMLA. The
first commenter requested clarification on Sec. 825.218, regarding
substantial and grievous economic injury. Upon review of the comment,
the Department determined that there was no need to clarify this
section through regulatory change.
The second comment the Department received concerned Sec. 825.204,
``Transfer of an Employee to an Alternative Position During
Intermittent Leave or Reduced Schedule Leave.'' The commenter suggested
extending the employer's ability to transfer an employee to an
alternative positive for
[[Page 8963]]
intermittent leave that is foreseen but unscheduled. The Department
responded to similar comments in the 2008 final rule. As the Department
noted at that time, by expressly permitting transfers in cases of
intermittent or reduced schedule leave ``that is foreseeable based on
planned medical treatment,'' 29 U.S.C. 2612(b)(2), the statutory
language strongly suggests that this is the only situation where such
transfers are allowed. 73 FR 67975. The Department continues to find no
statutory basis to permit transfers to an alternative position for
employees taking unscheduled or unforeseeable intermittent leave, and
declines to expand the situations in which an employer may temporarily
transfer an employee to an alternative position. Id.
The last comment that the Department received suggested excluding
from the Act's protections medical conditions that the commenter
believes are subjectively determined. The regulations provide an
objective definition of ``serious health condition'' as well as a
process for employers to request a certification of a serious health
condition from the employee's (or family member's) health care
practitioner. Additionally, where the employer has reason to doubt the
validity of the initial certification, the employer may require a
second and, if necessary, third opinion from a health care
practitioner. Given the procedures available for ensuring certification
of a serious health condition by a health care practitioner, the
Department does not believe that issuing further regulatory changes at
this time is warranted.
III. Section-by-Section Analysis of Proposed Changes to the FMLA
Regulations
The following is a section-by-section analysis of the proposed
revisions to the FMLA regulations. The primary sections of the
regulations with proposed revisions to implement the FY 2010 NDAA
amendments are: Sec. 825.126 (Leave because of a qualifying exigency);
Sec. 825.127 (Leave to care for a covered servicemember with a serious
injury or illness); Sec. 825.309 (Certification for leave taken
because of a qualifying exigency); and Sec. 825.310 (Certification for
leave taken to care for a covered servicemember (military caregiver
leave)). Less substantive changes are proposed to Sec. 825.122
(Definitions of spouse, parent, son or daughter, next of kin of a
covered servicemember, adoption, foster care, son or daughter on active
duty or call to active duty status, son or daughter of a covered
servicemember, and parent of a covered servicemember) and Sec. 825.800
(Definitions) to reflect new definitions related to military family
leave. The primary sections of the regulations with proposed revisions
to implement the AFCTCA are: Sec. 825.110 (Eligible employee); Sec.
825.205 (Increments of FMLA leave for intermittent or reduced schedule
leave); Sec. 825.500 (Record-keeping requirements); and Sec. 825.800
(Definitions) to include definitions specific to airline flight crew
employees.
The Department further proposes to move the definitions section of
the regulations from Sec. 825.800 to Sec. 825.102, which is currently
reserved. The Department believes that placing the definitions section
at the beginning of the regulations is more helpful to the reader, and
consistent with other regulations implementing statutes administered by
the WHD. Unless specifically discussed, no further substantive changes
are proposed to this section.
The Department intends to make corresponding minor changes to the
FMLA poster (WHD publication 1420), the Notice of Eligibility and
Rights and Responsibilities (Form WHD-381), the Certification for
Qualifying Exigency Leave for Military Family Leave (Form WHD-384), and
the Certification for Serious Injury or Illness of a Covered
Servicemember for Military Family Leave (Form WHD-385) to reflect the
FY 2010 NDAA amendments and the AFCTCA. The Department also intends to
develop a new form for the certification for the serious injury or
illness of a covered veteran. The Department also proposes to remove
the optional-use forms and notices from the regulations' Appendices.
The removed forms and notices are medical certification forms WH-380-E
(Certification of Health Care Provider--Employee), WH-380-F
(Certification of Health Care Provider--Family Member), WH-384
(Certification of Qualifying Exigency for Military Family Leave), and
WH-385 (Certification for Serious Injury or Illness of Covered
Servicemember for Military Family Leave); notification forms WH-381
(Notice of Eligibility and Rights & Responsibilities) and WH-382
(Designation Notice to Employee of FMLA Leave); and the Notice to
Employees of Rights under FMLA (WH Publication 1420).
The Department's prototype forms are intended to facilitate the
information collection requirements of the FMLA. These information
collections are subject to the requirements of the Paperwork Reduction
Act of 1995 (PRA). The Department, as part of its continuing effort to
reduce paperwork and respondent burden, conducts a pre-clearance
consultation program to provide the general public and Federal agencies
with an opportunity to comment on proposed and/or continuing
collections of information every three years in accordance with the
requirements of the PRA. Substantive changes to the forms as they
appear in the Appendices require additional and separate rulemaking
activities.
The PRA clearance process has sometimes resulted in updates to the
forms that differed from the version of the forms that appeared in the
Appendices to the regulations. The Department believes that multiple
versions of the forms have created needless confusion for the public,
and in an effort to lessen this confusion the Department proposes to
remove the forms from the regulations. The forms will continue to be
available on the WHD Web site. The Department believes that removing
the forms from the regulations, and thereby streamlining the clearance
process, will permit the forms to be more expeditiously amended in
response to statutory and other changes, as well as suggestions from
the public. This will ensure that the most accurate and up-to-date
forms are available to the public. Although the Department is proposing
to remove the forms from the regulations, this proposed change does not
alter the Department's belief that the forms facilitate employer and
employee compliance with their respective obligations under the FMLA.
Employers are permitted to use forms other than those issued by the
Department so long as they do not require information beyond that
specified in the regulations. See 29 CFR Sec. Sec. 825.306, 825.309,
825.310. However, if an employee provides sufficient certification
regardless of format, no additional information may be requested.
Minor changes to more accurately reflect the new military family
leave and airline flightcrew employee eligibility provisions or to
delete references to Appendices for prototype forms or notices, are
proposed at: Sec. Sec. 825.100, 825.101, 825.107, 825.112, 825.200,
825.213, 825.300, 825.302, 825.303 and 825.306. The Department also
proposes to correct inadvertent drafting errors that were made in the
2008 final rule, including correcting the cross-references in current
Sec. 825.200(g) and (f), and inserting the word ``spouse'' in the
first lines of Sec. 825.202(b) and (b)(1). The Department also
proposes to include the word ``the'' in the statutory phrase ``in line
of duty'' where used in the regulations. The URL for the WHD Web site
has also been updated to link
[[Page 8964]]
viewers directly to the WHD site. This proposed change appears in:
Sec. Sec. 825.300, 825.306, and 825.309. These proposed changes are
not addressed in the section-by-section analysis. The addition of
definitions to current Sec. 825.800 and its relocation to reserved
Sec. 825.102 is also not addressed in the section-by-section analysis.
A. Revisions To Implement the FY 2010 NDAA amendments
1. Section 825.122--Definitions of Spouse, Parent, Son or Daughter,
Next of Kin of a Covered Servicemember, Adoption, Foster Care, Son or
Daughter on Active Duty or Call or Order to Active Duty Status, Son or
Daughter of a Covered Servicemember, and Parent of a Covered
Servicemember
The Department proposes to add a definition of ``covered
servicemember'' as new paragraph (a) of this section to reflect the
addition of covered veterans as covered servicemembers under the FY
2010 NDAA. As a result, the Department proposes to renumber the
paragraphs that follow. The Department also proposes to change the term
``active duty'' to ``covered active duty'' in each place it appears in
both the title of this section and in paragraph (g), and to update the
reference in this paragraph to proposed Sec. 825.126(a)(5).
2. Section 825.126--Leave Because of a Qualifying Exigency
Section 585 of the FY 2008 NDAA provided that eligible employees of
covered employers may take FMLA leave for any qualifying exigency
arising out of the fact that the employee's spouse, son, daughter, or
parent is on active duty or has been notified of an impending call or
order to active duty in support of a contingency operation. Public Law
110-181; Sec. 585(a). The FY 2008 NDAA defined ``active duty'' as a
call or order to active duty under a provision of law referred to in 10
U.S.C. 101(a)(13)(B). Id. The provisions referred to in 10 U.S.C.
101(a)(13)(B) are: sections 688, 12301(a), 12302, 12304, 12305, and
12406 of Title 10 of the United States Code; Chapter 15 of Title 10 of
the United States Code; and any other provision of law during a war or
during a national emergency declared by the President or Congress.
These provisions are limited to duty by members of the Reserve
components, the National Guard, and certain retired members of the
Regular Armed Forces and retired Reserve under a call or order to
active duty. The FY 2008 NDAA amendment thus limited the availability
of qualifying exigency leave to family members of members of the
Reserve components. The entitlement to qualifying exigency leave did
not extend to family members of the Regular Armed Forces on active duty
status because members of the Regular Armed Forces either do not serve
``under a call or order to active duty'' or are not identified in the
provisions of law referred to in 10 U.S.C. 101(a)(13)(B). 73 FR 67954-
55.
The FY 2010 NDAA further amends the FMLA to permit an eligible
employee to take FMLA leave for any qualifying exigency arising out of
the fact that the employee's spouse, son, daughter, or parent is on
covered active duty, or has been notified of an impending call or order
to covered active duty in the Armed Forces. Public Law 111-84, Sec.
565(a)(1)(B); see 29 U.S.C. 2612(a)(1)(E). The FY 2010 NDAA provisions
define ``covered active duty'' to include duty by members of the
Regular Armed Forces during deployment to a foreign country, and duty
by members of the Reserve components during deployment to a foreign
country under a call or order to active duty under a provision of law
referred to in section 101(13)(B) of title 10, United States Code. 29
U.S.C. 2611(14). Thus, these new provisions entitle qualifying family
members to FMLA leave for qualifying exigencies arising from foreign
deployments of Regular Armed Forces members, and add a foreign
deployment requirement to the type of call or order to active duty
required for the Reserve components of the Armed Forces.
Section 825.126 is currently organized into two parts: (a) The
specific circumstances under which qualifying exigency leave may be
taken; and (b) an employee's entitlement to qualifying exigency leave.
The Department proposes to keep these two provisions, but reverse the
order in which they appear. The Department has learned from employers
and employees that there is confusion about the military family
provisions. The Department believes that it is more logical to outline
an employee's entitlement to qualifying exigency leave first, and then
to specify the circumstances under which the employee may take
qualifying exigency leave. The Department expects that this reordering
will be less confusing to the public. Thus, proposed Sec. 825.126(a)
covers an employee's entitlement to qualifying exigency leave
(currently addressed in Sec. 825.126(b)) and proposed Sec. 825.126(b)
identifies the specific circumstances under which qualifying exigency
leave may be taken (currently addressed in Sec. 825.126(a)). As
discussed below, the Department further proposes to revise Sec.
825.126 to incorporate the FY 2010 NDAA amendments.
The Department proposes to substitute in this section (as well as
throughout the regulations wherever the term appears) ``covered active
duty'' for ``active duty'' to incorporate the FY 2010 NDAA statutory
language. The Department also proposes to delete references in this
section (as well as throughout the regulations wherever the term
appears) to ``covered military member'' and instead use the generic
term ``military member'' or ``member'' to refer to members of the Armed
Forces on covered active duty as defined by the statute. As discussed
above, the FY 2008 NDAA restricted entitlement to qualifying exigency
leave to an employee whose parent, spouse, son, or daughter is a member
of the National Guard and Reserves under an impending call or order to
active duty in support of a contingency operation. In the 2008 final
rule, the Department introduced the term ``covered military member'' to
reflect that the military member must be the parent, spouse, son or
daughter of the employee. This term has also come to reflect the
restrictive nature of qualifying exigency leave under the FY 2008 NDAA,
i.e., that such leave was limited to qualifying family members of
Reserve component members. The FY 2010 NDAA amendment extends the
entitlement for qualifying exigency leave to family members of Regular
Armed Forces members, and therefore, the limiting term ``covered
military member'' is no longer relevant and may be unnecessarily
confusing. Similarly, the use of the term ``covered active duty''
rather than ``active duty'' will more accurately reflect the fact that
there are limitations on the types of active duty that can give rise to
qualifying exigency leave. The Department intends to make the
provisions of qualifying exigency leave more understandable to the
public by using the statutory term ``covered active duty'' and
referring generically to the military member throughout the regulation,
and seeks comment on this proposed change.
Current Sec. 825.126(a) states the statutory entitlement that
eligible employees may take FMLA leave while the employee's spouse,
son, daughter, or parent is on active duty or call to active duty
status (this paragraph continues by listing the specific qualifying
exigencies for which leave may be taken). Similarly, proposed Sec.
825.126(a) sets out the statutory entitlement that an eligible employee
may take leave for any qualifying exigency arising out of the covered
active duty or call to covered active duty status of the employee's
[[Page 8965]]
spouse, son, daughter, or parent. The list of specific qualifying
exigencies in current paragraph (a) is moved to proposed paragraph (b).
Proposed Sec. 825.126(a)(1) defines ``covered active duty or call
to covered active duty'' status for a member of the Regular Armed
Forces as ``duty under a call or order to active duty (or notification
of an impending call or order to covered active duty) during the
deployment of the member with the Armed Forces to a foreign country,''
and states that the active duty orders will generally specify if the
member's deployment is to a foreign country. In accordance with the FY
2010 NDAA, the Department deleted the statement in current Sec.
825.126(b)(2)(i) that family members of members of the Regular Armed
Forces are not entitled to qualifying exigency leave.
Proposed Sec. 825.126(a)(2) defines ``covered active duty or call
to covered active duty'' status for a member of the Reserve components
as duty under a call or order to active duty (or notification of an
impending call or order to active duty) during the deployment of the
member to a foreign country under a Federal call or order to active
duty in support of a contingency operation pursuant to the provisions
of law referred to in 10 U.S.C. 101(a)(13)(B). The provisions referred
to in 10 U.S.C. 101(a)(13)(B) are 10 U.S.C. 688, 12301(a), 12302,
12304, 12305, 12406; 10 U.S.C. chapter 15; and any other provision of
law during a war or during a national emergency declared by the
President or Congress. While FY 2010 NDAA struck the definition of
``contingency operation'' from the FMLA and deleted the reference to
``contingency operation'' in 29 U.S.C. 2612(a)(1)(E), the Department
believes that the reference to 10 U.S.C. 101(a)(13)(B) in the
definition of covered active duty for members of the Reserve components
continues to require that members of the Reserve components be called
to duty in support of a contingency operation in order for their family
members to be entitled to qualifying exigency leave. Therefore,
proposed Sec. 825.126(a)(2) maintains the language in current Sec.
825.126(b)(2) regarding duty in support of a contingency operation. The
Department also proposes to use the word ``Federal'' in proposed
paragraph Sec. 825.126(a)(2) in describing the covered calls or orders
to active duty in order to make clear that only Federal calls to duty
will meet the definition of covered active duty.
Proposed paragraph Sec. 825.126(a)(2)(i) lists the specific
Reserve components currently found in Sec. 825.126(b)(2)(i). Proposed
paragraph Sec. 825.126(a)(2)(ii) follows current Sec. 825.126(b)(3)
in that it provides that the active duty orders of a member of the
Reserve components will generally specify if the covered active duty
military member is serving in support of a contingency operation by
citing the relevant section of Title 10 of the United States Code and/
or by reference to the specific name of the contingency operation as is
stated in current Sec. 825.126(b)(3). Proposed Sec. 825.126(a)(2)(ii)
also states that the active duty orders will specify that the
deployment is to a foreign country.
The Department proposes in paragraph Sec. 825.126(a)(3) to define
deployment of the member with the Armed Forces to a foreign country as
deployment to areas outside of the United States, the District of
Columbia, or any Territory or possession of the United States,
including deployment in international waters. This definition is
consistent with the Department's understanding of the term
``deployment'' based on consultations with the Department of Defense
(DOD). The Department understands that servicemembers are assigned to a
home station \2\ and deployment is the relocation of forces and
materials from that home station to an operational area. The term does
not include reassignments to a new duty station or deployment for
training exercises.
---------------------------------------------------------------------------
\2\ According to The Joint Publication 1-02, Department of
Defense Dictionary of Military and Associated Terms, 8 November 2010
(as amended through 15 August 2011), ``home station'' is defined as
the permanent location of active duty units and Reserve Component
units (e.g,, location of armory or reserve center).
---------------------------------------------------------------------------
In addition, the definition of ``deployment'' in proposed paragraph
Sec. 825.126(a)(3) includes deployment of the military member to
active duty in international waters. The Department understands
Congress to have intended to extend the entitlement of qualifying
exigency leave to family members of all branches of the military
equally. The Department seeks to ensure that family members of the
Navy, Coast Guard, and other military members deployed to duty in
international waters have access to qualifying exigency leave. The
Department seeks comment on the types of duty assignments for members
of the Navy and Coast Guard that will satisfy the definition of
deployment.
The Department proposes in Sec. 825.126(a)(4) to specify, as
current Sec. 825.126(b)(2)(ii) does, that covered deployments are
limited to Federal calls to active duty. Finally, the Department
proposes to move the definition of ``son or daughter on active duty or
call to active duty status'' currently located at Sec. 825.126(b)(1)
to paragraph Sec. 825.126(a)(5).
Current Sec. 825.126(a) lists the reasons, divided into eight
categories, for which an eligible employee may take qualifying exigency
leave. The qualifying exigency leave categories are: (1) Short-notice
deployment, (2) Military events and related activities, (3) Childcare
and school activities, (4) Financial and legal arrangements, (5)
Counseling, (6) Rest and recuperation, (7) Post-deployment activities,
and (8) Additional activities. The Department proposes to move this
list to Sec. 825.126(b); the paragraph numbers that correspond to the
eight categories will remain the same. As noted above, the Department
proposes to replace the term ``active duty'' with ``covered active
duty'' and ``covered military member'' with ``military member'' or
``member'' throughout this section. Where no additional changes are
made within a category of qualifying exigency, and the Department is
not specifically requesting additional information, that category is
not discussed further in this proposal.
Current Sec. 825.126(a)(1) sets forth the requirements for Short-
notice deployment qualifying exigency leave. Leave taken for this
purpose may be used for a period of seven calendar days beginning with
the date the military member is notified of an impending call or order
to covered active duty. The Department seeks public comment on whether
the seven calendar day period remains appropriate for this type of
qualifying exigency.
Current Sec. 825.126(a)(3), Childcare and school activities,
allows eligible employees to take qualifying exigency leave to arrange
childcare or attend certain school activities for a military member's
son or daughter. The Department proposes to delete repetitive text
throughout this paragraph identifying the relationship between the
child and the military member. Instead, proposed paragraph Sec.
825.126(b)(3) states that for purposes of the childcare and school
activities leave listed in Sec. 825.126(b)(3)(i) through (iv), the
child must be ``the military member's biological, adopted, or foster
child, stepchild, legal ward, or child for whom the military member
stands in loco parentis, who is either under age 18 or age 18 or older
and incapable of self-care because of a mental or physical disability
at the time that FMLA leave is to commence.'' Proposed Sec.
825.126(b)(3) also adds language to clarify that, as with all instances
of qualifying exigency leave, the military member must be the spouse,
son, daughter, or parent of the employee
[[Page 8966]]
requesting leave. The Department believes this clarifying language is
necessary because of this section's unique relationship requirements.
While the military member must be the spouse, parent, or son or
daughter of the eligible employee, the child for whom childcare leave
is sought need not be a child of the employee requesting leave. For
example, the employee may be the mother of the military member and may
need qualifying exigency childcare and school activities leave for the
military member's child.
Current Sec. 825.126(a)(6), Rest and recuperation, allows an
eligible employee to take up to five days of leave to spend time with a
military member on rest and recuperation leave during a period of
deployment. The Department proposes in Sec. 825.126(b)(6) to
capitalize Rest and Recuperation to reflect that this type of leave
corresponds directly to the DOD Rest and Recuperation leave programs
(e.g., USCENTCOM R & R leave). The Department also proposes to expand
the maximum duration of Rest and Recuperation qualifying exigency leave
from five to 15 days. The DOD has advised the Department that the
actual number of days of Rest and Recuperation leave provided by the
military varies, with some military members receiving as many as 15
days, depending upon the length of their deployment. The Department
proposes to allow the amount of leave an employee may take for Rest and
Recuperation qualifying exigency leave to equal that provided to the
military member, up to a maximum of 15 days. The Department has
received information from employees indicating that the amount of time
granted to a military member for Rest and Recuperation leave is
generally longer than the five days permitted by the regulations, and
due to the nature of the deployments, five days, as permitted by the
current regulations, is an insufficient amount of time for leave. As
noted in the 2008 final rule, there are limited opportunities available
for military members to spend time with their families while on active
duty and it is important to foster strong relationships among military
families. 73 FR 67961. The Department believes it is appropriate to
make the availability of this type of FMLA-qualifying exigency leave
consistent with the leave actually provided by the military to the
member on covered active duty. The Department seeks comment on the
expansion of Rest and Recuperation qualifying exigency leave and
whether the proposed 15 day period is sufficient in all instances.
The Department is also proposing to add language to Sec.
825.126(7), Post-deployment activities. Current Sec. 825.126(b)(7)(ii)
permits an employee to take qualifying exigency leave to address issues
that arise from the death of a military member while on covered active
duty status. The Department proposes to add attending funeral services
as an additional example to the activities that are covered by such
leave.
The Department proposes no additional qualifying exigencies for
which FMLA leave may be taken, but invites comment on whether
additional qualifying exigencies should be added in light of the
extension of this leave entitlement to family members of members of the
Regular Armed Forces. The Department notes that the categories of leave
in the current and proposed regulations include activities that may
take place in advance of deployment (pre-deployment activities), during
deployment, and limited activities that occur after deployment has
ended (post-deployment activities). While the FY 2010 NDAA defines
``covered active duty'' as ``duty during the deployment of the
member,'' the Department continues to believe that it is appropriate to
include certain pre-deployment activities to reflect Congressional
intent to include exigencies arising from notification of ``an
impending call or order to covered active duty''. 29 U.S.C.
2612(a)(1)(E) (emphasis added). Similarly, the Department continues to
believe that it is appropriate to include as qualifying exigencies
limited post-deployment activities the need for which immediately and
foreseeably arise from the military member's covered active duty. This
interpretation and reasoning is consistent with that outlined in the
2008 final rule. 73 FR 67961.
No other changes are proposed to Sec. 825.126.
3. Section 825.127 Leave To Care for a Covered Servicemember With a
Serious Injury or Illness
Section 585(a) of the FY 2008 NDAA amended the FMLA to allow an
eligible employee who is a covered servicemember's spouse, son,
daughter, parent, or next of kin to take up to 26 workweeks of leave
during a ``single 12-month period'' to care for a servicemember
receiving treatment for a serious injury or illness (``military
caregiver leave''). Such leave can be taken to provide care to a
current member of the Armed Forces, including the National Guard and
Reserves. These provisions were incorporated in current Sec. 825.127,
which explains an employee's entitlement to military caregiver leave
and the specific circumstances under which military caregiver leave may
be taken.
Section 565(a) of the FY 2010 NDAA further amends the FMLA to
revise the definition of ``covered servicemember'' to include certain
veterans and to expand coverage for military caregiver leave to
eligible employees caring for such veterans with a qualifying (as
defined by the Secretary of Labor) injury or illness. 29 U.S.C.
2611(15)(B). It also amends the FMLA to revise the definition of
serious injury or illness for current members of the Armed Forces to
include conditions that existed before the covered servicemembers'
active duty but were aggravated by service in the line of duty on
active duty. 29 U.S.C. 2611(18)(A). A serious injury or illness for a
veteran similarly includes conditions that existed before the veteran's
active duty but were aggravated by service in the line of duty on
active duty and that manifested before or after the servicemember
became a veteran. 29 U.S.C. 2611(18)(B).
The Department proposes to reorganize Sec. 825.127 to reflect the
substantive changes to the military caregiver leave provisions pursuant
to the FY 2010 NDAA amendments. In addition, the proposal adds the term
``military caregiver leave'' to the title of this section for clarity.
Current paragraph Sec. 825.127(b), which defines the family members
qualified to take caregiver leave, is moved to proposed paragraph Sec.
825.127(d). Current paragraph Sec. 825.127(d), which addresses
circumstances when a husband and wife who are both eligible for FMLA
leave work for the same employer, is moved to proposed Sec.
825.127(f). Because no substantive changes are proposed to these
sections they are not discussed further.
Current Sec. 825.127(a) provides that an eligible employee may
take FMLA leave to care for a current member of the Armed Forces,
including National Guard and Reserves members, with a serious injury or
illness incurred in the line of duty on active duty for which the
servicemember is undergoing medical treatment, recuperation, or
therapy, is otherwise in outpatient status, or is otherwise on the
temporary disability retired list. This section of the current
regulations incorporates the statutory definition of a covered
servicemember pursuant to the FY 2008 NDAA, and states that the
definition of a covered servicemember does not include former members
of the Regular Armed Forces, former members of the National Guard and
Reserves, and members on the permanent disability retired list.
Consistent with the FY 2010 NDAA
[[Page 8967]]
expansion of military caregiver leave to care for certain veterans, the
current statement that military caregiver leave does not apply to
former members of the military is deleted from proposed paragraph (a).
The definitions set forth in current paragraphs (a)(1) and (2) are
incorporated in proposed paragraphs (b) and (c), discussed below.
Proposed paragraph Sec. 825.127(a) simply states that eligible
employees are entitled to FMLA leave to care for a covered
servicemember with a serious injury or illness.
Proposed Sec. 825.127(b) provides the definition of covered
servicemember for current members of the Armed Forces and for covered
veterans. Proposed Sec. 825.127(b)(1) defines covered servicemember as
it applies to current members of the Armed Forces, including members of
the National Guard or Reserves. This definition mirrors the statutory
definition. 29 U.S.C. 2611(15)(A). This paragraph also incorporates the
definition of ``outpatient status'' from current Sec. 825.127(a)(2),
which is applicable only to current members of the Armed Forces.
Proposed Sec. 825.127(b)(2) defines covered servicemember, as it
applies to veterans, to mean a covered veteran who is undergoing
medical treatment, recuperation, or therapy for a serious injury or
illness. It further defines a covered veteran as an individual who was
discharged or released under conditions other than dishonorable at any
time during the five-year period prior to the first date the eligible
employee takes FMLA leave to care for the covered veteran. This
definition combines the FY 2010 NDAA statutory definition of a
``veteran'' (which incorporates the definition of veteran in 38 U.S.C.
101) and the statutory limitations on the inclusion of veterans as
covered servicemembers. 29 U.S.C. 2611(15)(B) (a veteran will be a
covered servicemember if he or she is ``undergoing medical treatment,
recuperation, or therapy for a serious injury or illness [and the
veteran] was a member of the Armed Forces (including a member of the
National Guard or Reserves) at any time during the period of 5 years
preceding the date on which the veteran undergoes that medical
treatment, recuperation, or therapy.''); 29 U.S.C. 2611(19) (adopting
38 U.S.C. 101 definition of veteran, which defines the term as ``a
person who served in the active military, naval, or air service, and
who was discharged or released therefrom under conditions other than
dishonorable''). The Department proposes to measure the five-year
period from the date the employee first takes leave to care for the
veteran, and to permit an employee to continue leave begun within the
five-year period until the end of the applicable ``single 12-month
period''. A veteran will be considered a covered veteran if he or she
was a member of the Armed Forces within the five-year period
immediately preceding the date the requested leave is to begin. If the
leave commences within the five-year period, the employee may continue
leave for the applicable ``single 12-month period'', even if it extends
beyond the five-year period. The Department believes this
interpretation is consistent with the intent of Congress in limiting
FMLA leave to care for certain veterans to a specified time period.
This interpretation may exclude veterans of previous conflicts (e.g.,
Gulf War veterans), and may exclude certain veterans of the War in
Afghanistan and Operation Iraqi Freedom, depending on the veteran's
discharge date and the date the eligible employee's leave is to begin.
The Department invites comment on this interpretation.
Proposed Sec. 825.127(c) provides the definition of serious injury
or illness for current members of the Armed Forces and for covered
veterans. Proposed Sec. 825.127(c)(1) incorporates the definition of
serious injury or illness of a current servicemember from current Sec.
825.127(a)(1), and expands it to include an injury or illness that
existed prior to the beginning of the member's active duty but was
aggravated by service in the line of duty on active duty in the Armed
Forces, consistent with the statutory definition of this term as
amended by the FY 2010 NDAA. 29 U.S.C. 2611(18)(A).
For both current members of the Armed Forces and covered veterans,
a serious injury or illness that existed before the beginning of the
servicemember's active duty and was aggravated by service in the line
of duty on active duty includes both conditions that were noted at the
time of entrance into active service and conditions that the military
was unaware of at the time of entrance into active service but that are
later determined to have existed at that time. A preexisting injury or
illness will generally be considered to have been aggravated by service
in the line of duty on active duty where there is an increase in the
severity of such injury or illness during service, unless there is a
specific finding that the increase in severity is due to the natural
progression of the injury or illness. It is the Department's
understanding that individuals will not be accepted for military
service in the Regular or Reserve components unless they are: (1) Free
of contagious diseases that probably will endanger the health of other
personnel; (2) free of medical conditions or physical defects that may
require excessive time lost from duty for necessary treatment or
hospitalization, or probably will result in separation for medical
unfitness; (3) medically capable of satisfactorily completing required
training; (4) medically adaptable to the military environment without
the necessity of geographical area limitations; and (5) medically
capable of performing duties without aggravation of existing physical
defects or medical conditions. DOD Instruction Number 6130.03 on
Medical Standards for Appointment, Enlistment or Induction in the
Military Service. In light of these standards, the Department seeks
comments, particularly from military members and their families,
concerning types of injuries or illnesses that may exist prior to
service and be aggravated in the line of duty on active duty to such an
extent as to render the servicemember unable to perform the duties of
the member's office, grade, rank, or rating.
The FY 2010 NDAA requires the Department to define a qualifying
serious injury or illness for a veteran. Proposed Sec. 825.127(c)(2)
defines serious injury or illness for a covered veteran with three
alternative definitions set out in paragraphs (c)(2)(i), (c)(2)(ii),
and (c)(2)(iii). Proposed Sec. 825.127(c)(2)(i) defines a serious
injury or illness of a covered veteran as a serious injury or illness
of a current servicemember, as defined in Sec. 825.127(c)(1), that
continues after the servicemember becomes a veteran. Thus, if a veteran
suffered a serious injury or illness when he or she was a current
member of the Armed Forces and that same injury or illness continues
after the member leaves the Armed Forces and becomes a veteran, the
injury or illness will continue to qualify as a serious injury or
illness warranting military caregiver leave. The Department believes
that allowing qualifying family members to take leave to care for
covered veterans who continue to suffer from these serious injuries or
illnesses is consistent with Congressional intent, as evidenced by the
extension of military caregiver leave provisions for veterans for a
defined five-year period. As explained below, the Department believes
that an eligible employee may take military caregiver leave for the
same family member based on the same serious injury or illness when the
family member is a current member of the Armed Forces and when the
family member becomes a covered veteran.
[[Page 8968]]
Proposed Sec. 825.127(c)(2)(ii) defines a serious injury or
illness for a covered veteran as a physical or mental condition for
which the covered veteran has received a Department of Veterans Affairs
(VA) Service Related Disability Rating (VASRD) of 50 percent or higher
and such VASRD rating is based, in whole or part, on the condition
precipitating the need for caregiver leave. The Department's review
indicates that a VASRD disability rating of 50 percent or greater
encompasses disabilities or conditions such as amputations, severe
burns, post traumatic stress syndrome, and severe traumatic brain
injuries. The Department believes that there should be parity between a
serious injury or illness of a covered veteran and a serious injury or
illness for a current member of the Armed Forces, but also recognizes
that veterans are in different circumstances than active duty military
members. The standard for a serious injury or illness for current
members of the Armed Forces cannot be directly applied to veterans
because a veteran no longer has a military office, grade, rank, or
rating against which to measure a condition that does not manifest
until after the servicemember becomes a veteran. Further, veterans,
unlike current military members, may participate in the civilian
workforce.
The Department believes that a serious injury or illness that
substantially impairs a veteran's ability to secure or follow a
substantially gainful occupation by reason of service-connected
disability should be a qualifying injury or illness for a covered
veteran. The Department considered proposing the VASRD rating equal to
the level at which, under VA regulations, the veteran is considered to
be totally disabled, i.e., that the veteran is unable to secure or
follow a substantially gainful occupation by reason of service-
connected disability. See 38 CFR 4.16. Section 4.16(a) of the VA
regulations clarifies that for a veteran with one disability, a
disability rating of 60 percent or higher constitutes a total
disability, and for a veteran with two or more disabilities, at least
one disability must be rated at 40 percent or more with sufficient
additional disabilities to bring the combined rating to 70 percent or
higher. However, the Department is concerned that veterans may suffer
from injuries and illnesses that do not result in a ``total
disability'' under the VASRD rating system, but which the Department
believes should qualify as a serious injury or illness for military
caregiver leave. For example, burns resulting in distortion or
disfigurement (see 38 CFR 4.118), or psychological disorders resulting
from stressful events (see 38 CFR 4.129) occurring in the line of duty
on active duty may not result in a VASRD rating of 60 percent or
higher, but nonetheless may be severe enough to substantially impair a
veteran's ability to work and therefore should be considered qualifying
injuries or illnesses. The Department is particularly concerned that
military caregiver leave be available to family members of veterans
suffering from, or receiving treatment for such injuries or illnesses,
which may include continuing or follow-up treatment for burns,
including skin grafts or other surgeries, and amputations, including
prosthetic fittings, occupational therapy and similar care.
The Department also considered proposing the VASRD disability
rating at a percentage below 50 percent. However, the Department
determined that a lower threshold may capture injuries and illnesses
that Congress did not intend to qualify as serious injuries or
illnesses for which employees would be entitled to 26 workweeks of FMLA
leave. For example, after a review of the VASRD rating schedules, the
Department understands that a 30 percent VASRD rating may encompass
conditions such as the loss of one ear (see 38 CFR 4.87), chronic
laryngitis (see 38 CFR 4.97), moderate migraine (episodes once per
month over several months) (see 38 CFR 4.124(a)), or severe acne (see
38 CFR 4.118). In attempting to achieve parity with the standard of a
serious injury or illness for a current member of the Armed Forces, the
Department concluded that a VASRD rating of 50 percent will more
closely approximate a condition that substantially impairs a veteran's
ability to work.
The Department is also concerned that establishment of a two-tier
test, as used by the VA to reflect single and multiple disabilities,
may be unnecessarily complicated for the purpose of defining a
qualifying serious injury or illness for military caregiver leave.
Therefore, after a careful review of VA regulations, the Department
proposes a single threshold of an overall VASRD rating of 50 percent or
higher (whether based on a single or multiple disabilities) as a
qualifying serious injury or illness.
The Department seeks comments on several aspects of this proposed
definition. First, the Department invites comment on whether the VASRD
rating of 50 percent is the appropriate level of injury or illness to
support a request for military caregiver leave. The Department
specifically seeks comment on whether the VASRD rating of 50 percent is
the proper percentage of disability to capture all injuries and
illnesses that would warrant an employee taking military caregiver
leave to care for a covered veteran. Second, while the standard
reflects the VA's determination of a disability with respect to
benefits, the Department seeks comment on whether a VASRD rating
appropriately correlates to the veteran's need for care and ability to
work, attend school or perform other daily activities. The Department
also seeks comment on whether this standard should expressly reference
limitations in a veteran's ability to attend school or perform other
regular daily activities. The Department invites comment on whether
there are circumstances in which a veteran would be able to work but
would nonetheless need care because of an inability to perform other
daily activities.
Proposed Sec. 825.127(c)(2)(iii) is the third alternative
definition of a serious injury or illness for a covered veteran; it
covers injuries and illnesses that are not technically within the
definition proposed in (c)(2)(i) or (ii), but are of similar severity.
The Department recognizes that covered veterans may have injuries or
illnesses that are similar in severity to the injuries or illnesses
qualifying under proposed (c)(2)(i) but for which the veterans did not
obtain certification as a serious injury or illness when they were
current members of the military. Similarly, the Department recognizes
that covered veterans may have injuries or illnesses that are similar
in severity to the injuries or illnesses qualifying under proposed
(c)(2)(ii) but for which the veterans have not received a VASRD rating.
The Department also recognizes that covered veterans may need a family
member to provide care for injuries or illnesses that, absent
treatment, would be similar in severity to those qualifying under
(c)(2)(i) and (ii). This third alternative definition of serious injury
or illness for a covered veteran is intended to capture these types of
injuries and illnesses.
The Department proposes to define a serious injury or illness for a
covered veteran in the third alternative as a physical or mental
condition that substantially impairs the veteran's ability to secure or
follow a substantially gainful occupation by reason of a service-
connected disability, or would do so absent treatment. This proposed
definition is intended to replicate the VASRD 50 percent disability
rating standard under (c)(2)(ii) for situations in which the veteran
does not have a service-related disability rating from the VA. The
Department
[[Page 8969]]
expects that, when making determinations of serious injury or illness
under this proposed definition, private health care providers will do
so in the same way they make similar determinations for Social Security
Disability claims and Workers' Compensation claims. Particularly with
respect to Social Security Disability, health care providers must
determine that an injury or illness ``substantially impairs'' the
individual and determine whether the individual is able to gain or keep
a ``substantially gainful occupation.''
As noted above, the standard in (c)(2)(ii) is based on VA
regulations and disability determinations. For example, a covered
veteran with post traumatic stress disorder who is usually able to work
may need care from an employee-family member when an event triggers a
reoccurrence of the associated depression and anxiety to a level that
the veteran would be unable to work absent treatment. Although
paragraph (c)(2)(iii) is intended to have the same degree of incapacity
as that set forth in paragraph (c)(2)(ii), a certification of serious
injury or illness under this section serves only to establish that the
veteran has a condition that entitles his or her family member to
military caregiver leave under the FMLA. Such a determination provides
no basis for a determination of status, rights, or benefits for the VA
or other agencies. The VA is the sole agency qualified to make any
rating determination for purposes of VA-related rights or benefits.
The Department seeks comments from employees, employers, health
care providers, and veterans as well as current military members on
this proposed alternative definition. Specifically, the Department
seeks comments on whether this proposal will be effective at capturing
the serious injuries and illnesses that covered veterans suffer for
which caregiving is needed by qualifying employee-family members and
which will not be covered under proposed paragraphs (c)(2)(i) and (ii).
In addition, the Department seeks comments on the ability of health
care providers to certify a serious injury or illness for a covered
veteran and the ability of employers to administer leave associated
with a serious injury or illness for a covered veteran under this
proposed definition. The Department is particularly concerned that this
provision comprehensively encompasses traumatic brain injuries, post
traumatic stress disorder, and other such conditions that may not
manifest until some time after the member has become a veteran.
Therefore, the Department also seeks comment on the types of injuries
and illnesses that typically manifest after the member becomes a
veteran, whether a family member is needed to care for the veteran for
such injuries or illness and, if so, whether this proposed definition
would cover such situations.
The Department notes another means through which the severity of an
injured veteran's disability may be assessed. VA's Program of
Comprehensive Assistance for Family Caregivers (see Caregivers and
Veterans Omnibus Health Services Act of 2010, Public Law 111-163 and 38
CFR part 71) is designed to provide health care, travel, training, and
financial benefits to certain eligible caregivers of veterans who are
eligible for the program. In general, a veteran or servicemember
undergoing medical discharge from the Armed Forces, is eligible for
VA's Program of Comprehensive Assistance for Family Caregivers if the
individual has incurred or aggravated a serious injury (including
traumatic brain injuries, psychological trauma, or other mental
disorders) in the line of duty on or after September 11, 2001; the
serious injury renders the individual in need of a minimum of six
continuous months of personal care services based on a variety of
clinical criteria listed under 38 CFR 71.20 (c)(1)-(4); and it is in
the best interest of the individual to participate in the program. See
38 CFR 71.20. According to VA, approximately 86 percent of veterans
currently enrolled in the program have received a VASRD rating of 50
percent or greater, with approximately 50 percent having received a
VASARD rating of 100 percent.
In an effort to minimize the burden placed on military families,
the Department has worked with VA to understand the requirements that
must be met to enroll in VA's Program of Comprehensive Assistance for
Family Caregivers and utilize FMLA leave. Based on the eligibility
requirements for VA's Program of Comprehensive Assistance for Family
Caregivers, the Department believes that most veterans who qualify for
the program meet the requirement of having a serious injury or illness
as defined in this proposal for the purpose of FMLA caregiver leave.
Accordingly, the Department is considering adding a fourth alternative
to the definition of serious injury or illness of a veteran, enrollment
in VA's Program of Comprehensive Assistance for Family Caregivers, and
invites comment on whether this would appropriately help reduce the
burden placed on military and veterans' families in being able to take
FMLA leave.
As with the three definitions proposed in paragraphs (c)(2)(i)-
(iii), enrollment in VA's Program of Comprehensive Assistance for
Family Caregivers would establish only that the veteran has a serious
injury or illness, and would not mean that the caregiver is
automatically entitled to take FMLA leave. The person seeking to take
FMLA military caregiver leave must qualify as a family member under the
FMLA and meet the other eligibility criteria, and the veteran must meet
the definition of a ``covered veteran'' in proposed Sec.
825.127(b)(2).
The Department seeks comment, especially from caregivers and
veterans who are currently enrolled in VA's Program of Comprehensive
Assistance for Family Caregivers, on whether including enrollment in
this program as another possible definition for establishing a
qualifying serious injury or illness required to take FMLA leave would
be helpful to veterans and caregivers in seeking FMLA leave for a
covered veteran. Finally, the Department welcomes comments proposing
other definitions not included above that would achieve the goals that
the proposed definitions seek to achieve--namely, coverage of injuries
or illnesses that covered veterans experience that approximate the
severity of a serious injury or illness for current members of the
military as defined in the statute and regulations.
Current Sec. 825.127(c) explains how the ``single 12-month
period'' in which eligible employees are entitled to take up to 26
workweeks of military caregiver leave is applied. This provision is
moved to proposed paragraph Sec. 825.127(e) (the numbering of the
subparagraphs within this provision remain the same). Proposed
paragraph Sec. 825.127(e)(2) (current Sec. 825.127(c)(2)) provides
that the 26-workweek entitlement is to be applied as a per-covered
servicemember, per-injury entitlement. Because the FY 2010 NDAA
establishes two distinct categories of covered servicemembers (i.e., a
current member of the Armed Forces and a covered veteran) and because
military caregiver leave is applied on a per-covered servicemember
basis, an eligible employee could potentially take military caregiver
leave to care for a covered servicemember who is a current member of
the Armed Forces and then, at a later point when the same servicemember
becomes a covered veteran, could take a subsequent period of military
caregiver leave. The Department notes that all of the normal
eligibility requirements,
[[Page 8970]]
such as the hours of service requirement, would apply in such a
situation. Additionally, an employee may not take more than a combined
total of 26 workweeks of FMLA leave during a ``single 12-month
period.'' The Department seeks comment on this interpretation of the
``single 12-month period'' limitation.
The Department notes that under this provision, an eligible
employee may take up to 26 workweeks of leave to care for the same
covered servicemember with a subsequent serious injury or illness. As
the Department explained in the 2008 final rule, a subsequent serious
injury or illness of the same covered servicemember could arise either
from an injury or illness incurred by a current member in a subsequent
deployment, or from the subsequent manifestation of a second serious
injury or illness to either a current member or a covered veteran that
relates back to the initial incident. 73 FR 67969. For example, if a
servicemember is injured in the line of duty on active duty and suffers
severe burns, an eligible employee is entitled to 26-workweeks of
caregiver leave. If the servicemember later manifests a traumatic brain
injury that was incurred in the same incident as the burns, the
eligible employee would be entitled to an additional 26-workweeks of
leave to care for the same servicemember. The Department requests
comment on whether the current regulatory language is sufficiently
clear as to the situations in which an employee would be permitted to
take a second period of military caregiver leave due to the subsequent
serious injury or illness of the same covered servicemember.
Lastly, the Department proposes to make minor edits to internal
references throughout this paragraph to reflect the reorganized
structure of this section, to delete references to ``as described in
paragraph (c) of this section'' as unnecessary, and to make two minor
changes to paragraph (e)(3) (current Sec. 825.127(c)(3)): adding
internal numbering to facilitate readability, and changing ``week'' to
``workweek'' consistently throughout the paragraph.
4. Section 825.309 Certification Requirements for Leave Taken Because
of a Qualifying Exigency
The FY 2010 NDAA amends 29 U.S.C. 2613(f), which addresses
certification for qualifying exigency leave. Accordingly, as it did in
Sec. 825.126, the Department proposes to substitute ``covered active
duty'' for ``active duty'' wherever it appears in this section.
Consistent with the proposed change in Sec. 825.126, the Department
also proposes to substitute ``military member'' or ``member'' for
``covered military member'' wherever it appears.
Proposed Sec. 825.309(a) follows current Sec. 825.309(a) and
states that the first time an employee requests leave because of a
qualifying exigency, an employer may require the employee to provide a
copy of the military member's covered active duty orders or other
documentation issued by the military which indicates that the military
member is on covered active duty or call to covered active duty status,
and the dates of the military member's covered active duty service.
This information need only be provided once to the employer, unless a
need for qualifying exigency leave arises out of a different call to
covered active duty status of the same military member or the call to
covered active duty status of a different military member. The
Department proposes to delete the phrase ``in support of a contingency
operation'' from current Sec. 825.309(a) to reflect the expansion of
qualifying exigency leave to family of the Regular Armed Forces. As
discussed in Sec. 825.126, the contingency operation requirement does
not apply to members of the Regular Armed Forces.
As previously discussed, the FY 2010 NDAA amended the qualifying
exigency provisions to require that both members of the Reserve
components and members of the Regular Armed Forces be deployed to a
foreign country in order for their service to be considered covered
active duty entitling their family members to qualifying exigency
leave. It is the Department's understanding that the military member's
active duty orders will specify the location of the deployment and will
provide sufficient information to establish that the duty is, in fact,
covered active duty. Both current and proposed Sec. 825.309(a) permit
an employee to use either a copy of the military member's active duty
orders or ``other documentation issued by the military'' to establish
that the military member is on covered active duty or call to covered
active duty status. The Department has received information from
employees and employers indicating that family members have experienced
difficulty obtaining copies of active duty orders or that the available
documentation is insufficient to comply with current certification
requirements. The Department specifically seeks feedback from the
public on whether active duty orders of members of the Regular and
Reserve components of the Armed Forces contain sufficient information
to determine that the call to covered active duty involves deployment
to a foreign country (and, in the case of the Reserve components that
the member is being called up in support of a contingency operation),
and, if not, what other documentation would meet the certification
requirements. The Department also seeks comment on whether employees
have experienced difficulty in obtaining copies of active duty orders
or other military documents establishing their family member's covered
service, and whether employers have experienced difficulty in
confirming covered service.
As with other FMLA certifications, the certification process for
qualifying exigency leave is optional for the employer. Accordingly,
the proposal revises the regulatory language at Sec. 825.309(a) to
make it clear that new active duty orders or documentation do not
automatically need to be provided; rather new active duty orders or
documentation need only be provided upon request by the employer. The
proposed change is consistent with the general certification process,
which provides that an employer may require certification upon an
employee request for qualifying exigency leave.
Current Sec. 825.309(b) addresses information that may be required
to support a request for qualifying exigency leave. Consistent with the
proposed expansion of Rest and Recuperation qualifying exigency leave
to be equivalent to the period of time the military member has for such
leave, up to 15 days, the Department believes that it is appropriate
for the employee to provide a copy of the military member's Rest and
Recuperation orders in order to determine the specific leave period
available. The Department therefore proposes a new Sec. 825.309(b)(6)
to require that certification of qualifying exigency leave for Rest and
Recuperation include a copy of the members Rest and Recuperation leave
orders, or other documentation issued by the military, and the dates of
the leave. No other change is proposed to Sec. 825.309(b).
Current Sec. 825.126(c) identifies an optional-use Form WH-384
which may be used in requesting qualifying exigency leave and states
that another form containing the same basic information may be used by
an employer as long as no information beyond that specified in this
section is required. As discussed above, the Department proposes to
delete the optional-use forms from the Appendices to part 825.
Accordingly, the Department proposes to delete the reference in current
Sec. 825.309(c) to Appendix H and proposes to add language explaining
that Form WH-384 may be obtained from local Wage and
[[Page 8971]]
Hour offices or the Wage and Hour Web site. No other changes are
proposed for Sec. 825.309(c).
Current Sec. 825.309(d) indicates that where a complete and
sufficient certification is submitted in support of a request for
leave, an employer may not request additional information from an
employee. Where the qualifying exigency involves a third party,
employers may contact the individual or entity for purposes of
verifying the meeting or appointment and the nature of the meeting. The
employee's permission is not required to conduct such verification, but
the employer may not request additional information. Employers may also
contact the appropriate unit of the DOD to verify that the military
member is on active duty or call to active duty status; no additional
information may be requested and the employee's permission is not
required for such verification. The Department solicits information on
how this provision has been working for employers and employees. The
Department would like to know whether any privacy issues have arisen
for employees, or whether any employees have been denied qualifying
exigency leave because their employers have been unable to verify their
leave requests. The Department also seeks information on whether
employers have encountered any difficulties in making third party
verifications, and if so, why and whether they have denied an employee
leave as a result.
5. Section 825.310 Certification for Leave Taken To Care for a Covered
Servicemember (Military Caregiver Leave)
Section 825.310 sets forth the certification process and the
elements of a complete certification for military caregiver leave.
Current Sec. 825.310(a) permits an employer to require that a request
for leave to care for a covered servicemember with a serious injury or
illness be supported by a certification issued by an authorized health
care provider, defined as: (1) A DOD health care provider; (2) a VA
health care provider; (3) a DOD TRICARE network authorized private
health care provider; or (4) a DOD non-network TRICARE authorized
private health care provider. Thus, current paragraph (a) limits the
type of health care providers who may complete a medical certification
for military caregiver leave for current members of the military.
Proposed paragraph Sec. 825.310(a)(5) adds health care providers,
as defined by regulation in Sec. 825.125, as a fifth component to the
definition of an authorized health care provider from whom medical
certification can be obtained for a serious injury or illness. The
Department understands that in some circumstances, for example when
seeking treatment for a mental health condition, some current
servicemembers may wish to seek care from a health care provider
unaffiliated with DOD. The Department believes that a family member of
a current servicemember who is seeking treatment outside of the
military's network for an injury or illness that was incurred or
aggravated in the line duty on active duty should be eligible for FMLA
leave under this provision. As such, the Department no longer believes
that it is appropriate to limit a current servicemember's selection of
health care provider more than it is limited for an individual seeking
FMLA leave for a serious health condition. The expansion of authorized
health care providers will apply equally to covered servicemembers who
are covered veterans. The Department understands that veterans may use
private health care providers rather than DOD, VA, TRICARE network
health care providers, and some veterans may no longer be entitled to
seek care through DOD or VA affiliated health care providers. Veterans
may also be covered by the private health care plans of a spouse or
parent and may utilize the services of private health care providers
through these plans. Whether it is because there is no VA center in the
area or due to other circumstances, the Department believes that
families of veterans should be able to rely upon the determination of
the veteran's own private health care provider, who otherwise meets the
definition of an FMLA health care provider at Sec. 825.125, in
determining if the treated condition is a qualifying serious injury or
illness. The Department also believes that expanding the pool of health
care providers will avoid increasing the administrative burdens on the
VA and DOD. The Department invites comment on the proposal to allow any
FMLA health care provider as defined in Sec. 825.125 to certify a
serious injury or illness for military caregiver leave.
While the Department believes that it is appropriate to include as
authorized health care providers under this section health care
providers as defined in Sec. 825.125, the Department is nonetheless
concerned that private health care providers will not have the
specialized information available to DOD, VA, and TRICARE network
health care providers that is necessary to make several of the
military-related determinations, and may need to obtain that
information from DOD or VA in order to make a determination of whether
the condition is related to the covered servicemember's service and/or
whether the condition meets the definition of serious injury or
illness. The Department seeks comments related to the available
processes for a private health care provider to obtain information
related to whether an injury or illness was incurred in the line of
duty while on active duty or whether the covered servicemember's injury
or illness existed before beginning service and was aggravated by
service in the line of duty while on active duty. The Department also
seeks comments on whether a covered servicemember will have a copy of
medical records from his or her military service, or would the covered
servicemember, or family member, be able to access medical records or
other documentation that would support the determination that an injury
or illness was incurred in the line of duty while on active duty, and
the types of documentation that may be available to the covered
servicemember or family member. Specific to veterans, the Department
seeks comment on whether a veteran or family member has access to
documentation of a VASRD disability rating.
Current Sec. 825.310(b) sets forth the information an employer may
request from the health care provider in order to support the
employee's request for leave. The Department proposes to modify
paragraphs (b)(1)-(4), as discussed below. The Department proposes no
other changes to Sec. 825.310(b). Current Sec. 825.310(b) permits an
authorized health care provider who is unable to make certain military
determinations to rely on determinations from an authorized DOD
representative. In light of the extension of military caregiver leave
to covered veterans, proposed Sec. 825.310(b) indicates that an
authorized health care provider may rely on military-related
determinations from an authorized DOD representative or an authorized
VA representative. Current Sec. 825.310(b)(1) allows an employer to
request certain information from the health care provider. Consistent
with the Department's proposal to allow covered servicemembers to
utilize any health care provider as defined in Sec. 825.125, the
Department proposes to add a new provision (b)(1)(v) clarifying that
the medical certification may be provided by a health care provider as
defined by Sec. 825.125.
Current paragraph (b)(2) allows an employer to request information
that specifies whether the covered servicemember's injury or illness
was
[[Page 8972]]
incurred in the line of duty while on active duty. The Department
proposes to add language to this paragraph to allow an employer to
obtain information that specifies whether the covered servicemember's
injury or illness existed before beginning service and was aggravated
by service in the line of duty while on active duty. The proposed
language incorporates the FY 2010 NDAA statutory amendment to the
definition of serious injury or illness which provides that a serious
injury or illness for both current members of the military and covered
veterans includes an injury or illness that existed before the
beginning of the member's active duty and was aggravated by service in
the line of duty on active duty in the Armed Forces. The Department
seeks comment on what processes are or may be used to determine that an
injury or illness existed prior to active duty service and was
aggravated by service in the line of duty on active duty. Comment is
also sought on the basis a non-DOD or non-VA health care provider would
determine that an injury or illness is a condition that existed before
the military member's service and was aggravated in the line of duty on
active duty.
Current Sec. 825.310(b)(3) allows an employer to request the
approximate date on which the serious injury or illness commenced and
its probable duration. In light of the statutory amendments to the
definition of serious injury or illness, proposed Sec. 825.310(b)(3)
allows an employer to request the approximate date on which the serious
injury or illness commenced or was aggravated and its probable
duration.
Current Sec. 825.310(b)(4) allows an employer to request a
statement of appropriate medical facts regarding the covered
servicemember's health condition for which leave is requested and
specifies what medical facts must be included in a certification in
order to support the need for leave. The Department proposes to move
the description of what medical facts must be included in the
certification for a serious injury or illness of a current member of
the military from current Sec. 825.310(b)(4) to proposed Sec.
825.310(b)(4)(i). Proposed Sec. 825.310(b)(4)(i) retains the same
requirements as in current paragraph (b)(4) that a sufficient
certification for a serious injury or illness of a current member of
the military must include information on whether the injury or illness
may render the current servicemember unfit to perform the duties of the
servicemember's office, grade, rank, or rating and whether the
servicemember is receiving medical treatment, recuperation, or therapy.
The Department further proposes to describe in Sec. 825.310(b)(4)(ii)
what medical facts must be included in the certification for an injury
or illness of a covered veteran. Proposed Sec. 825.310(b)(4)(ii)
states that a sufficient certification for a serious injury or illness
of a covered veteran must include information on whether the veteran is
receiving medical treatment, recuperation, or therapy for an injury or
illness that is a continuation of a serious injury or illness that was
incurred or aggravated when the veteran was a member of the Armed
Forces; involves a physical or mental condition for which the veteran
has received a VASRD rating of 50 percent or higher, and that such
VASRD rating is based, in whole or in part, on the condition
precipitating the need for caregiver leave; or, a physical or mental
condition that substantially impairs the veteran's ability to secure or
follow a substantially gainful occupation by reason of a service-
connected disability or disabilities, or would do so absent treatment.
As noted earlier, the Department is considering adding enrollment
into VA's Program of Comprehensive Assistance for Family Caregivers as
another possible definition for establishing a qualifying serious
injury or illness for a covered veteran. The Department seeks comments
on whether the medical documentation required for enrollment in the
VA's Program for Comprehensive Assistance for Family Caregivers
provides sufficient medical facts to support the need for FMLA leave.
The Department notes that under the current proposed definition of
serious injury or illness of a veteran, medical documentation prepared
in connection with the VA's Program of Comprehensive Assistance for
Family Caregivers may be submitted as part of the FMLA certification
process under proposed Sec. 825.127(c)(2)(ii) and (c)(2)(iii). To the
extent that additional information is necessary to establish a complete
and sufficient FMLA certification (i.e., information showing the
relationship of the employee to the covered servicemember for whom the
employee is requesting leave to care), the employee seeking leave would
be responsible for providing the employer with the additional
information.
Current Sec. 825.310(c) outlines the information that employers
may require from employees as part of the certification. No change is
proposed to current Sec. 825.310(c)(1)-(5). The Department proposes to
add a new paragraph (c)(6) and renumber current paragraph (c)(6) as
(c)(7). Proposed paragraph (c)(6) permits an employer to require that
the employee or covered servicemember indicate whether the member is a
veteran, the date of separation, and whether the separation was other
than dishonorable. It also permits the employer to request
documentation confirming this information, and permits the employee to
provide a copy of the veteran's DD Form 214 or other proof of veteran
status to satisfy such documentation requirement.
Current Sec. 825.310(d) identifies an optional-use form that may
be used to provide certification for military caregiver leave. As
discussed above, the Department proposes to delete the forms from the
Appendices and therefore proposes in paragraph (d) to delete the
reference to Appendix H and instead to insert language stating that the
applicable form may be obtained either from a local WHD office or the
WHD Web site. The Department intends to amend current form WH-385 to
reflect that a health care provider as defined in Sec. 825.125 may
certify a serious injury or illness for a current servicemember. The
Department is also considering the development of a new form to capture
the above identified information for military caregiver leave for a
covered veteran. The Department seeks comments on whether it will be
less confusing to develop two forms to use for military caregiver
certification or whether adapting the current WH-385 would be
preferable.
Current Sec. 825.310(d) also provides that an employer may seek
authentication and/or clarification of the certification for military
caregiver leave; however, second and third opinions are not permitted.
In the 2008 final rule, the Department reasoned that the statutory
standard for determining whether a military member has a serious injury
or illness is dependent on several determinations which can only be
made by the military. Therefore, it would be inappropriate to permit
second and third opinions regarding those determinations. 73 FR 68029.
With the proposed change to allow families of covered servicemembers to
rely upon the determination of health care providers unaffiliated with
DOD, VA, or TRICARE, the certification process, when done by a private
health care provider that is not one of the types identified in Sec.
825.310(a)(1)-(4), is more akin to the certification process for the
serious health condition of civilian family members. Therefore, the
Department believes that in such situations there is no basis to
prohibit employers from obtaining second and third opinions.
Consequently, the
[[Page 8973]]
Department proposes in Sec. 825.310(d) to state that second and third
opinions are not permitted when the certification has been completed by
one of the types of health care providers identified in Sec.
825.310(a)(1)-(4), but second and third opinions are permitted when the
certification has been completed by a health care provider that is not
one of the types identified in Sec. 825.310(a)(1)-(4). The Department
seeks comment on the proposal to permit second and third opinions on
military caregiver leave certifications that are completed by health
care practitioners who are not affiliated with the military or VA.
No changes are proposed for Sec. 825.310(e), which addresses the
use of ``invitational travel orders'' (ITO) or ``invitational travel
authorizations'' (ITA) issued for medical purposes, in lieu of a
certification form, other than to update internal references. However,
the Department seeks comment on the effectiveness of the substitution
of ITOs and ITAs in support of a need for military caregiver leave.
Current Sec. 825.310(f) states that it is the employee's
responsibility to provide the employer with a complete and sufficient
certification and describes the consequences of failing to do so. The
Department proposes to add text that clarifies this requirement,
providing that ``an employee may not be held liable for administrative
delays in the issuance of military documents, despite the employee's
diligent, good-faith efforts to obtain such documents.'' While current
Sec. 825.305(b) already provides that employees who are unable to
provide requested FMLA certification (including certification for
military caregiver leave) within 15 days despite their diligent, good
faith efforts must be provided with additional time, the Department
believes that it is important to reiterate this principle in Sec.
825.310(f). As discussed in the preamble to the 2008 final rule, the
Department acknowledges concerns regarding timely receipt of military
documentation and hopes to clarify that employees may not be held
responsible for administrative delays in the issuance of military
documents where a good faith attempt is made by the employee to obtain
such documents. 73 FR 68011.
B. Revisions To Implement the AFCTCA Amendments
1. Section 825.110 Eligible Employee
Current Sec. 825.110 sets forth the eligibility standards an
employee must meet in order to take FMLA leave. To be eligible, an
employee must have been employed by the employer for at least 12
months, must have been employed for at least 1,250 hours of service in
the 12-month period immediately preceding the commencement of the
leave, and must be employed at a worksite where 50 or more employees
are employed by the employer within 75 miles. Whether an employee has
worked the required 1,250 hours of service is based on FLSA hours-
worked principles contained in 29 CFR 785. The Department proposes
revisions to Sec. 825.110(a), (c), and (d) to reflect the AFCTCA's
expanded definition of the ``hours of service'' requirement for airline
flight crew employees. No changes are proposed to Sec. 825.110(b) and
(e).
Section 825.110(a) sets forth the general employee eligibility
requirements. In Sec. 825.110(a)(2) the Department proposes to add a
reference to proposed paragraph Sec. 825.110(c)(2), which sets forth
the hours of service requirement for airline flight crew employees. No
other changes are proposed in Sec. 825.110(a).
Current Sec. 825.110(b)(2)(i) concerns determining an employee's
eligibility when there is a break in service occasioned by the
fulfillment of the employee's National Guard or Reserve military
service. The Department proposes to modify the language in the first
sentence to reference the Uniformed Services Employment and
Reemployment Rights Act (USERRA) and to clarify that the protections
afforded by USERRA extend to all military members (active duty and
reserve) returning from USERRA-qualifying military service. Current
Sec. 825.110(c)(2) provides rules pursuant to USERRA for crediting an
employee returning from a National Guard or Reserve obligation with the
hours of service that would have been performed but for the military
service when evaluating whether the ``hours of service'' eligibility
requirement has been met. The Department proposes to renumber current
paragraph (c)(2) as paragraph (c)(3) and to spell out the title of
USERRA, which is currently referred to in this section by the acronym
only. In addition, the Department proposes to modify the language in
the first sentence of this paragraph in recognition that USERRA rights
may extend to certain employees returning to civilian employment from
service in the Regular Armed Forces. The Department also proposes to
modify this paragraph to refer more generally to the hours of service
requirement.
The AFCTCA requires employers to calculate hours of service for
eligibility in a different manner for airline flight crew employees.
The Department proposes to separately define the hours of service
eligibility requirement for these employees in proposed Sec.
825.110(c)(2) and (c)(3). The Department notes that the hours of
service requirement will continue to be determined based on ``hours
worked'' as defined under the FLSA for all employees other than airline
flight crew employees. Proposed paragraph Sec. 825.110(c)(2) states
the AFCTCA requirement that the hours of service criteria will be met
if during the previous 12-month period the airline flight crew employee
has worked or been paid for not less than 60 percent of the applicable
monthly guarantee and has worked or been paid for not less than 504
hours (not including personal commute time or time spent on vacation
leave or sick or medical leave).
Proposed paragraph Sec. 825.110(c)(2)(i) states the statutory
definition of applicable monthly guarantee for airline flight crew
employees on reserve and non-reserve status. The Department proposes to
refer to airline flight crew employees who are not on reserve status as
``line holders'', which the Department understands to reflect industry
terminology. The applicable monthly guarantee is determined by the
employer's policies or collective bargaining agreement and differs
depending on whether the airline flight crew employee is a line holder
or on reserve status and on the employee's job classification (i.e.,
pilot, co-pilot, flight attendant, or flight engineer). For airline
employees who are on reserve status, the applicable monthly guarantee
means the number of hours for which an employer has agreed to pay the
employee for any given month. For line holders, the applicable monthly
guarantee is the minimum number of hours for which an employer has
agreed to schedule such employee for any given month. It is the
Department's understanding that the schedule for line holders is based
on duty hours, and that duty hours include the flight or block hours as
determined by the Federal Aviation Administration (FAA) as well as
additional time before and after the flight as determined by employer
policy or applicable collective bargaining agreement. The Department
seeks comments on whether this is an accurate interpretation of what
comprises the line holders' scheduled hours, or whether some other
basis such as flight or block hours would be more appropriate for this
calculation.
In Sec. 825.110(c)(2)(ii) the Department proposes to base the
number of hours that an airline flight crew employee has worked on the
employee's duty hours during the previous 12-month period. While duty
hours may not always reflect all hours that would be considered
[[Page 8974]]
hours worked under the FLSA, it is the Department's understanding that
duty hours are closely tracked in a similar manner by all employers in
the industry. Therefore, the Department believes that duty hours
provide the most accurate and uniform basis for making eligibility
determinations for hours of service for airline flight crew employees.
Regarding the calculation of the number of hours that an airline flight
crew employee has been paid, it is the Department's understanding that
all airline flight crew employees are generally paid on an hourly
basis, and that these hours are routinely tracked by each airline. The
hours an airline flight crew employee has been paid is the number of
hours for which an employee received wages during the previous 12-month
period. As required by the AFCTCA, personal commute time, vacation, and
medical or sick leave do not count towards the hours worked or paid
calculation. The Department notes that airline flight crew employees
are eligible if they have either the required number of ``hours
worked'' or ``hours paid''. The Department invites comments on whether
these calculation methods for hours worked and hours paid are the most
appropriate bases for determining whether an airline flight crew
employee has worked or been paid for 504 hours during the previous 12-
month period.
The Department proposes to renumber current paragraph Sec.
825.110(c)(3), which explains an employer's burden when it does not
maintain accurate records of hours worked for an employee, as new Sec.
825.110(c)(4), and to add language clarifying the application of this
rule to airline flight crew employees.
Finally, the Department proposes to replace the phrase ``worked for
the employer for at least 1,250 hours'' in the first sentence of
current Sec. 825.110(d) with the more general ``met the hours of
service requirement'', to provide uniformity with the rest of the
section in reflecting the AFCTCA requirements. The Department also
proposes to replace the general reference to ``eligibility
requirements'' in the second sentence of this paragraph with a specific
reference to the ``12-month eligibility requirement'' to clarify the
application of this principle.
The Department seeks comments on all aspects of the application of
the AFCTCA eligibility provisions, particularly on the proposal to
interpret the requirement of 504 hours worked to be 504 hours of duty
time, as well as the Department's understanding that scheduled hours
for line holders encompasses duty hours. The Department recognizes that
the airline industry has unique timekeeping practices and it is the
Department's intent to utilize existing industry records to make FMLA
eligibility determinations.
2. Section 825.205 Increments of FMLA Leave for Intermittent or Reduced
Schedule Leave
Section 825.205 of the current regulations explains how to count
increments of leave in cases of intermittent or reduced schedule leave.
The Department proposes several changes to this section. The changes
implement the AFCTCA provisions and address how FMLA leave usage is
counted for all employees.
Current Sec. 825.205(a) defines the minimum increment of FMLA
leave to be used when taken intermittently or on a reduced schedule as
an increment no greater than the shortest period of time that the
employer uses to account for other forms of leave, provided that it is
not greater than one hour. The Department proposes to add language to
paragraph (a)(1) stating that an employer may not require an employee
to take more leave than is necessary to address the circumstances that
precipitated the need for leave. This concept was included in Sec.
825.203(d) of the 1995 final rule. The Department believes it is
appropriate to reinsert it into the regulations to emphasize the
statutory requirement that an employee's FMLA leave entitlement not be
reduced beyond the amount of leave actually taken in accounting for
leave taken on an intermittent or reduced schedule basis. 29 U.S.C.
2612(b)(1). The proposed regulatory text makes clear that this
principle is subject to the increment of leave rule set forth in this
paragraph as well as to the physical impossibility rule in paragraph
(a)(2) and the special rules for intermittent leave for school
employees in Sec. Sec. 825.601 and 825.602. As explained in the 2008
final rule, the other situation in which an employee may use more FMLA
leave than necessary to address the circumstances requiring leave is
when the employee elects to substitute paid leave and must use a larger
amount of leave in order to satisfy the employer's paid leave policy.
In such instances, the entire period of leave taken is FMLA-protected
and counts against the FMLA entitlement. 73 FR 67981. While an employer
can require an employee to utilize a larger amount of FMLA leave than
necessitated by the FMLA condition if the employee wishes to substitute
paid leave, the employee always has the option to take unpaid FMLA
leave in the smallest increment of leave used by the employer.
The Department also proposes to add to paragraph (a)(1) language
from the preamble to the 2008 final rule that further clarifies two
important aspects of the calculation of FMLA leave. First, the
Department proposes to add an example to illustrate the principal that
where an employer uses different increments to account for different
types of leave (e.g., sick leave in one-half hour increments and annual
leave in increments of one hour), the employer must use the smallest of
the increments to account for FMLA leave usage. 73 FR 67976.
Additionally, the Department proposes to clarify in the regulatory text
that FMLA leave may only be counted against an employee's FMLA
entitlement for leave taken and not for time that is worked for the
employer. Id. Accordingly, where an employer chooses to waive its
increment of leave policy in order to return an employee to work--for
example where an employee arrives a half hour late to work due to an
FMLA-qualifying condition and the employer waives its normal one hour
increment of leave and puts the employee to work immediately--only the
amount of leave actually taken by the employee may be counted against
the FMLA entitlement. The Department believes these clarifications in
the regulatory text will aid employers and employees in understanding
the application and counting of FMLA leave usage.
Current Sec. 825.205(a)(1) also permits employers to utilize
different increments of FMLA leave at different times of the day or
shift under certain circumstances. Under this provision, for example,
if an employer utilizes a larger increment of leave at the beginning or
the end of a shift an employee needing FMLA leave during those periods
may be required to take the leave in the size of the smallest increment
of leave permitted at that particular time. The Department's
enforcement experience indicates some confusion regarding this
provision including some employers who have interpreted this language
to permit the use of a larger increment of FMLA leave at certain points
in a shift than the increment used for other forms of leave in the same
time period. Consequently, the Department proposes to remove the
language allowing for varying increments at different times of the day
or shift in favor of the more general principle of using the employer's
shortest increment of any type of leave at any time. The Department
requests comment on the proposal to remove this language from the
regulations.
[[Page 8975]]
Current Sec. 825.205(a)(2) sets forth the physical impossibility
provision which provides that where it is physically impossible for an
employee to commence or end work mid-way through a shift, the entire
period that the employee is forced to be absent is counted against the
employee's FMLA leave entitlement. The Department has reviewed this
position in connection with the AFCTCA because of the impact of the
physical impossibility provision on the airline industry. As discussed
in the preamble to the 2008 final rule, the physical impossibility
provision is intended to apply only in very narrow circumstances. 73 FR
67977. The Department is concerned, however, that the provision may be
being applied more broadly than intended. Accordingly, the Department
proposes adding language at paragraph (a)(2) emphasizing that it is an
employer's responsibility to restore an employee to his or her same or
equivalent position at the end of any FMLA leave as soon as possible.
The proposed language further emphasizes the Department's intent that
the physical impossibility provision be applied in only the most
limited circumstances and only where it is, in fact, physically
impossible to allow the employee to leave his or her shift early or to
restore the employee to his or her same position or to an equivalent
position at the time the employee no longer needs FMLA leave. Thus, for
example, if after three hours of FMLA leave use it was physically
possible to restore a flight crew employee to another flight, the
employer would be required to do so. If, however, no other flight is
available to which the employee could be assigned, or no other
equivalent work is available, restoration could be delayed and the
employee's FMLA entitlement reduced for the entire period the employee
is forced to be absent. The Department reiterates that employers have
an obligation not to discriminate between employees taking FMLA leave
and employees taking other forms of leave in restoring employees or
offering alternative work. 73 FR 679678. Alternatively, the Department
is considering deleting the physical impossibility provision in its
entirety. The 2008 final rule explained that the Department intended
the provision to protect employees from discipline when a short FMLA-
protected absence resulted in a much longer absence because of the
unique nature of the worksite. 73 FR 67977. However, the Department is
concerned that this exception may be misused, delaying restoration in
instances where restoration to an equivalent position is possible or
where restoration to the same position may be possible but inconvenient
to the employer. The Department seeks comments on whether the physical
impossibility provision has indeed protected employees from
inappropriate discipline, or if it has been misused to unduly extend
employees' FMLA leave and diminish their FMLA entitlement, and whether
it should be retained in the regulations.
Current Sec. 825.205(b) addresses the rules concerning the
calculation of leave usage when leave is taken on an intermittent or
reduced leave schedule (calculation of leave for airline flight crew
employees is separately addressed in Sec. 825.205(d)). The Department
proposes only clarifying changes to this paragraph. The Department
proposes to include in the regulatory text language from the 2008 final
rule preamble to reinforce the requirement that the employee's total
available entitlement is 12 workweeks (or 26 workweeks in the case of
military caregiver leave), that FMLA leave does not accrue at any
particular hourly rate, and that the specific number of hours contained
in the workweek is dependent upon the hours the employee would have
worked but for the taking of the FMLA leave. 73 FR 67978. The
Department also proposes minor edits making uniform the references to
fractions contained in this paragraph.
Current Sec. 825.205(c) addresses when overtime hours that are not
worked may be counted as FMLA leave. The Department proposes to change
the term ``serious health condition'' in the last sentence in paragraph
(c) to ``FMLA qualifying reason.'' This editorial change is consistent
with the language used in the first sentence of the paragraph and more
accurately reflects that overtime hours missed by an employee may be
due to any FMLA-qualifying reason and are not limited to a serious
health condition.
Proposed Sec. 825.205 (d)(1) provides the method for calculating
leave usage for airline flight crew employees who are line holders and
is based on principles established for the calculation of leave for all
employees found in paragraph (b)(1) of this section. For line holders,
the number of duty hours scheduled will be used in determining the
employee's workweek for purposes of calculating FMLA leave usage. Duty
hours scheduled means the hours that the individual employee is
scheduled to work in the workweek in which FMLA leave is needed. It is
the Department's understanding that the line or block awarded to the
employee would readily yield the duty hours scheduled for any given
week. Further, it is the Department's understanding that duty hours
include the flight or block hours as determined by the FAA, as well as
the additional time before and after the flight encompassing pre- and
post-flight duties, as determined by employer policy or applicable
collective bargaining agreement. The Department believes the employee's
duty time best represents the time spent on the job and provides an
accurate characterization of the time needing job protection in the
event FMLA leave is needed by the employee.
Proposed paragraph (d)(2) of this section provides the method for
calculating leave usage for airline flight crew employees on reserve
status. The Department proposes to base the leave entitlement and
calculation of the employee's workweek on an average of the greater of
the applicable monthly guarantee or actual duty hours worked over the
prior 12 months. Under this proposal, the employee's average workweek
would be calculated by adding the greater of the applicable monthly
guarantee (the number of hours for which an employer has agreed to pay
the employee for any given month) or actual duty hours worked in each
of the previous 12 months and dividing by 52 weeks per year. This
average workweek would be the basis for FMLA leave usage for the 12-
month FMLA leave year. For example, if a reserve flight attendant has
worked or been paid an average of 20 hours per week over the prior 12
months, the employee would be entitled to 12 workweeks of 20-hours for
FMLA leave (or 26 workweeks in the case of leave to care for a covered
servicemember). If the flight attendant needs four hours of FMLA leave
in one workweek, the employee would use one-fifth (\1/5\) of a workweek
(4 hours / 20 hours/workweek). The principles established for the
calculation of leave for all employees found in paragraph (b)(1) of
this section continues to apply to these airline flight crew employees.
Due to the Department's understanding of the variation in scheduling
and actual hours worked by reserve airline flight crew employees and
variation during different times of the year, the Department proposes
this averaging method for calculating FMLA leave usage. The Department
acknowledges that, as with any averaging method, actual workweeks will
vary in any given situation.
In developing a proposed method to calculate FMLA-leave usage for
airline flight crew employees on reserve status, the Department
considered a methodology based on FLSA principles of ``hours worked,''
as is used for
[[Page 8976]]
employees other than airline flight crew employees. However, airline
flight crew employees are not paid strictly on a FLSA ``hours worked''
basis but rather based in part on the applicable monthly guarantee.
Airline flight crew employees on reserve status may work all, few, or
none of the hours for which they are paid in a given month. Thus, after
considering applying the FLSA ``hours worked'' method of leave
calculation to airline flight crew employees, the Department concluded
that the unique way in which airline flight crew employees are
scheduled and paid made this methodology impracticable. Through
consultations with airline employers and employee representatives, the
Department understands that airlines are already tracking and recording
airline flight crew employees' hours in a number of ways pursuant to
FAA regulations, including flight hours, duty hours, and mandatory rest
periods. See 14 CFR pt. 91. The Department believes that imposing a
FLSA ``hours worked'' methodology on the airline industry and thus
mandating yet another recordkeeping system would be unduly burdensome
and costly for employers, as well as unnecessarily confusing for
employees.
Rather, the Department believes the method of averaging in proposed
paragraph (d)(2) is better suited to the variable scheduling of reserve
airline flight crew members. Additionally, the method proposed is
consistent with current Sec. 825.205(b)(3), which provides that, where
an employee's schedule varies from week to week to such an extent the
employer is unable to determine the hours the employee would have
worked but for the taking of FMLA leave, the employer has the option to
establish a leave entitlement by using the weekly average of the hours
scheduled over the 12 months prior to the beginning of the leave
period. The Department believes proposed paragraph (d)(2) is consistent
with current FMLA calculation methods, best reflects Congressional
intent, and will provide access to FMLA leave for the largest number of
flight crew employees without requiring dramatic changes to existing
industry systems.
The Department also understands that some line holders may also
request additional work in reserve status. Where an employee is both a
line holder and on reserve status, the Department proposes that the
leave calculation should be made using the method set forth for reserve
airline flight crew employees, as this method is flexible enough to
encompass both the applicable monthly guarantee and duty hours. The
Department requests comment on industry practice in this area and
application of the FMLA regulations to such a scenario. The Department
also seeks comment on the proposed calculation of leave methods for
both line holders and airline flight crew employees on reserve status
and welcomes suggestions for alternative methods that equitably reflect
the employee's total normally scheduled hours and actual FMLA leave
taken.
3. Section 825.500 Recordkeeping Requirements
Current Sec. 825.500 details the recordkeeping requirements under
the FMLA. The Department proposes to add a new sentence at the end of
paragraph (g) setting forth the employer's obligation to comply with
the confidentiality requirements of the Genetic Information
Nondiscrimination Act of 2008 (GINA). To the extent that records and
documents created for FMLA purposes contain ``family medical history''
or ``genetic information'' as defined in the GINA, employers must
maintain such records in accordance with the confidentiality
requirements of Title II of GINA. GINA permits genetic information,
including family medical history, obtained by the employer in FMLA
records and documents to be disclosed consistent with the requirements
of the FMLA.
The Department proposes to define in a new paragraph (h) the
statutory requirement that employers of airline flight crew employees
maintain on file with the Secretary certain records. Consistent with
other recordkeeping requirements, proposed paragraph (h) makes clear
that records are to be maintained by the employer by making, keeping,
and preserving records in accordance with the requirements already
delineated in Sec. 825.500, with no actual submission to the Secretary
unless requested.
Additionally, proposed paragraph (h)(1) outlines additional records
that are required to be kept specific to employers of airline flight
crew employees. These additional records include any records or
documents that specify the applicable monthly guarantee for each type
of employee to whom the guarantee applies, including any relevant
collective bargaining agreements or employer policy documents that
establish the applicable monthly guarantee; as well as records of hours
scheduled, in order to be able to apply the leave calculation
principles contained in proposed Sec. 825.205(d).
C. Proposed Revisions to Forms, Appendices, and Definitions
1. Section 825.300 Employee and Employer Rights and Obligations Under
the Act
As previously discussed, the Department is proposing to delete the
Appendices to part 825 and to provide copies of the optional use forms
and the poster through local Wage and Hour Offices and the Wage and
Hour Web site. References to the Appendices have been deleted from the
following sections: Sec. 825.300 (Employer notice requirements), Sec.
825.306 (Content of medical certification for leave taken because of an
employee's own serious health condition or the serious health condition
of a family member), Sec. 825.309 (Certification for leave taken
because of a qualifying exigency), Sec. 825.310 (Certification for
leave taken to care for a covered servicemember (military caregiver
leave)), and Sec. 825.800 (Definitions). The Department also proposes
minor edits to Sec. 825.300 to reflect provisions of the FY 2010 NDAA
and AFCTCA.
2. Section 825.800 Definitions
The current Sec. 825.800 contains the definitions of significant
terms, phrases, and acronyms used in the regulations. The Department
proposes to move this section of the regulations to Sec. 825.102. This
reorganization is intended to enhance the utility of the regulations by
defining terms before they are used and in advance of the substantive
provisions. Moving the definitions section to the beginning of the
regulations is consistent with other regulations implementing statutes
administered by the WHD.
The Department proposes to make changes to definitions and
regulatory references in this section to maintain consistency with the
Department's proposed changes to the regulatory text. Specifically, the
terms modified are covered servicemember, eligible employee, serious
injury or illness, and son or daughter on covered active duty or an
impending call or order to covered active duty. Only the references
were updated to contingency operation, next of kin of a covered
servicemember, outpatient status, parent of a covered servicemember,
and son or daughter of a covered servicemember. In addition, the
Department proposes terms be added or removed to reflect the regulatory
changes made to incorporate the FY 2010 NDAA and AFCTCA amendments to
the regulations. The terms added are airline flight crew employee,
covered active duty or call to covered active duty status, applicable
[[Page 8977]]
monthly guarantee, line holder, and covered veteran. The terms removed
are active duty or call to active duty status and covered military
member.
The Department also proposes to add terms previously not listed in
this section but used in the current regulations and unchanged by this
NPRM as an aid and service to the reader. These terms are ITO or ITA,
key employee, military caregiver leave, reserve components of the Armed
Forces, and TRICARE.
IV. Paperwork Reduction Act
In accordance with the requirements of the Paperwork Reduction Act
of 1995 (PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5
CFR part 1320, the Department seeks to minimize the paperwork burden
for individuals, small businesses, educational and non-profit
institutions, Federal contractors, State, local, and tribal
governments, and other persons resulting from the collection of
information by or for the agency. The PRA typically requires an agency
to provide notice and seek public comments on any proposed collection
of information contained in a proposed rule. See 44 U.S.C.
3506(c)(2)(B); 5 CFR 1320.8. Persons are not required to respond to the
information collection requirements as contained in this proposal
unless and until they are approved by the Office of Management and
Budget (OMB) under the PRA at the final rule stage.
This paperwork burden analysis estimates the burdens for the
proposed regulations as drafted. The proposed regulations, as they
relate to the PRA, implement amendments to the military leave
provisions made by the FY 2010 NDAA, which extends the availability of
FMLA leave for qualifying exigencies to employee-family members of
members of the Regular Armed Forces and defines the deployments covered
by such leave, and extends FMLA military caregiver leave to employee-
family members of certain veterans with a serious injury or illness and
expands the provision of such leave to cover serious injuries or
illnesses that existed prior to a covered servicemember's active duty
and were aggravated in the line of duty while on active duty. The
proposed regulations also implement the AFCTCA, which establishes new
eligibility requirements for airline flight crew members and flight
attendants.
As will be more fully explained later, many of the estimates in the
analysis of the paperwork requirements derive from data developed for
the Preliminary Regulatory Impact Analysis (PRIA) under Executive
Orders 13563 and 12866. However, the specific needs that the PRA
analysis and PRIA are intended to meet often require that the data
undergo a different analysis to estimate burdens imposed by the
paperwork requirements from the analysis used in estimating the effect
the regulations will have on the economy. In addition for certain
sections, a range of values is provided in the PRIA; the PRA uses the
midpoint of those ranges. Consequently, the differing treatment that
must be undertaken in the PRA analysis and the PRIA of the proposed
regulatory changes may result in different results. For example, the
PRA analysis measures the additional burden of the information
collection on those who are providing information due to the proposed
regulatory changes; however, the PRIA measures the incremental changes
expected to result in the broader economy due to the proposed
regulatory changes. Thus, this PRA analysis will calculate the
additional paperwork burden in relation to the existing FMLA
information collection burden arising from this rule. Conversely, the
regulatory definition for collection of information for PRA purposes
specifically excludes the public disclosure of information originally
supplied by the Federal government to the recipient for the purpose of
disclosure to the public. 5 CFR 1320.3(c)(2). The PRIA, however, may
need to consider the impact of any regulatory changes in such
notifications provided by the government. Finally, the PRA definition
of ``burden'' can exclude the time, effort, and financial resources
necessary to comply with a collection of information that would be
incurred by persons in the normal course of their activities (e.g., in
compiling and maintaining business records) if the agency demonstrates
that the reporting, recordkeeping, or disclosure activities needed to
comply are usual and customary. 5 CFR 1320.3(b)(2). The PRIA, however,
must consider the economic impact of any changes in the proposed
regulation.
Circumstances Necessitating Collection: The FMLA requires private
sector employers of 50 or more employees and public agencies to provide
up to 12 weeks of unpaid, job-protected leave during any 12-month
period to eligible employees for certain family and medical reasons
(i.e., for the birth of a son or daughter and to care for the newborn
child; for placement with the employee of a son or daughter for
adoption or foster case; to care for the employee's spouse, son,
daughter, or parent with a serious health condition; to care for the
employee's own serious health condition that makes the employee unable
to perform the functions of his or her job; and to address qualifying
exigencies related to the military call up of a spouse, son, daughter,
or parent), and to provide up to 26 weeks of unpaid, job-protected
leave during a single 12-month period to eligible employees to provide
military caregiver leave to a covered servicemember. FMLA section 404
requires the Secretary of Labor to prescribe such regulations as
necessary to enforce this Act. 29 U.S.C. 2654. The proposed
regulations, which primarily pertain to the expansion of the military
family leave entitlements and the expansion of FMLA protections to
airline flight crews, will create additional burdens on the following
information collections.
A. Notice to Employee of FMLA Eligibility and Rights and
Responsibilities [29 CFR 825.300(b) and (c)]. When an employee requests
FMLA leave or when the employer acquires knowledge that an employee's
leave may be for an FMLA-qualifying condition, the employer must notify
the employee within five business days of the employee's eligibility to
take FMLA leave, or, alternatively, at least one reason why the
employee is not eligible for FMLA leave (e.g., applicable number of
months the employee has been employed by the employer, the number of
hours of service in the 12-month period, whether the employee is
employed at a worksite where 50 employees are employed at or within 75
miles of that worksite.) At the same time that the employer provides
eligibility notice, the employer must provide information detailing the
specific responsibilities of the employee, including any additional
requirements for qualifying for FMLA leave, and explain any
consequences of a failure to meet these responsibilities. If the
specific information provided by the notice changes, the employer must
inform the employee of the change within five business days of receipt
of the employee's first notice of the need for FMLA leave subsequent to
such change.
B. Designation Notice [29 CFR 825.300(d)]. The employer is
responsible in all circumstances for designating leave as FMLA-
qualifying, and for giving notice of the designation to the employee.
When the employer has enough information to determine whether the leave
is being taken for an FMLA-qualifying reason, the employer must notify
the employee whether the leave will be designated and will be counted
as FMLA leave. Only one notice of designation is required for each
FMLA-qualifying reason per
[[Page 8978]]
applicable 12-month period, regardless of whether the leave taken due
to the qualifying reason will be a continuous block of leave or
intermittent or reduced schedule leave.
C. Medical Certification and Recertification [29 CFR 825.100(d) and
825.305 through 825.308]. An employer may require that an employee's
leave to care for the employee's seriously ill spouse, son, daughter,
or parent, or due to the employee's own serious health condition that
makes the employee unable to perform one or more essential functions of
the employee's position, be supported by a certification issued by the
health care provider of the eligible employee or of the ill family
member. The employer must provide notice of this requirement in
writing. The employer may contact the employee's health care provider
for purpose of authentication and clarification of the medical
certification (whether initial certification or recertification) after
the employer has given the employee an opportunity to cure any
deficiencies. In addition, an employer must advise an employee whenever
it finds a certification incomplete or insufficient and state in
writing what additional information is necessary to make the
certification complete and sufficient. An employer, at his or her own
expense and subject to certain limitations, also may require an
employee to obtain a second and third medical opinion. In addition, an
employer may also request recertification under certain conditions. The
employer must provide the employee at least 15 calendar days to provide
the initial certification and any subsequent recertification. The
employer must provide seven calendar days (unless not practicable under
the particular circumstances despite the employee's good faith efforts)
to cure any deficiency identified by the employer.
D. Fitness-for-duty Medical Certification [29 CFR 825.100(d) and
825.312]. As a condition of restoring an employee whose FMLA leave was
occasioned by the employee's own serious health condition that made the
employee unable to perform the employee's job, an employer may have a
uniformly-applied policy or practice that requires all similarly-
situated employees (i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and present
certification from the employee's health care provider that the
employee is able to resume work. The employee has the same obligations
to participate and cooperate in providing a complete and sufficient
certification to the employer in the fitness-for-duty certification
process as in the initial certification process. An employer is
permitted to require an employee to furnish a fitness-for-duty
certificate every 30 days if an employee has used intermittent leave
during that period and reasonable safety concerns exist concerning the
employee's ability to perform his job.
E. Qualifying Exigency Leave [29 CFR 825.309]. Under the FY 2010
NDAA, qualifying exigency leave was expanded to include the members of
the Regular Armed Forces along with members of the National Guard and
Reserves, and to require that the deployment of both types of military
members be to a foreign country. Section 825.309 establishes that an
employer may require an employee to provide certification of the
servicemember's covered active duty or call to covered active duty
status. Pursuant to current Sec. 825.309(a), the employee may provide
a copy of the servicemember's active duty orders or other documentation
issued by the military which indicates that the servicemember is on
active duty or has been notified of an impending call or order to
active duty and the dates of the servicemember's active duty service.
Current section 825.309(b) establishes that when leave is taken for one
of the qualified exigencies specified in Sec. 825.126, an employer may
require the eligible employee to provide certification that sets forth
certain information. Current section 825.309(c) describes the optional
use form developed by the Department for employees' use in obtaining
certification that meets the FMLA's certification requirements. Current
section 825.309(d) establishes the verification process for the
certifications.
F. Leave to Care for a Covered Servicemember [29 CFR 825.310]. The
FY 2010 NDAA expanded the definition of covered servicemember to
include veterans, and permitted eligible employees to take leave to
care for certain veterans with a qualifying serious injury or illness.
It also permits leave to be taken for a covered servicemember whose
previously existing condition was aggravated by service in the line of
duty on active duty, and in the case of veterans, when the serious
illness or injury manifested before or after the servicemember became a
veteran. When an eligible employee requests FMLA leave to care for a
covered servicemember with a serious injury or illness, the employer
may require the employee to provide sufficient certification of the
serious injury or illness issued by an authorized health care provider.
Current section 825.310(a) permits an employer to require that certain
necessary information support the request for leave and defines the
health care providers who are authorized to provide such certification.
Current section 825.310(b) and (c) set forth the information an
employer may require from the authorized health care provider and the
employee, respectively, in order to support the request for leave.
Current section 825.310(d) describes the optional form developed by WHD
for employees' use in obtaining certification that meets the FMLA's
certification requirements. Current section 825.310(e) describes
alternatives to the optional form that employers must accept from
employees obtaining certifications in certain circumstances.
G. Notice to Employees of Change of 12-Month Period for Determining
FMLA Entitlement [29 CFR 825.200(d)(1)]. An employer generally must
choose a single uniform method from four options available under the
regulations for determining the 12-month period in which the 12-week
entitlement occurs for the purposes of FMLA leave. An employer wishing
to change to another alternative is required to give at least 60 days
notice to all employees.
H. Key Employee Notification [29 CFR 825.216(b), 825.217 through
825.219 and 825.300(c)(1)(v)]. An employer that believes that it may
deny reinstatement to a key employee must give written notice to the
employee at the time the employee gives notice of the need for FMLA
leave (or when FMLA leave commences, if earlier) that he or she
qualifies as a key employee. At the same time, the employer must also
fully inform the employee of the potential consequences with respect to
reinstatement and maintenance of health benefits if the employer should
determine that substantial and grievous economic injury to the
employer's operations would result if the employer were to reinstate
the employee from FMLA leave. If the employer cannot immediately give
such notice, because of the need to determine whether the employee is a
key employee, the employer must give the notice as soon as practicable
after receiving the employee's notice of a need for leave (or the
commencement of leave, if earlier). If an employer fails to provide
such timely notice, it loses its right to deny restoration, even if
substantial and grievous economic injury will result from
reinstatement.
As soon as an employer makes a good faith determination--based on
the facts available--that substantial and grievous economic injury to
its operations will result if a key employee who has given notice of
the need for FMLA leave or is
[[Page 8979]]
using FMLA leave is reinstated, the employer must notify the employee
in writing of its determination; that the employer cannot deny FMLA
leave; and that the employer intends to deny restoration to employment
on completion of the FMLA leave. The employer must serve this notice
either in person or by certified mail. This notice must explain the
basis for the employer's finding that substantial and grievous economic
injury will result, and, if leave has commenced, must provide the
employee a reasonable time in which to return to work, taking into
account the circumstances, such as the length of the leave and the
urgency of the need for the employee to return.
An employee may still request reinstatement at the end of the leave
period, even if the employee did not return to work in response to the
employer's notice. The employer must then determine whether there will
be substantial and grievous economic injury from reinstatement, based
on the facts at the time. If the employer determines that substantial
and grievous economic injury will result from reinstating the employee,
the employer must notify the employee in writing (in person or by
certified mail) of the denial of restoration.
I. Periodic Employee Status Reports [825.300(c)(2) and 825.311]. An
employer may require an employee to provide periodic reports regarding
the employee's status and intent to return to work.
J. Notice to Employee of Pending Cancellation of Health Benefits
[29 CFR 825.212(a)]. Unless an employer establishes a policy providing
a longer grace period, an employer's obligation to maintain health
insurance coverage ceases under FMLA if an employee's premium payment
is more than 30 days late. In order to drop the coverage for an
employee whose premium payment is late, the employer must provide
written notice to the employee that the payment has not been received.
Such notice must be mailed to the employee at least 15 days before
coverage is to cease and advise the employee that coverage will be
dropped on a specified date at least 15 days after the date of the
letter unless the payment has been received by that date.
K. Documenting Family Relationship [29 CFR 825.122(j)]. Current
section 825.122(j) permits an employer to require an employee giving
notice of the need for leave to provide reasonable documentation or
statement of family relationship. This documentation may take the form
of a child's birth certificate, a court document, or a simple statement
of the employee regarding family relationship. The employee is entitled
to the return of any official document submitted for this purpose.
L. Recordkeeping [29 CFR 825.500]. The FMLA provides that covered
employers shall make, keep, and preserve records pertaining to the FMLA
in accordance with the recordkeeping requirements of Fair Labor
Standards Act section 11(c), 29 U.S.C. 211(c), and regulations issued
by the Secretary of Labor. 29 U.S.C. 2616. The FMLA provides that no
employer or plan, fund, or program shall be required to submit books or
records more than once during any 12-month period unless the Department
has reasonable cause to believe a violation of the FMLA exists or is
investigating a complaint. 29 U.S.C. 2616(c).
Current section 825.500(c) requires employers to maintain basic
payroll and identifying employee data, including name, address, and
occupation; rate or basis of pay and terms of compensation; daily and
weekly hours worked per pay period; additions to or deductions from
wages; and total compensation paid; dates FMLA leave is taken by FMLA
eligible employees (available from time records, requests for leave,
etc., if so designated). Leave must be designated in records as FMLA
leave; leave so designated may not include leave required under State
law or an employer plan which is not also covered by FMLA; if FMLA
leave is taken by eligible employees in increments or less than one
full day, the hours of leave; copies of employee notices of leave
furnished to the employer under FMLA, if in writing, and copies of all
written notices given to employees as required under FMLA and these
regulations; any documents (including written and electronic records)
describing employee benefits or employer policies and practices
regarding the taking of paid and unpaid leave; premium payments of
employee benefits; records of any dispute between the employer and an
eligible employee regarding designation of leave as FMLA leave,
including any written statement from the employer or employee of the
reasons for the designation and for the disagreement. Under the AFCTCA
amendment, employers in the airline industry must also maintain records
that specify the applicable monthly guarantee for each type of employee
to whom the guarantee applies and must make these records available to
the Secretary of Labor upon request.
Current section 825.500(d) requires covered employers with no
eligible employees to maintain certain basic payroll and identifying
employee data. Current section 825.500(e) requires covered employers
that jointly employ workers with other employers to keep all the
records required by the regulations with respect to any primary
employees, and to keep certain basic payroll and identifying employee
data with respect to any secondary employees.
Current section 825.500(f) provides that if FMLA-eligible employees
are not subject to FLSA recordkeeping regulations for purposes of
minimum wage or overtime compliance (i.e., not covered by, or exempt
from, FLSA), an employer need not keep a record of actual hours worked
(as otherwise required under FLSA, 29 CFR 516.2(a)(7)), provided that:
Eligibility for FMLA leave is presumed for any employee who has been
employed for at least 12 months; and with respect to employees who take
FMLA leave intermittently or on a reduced leave schedule, the employer
and employee agree on the employee's normal schedule or average hours
worked each week and reduce their agreement to a written record.
Current section 825.500(g) requires employers to maintain records
and documents relating to any medical certification, recertification,
or medical history of an employee or employee's family member, created
for FMLA purposes as confidential medical records in separate files/
records from the usual personnel files. Employers must also maintain
such records in conformance with any applicable Americans with
Disability Act (ADA) confidentiality requirements; except that:
Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of an employee and necessary
accommodations; first aid and safety personnel may be informed, when
appropriate, if the employee's physical or medical condition might
require emergency treatment; and government officials investigating
compliance with the FMLA, or other pertinent law, shall be provided
relevant information upon request. To the extent that records and
documents created for FMLA purposes contain ``family medical history''
or ``genetic information'' as defined in the Genetic Information
Nondiscrimination Act of 2008 (GINA), employers must maintain such
records in accordance with the confidentiality requirements of Title II
of GINA. GINA permits genetic information, including family medical
history, obtained by the employer in FMLA records and documents to be
disclosed consistent with the requirements of the FMLA.
[[Page 8980]]
The FLSA record keeping requirements, contained in 29 CFR part 516,
are currently approved under Office of Management and Budget (OMB)
control number 1235-0018; consequently this information does not
duplicate their burden, despite the fact that for the administrative
ease of the regulated community this information collection restates
them.
Purpose and Use: The Department created optional use forms: WHD
Publication 1420, WH-380-E, WH-380-F, WH-381, WH-382, WH-384, and WH-
385, and is considering the creation of a new optional use form for the
certification of leave to care for a covered veteran, to assist
employers and employees in meeting their FMLA third party notification
obligations. WHD Publication 1420 allows employers to satisfy the
general notice requirement. See Sec. 825.300(a). Form WH-380-E allows
an employee requesting FMLA-leave for his or her own serious health
condition to satisfy the statutory requirement to furnish, upon the
employer's request, appropriate certification to support the need for
leave for the employee's own serious health condition. See Sec.
825.305(a). Form WH-380-F allows an employee requesting FMLA-leave for
a family member's serious health condition to satisfy the statutory
requirement to furnish, upon the employer's request, appropriate
certification to support the need for leave for the family member's
serious health condition. See Sec. 825.305(a). Form WH-381 allows an
employer to satisfy the regulatory requirement to provide employees
taking FMLA leave with written notice concerning eligibility status and
detailing specific expectations and obligations of the employee and
explaining any consequences of a failure to meet these obligations. See
Sec. 825.300(b) and (c). Form WH-382 allows employers to satisfy the
regulatory requirement of designating leave as FMLA-qualifying. See
Sec. 825.301(a). Form WH-384 allows an employee requesting FMLA leave
based on a qualifying exigency to satisfy the statutory requirement to
furnish, upon the employer's request, appropriate certification to
support leave for a qualifying exigency. See Sec. 825.309. Form WH-385
currently allows an employee requesting FMLA leave based on an active
duty covered servicemember's serious injury or illness to satisfy the
statutory requirement to furnish, upon the employer's request, a
medical certification from an authorized health care provider. See
Sec. 825.310. The Department is considering the development of a
separate optional form for the certification for a serious injury or
illness of a covered veteran, or alternatively amending form WH-385 to
cover certification of the serious injury or illness of both an active
duty servicemember and a covered veteran.
While use of the Department's forms is optional, the regulations
require employers and employees to make the third-party disclosures
that the forms cover. The FMLA third-party disclosures ensure that both
employers and employees are aware of and can exercise their respective
rights and meet their respective obligations under the FMLA. The
recordkeeping requirements are necessary in order for the Department to
carry out its statutory obligation under FMLA Sec. 106, 29 U.S.C.
2616, to investigate and ensure employer compliance. The WHD uses these
records to determine employer compliance.
Information Technology: The proposed regulations continue to
prescribe no particular order or form of records. See Sec. 825.500(b).
The preservation of records in such forms as microfilm or automated
word or data processing memory is acceptable, provided the employer
maintains the information and provides adequate facilities to the
Department for inspection, copying, and transcription of the records.
In addition, photocopies of records are also acceptable under the
regulations. Id.
Aside from the basic requirement that third-party notifications be
in writing, with the possible exception for the employee's FMLA request
(which depends on the requirements of the employer's leave policies),
there are no restrictions on the method of transmission. Employers and
employees may meet many of their notification obligations by using DOL-
prepared forms and publications available on the WHD Web site,
www.dol.gov/whd. These forms are in a PDF, fillable format for
downloading and printing. Employers may keep records that comply with
the recordkeeping requirements covered by this information collection
in any form, including electronic.
Minimizing Duplication: The FMLA information collections do not
duplicate other existing information collections. In order to provide
all relevant FMLA information in one set of requirements, the
recordkeeping requirements restate a portion of the records employers
must maintain under the FLSA. Employers do not need to duplicate the
records when basic records maintained to meet FLSA requirements also
document FMLA compliance. With the exception of records specifically
tracking FMLA leave, the additional records required by the FMLA
regulations, including records that must be maintained by covered
employers in the airline industry as outlined in proposed Sec.
825.500(h), are records that employers ordinarily maintain in the usual
and ordinary course of business. The regulations do impose, however, a
three-year minimum time limit that employers must maintain the records.
The Department minimizes the FMLA information collection by accepting
records maintained by employers as a matter of usual or customary
business practices to the extent those records meet FMLA requirements.
The Department also accepts records kept due to other governmental
requirements (e.g., records maintained for tax and payroll purposes).
The Department has reviewed the needs of both employers and employees
to determine the frequency of the third-party notifications covered by
this collection to establish frequencies that provide timely
information with the least burden. The Department has further minimized
any burden by developing prototype notices for the third-party
disclosures covered by this information collection.
Agency Need: The Department is assigned a statutory responsibility
to ensure employer compliance with the FMLA. The Department uses
records covered by the FMLA information collection to determine
compliance, as required of the agency by FMLA Sec. 107(b)(1). 29
U.S.C. 2617(b)(1). Without the third-party notifications required by
the law and/or regulations, employers and employees would have
difficulty knowing their FMLA rights and obligations.
Special Circumstances: Because of the unforeseeable and often
urgent nature of the need for FMLA leave, notice and response times
must be of short duration to ensure that employers and employees are
sufficiently informed and can exercise their FMLA rights and
obligations. The discussion above outlines the circumstances
necessitating the information collection and provides the details of
when employees and employers must provide certain notices.
Public Comments: The Department seeks public comments regarding the
burdens imposed by the information collection contained in this
proposed rule. In particular, the Department seeks comments that
evaluate whether the proposed collection of information is necessary
for the proper performance of the functions of the agency, including
whether the information will have
[[Page 8981]]
practical utility; evaluate the accuracy of the agency's estimate of
the burden of the proposed collection of information, including the
validity of the methodology and assumptions used; enhance the quality,
utility, and clarity of the information to be collected; and minimize
the burden of the collection of information on those who are to
respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submissions of responses. Commenters may send their views about these
information collections to the Department in the same way as all other
comments (e.g., through the regulations.gov Web site). All comments
received will be made a matter of public record, and posted without
change to http://www.regulations.gov, including any personal
information provided.
An agency may not conduct an information collection unless it has a
currently valid OMB approval, and the Department has submitted the
identified information collection contained in the proposed rule to OMB
for review under the PRA under Control Number 1235-0003. See 44 U.S.C.
3507(d); 5 CFR 1320.11. While much of the information provided to the
OMB in support of the information collection request appears in this
preamble, interested parties may obtain a copy of the full supporting
statement by sending a written request to the mail address shown in the
ADDRESSES section at the beginning of this preamble or by visiting the
http://www.reginfo.gov/public/do/PRAMain Web site.
In addition to having an opportunity to file comments with the
Department, comments about the FMLA information collection requirements
may be addressed to the OMB. OMB encourages commenters to submit
comments by emailing them to [email protected] or faxing
them to (202) 395-7285. While commenters are encouraged to email or fax
their comments to OMB to ensure timely receipt of comments, commenters
may mail OMB their comments by using the following mailing address:
Office of Information and Regulatory Affairs, Attention: OMB Desk
Officer for the Wage and Hour Division, Office of Management and
Budget, 725 17th Street NW., Room 10235, Washington, DC 20503.
Confidentiality: Much of the information covered by this
information collection consists of third-party disclosures. Employers
generally must maintain records and documents relating to any medical
certification, recertification, or medical history of an employee or
employee's family members as confidential medical records in separate
files/records from usual personnel files. Employers must also generally
maintain such records in conformance with any applicable ADA and/or
GINA confidentiality requirements. As a practical matter, the
Department would only disclose agency investigation records of
materials subject to this collection in accordance with the provisions
of the Freedom of Information Act, 5 U.S.C. 552, and the attendant
regulations, 29 CFR part 70, and the Privacy Act, 5 U.S.C. 552a, and
its attendant regulations, 29 CFR part 71.
Hours Burden Estimates: The Department bases the following burden
estimates on the estimates the PRIA presented elsewhere in this
document, except as otherwise noted. The Department estimates that
there are 381,000 covered employers with 1.2 million establishments.
There are 72.9 million employees working for covered employers who are
eligible for leave. In 2005, 7 million employees took leave. 73 FR
7938.
A. Employee Notice of Need for FMLA Leave. While employees normally
will provide general information regarding their absences, the
regulations may impose requirements for workers to provide their
employers with more detailed information than might otherwise be the
case. The Department estimates that providing this additional
information will take approximately two minutes per employee notice of
the need to take FMLA leave.
The Department estimates that there are 193,000 employees who are
newly eligible to take leave for a qualifying exigency under the FY
2010 NDAA. Based on leave usage patterns, 30,900 of these employees
will take leave for a qualifying exigency (16 percent of 193,000
employees). Based on the leave patterns estimated by the Department
discussed in the PRIA, the Department estimates that there will be
679,800 employee requests for qualifying exigency leave.
The Department also estimates that there are 59,700 employees who
are newly eligible to take leave to care for a covered veteran under
the FY 2010 NDAA. Based on leave usage patterns, 15,500 of these
employees will take leave to care for a covered veteran (26 percent of
117,790 employees). Based on the leave patterns estimated by the
Department in the PRIA analysis, the Department estimates that there
will be 790,500 employee requests for leave to care for a covered
veteran.
The Department also estimates that there are 129,760 flight crew
members eligible to take FMLA leave. However, some of these employees
may already be entitled to leave similar to FMLA leave under collective
bargaining agreements. Consequently, the Department anticipates that
there are 90,560 airline flight crew employees who may be newly
entitled to FMLA leave pursuant to AFCTCA. The Department estimates
that 5,951 of these employees will take FMLA leave (5 percent of
eligible pilots and 7.9 percent of eligible flight attendants). The
PRIA analysis provides an explanation for how these numbers were
determined. The Department also anticipates that each of these
employees will provide his or her employer with 1.5 notices of need for
FMLA leave, totaling 8,930 employee requests for FMLA leave.
New burden: 1,479,230 responses (employee notices of leave) x 2
minutes/60 minutes per hour = 49,308 hours.
Existing employee notification requirements unaffected by this NPRM
already impose an estimated burden of 13,419,050 responses and 447,302
hours.
Total burden for this requirement is estimated to be 14,898,280
responses and 496,610 hours.
B. Notice to Employee of FMLA Eligibility and Rights and
Responsibilities. The Department estimates that each written notice to
an employee of FMLA eligibility and notice of rights and
responsibilities takes approximately ten minutes. The number of
eligibility and rights and responsibilities notices that employers must
provide is equal to the number of leave takers.\3\ The Department
estimates
[[Page 8982]]
that employers will provide 55,330 FMLA eligibility and rights and
responsibilities notices to employees under the new military and
airline amendments to the FMLA. Employers may use optional Form WH-381
to satisfy this requirement.
---------------------------------------------------------------------------
\3\ Based on the leave patterns for qualifying exigency and
military caregiver leave, the Department is assuming that all
subsequent leave requests will be for the same servicemember for
whom the leave was originally requested. The employee is required to
notify the employer in each instance of the need for leave. But the
employer is not required to provide the employee with a notice of
eligibility or rights and responsibilities notice each time the
employee requests the leave unless the employee's eligibility status
changes. For qualifying exigency leave, 30,900 leave takers will
provide 679,800 employer notices of their need for leave. For
military caregiver leave, 15,500 leave takers will provide 790,500
employer notices of their need for leave. However, employers will
only have to issue 46,400 eligibility notices and rights and
responsibilities notices.
However, for the eligible employees who are airline flight crew
members, the Department is assuming that each of the employees' 1.5
employer notices of the need for leave are for different FMLA-
qualifying reasons, and therefore employers will need to provide a
notice of eligibility and a notice of rights and responsibilities
for each request for leave. 5,951 leave takers will issue 8,930
employer notices for leave (5,951 x 1.5 leaves = 8,930 notices).
Employers will issue 8,930 notices of eligibility and notices or
rights and responsibilities.
---------------------------------------------------------------------------
New burden: 55,330 total responses (notices of eligibility and
rights and responsibilities) x 10 minutes/60 minutes per hour = 9,222
hours.
Existing employee eligibility and rights and responses notification
requirements unaffected by this NPRM already impose an estimated burden
of 21,764,900 responses and 9,491,476 hours.
Total burden for this requirement is estimated to be 21,820,230
responses and 9,500,698 hours.
C. Employee Certifications
1. Medical Certification and Recertification. The Department
estimates that 90 percent of airline flight crew employees who take
FMLA leave will do so for a serious health condition of their own or
that of a family member. The Department also assumes, due to the safety
concerns of the airline industry, that employers will require that all
of these employees provide medical certification to their employer. As
it did in the 2008 paperwork analysis, and with no present reason to
change its estimate, the Department further estimates that second or
third opinions and/or recertifications add 15 percent to the total
number of certifications, and that employees spend 20 minutes in
obtaining the certifications.\4\ Employers may have employees use
optional Forms WH-380-E and WH-380-F to satisfy this statutory
requirement.
---------------------------------------------------------------------------
\4\ The estimated time of 20 minutes reflects the Department's
expectation that it will take 20 minutes to complete optional form
WH-380. The Department assumes that while visiting the health care
provider for a previously scheduled appointment, the individual will
have the certification completed by the doctor's office.
---------------------------------------------------------------------------
5,951 airline flight crew employees taking leave x 90% rate for a
serious health condition x 90% of employees asked to provide initial
medical documentation = 4,820 employees providing initial medical
certification.
New burden: 4,820 x 1.15 subsequent medical certifications = 5,543
total employee medical certifications.
5,543 x 20 minutes/60 minutes per hour = 1,848 hours.
The Department does not associate a paperwork burden with the
portion of this information collection that employers complete since--
even absent the FMLA--similar information would customarily appear in
their internal instructions requesting a medical certification or
recertification. The Department accounts for health care provider
burdens to complete these certifications as a ``maintenance and
operation'' cost burden, which is discussed later.
2. Fitness-for-Duty Medical Certification. The Department assumes
that the Federal Aviation Authority (FAA) requires airline flight crew
employees, specifically pilots and flight attendants, to receive
regular medical evaluations as a condition of their continued
employment. Therefore the Department estimates that 50 percent of
airline pilots and 10 percent of flight attendants will be required to
submit fitness-for-duty medical certifications pursuant to the FMLA
regulations. The Department estimates that completing a fitness-for-
duty certification will take an employee ten minutes.
New burden: 25,135 responses (employee certifications) x 10
minutes/60 minutes per hour = 4,189 hours.
3. Certification of Qualifying Exigency for Military Family Leave.
The Department estimates that 30,900 employee-family members will be
eligible to take FMLA leave to address qualifying exigencies due to the
expansion of qualifying exigency leave under the FY 2010 NDAA to
certain family members of members of the Regular Armed Forces. The
Department estimates that employers will request certification from
30,900 employees for qualifying exigency leave. Employers may use
optional Form WH-384 to satisfy this requirement. The Department
further estimates that it will take approximately 20 minutes for a
Human Resources staff member to request, review, and verify the
employee's certification papers.
New burden: 30,900 total responses (employee qualifying exigency
leave certifications) x 20 minutes/60 minutes per hour = 10,300 hours.
4. Certification for Leave Taken to Care for a Covered
Servicemember--Current Servicemember. Pursuant to the FY 2010 NDAA, an
eligible employee-family member may take FMLA leave to care for a
current servicemember who has a serious injury or illness that existed
before the member's active duty and was aggravated by service in the
line of duty while on active duty. At this time the Department does not
have sufficient information to develop an estimate of employees who
will qualify for military caregiver leave for a covered servicemember
with a serious injury or illness that existed prior to the
servicemember's active duty and was aggravated in the line of duty on
active duty. Accordingly, the Department will not revise the current
burden analysis for certification of leave to care for a current
servicemember at this time. The Department will review the comments
that it receives in response to the NPRM and based on the received
comments may revise the burden analysis at the final rule stage.
5. Certification for Leave Taken to Care for a Covered
Servicemember--Covered Veteran. The FY 2010 NDAA provided FMLA leave
for eligible employees to care for a covered veteran with a serious
injury or illness that was incurred in the line of duty on active duty
(or existed before the member's active duty and was aggravated in the
line of duty on active duty) and manifested itself before or after the
member became a veteran. The Department estimates that 15,500 employees
will be eligible to take leave to care for a covered veteran. The
Department expects that employers will request certification forms for
this leave. The Department estimates that it will take a Human
Resources specialist 30 minutes to request, review, and verify the
employee's certification papers.
New burden: 15,500 responses (certification papers) x 30 minutes/60
minutes per hour = 7,750 hours.
All new certification and recertification requirements as a result
of this NPRM impose a burden of 77,078 responses and 24,087 hours.
All existing certification and recertification requirements
unaffected by this NPRM already impose an estimated burden of
12,080,153 responses and 4,009,851 hours.
Total burden for this requirement is estimated to be 12,157,231
responses and 4,033,938 hours.
D. Notice to Employees of FMLA Designation. The Department
estimates that each written FMLA designation notice takes approximately
10 minutes to complete.
New burden: 55,330 total responses (designation notices) x 10
minutes/60 minutes per hour = 9,222 hours.
Existing designation notification requirements unaffected by this
NPRM already impose an estimated burden of 17,383,325 responses and
4,693,574 hours.
Total burden for this requirement is estimated to be 147,438,655
responses and 4,702,796 hours.
E. Notice to Employees of Change of 12-month period of determining
FMLA eligibility. The Department assumes that 10 percent of covered
airline employers will choose to change their 12-month period for
determining eligibility since the AFCTCA. The Department also assumes
these employers will employ 10 percent of newly added eligible
[[Page 8983]]
employees in the airline industry. The Department continues to estimate
from the 2008 analysis that it will take an employer 10 minutes to make
this employee notification, and this time was amortized to 1.79336117
seconds per individual response.
90,560 newly added employees in the airline industry x 10% for
employers who change the period = 9,056 responses.
9,056 responses x 1.79336117 = 5 hours.
Existing similar notification requirements unaffected by this NPRM
already impose a burden of 9,580,000 responses and 4,772 hours.
Total burden for this requirement is estimated to be 9,589,056
responses and 4,777 hours.
F. Key Employee Notification. The Department assumes that a very
small percentage of airline flight crew employees will be determined
key employees. As such, the Department does associate a burden hour
estimate with this provision.
Existing notification requirements unaffected by this NPRM already
impose a burden of 42,787 responses and 3,566 hours.
Total burden for this requirement is estimated to be 42,787
responses and 3,566 hours.
G. Periodic employee status reports. The Department estimated in
the 2008 paperwork analysis that employers require periodic status
reports from 25 percent of FMLA-leave users, and since it has not
received any evidence to believe otherwise, it continues to estimate 25
percent today. The Department also estimates that a typical employee
would normally respond to an employer's request for a status report;
however to account for any burden the regulations may impose, the
Department estimates that 10 percent of employees will respond to the
request only because of the regulatory requirement, imposing a burden
of two minutes per response. The Department also estimates that each
such employee provides two periodic status reports.
New burden: 52,351 leave takers x 25% rate of employer requests x
10% of employees who comply due to the regulations = 1,309 employee
responses.
1,309 employee responses x 2 responses = 2,618 total responses.
2,618 responses x 2 minutes/60 minutes = 87 hours.
Existing status report notification requirements unaffected by this
NPRM already impose an estimated burden of 369,704 responses and 12,323
hours.
Total burden for this requirement is estimated to be 372,322
responses and 12,410 hours.
H. Documenting Family Relationships. As it did in the 2008
analysis, the Department estimates that 50 percent of traditional FMLA
leave takers do so for ``family'' related reasons, such as caring for a
newborn or recently adopted child or a qualifying family member with a
serious health condition. 73 FR 7939. As such, the Department assumes
that 50 percent of airline flight crewmembers who take leave will take
it for family reasons. (2,976 of 5,951 leave takers). Under the
military amendments all employees who take leave will be doing so for a
family-related reason. (46,400 leave takers).
As it did in the 2008 analysis, the Department estimates that
employers may require additional documentation to support a family
relationship in five percent of these cases, and the additional
documentation will require 5 minutes.
New burden: 49,376 (employees taking leave for family-related
reasons) x 5% (additional documentation) = 2,469 employees required to
document family relationships.
2,469 employees x 5 minutes/60 minutes per hour = 206 hours.
Existing family documentation requirements unaffected by this NPRM
already impose an estimated burden of 183,987 responses and 15,332
hours.
Total burden for this requirement is estimated to be 186,456
responses and 15,538 hours.
M. Notice to employee of pending cancellation of health benefits.
Pursuant to the AFCTCA, airline flight crew employees are newly
eligible to take FMLA-qualifying leave. However, the Department
believes employer policies and agreements that airline flight crew
employees may be a party to preclude employers from canceling
employees' health benefits. Therefore, at this time the Department will
not revise the current burden analysis for employee notice of pending
cancellation of health benefits. The Department will review the
comments that it receives in response to the NPRM, and based on the
received comments may revise the burden analysis at the final rule
stage.
Existing notification requirements unaffected by this NPRM already
impose a burden of 142,619 responses and 11,885 hours.
N. General Recordkeeping. The Department believes that the FMLA
does not impose any additional burden on employers in the airline
industry, as the records required to be maintained by the FMLA should
already be maintained by the employers as part of their usual and
customary business practices. Therefore, the Department is not
proposing a new burden hour estimate for this provision.
The existing estimated burden for these elements is 13,419,050
responses and 279,564 hours.
Total burden for this requirement is estimated to be 13,419,050
responses and 279,564 hours.
Other respondent cost burdens (maintenance and operation): Airline
flight crew employees seeking FMLA-leave for their own serious health
condition or the serious health condition of a family member, must
obtain, upon their employers' request, a certification of their own or
family member's serious health condition. Similarly, employees seeking
FMLA leave for military caregiver leave must obtain, upon their
employer's request, a certification of the covered servicemember's
serious injury or illness. Often the health care provider's office
staff completes the form for the provider's signature. In other cases,
the health care provider personally completes it. In the 2008 analysis,
the Department assumed that while most health care providers do not
charge for completing these certifications, some do. The Department has
no reason to believe that this assumption has changed since its last
analysis.
The Department estimates that it will take approximately 20 minutes
to complete a certification for a serious health condition, and 10
minutes to complete a fitness for duty certification. The time would
equal the employee's time in obtaining the certification. The
Department used the median hourly wage for a physician's assistant of
$41.54 plus 40 percent in fringe benefits to compute cost of $19.39 for
the certification of a serious health condition ($58.17 x 20 minutes/60
minutes per hour), and $9.69 for the fitness-for-duty certification.
See BLS Occupational Employment Statistics, Occupational Employment and
Wages, May 2010, http://www.bls.gov/oes/current/oes291071.htm.
The Department estimates that it will take approximately 20 minutes
to complete the certification for a covered veteran. Thus, the time
would equal the employee's time in obtaining the certification. The
Department used the median hourly wage for a physician's assistant of
$41.54 plus 40 percent in fringe benefits to compute cost of $19.39 for
the certification to care for covered veteran ($58.17 x 20 minutes/60
minutes per hour). See BLS Occupational Employment Statistics,
Occupational Employment and Wages, May 2010, http://www.bls.gov/oes/current/oes291071.htm.
[[Page 8984]]
New burden: 15,500 medical certifications for covered veterans x
$19.39 cost per certification = $300,545.
The maintenance and operations cost estimate for the existing FMLA
information collections is $162,821,810.
Grand total of maintenance and operations cost burden for
respondents = $163,122,355.
The burden imposed by this information collection, as proposed to
be revised, is summarized as follows:
Agency: Wage and Hour Division.
Title of Collection: Family and Medical Leave Act, as Amended.
OMB Control Number: 1235-0003.
Affected Public: Individuals or Households; Private Sector--
Businesses or other for profits.
Not-for-profit institutions, Farms: State, Local or Tribal
Governments.
Total Estimated Number of Respondents: 7,301,451 (52,351 added by
this NPRM).
Total Estimated Number of Responses: 91,066,686 (1,681,111 added by
this NPRM).
Total Estimated Annual Burden Hours: 19,061,782 (92,137 added by
this NPRM).
Total Estimated Annual Other Costs Burdens: $163,122,355 ($300,545
added by this NPRM).
V. Executive Order 12866; Executive Order 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action'' although not economically significant, under section 3(f) of
Executive Order 12866. However, in keeping with the spirit of Executive
Order 12866, the Department had the rule reviewed by OMB. The Family
and Medical Leave Act (FMLA or Act) is administered by the U.S.
Department of Labor, Wage and Hour Division (WHD). The FMLA provides a
means for employees to balance their work and family responsibilities
by taking unpaid leave for certain reasons. The Act is intended to
promote the stability and economic security of families as well as the
nation's interest in preserving the integrity of families.
The FMLA applies to any employer in the private sector engaged in
commerce or in an industry or activity affecting commerce who employed
50 or more employees each working day during at least 20 weeks in the
current or preceding calendar year; all public agencies and local
education agencies; and most Federal employees.\5\
---------------------------------------------------------------------------
\5\ Most Federal employees are covered under Title II of the
FMLA (incorporated in Title V, Chapter 63, Subchapter 5 of the U.S.
Code), which is administered by the Office of Personnel Management
under regulations set forth at 5 CFR Part 630, Subpart L.
---------------------------------------------------------------------------
To be eligible for leave, an individual must:
[ssquf] Be employed by a covered employer at a worksite that
employs at least 50 employees within 75 miles;
[ssquf] Have worked at least 12 months for the employer (not
necessarily consecutively); and
[ssquf] Have at least 1,250 hours of service during 12 months
preceding the beginning of the FMLA leave (as discussed herein, special
hours of service rules apply to airline flight crew employees).
The FMLA provides for job-protected, unpaid leave, which may be
continuous or intermittent, and allows for the substitution of paid
leave. Employees are entitled to:
[ssbox] A combined total of 12 workweeks of leave in a 12-month period
for:
[cir] Birth and care of the employee's child (within one year);
[cir] Placement with employee of a child for adoption or foster
care (within one year);
[cir] Care of a spouse, child, or parent with serious health
condition;
[cir] The employee's own serious health condition; and
[cir] Qualifying exigency arising out of the fact that the
employee's spouse, son, daughter, or parent is a military member and is
on covered active duty or has been notified of an impending call or
order to covered active duty.
Employees are also entitled to 26 workweeks of leave in a single
12-month period to care for a covered servicemember with a serious
injury or illness if the employee is the spouse, son, daughter, parent,
or next of kin of the servicemember.
A. Need for Regulation
The proposed changes to the FMLA regulations are primarily to
implement statutory amendments to the FMLA's military family leave
provisions and separate statutory changes affecting the eligibility
requirements for airline flight crewmembers and flight attendants
(collectively referred to as airline flight crew employees).
Additionally, the military statutory amendments are designed to make it
easier for workers with family in military service to balance their
work and family lives during particularly demanding times without the
fear of losing their jobs. 73 FR 68070. The amendments relating to the
airline flight crew employees established a special hours of service
eligibility requirement in order to address this industry's unique
scheduling practices and expand access to FMLA-protected leave for
flight crew employees.
1. National Defense Authorization Act for Fiscal Year 2010 Amendments
On October 28, 2009, the President signed into law the 2010
National Defense Authorization Act (FY 2010 NDAA), Public Law 111-84.
Section 565(a) of the FY 2010 NDAA amends the FMLA. These amendments
expand the military family leave provisions added to the FMLA in 2008,
which provide qualifying exigency and military caregiver leave for
employees with family members who are covered military members.
The FY 2010 NDAA amendments to the FMLA provide that an eligible
employee may take FMLA leave for any qualifying exigency arising out of
the fact that the employee's spouse, son, daughter, or parent is on (or
has been notified of an impending call to) ``covered active duty'' in
the Armed Forces. ``Covered Active Duty'' for members of a regular
component of the Armed Forces means duty during deployment of the
member with the Armed Forces to a foreign country. For members of the
U.S. National Guard and Reserves it means duty during deployment of the
member with the Armed Forces to a foreign country under a call or order
to active duty in a contingency operation as defined in section
101(a)(13)(B) of title 10, United States Code. Prior to the FY 2010
NDAA amendments, (1) qualifying exigency leave did not apply to
employees with family members serving in a regular component of the
Armed Forces and (2) qualifying exigency leave for family members of
members of the National Guard and Reserves was not limited to
deployment to a foreign country in support a contingency operation.
The FY 2010 NDAA also expands the military caregiver leave
provisions of the FMLA. Military caregiver leave entitles an eligible
employee who is the spouse, son, daughter, parent, or next of kin of a
``covered servicemember'' to take up to 26 workweeks of FMLA leave in a
``single 12- month period'' to care
[[Page 8985]]
for a covered servicemember with a serious injury or illness. Under the
FY 2010 NDAA amendments, the definition of ``covered servicemember'' is
expanded to include a veteran ``who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness'' if the
veteran was a member of the Armed Forces ``at any time during the
period of 5 years preceding the date on which the veteran undergoes
that medical treatment, recuperation, or therapy.'' Prior to the FY
2010 NDAA amendments, military caregiver leave was limited to care for
current members of the U.S. Armed Forces, including members of the
Regular Armed Forces and members of the National Guard and Reserves.
In addition, the FY 2010 NDAA amends the FMLA's definition of a
``serious injury or illness'' for a current member of the U.S. Armed
Forces, including National Guard or Reserves, to include not only a
serious injury or illness that was incurred by the member in the line
of duty on active duty but also one that ``existed before the beginning
of the member's active duty and was aggravated by service in line of
duty on active duty in the Armed Forces'' that may render the member
medically unfit to perform the duties of the member's office, grade,
rank, or rating. For covered veterans, the term is defined as ``a
qualifying (as defined by the Secretary of Labor) injury or illness
that was incurred by the member in line of duty on active duty in the
Armed Forces (or existed before the beginning of the member's active
duty and was aggravated by service in line of duty on active duty in
the Armed Forces) and that manifested itself before or after the member
became a veteran.''
2. Airline Flight Crew Technical Amendments
On December 21, 2009, the President signed into law the Airline
Flight Crew Technical Corrections Act, Public Law 111-119. This
amendment to the FMLA establishes a special hours of service
eligibility requirement for airline flight crew employees. This
amendment also permits the Secretary of Labor to provide by regulation
a method of calculating FMLA leave for airline flight crew employees.
Airline flight crew employees continue to be subject to the FMLA's
other eligibility requirements.
The amendment provides that an airline flight attendant or flight
crew member meets the hours of service requirement if, during the
previous 12-month period, he or she has worked or been paid for:
[ssbox] Not less than 60 percent of the applicable total monthly
guarantee (or its equivalent), and
[ssbox] Not less than 504 hours, not including personal commute
time, or time spent on vacation, medical, or sick leave.
Prior to this amendment, many flight crew employees were not eligible
for FMLA leave because the nature of the airline industry, including
regulatory limits on the flying time, prevented them from meeting the
required 1,250 hours of service requirement. Airline employees other
than flight crew employees continue to be subject to the 1,250 hours of
service eligibility requirement with hours of service determined
according to principles established under the FLSA for compensable work
time (i.e., ``hours worked'').
Summary of Impacts \6\
---------------------------------------------------------------------------
\6\ On certain provisions, the Department provides a range of
estimates. Where the ranges provide a summary of information, the
midpoint of the range is represented.
---------------------------------------------------------------------------
The Department projects that the average annualized cost of the
rule will be somewhat more than $61 million per year over 10 years. The
rule is expected to cost $72.3 million in the first year, and $59.8
million per year in subsequent years. The amendment to extend FMLA
provisions to flight crew employees accounts for 0.5 percent of first
year costs and 0.7 percent in subsequent years, while military exigency
and caregiver leave account for 81.4 percent of first year costs and
99.4 percent of costs in subsequent years. Regulatory familiarization
costs account for 17.4 percent of first year costs. By provision, the
costs related to the provision of health benefits account for the
largest share of costs, about 44.5 percent of costs in the first year
of the rule, and 53.9 percent of costs each in each of the following
years.
Table 1-1--Summary of Impact of Proposed Changes to FMLA
----------------------------------------------------------------------------------------------------------------
Annualized ($1000)
-------------------------------
Component Year 1 ($1000) Year 2 ($1000) Real discount Real discount
rate 3% rate 7%
----------------------------------------------------------------------------------------------------------------
Total........................................... $72,398 $59,791 $61,226 $61,469
By Amendment * * *
Any FMLA revision........................... 12,607 0 1,435 1,678
Flight Crew Technical Amendment............. 372 372 372 372
NDAA 2010................................... 59,419 59,419 59,419 59,419
Qualifying Exigency..................... 23,052 23,052 23,052 23,052
Expanded R&R Leave...................... 2,781 2,781 2,781 2,781
Military Caregiver...................... 33,587 33,587 33,587 33,587
By Requirement * * *
Regulatory Familiarization.................. 12,607 0 1,435 1,678
Employer Notices............................ 26,851 26,851 26,851 26,851
Certifications.............................. 722 722 722 722
Health Benefits............................. 32,218 32,218 32,218 32,218
----------------------------------------------------------------------------------------------------------------
B. Proposed Impacts
1. Industry Profile
The first step in the analysis is to estimate the number of firms,
establishments and employees in the public and private sectors that
will be impacted by the proposed changes. The Department estimates that
there are a total of 7.9 million firms and government agencies with
10.6 million establishments in the U.S.\7\ These entities employ 133
million workers with an annual payroll of $5.9 trillion.\8\
[[Page 8986]]
Estimated annual revenues equal $33.2 trillion and estimated net income
is $1.1 trillion.\9\
---------------------------------------------------------------------------
\7\ Number of firms and establishments includes private
industry, farms, and governments.
\8\ The Department's analysis is based on: USDA 2007 Census of
Agriculture, available at: http://www.agcensus.usda.gov/Publications/2007/index.asp; 2007 Annual Survey of State and Local
Government Employment and Payroll, available at: http://www.census.gov/govs/estimate/; and Unpublished Special Tabulations
produced by the Bureau of Labor Statistics, Quarterly Census of
Employment and Wages (QCEW) Program. For more information on the
QCEW program, please see the Web site: http://www.bls.gov/cew/.
\9\ Estimated net income does not include net income for farms.
The Department's analysis is based on: U.S. Census Bureau,
Statistics of U.S. Businesses, ``Number of Firms, Number of
Establishments, Employment, Annual Payroll, and Receipts by
Employment Size of the Enterprise for the United States, All
Industries--2002''; Unpublished Special Tabulations, BLS; and, IRS,
2007 Statistics of Income, Returns of Active Corporations, Table5--
Selected Balance Sheet, Income Statement, and Tax Items, by sector,
by Size of Business Receipts.
---------------------------------------------------------------------------
After identifying and excluding from the analysis those businesses
that are not covered by the FMLA, the Department estimates that there
are 381,000 covered firms and government agencies with 1.2 million
establishments. These firms employ 91.1 million workers that will
potentially be impacted by the proposed rule changes. These employers
have an annual payroll of $5.0 trillion, estimated annual revenues of
$23.7 trillion, and estimated net income of $1.03 trillion.
Table 2-1 presents the estimated number of establishments, firms,
employment, annual wages, revenue, and net income for all employers.
The following subsection describes in detail the methods and data
sources used to develop the industry profile.
2. Methods and Data Sources
In order to determine the impact of this proposed rule, it is
important to understand the analysis underlying the 2008 final rule.
Therefore, this section describes the data sources and methods used to
calculate the 2008 industry profile and identify employers that will be
impacted by the proposed rule. The foundation for the profile is a
special tabulation of data produced by the Bureau of Labor Statistics
(BLS) Quarterly Census of Employment and Wages (QCEW) Program. The
tabulation describes the distribution of establishments and employment
by major industry division (2-digit NAICS level) across nine employment
size categories. As explained more fully below, the analysis is based
on establishment-level data because employer coverage and employee
eligibility for the proposed rule is determined, in part, by
establishment size.
The number of establishments and employment for each 2-digit
industry, as defined by the North American Industry Classification
System (NAICS), by employment size class, were obtained directly from
BLS Quarterly Census of Employment and Wages Business Employment
Dynamics (QCEW).\10\ The number of farms was obtained from the U.S.
Department of Agriculture 2007 Census of Agriculture. The number of
governments and number of government workers was obtained from the
Census of Governments.
---------------------------------------------------------------------------
\10\ Unpublished Special Tabulations, BLS.
---------------------------------------------------------------------------
The number of firms was determined by distributing the BLS QCEW
total number of firms at the 2-digit industry level to each size class
using the proportion of firms in each size class calculated from the
Statistics of U.S. Businesses 2006. The Department used a similar
approach to determine the annual payroll within each industry. The
total annual payroll at the 2-digit industry level was distributed to
each of the employment size classes using the proportion of payroll in
each size class calculated from the Statistics of U.S. Businesses
2006.\11\ Annual wages for government entities were obtained from the
U.S. Census of Governments.\12\
---------------------------------------------------------------------------
\11\ Statistics of U.S. Businesses, 2006 features a range of
size classes; in some cases these size classes were aggregated to
match the size classes available in the BLS Quarterly Census of
Employment and Wages Business Employment Dynamics data set.
\12\ 2007 Annual Survey of State and Local Government Employment
and Payroll, available at: http://www.census.gov/govs/estimate/.
---------------------------------------------------------------------------
In order to determine estimated 2008 revenues for each industry and
employment size class, the Department calculated the receipts per
employee in each size class from the 2007 Statistics of U.S. Business
by aggregating the 2007 size classes to match BLS size classes, then
dividing total receipts by the number of employees in each size class.
Then, the Department estimated the BLS worker output index and producer
price index for each two-digit sector as a weighted average of
industries composing that sector. For sectors where no indices were
available, the Department used the median value from those sectors with
indices. Finally, to obtain an estimate of 2008 revenues, the
Department multiplied receipts per employee in each size class by the
2008 number of employees in each size class, the worker output index
and the producer price index. Government revenues were directly
obtained from the 2007 Census of Government Finance.\13\
---------------------------------------------------------------------------
\13\ U.S. Census Bureau 2007 Census of Government Finance,
available at: http://www.census.gov/govs/estimate/index.html#state_local.
---------------------------------------------------------------------------
To determine estimated 2008 net income for each industry and
employment class size, the Department calculated the average revenues
per firm in each size class and calculated the ratio of net income to
total receipts using the 2007 IRS Statistics of Income.\14\ The
estimated average revenue per firm in each size class was used to
select an appropriate ``size of business receipts'' category from
Statistics of Income for a size class in a particular industry and to
generate the ratio of net income to total receipts for that category.
The 2007 ratio of net income to total receipts was multiplied by the
estimated 2008 revenues in each size class to calculate the estimated
2008 net income. Government net income was estimated by subtracting
expenditures from revenues.\15\
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\14\ Internal Revenue Service, 2007 Statistics of Income,
Returns of Active Corporations, Table 5--Selected Balance Sheet,
Income Statement, and Tax Items, by Sector, by Size of Business
Receipts.
\15\ 2007 Census of Government Finance.
---------------------------------------------------------------------------
3. Covered Employers
The FMLA applies to any employer in the private sector engaged in
commerce or in an industry affecting commerce who employed 50 or more
employees each working day during at least 20 weeks in the current or
preceding calendar year; all public agencies and local education
agencies; and most Federal employees.
First, the Department dropped from the profile all establishments
in employment size classes of less than 50 employees (i.e., 0-49
employees) except for those in elementary and secondary education. For
the purpose of this analysis, all Federal government employers are
assumed to be covered by FMLA regulations as administered by the Office
of Personnel Management and, therefore, not subject to these revisions;
State and local government employees, as well as U.S. Postal Service
employees, are covered by this proposed rulemaking and are included in
the profile of covered workers. Additionally, based on estimates from
the 2007 Census of Agriculture, it is likely that very few farms employ
more than 50 employees, and among those that do, very few of their
employees are eligible for FMLA due to the seasonality of the work. As
a result, this analysis assumes that no farm employers are covered by
FMLA.\16\ See Table 2-2 for a summary of covered employers.
---------------------------------------------------------------------------
\16\ Based on the 2007 Census of Agriculture, about 2% of all
farms have more than 10 hired employees, suggesting that the number
of covered farms is likely very close to zero. Due to the seasonal
nature of farm employment, it is similarly likely that few employees
would be eligible for FMLA leave even if the farm were covered.
---------------------------------------------------------------------------
Additionally, the Department used Statistics of U.S. Business, 2006
at the 6-digit NAICS level to identify the proportion of employers in
NAICS 61 ``Education Services'' who are
[[Page 8987]]
categorized as ``Elementary and Secondary Education.'' This proportion
was used to calculate the number of employers in each size class in
NAICS 61 that are considered local education agencies, and, therefore,
covered by FMLA regardless of size. These employers were subtracted
from the broader category of education services, and treated separately
by the analysis; the remaining employers in education services with
fewer than 50 employees were dropped from the profile.
Next, the Department calculated an appropriate adjustment factor to
account for establishments with fewer than 50 employees at a worksite
owned by a firm with more than 50 employees within 75 miles. It is
necessary to add an estimated number of these employees back in to the
industry profile to avoid underestimating the number of covered
employers and eligible employees affected by the proposed rule.
The Department calculated this adjustment following the approach
described in the 2007 ``Preliminary Analysis of the Impacts of
Prospective Revision to the Regulation Implementing the FMLA of 1993 at
29 CFR 825'' (hereafter, ``the 2007 PRIA'').\17\ In summary, the
Department estimated an upper and lower bound on the number of
employees who may be employed at worksites with less than 50 employees
owned by firms with greater than 50 employees within 75 miles, and
calculated the difference between these two estimates. In the absence
of reliable data on the geographic proximity of establishments owned by
the same firm, and employment at those establishments, we assumed 50
percent of workers at these establishments are employed at covered
worksites.
---------------------------------------------------------------------------
\17\ CONSAD Research Corporation, December 7, 2007. Pages 6-8.
---------------------------------------------------------------------------
The lower bound is estimated at the 2-digit industry level as the
employment in establishments with more than 50 employees according to
the U.S. County Business Patterns of 2007.\18\ The upper bound is
estimated as employment in firms with greater than 50 employees
according to the Statistics of U.S. Businesses 2007 Small employment
size classes.\19\ Next, the Department calculated fifty percent of the
difference between the upper and lower bound to estimate the number of
workers at covered worksites of less than 50 employees in 2007. This
estimate was then calculated as a percent of total employment in each
industry, and that percent multiplied by the total employment in each
industry in 2008 to estimate the number of workers at covered worksites
of less than 50 employees in 2008. The Department did not attempt to
distribute these workers to size classes. This approach was repeated to
estimate the number of establishments and annual payroll for this
category.
---------------------------------------------------------------------------
\18\ U.S. County Business Patterns of 2007, available at URL:
http://www.census.gov/econ/cbp/download/07_data/index.htm.
\19\ Statistics of U.S. Businesses, available at URL: http://www.census.gov/econ/susb/.
Table 2-1--2008 Industry Profile: All Private and Public Sector Employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of Annual payroll Estimated Estimated net
NAICS Industry establishments Employment firms ($1000) revenues ($1000) income ($1000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
11............................. Agriculture, 93,063 1,083,602 86,256 30,293,755 191,671,485 2,407,103
Forestry, Fishing
& Hunting.
11f............................ Farms............. 2,204,792 843,000 2,204,792 18,349 283,520,000 *
21............................. Mining............ 29,816 728,810 21,206 61,569,636 265,308,320 23,777,149
22............................. Utilities......... 16,000 560,628 7,296 46,832,814 588,750,468 28,522,162
23............................. Construction...... 788,982 6,691,659 686,282 348,060,594 1,764,016,511 13,137,722
31-33.......................... Manufacturing..... 346,637 12,991,886 284,894 727,472,090 5,042,240,515 220,025,292
42............................. Wholesale Trade... 587,802 5,900,701 341,387 366,499,181 5,217,289,386 34,862,575
44-45.......................... Retail Trade...... 587,802 5,900,701 341,387 366,499,181 5,217,289,386 34,862,575
48-49.......................... Transportation and 207,554 4,981,034 154,026 182,514,664 920,250,059 14,548,904
Warehousing *.
51............................. Information....... 136,001 2,970,258 72,676 210,177,173 829,642,598 46,672,698
52............................. Finance and 458,828 5,823,542 233,643 492,482,993 2,590,473,795 114,918,333
Insurance.
53............................. Real Estate and 342,250 2,085,053 243,368 90,735,012 439,247,207 14,606,997
Rental and
Leasing.
54............................. Professional, 933,257 7,875,748 695,416 578,284,495 1,476,151,016 18,463,759
Scientific &
Technical Serv.
55............................. Management of 48,434 1,895,781 35,257 178,611,324 466,204,666 56,954,063
Companies &
Enterprises.
56............................. Admin, Support, 432,089 7,705,263 315,462 254,989,288 649,497,228 4,026,201
Waste Mgmt &
Remed Serv.
61............................. Education 84,911 2,501,830 67,800 96,989,952 268,567,412 4,714,997
Services--Total.
61a............................ Education 64,952 1,623,889 51,100 72,612,918 185,424,684 3,752,850
Services--all
others.
61e............................ Education 19,959 877,941 18,639 24,377,033 83,142,727 958,024
Services--Element
ary and Secondary.
62............................. Health Care and 748,151 15,910,960 594,285 655,441,919 1,749,782,977 14,443,129
Social Assistance.
71............................. Arts, 116,178 1,816,000 98,613 62,461,364 193,817,674 2,970,331
Entertainment,
and Recreation.
[[Page 8988]]
72............................. Accommodation and 591,605 11,218,253 447,113 189,461,657 559,882,364 4,192,717
Food Services.
81 & 95........................ Other Services & 1,112,327 4,466,292 455,279 128,156,787 543,507,574 3,291,846
Auxiliaries.
99............................. Unclassified...... 140,476 190,374 100,969 6,592,088 29,688,367 763,157
All industries.... 10,437,770 113,977,648 7,786,426 5,107,828,608 29,672,157,281 717,263,252
Government........ 179,952 19,385,969 89,526 769,877,876 3,536,511,409 401,304,167
--------------------------------------------------------------------------------------------------------------------------------------------------------
Public and Private Sector Total 10,617,722 133,363,617 7,875,952 5,877,706,485 33,208,668,690 1,118,567,419
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government
Finance; Census of Agriculture; IRS 2001 Statistics of Income.
* Net income for farms is not available.
* NAICS code 48-49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the proposed
rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management.
Table 2-2--2008 Industry Profile: Covered Employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of Annual payroll Estimated Estimated net
NAICS Industry establishments Employment firms ($1000) revenues ($1000) income ($1000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
11............................. Agriculture, 4,867 537,602 2,043 9,150,199 90,343,170 1,295,858
Forestry, Fishing
& Hunting.
11f............................ Farms............. * * * * * *
21............................. Mining............ 5,370 534,418 1,614 53,624,288 214,181,588 22,080,354
22............................. Utilities......... 6,428 472,599 915 48,585,145 503,859,306 26,102,570
23............................. Construction...... 25,880 2,651,363 19,032 181,278,503 787,171,326 6,956,491
31-33.......................... Manufacturing..... 63,903 10,272,292 34,929 637,870,080 4,435,460,496 211,718,345
42............................. Wholesale Trade... 78,026 3,056,807 21,258 291,441,021 2,862,989,339 21,066,806
44-45.......................... Retail Trade...... 215,675 10,146,178 22,267 338,457,243 3,998,484,468 84,801,022
48-49.......................... Transportation and 32,748 3,907,594 8,755 216,154,621 715,836,368 12,813,522
Warehousing *.
51............................. Information....... 38,790 2,323,185 5,025 205,020,423 693,282,719 42,915,077
52............................. Finance and 115,439 4,007,678 9,251 477,979,216 2,195,244,677 104,279,817
Insurance.
53............................. Real Estate and 37,505 842,136 5,183 62,400,405 162,795,517 8,385,978
Rental and
Leasing.
54............................. Professional, 59,834 4,020,484 17,396 407,974,385 789,102,823 13,716,076
Scientific &
Technical Serv.
55............................. Management of 22,249 1,650,176 24,332 187,531,345 334,394,917 40,851,477
Companies &
Enterprises.
56............................. Admin, Support, 52,724 5,415,739 20,048 218,388,045 389,310,585 2,811,964
Waste Mgmt &
Remed Serv.
61............................. Education -- -- -- -- -- --
Services--Total.
61a............................ Education 7,557 1,328,922 3,297 67,069,643 158,106,124 3,524,541
Services--all
others.
61e............................ Education 19,959 877,941 18,639 24,377,033 83,142,727 958,024
Services--Element
ary and Secondary.
62............................. Health Care and 114,670 11,364,063 34,298 523,657,606 1,201,616,565 12,720,148
Social Assistance.
71............................. Arts, 10,311 1,134,984 5,779 38,736,030 115,713,478 2,110,154
Entertainment,
and Recreation.
72............................. Accommodation and 105,210 5,955,522 27,601 150,133,805 285,088,709 2,949,814
Food Services.
81 & 95........................ Other Services & 50,994 1,260,055 9,486 59,437,649 170,730,790 1,664,491
Auxiliaries.
99............................. Unclassified...... 13 1,185 11 0 0 0
----------------------------------------------------------------------------------------------------
All industries.... 1,068,152 71,760,923 291,159 4,199,266,686 20,186,855,692 623,722,527
Government........ 179,952 19,385,969 89,526 769,877,876 3,536,511,409 401,304,167
------------------------------------------------------------------------------------------------------------------------
[[Page 8989]]
Total...................... .................. 1,248,104 91,146,892 380,685 4,969,144,562 23,723,367,101 1,025,026,694
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government
Finance; Census of Agriculture; IRS 2001 Statistics of Income.
* Based on the 2007 Census of Agriculture, about 2% of all farms have more than 10 hired employees, suggesting that the number of covered farms is
likely very close to zero. Due to the seasonal nature of farm employment, it is similarly likely that few employees would be eligible for FMLA leave
even if the farm were covered.
* NAICS code 48-49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the proposed
rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management.
C. FMLA Leave Profile
This section describes how, in light of the recent amendments, the
Department estimated the number of covered, eligible workers who may be
in a position to take qualifying exigency or military caregiver leave
and the number of leaves they may take, and the number of covered
eligible flight crew members and flight attendants who may take FMLA
leave and the number of leaves they may take.
1. Military Family Leave Under FMLA
The proposed changes to the military family leave provisions of
FMLA impact a variety of employees and employers across the economy.
While these proposed changes do not alter the conditions for employer
coverage or employee eligibility under the FMLA, they do change the
circumstances under which eligible employees who are family members of
covered servicemembers qualify for FMLA leave and, as a result, will
affect the number and frequency of FMLA leaves taken for those reasons.
In order to estimate the number of individuals who may take leave
under the qualifying exigency or military caregiver provisions as a
result of the proposed changes, the Department estimated the number of
servicemembers or veterans covered by the amendments, completed an age
profile of those individuals and estimated the number of eligible
family members or potential caregivers likely to be associated with
each age range. This method is described in full detail in Appendix A.
a. Qualifying Exigency
The FY 2010 NDAA amendments to the FMLA provide that an eligible
employee may take FMLA leave for any qualifying exigency arising out of
the fact that the employee's spouse, son, daughter, or parent is on (or
has been notified of an impending call to) covered active duty in the
Armed Forces. For members of a regular component of the Armed Forces,
this means duty during deployment to a foreign country. For members of
the U.S. National Guard and Reserves, it means duty during deployment
to a foreign country under a call or order to active duty under a
provision of law referred to in section 101(a)(13)(B) of title 10,
United States Code.
To determine the number of eligible employees who may take FMLA
leave as a result of this amendment, the Department first estimated the
number of servicemembers on covered active duty and the number of
family members who may be eligible and employed at a covered employer
and then subtracted those servicemembers and family members already
entitled to take qualifying exigency leave prior to the FY 2010 NDAA
amendments. Clear, consistent data on the number of military personnel
deployed in any given year are difficult to find; many sources, for
example, do not adequately distinguish military personnel deployed
overseas from those stationed overseas. In addition, estimates might
vary significantly depending on sources utilized.\20\ Furthermore, when
deployments do occur, a Congressional Research Service report showed
that estimates of personnel involved might vary significantly depending
on definition and source. Thus, estimates of ``boots on the ground'' in
Iraq between 2003 and 2008 are only 30 percent to 60 percent of the
total involved when personnel outside Iraq are included.\21\ Therefore,
the Department drew on several data sources to determine the number of
servicemembers likely to be called to covered active duty in the Armed
Forces annually.
---------------------------------------------------------------------------
\20\ See, for example, the promisingly, but misleadingly,
titled: Kane, T. 2004. Global U.S. Troop Deployment, 1950-2003. The
Heritage Foundation. October 27. Accessed at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on October 7, 2010.
\21\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars,
FY2001-FY2010: Cost and Other Potential Issues. Congressional
Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on October 7, 2010.
---------------------------------------------------------------------------
Table 3-1 provides a summary of deployments of the U.S. Armed
Forces from 1960 through 2007. Although composed of the best data found
to date, some estimates of personnel deployed appear to use more
restrictive definitions than would be covered by the Department's
definition of covered active duty. For example, the table shows
deployment of 1,200 personnel for operations in Lebanon from 1982
through 1984. However, this appears to include only those Marine Corps
troops that were on the ground in Lebanon, but excludes sailors on the
Navy support ships that were also deployed in this operation.\22\
---------------------------------------------------------------------------
\22\ For example, the U.S.S. New Jersey provided offshore fire
support during this operation; this ship alone has a crew of about
1,900. Thus, this source may use a ``boots on the ground''
definition.
Table 3-1--U.S. Deployments and Total Active Military Personnel, 1960-2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
Deployed Personnel Total
Total active -------------------------- deployed as
Year military percent of Deployment
personnel [b] Total [a] Active total active
--------------------------------------------------------------------------------------------------------------------------------------------------------
1960....................................... 2,490,000 900 900 0.04 Vietnam [c]
1961....................................... 2,550,000 3,000 3,000 0.12
[[Page 8990]]
1962....................................... 2,690,000 11,000 11,000 0.41
1963....................................... 2,700,000 16,000 16,000 0.59
1964....................................... 2,690,000 23,000 23,000 0.86
1965....................................... 2,720,000 184,000 184,000 6.76
1966....................................... 3,230,000 385,000 385,000 11.92
1967....................................... 3,410,000 486,000 486,000 14.25
1968....................................... 3,490,000 536,000 536,000 15.36
1969....................................... 3,450,000 475,000 475,000 13.77
1970....................................... 2,980,000 335,000 335,000 11.24
1971....................................... 2,630,000 157,000 157,000 5.97
1972....................................... 2,360,000 24,000 24,000 1.02
1973....................................... 2,230,000 50 50 0.00
1974....................................... 2,160,000
1975....................................... 2,100,000
1976....................................... 2,080,000
1977....................................... 2,070,000
1978....................................... 2,060,000
1979....................................... 2,030,000
1980....................................... 2,050,000
1981....................................... 2,080,000
1982....................................... 2,110,000 10,000 10,000 0.47 Lebanon [e], Grenada [e]
1983....................................... 2,120,000 1,200 1,200 0.06 Lebanon [e]
1984....................................... 2,140,000 1,200 1,200 0.06
1985....................................... 2,150,000
1986....................................... 2,170,000
1987....................................... 2,170,000
1988....................................... 2,140,000
1989....................................... 2,130,000 27,000 27,000 1.27 Panama [e]
1990....................................... 2,050,000
1991....................................... 1,990,000 560,000 476,000 28.14 Iraq (1) [f]
1992....................................... 1,810,000 25,800 25,800 1.43 Iraq OSW [f], Somalia [e]
1993....................................... 1,710,000 25,800 25,800 1.51
1994....................................... 1,610,000 26,500 26,500 1.65 Somalia [e], Rwanda [e], Haiti [e]
1995....................................... 1,520,000 12,200 12,200 0.80 Somalia [e], Haiti [e], Bosnia [e]
1996....................................... 1,470,000 9,300 9,300 0.63 Haiti [e], Bosnia [e]
1997....................................... 1,440,000 1,400 1,400 0.10 Iraq ONW [f]
1998....................................... 1,410,000
1999....................................... 1,390,000 37,100 37,100 2.67 Kosovo [f]
2000....................................... 1,380,000
2001....................................... 1,390,000 83,400 83,400 6.00 Afghanistan [d]
2002....................................... 1,410,000 21,100 21,100 1.50
2003....................................... 1,430,000 237,600 178,200 16.62 Afghanistan [d], Iraq (2) [g]
2004....................................... 1,410,000 236,100 177,100 16.74
2005....................................... 1,380,000 258,900 194,200 18.76
2006....................................... 1,380,000 265,400 199,100 19.23
2007....................................... 1,380,000 285,700 214,300 20.70
Average.................................... 2,102,000 99,200 90,800 4.7 Overall, 1960-2007
2,140,000 144,000 132,000 6.7 Deployment Years Only
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Total deployed personnel is equal to the active personnel plus Reserve and/or National Guard personnel.
[b] Kane, T. 2004. Global U.S. Troop Deployment, 1950-2003. The Heritage Foundation. October 27. Accessed at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on October 7, 2010.
[c] American War Library. Vietnam War Allied Troop Levels 1960-73. Accessed at: http://www.americanwarlibrary.com/vietnam/vwatl.htm on October 7, 2010.
[d] Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, FY2001-FY2010: Cost and Other Potential Issues. Congressional Research Service. July 2.
Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on October 7, 2010.
[e] Sarafino, N.M. 1999. Military Interventions by U.S. Forces from Vietnam to Bosnia: Background, Outcomes, and ``Lessons learned'' for Kosovo.
Congressional Research Service. May 20.
[f] U.S. Department of Defense, Deployment Health Clinical Center (DHCC): Deployments by Operation. Accessed at http://www.pdhealth.mil/dcs/deploy_op.asp on October 7, 2010.
[g] ``Contingency Tracking System deployment file for Operation Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.'' Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
OSW (Operation Southern Watch) and ONW(Operation Northern Watch) refer to operations in support of the Iraqi no-fly zones.
Supplementing the deployment data with annual active military
personnel counts, the Department estimated the annual number and
percent of military personnel deployed on average over the 1960 to 2007
period. Over the entire 48-year period, each year the U.S. deployed on
average about 99,200 of its 2.1 million personnel active military force
[[Page 8991]]
(4.7 percent) on operations that meet the definition of covered active
duty. The overall average covers a wide variation in the timing,
duration, and size of those operations; of the 48 years included in
Table 3-1, in:
[ssbox] 16 years, essentially no personnel were deployed (with the
exception of 50 servicemembers in Vietnam in 1973);
[ssbox] 18 years, 900 to 37,100 personnel were deployed, an average
of 15,400 per year (0.8 percent of active servicemembers);
[ssbox] 14 years (Vietnam and the two Iraq conflicts), deployments
ranged from 83,400 to 560,000 personnel, an average of 320,400 per year
(13.9 percent of active servicemembers).
Finally, with the exception of the Vietnam and second Iraq conflicts,
most of the conflicts listed in Table 3-1 were for two years or less.
Based on the information provided in Table 3-1, and acknowledging
the limitations of those data, the Department judged that the simple
average of 99,200 deployed personnel does not adequately represent the
typical number of service personnel on covered active duty in any given
year for projecting the costs associated with this rule. The Department
also calculated that, on average, 144,000 personnel per year were
deployed in the 33 years in which a deployment occurred. Using this
figure instead to represent average annual deployments on covered
active duty provides a 45 percent cushion to account for data
inconsistencies and omissions. Therefore, for the purposes of this
PRIA, we assume an average of 144,000 military personnel are deployed
per year on covered active duty.
Two additional adjustments to this estimate must be made:
[ssbox] Qualifying exigency leave for eligible family members of
National Guard and Reserve personnel was promulgated in 2008.
[ssbox] Military personnel may deploy more than once in any given
year; if their eligible family members use less than the entire
allotment of leave on the first deployment (12 weeks), they may use
some or all of the remaining leave on subsequent deployments that year.
Data on U.S. military deployments showed that 17 percent of personnel
deployed to Iraq in 1991 were Reserve units, while 28 percent of
personnel deployed to Iraq between 2003 and 2007 were Reserve or
National Guard units.\23\ Therefore, the Department adjusted the
estimated number of personnel downward by 15 percent for 1991, and 25
percent for 2003 through 2007. Thus, we estimate that on average
132,000 active military personnel per year are deployed on covered
active duty.
---------------------------------------------------------------------------
\23\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars,
FY2001-FY2010: Cost and Other Potential Issues. Congressional
Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on October 7, 2010.
``Contingency Tracking System deployment file for Operation
Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.''
Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
---------------------------------------------------------------------------
The Department used a Department of Defense news release on typical
deployment lengths in the Iraq conflict by service (Army, 1 year; Navy
and Marines, six months; Air Force, 3 months) \24\ to estimate the
average number of deployments per person. This average was weighted by
the relative percent of active personnel by service deployed to Iraq
(Army, 61 percent; Navy and Marines, 28 percent; Air Force, 11 percent)
\25\ to determine that the military would use 1.49 deployments to
maintain one person in Iraq for one year. Thus, deployment of 132,000
personnel might require 197,000 actual deployments per year.
---------------------------------------------------------------------------
\24\ DOD News Briefing with Secretary Gates and Gen Pace from
the Pentagon. April 11, 2007. Available at URL: http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=3928. See
also: Powers, R. 2007. ``Joint Chiefs Continue to Examine Deployment
Lengths.'' April 14. Accessed at http://usmilitary.about.com/od/terrorism/a/deploylength.htm.
\25\ ``Contingency Tracking System deployment file for Operation
Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.''
Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
---------------------------------------------------------------------------
In the 2008 final rule, the Department estimated the joint
probability that a servicemember will have one or more family members
(parent, spouse, or adult child), that those family members will be
employed at an FMLA-covered establishment, and that they would be
eligible to take FMLA leave under the qualifying exigency provision
(see 2007 PRIA and Appendix A). Applying these joint probabilities to
the 197,000 annual deployments, the Department estimates approximately
193,000 family members will be eligible to take FMLA leave to address
qualifying exigencies. Military deployments represent a nonroutine
departure from normal family life to potentially long-term exposure to
a high stress, high risk environment, often at relatively short notice.
Therefore, the Department assumes the rate at which eligible employees
take FMLA leave for this purpose will be twice the rate (about 16
percent) of those taking regular FMLA leave (7.9 percent). The
Department does not assert that only 16 percent of family members will
take leave for reasons related to the servicemember's deployment, but
that 16 percent will use leave designated as FMLA leave for qualifying
exigencies. Based on these assumptions, the Department estimates 30,900
family members will take FMLA leave annually to address qualifying
exigencies.
In the 2008 final rule, the Department developed a profile of the
``typical'' usage of qualifying exigency leave over the course of a 12-
month period for an eligible employee. Under this leave profile, the
typical employee will take a one week block of leave upon notification
of the deployment of the servicemember, ten days of unforeseeable leave
during deployment, one week of foreseeable leave to join the
servicemember while on Rest and Recuperation, and one week of
foreseeable leave post deployment to address qualifying exigencies. 73
FR 68051. The proposed revisions to the rule increase foreseeable leave
to join a servicemember while the servicemember is on Rest and
Recuperation leave. Table 3-2 summarizes the revised leave pattern.
Table 3-2--Profile of Qualifying Exigency Leave
------------------------------------------------------------------------
Reason Description Days Hours
------------------------------------------------------------------------
Notice of Deployment.............. 1 week unforeseeable 5 40
During Deployment................. 10 days 10 80
unforeseeable.
During Deployment, ``Rest and 10 days foreseeable. 10 80
Recuperation''.
Post Deployment................... 1 week foreseeable.. 5 40
---------------
Total......................... .................... 30 240
------------------------------------------------------------------------
[[Page 8992]]
For the purpose of this analysis, the Department is assuming that
the average employee will take 10 days of leave to be with their
servicemember during rest and recuperation leave. While the Department
proposes increasing the number of days of qualifying exigency leave an
employee may take for the servicemember's Rest and Recuperation leave
to coincide with the number of days provided the servicemember, up to
15 days, the Department does not have a basis at this time to estimate
the percentage of servicemembers who would be granted 15 days of Rest
and Recuperation or the probability that their family member(s) would
join them for Rest and Recuperation leave. Therefore, the Department
assumes for the purpose of this analysis that a covered and eligible
employee will take 10 days of qualifying exigency leave for the
servicemember's Rest and Recuperation leave. The Department invites
comment on the amount of Rest and Recuperation leave provided to
service personnel and the extent to which employees would take an equal
number of days of FMLA-qualifying exigency leave to be with their
servicemember-family member.
Based on this profile, the Department estimates that 30,900
eligible employees will take 927,000 days (7.4 million hours) of FMLA
leave annually to address qualifying exigencies under the FY 2010 NDAA
amendments. These estimates may vary from 772,000 days (6.2 million
hours) if eligible employees average five days of leave to 1.1 million
days (8.7 million hours) if they average 15 days of leave when a
servicemember is on Rest and Recuperation leave.
The Department acknowledges that estimated qualifying exigency
leave also represents an average of periods with high levels of
deployment and active conflict and periods with low or minimal
deployments. Therefore, the Department supplements its analysis by
considering a ``heavy conflict'' scenario and a ``low conflict''
scenario to capture the range of leave usage that may be expected in
any given year in the future.
Drawing on the data in Table 3-1, for the purposes of these cost
estimates, the Department defines the low conflict scenario as a year
containing no deployment exceeding 40,000 servicemembers, while the
heavy conflict scenario is one in which deployments exceed 40,000
servicemembers. Applying this standard to the data in Table 3-1, the
average size of a deployment during the low conflict scenario is 15,400
troops, compared to 320,400 during a period of heavy conflict.
The Department applied the same probabilities of having eligible
family members and patterns of leave usage as were used for the average
analysis. Using this method, the Department estimates that 2,400
employees will take 72,060 days (576,500 hours) of leave for qualifying
exigencies under the low conflict scenario, while 50,244 employees will
take 1.5 million days (12 million hours) of leave during periods of
heavy conflict.
b. Military Caregiver Leave
Military caregiver leave entitles an eligible employee who is the
spouse, son, daughter, parent, or next of kin of a ``covered
servicemember'' to take up to 26 workweeks of FMLA leave in a ``single
12-month period'' to care for a covered servicemember with a serious
injury or illness. Under the FY 2010 NDAA amendments, the definition of
``covered servicemember'' is expanded to include a veteran ``who is
undergoing medical treatment, recuperation, or therapy for a serious
injury or illness'' if the veteran was a member of the Armed Forces
``at any time during the period of 5 years preceding the date on which
the veteran undergoes that medical treatment, recuperation, or
therapy.'' The FY 2010 NDAA amendments define a serious injury or
illness for a covered veteran as ``a qualifying (as defined by the
Secretary of Labor) injury or illness that was incurred by the member
in line of duty on active duty in the Armed Forces (or existed before
the beginning of the member's active duty and was aggravated by service
in line of duty on active duty in the Armed Forces) and that manifested
itself before or after the member became a veteran.''
The amendments also expand the definition of ``serious illness or
injury'' to include an injury or illness of a current member of the
military that ``existed before the beginning of the member's active
duty and was aggravated by service in line of duty'' and that may cause
the servicemember to be unable to perform the duties of his or her
office, grade, rank, or rating. The Department does not attempt in this
analysis to estimate the number of additional current servicemembers
who may be covered under this expansion of the definition due to the
lack of data to support reasonable assumptions on the potential size of
this group. However, for the reasons discussed earlier in this
preamble, the Department believes it is reasonable to conclude that the
number of servicemembers entering the military with an injury or
illness with the potential to be aggravated by service to the point of
rendering the servicemember unable to perform the duties of his or her
office, grade, rank, or rating is quite small due to the selection
process used by the U.S. Armed Forces.
To determine the number of eligible employees that may take FMLA
leave as a result of the expansion of caregiver leave to family members
of covered veterans, the Department first estimated the number of
veterans likely to undergo medical treatment for a serious injury or
illness, and the number of family members who are employed by a covered
employer and who may be eligible to take FMLA leave to care for them.
The Department reviewed several summaries of injuries and illnesses
among military servicemembers to estimate the rate at which injuries
that are sufficiently severe as to require medical care after
separation from the military might occur.\26\ A number of data
limitations make the estimation of serious injury and illness rates
problematic:
---------------------------------------------------------------------------
\26\ The most useful of these sources were:
Dole, R. and D. Shalala. Serve, Support, and Simplify. Report of
the President's Commission on Care for America's Returning Wounded
Warriors. July, 2007.
Fischer, H. United States Military Casualty Statistics:
Operation Iraqi Freedom and Operation Enduring Freedom. CRS Report
for Congress. Congressional Research Service, March 25, 2009.
Tanielian, T. and L.H. Jaycox (eds.). Invisible Wounds: Mental
Health and Cognitive Care Needs of America's Returning Veterans.
Research Highlights. RAND Center for Military Health Policy
Research. 2008.
U.S. Department of Defense. DoD Military Injury Metrics Working
Group White Paper. December 2002.
---------------------------------------------------------------------------
[ssbox] The Department of Defense generally publishes data on the
number of servicemembers killed or wounded in action, but little about
non-combat injuries and illnesses.
[ssbox] Except for the most severe injuries (e.g., amputations,
severe burns, blindness), little is published about the nature or
severity of illnesses and injuries.
After completing its review, described below, the Department
estimates that an average of about 46,900 servicemembers will incur
injuries or illnesses that may require treatment after separation from
the military, for which family members will be eligible for military
caregiver leave.\27\ This number includes the 14,000 servicemembers
whose family
[[Page 8993]]
members are expected to take military caregiver leave while the
servicemember is still in the military. The Department reached this
estimate based on the information and analysis presented in the
following paragraphs.
---------------------------------------------------------------------------
\27\ For the purposes of describing the calculations in this
section, we assume each injury or illness occurs to one veteran
(i.e., 46,900 veterans experience 46,900 injuries and illnesses).
However, veterans might experience more than one injury or illness,
and the family members of fewer than 46,900 veterans might take
multiple leaves to care for the 46,900 injuries and illnesses. The
total estimated leaves and costs will be identical in both cases.
---------------------------------------------------------------------------
The Department first estimated the percent of servicemembers that
might receive an injury or illness requiring care while in the service
or after separation. In 2001, the Department of Veterans Affairs
undertook a survey that showed 24 percent of veterans that served
during the Gulf War era reported having a service-related disability
rating.\28\ Service-related disability ratings do not require that the
servicemember is disabled; the rating might be less than 30 percent (or
even zero in the case of a service-related injury that healed prior to
separation;) however, the mere fact that a servicemember has a rating
indicates that a service-related injury occurred.\29\
---------------------------------------------------------------------------
\28\ U.S. Department of Veterans Affairs. 2001 National Survey
of Veterans. Accessed at http://www1.va.gov/VETDATA/docs/SurveysAndStudies/NSV_Final_Report.pdf.
\29\ Veterans Administration Service Related Disability Rating
(VASRD). Accessed at http://myarmybenefits.us.army.mil/Home/Benefit_Library/Federal_Benefits_Page/Veterans_Administration_Schedule_for_Rating_Disabilities_(VASRD).html?serv=150.
---------------------------------------------------------------------------
The Department then examined deployment rates across different time
periods. Table 3-1 indicates that servicemembers deployed during the
Gulf War of 1991 account for about 28 percent of the total active
military at that time. The same tables show that servicemembers
deployed in Operations Enduring Freedom and Iraqi Freedom (Iraq (2))
comprise a smaller percentage of the active military (roughly 20
percent). However, the Department believes this is an underestimate;
because the second Iraq conflict lasted several years, it is likely
that many in the active military not deployed at the time of the
snapshot were deployed sometime during its duration; conversely, the
first Iraq war was relatively brief, and personnel had a smaller
likelihood of rotating into the war zone during its duration.
Therefore, the Department believes that the percent of active military
personnel that were deployed to Afghanistan or Iraq is higher than the
calculations in Table 3-1 show, and that the true percent is similar to
the first Iraq conflict: approximately 30 percent of active military
personnel were deployed. The Department also concludes that the percent
of veterans that received a service-connected disability rating from
the first Gulf War era is a reasonable proxy for veterans of the period
2003 through 2007, about 25 percent (rounded up from 24 percent). Thus,
the Department expects that at least 25 percent of active military
personnel in the post-9/11 era will separate from the military with a
disability rating.
Data provided by the Department of Veterans' Affairs indicates that
among the population of current veterans with a disability rating, 39.3
percent have a rating of 50 percent or greater (Table 3-3). Assuming
the distribution of disability ratings among servicemembers who will
separate from the military in years to come is the same as the
distribution of disability ratings of current veterans, the Department
estimates that 10 percent (rounding up, 25 percent x 40 percent = 10
percent) of separating servicemembers will have a disability rating of
50 percent or greater.
Table 3-3--2010 Distribution of Current Veterans by Disability Rating
----------------------------------------------------------------------------------------------------------------
Cumulative percent of
Degree of disability (%) Number of current Percent of current current veterans with
veterans with DR veterans with DR DR
----------------------------------------------------------------------------------------------------------------
0.......................................... 12,145 0.4 0.4
10......................................... 779,997 24.7 25.1
20......................................... 445,472 14.1 39.2
30......................................... 365,254 11.6 50.8
40......................................... 312,301 9.9 60.7
50......................................... 205,419 6.5 67.2
60......................................... 246,132 7.8 75.0
70......................................... 227,528 7.2 82.2
80......................................... 172,491 5.5 87.7
90......................................... 97,591 3.1 90.8
100........................................ 290,396 9.2 100.0
----------------------------------------------------------------------------------------------------------------
Source: Department of Veterans Affairs.
However, it is possible that a servicemember may not manifest the
symptoms of a serious injury or illness at the time of his or her
separation, and therefore, not go through the VA disability rating
process prior to leaving the service. In 2008, the RAND organization
published a report entitled Invisible Wounds: Mental Health and
Cognitive Care Needs of America's Returning Veterans (Tanielian and
Jaycox, 2008). The RAND report summarized the results from a survey of
servicemembers, which found that among servicemembers who returned from
Operation Enduring Freedom and Operation Iraqi Freedom:
[ssbox] 11.2 percent met the criteria for post-traumatic stress
disorder (PTSD) or depression,
[ssbox] 12.2 percent had likely experienced a traumatic brain
injury (TBI),
[ssbox] 7.3 percent had experienced both a TBI and either PTSD or a
TBI and depression, and
[ssbox] Roughly 50 percent of these servicemembers sought treatment
for their symptoms within one year of returning from overseas.
Furthermore, symptoms of such injuries may not appear until several
years after the injury was experienced, have traditionally been badly
underreported, and are not well understood. Due to the high visibility
research performed in this area, and recent initiatives undertaken by
the Department of Veterans Affairs,\30\ it is reasonable to assume a
much higher percentage of these types of injuries will be diagnosed and
reported than in previous cohorts of veterans.
---------------------------------------------------------------------------
\30\ See, for example:
DeKosky, S.T., M.D. Ikonomovic, and S. Gandy. 2010. Traumatic
Brain Injury--Football, Warfare, and Long-Term Effects. The New
England Journal of Medicine. 363:14. September 30.
U.S. Department of Veterans Affairs. 38 CFR Part 3. Post
Traumatic Stress Syndrome. Interim Final Rule. Federal Register,
Vol. 73, No. 210, p. 64208.
---------------------------------------------------------------------------
Consequently, the Department must also account for veterans who may
[[Page 8994]]
suffer a serious injury or illness that manifested after his or her
separation from the military. Evidence shows that approximately 30
percent of servicemembers that were deployed to Afghanistan and Iraq
experienced a TBI, PTSD, or depression, and roughly 30 percent of
active military personnel were deployed to Afghanistan or Iraq.
Assuming that such injuries would result in the equivalent of a VASRD
rating of at least 50 percent, and did not manifest until after
separation from the military, it is reasonable to estimate that 10
percent (0.3 x 0.3 = 0.09, then rounding up) of these veterans incurred
such an injury or illness that manifested after separation from the
military. The Department added this 10 percent of veterans who suffer a
post-separation serious injury or illness to the 10 percent of military
members who separate from the military with a VASRD rating. Therefore,
the estimated percent of veterans likely to have a service-related
injury or illness that might require treatment after separation is 20
percent.
In summary, for the purposes of this PRIA, the Department assumes
that 20 percent of servicemembers may separate from the military with
an injury or illness requiring treatment. This may be an overestimate.
We assume that of the additional 10 percent of servicemembers that
experience a serious injury or illness that might not manifest until
well after the event occurs (e.g., PTSD, TBI, or depression), none go
through the VA disability rating process. We also assume that all
eventually seek treatment within five years. Both of these assumptions
are very conservative.
This estimate suffers from a number of qualifications and
limitations:
[ssquf] This injury rate was based on data for military personnel
that had a high likelihood of experiencing active combat while in the
military; to the extent that future cohorts experience less combat, the
injury rate may well be significantly smaller.
[ssquf] It is not clear that all injuries included in this figure
will be severe enough to require treatment.
[ssquf] Even if the injury is severe, it is unclear that the
servicemember will seek treatment; it has long been known that the
treatment rate for mental health conditions such as depression amongst
the general population is less than 100 percent.
[ssquf] This estimate does not account for other injuries that
might require treatment; however, the Department could find little data
on which to base an estimate of such injuries.
[ssquf] This estimate abstracts from the requirement that treatment
must occur within five years of separation for the injury to be
eligible for FMLA caregiver leave. Thus, we implicitly assume 100
percent will seek treatment within five years.
The Department used projections of military personnel separations
for fiscal years 2010 through 2036 from the Department of Veterans
Affairs as the basis for the average number of personnel who might
newly seek medical care in a given year, see Table 3-4.\31\ We did not
model a medical care usage pattern for these servicemembers. Because we
project this to be an average annual ``stream'' of cohorts of
separating servicemembers, as long as we assume each year's cohort
follows the same usage pattern, the primary factor governing the number
of servicemembers requiring treatment is the total number in each
cohort that will seek treatment within five years.\32\
---------------------------------------------------------------------------
\31\ U.S. Department of Veterans Affairs. 2008. Demographics:
Veteran Population Model 2007. Table 8S. January. Accessed at http://www1.va.gov/VETDATA/Demographics/Demographics.asp.
\32\ For example, compared to a single cohort separating from
the military over 5 years, modeling the separation of that same
cohort over 10 years will result in fewer servicemembers from that
cohort seeking treatment in any given year. However, modeling
separation over 10 years will result in servicemembers from more
cohorts seeking treatment in a given year. Thus, in a steady state,
the one effect will cancel out the other. Different models of
separation patterns will, however, result in different numbers of
treatments prior to reaching the steady state, and the net present
value of the stream of treatments.
Table 3-4--Military Separations 2010-2036 by Branch and Period
----------------------------------------------------------------------------------------------------------------
Separations by Branch [a]
-----------------------------------------------------------------------
Fiscal year Reserve Coast
Army Navy Air Marines Forces Guard Grand
Force [b] [c] total
----------------------------------------------------------------------------------------------------------------
FY2010.................................. 77,761 46,927 37,053 28,892 48,342 4,391 243,367
FY2011.................................. 78,401 46,803 36,979 28,784 28,148 4,523 223,638
FY2012.................................. 78,843 46,643 36,876 28,655 18,075 4,649 213,742
FY2013.................................. 79,584 46,741 36,976 28,685 8,019 4,798 204,803
FY2014.................................. 79,956 46,956 37,160 28,799 8,054 4,820 205,745
FY2015.................................. 79,479 46,672 36,948 28,607 8,004 4,790 204,500
FY2016.................................. 79,203 46,506 36,830 28,488 7,974 4,773 203,773
FY2017.................................. 79,607 46,740 37,028 28,614 8,012 4,796 204,798
FY2018.................................. 80,052 46,998 37,245 28,755 8,055 4,822 205,927
FY2019.................................. 80,196 47,079 37,322 28,788 8,067 4,830 206,281
FY2020.................................. 80,187 47,071 37,327 28,767 8,064 4,829 206,246
FY2021.................................. 80,338 47,156 37,407 28,803 8,077 4,837 206,618
FY2022.................................. 81,015 47,550 37,731 29,028 8,143 4,877 208,346
FY2023.................................. 80,995 47,535 37,730 29,004 8,140 4,875 208,279
FY2024.................................. 80,409 47,188 37,466 28,777 8,079 4,839 206,758
FY2025.................................. 79,502 46,653 37,052 28,437 7,986 4,784 204,414
FY2026.................................. 79,632 46,726 37,121 28,467 7,997 4,791 204,734
FY2027.................................. 79,953 46,912 37,278 28,566 8,027 4,810 205,547
FY2028.................................. 79,878 46,865 37,251 28,524 8,018 4,805 205,341
FY2029.................................. 79,477 46,627 37,072 28,366 7,976 4,780 204,299
FY2030.................................. 79,930 46,890 37,291 28,513 8,020 4,807 205,451
FY2031.................................. 80,148 47,015 37,401 28,576 8,040 4,819 206,000
FY2032.................................. 79,965 46,906 37,323 28,497 8,020 4,808 205,518
FY2033.................................. 79,857 46,839 37,279 28,444 8,008 4,800 205,228
FY2034.................................. 79,925 46,877 37,318 28,455 8,013 4,804 205,392
FY2035.................................. 79,867 46,840 37,298 28,421 8,006 4,800 205,233
[[Page 8995]]
FY2036.................................. 79,857 46,832 37,301 28,404 8,003 4,799 205,196
-----------------------------------------------------------------------
Average............................. ........ ........ ........ ........ ........ ........ 207,969
----------------------------------------------------------------------------------------------------------------
[a] Includes only separations from the five armed services; excludes separations from the Public Health Service
(PHS) and National Oceanic and Atmospheric Administration (NOAA).
[b] Reserve Forces include only those who have had active Federal military service (other than for training) as
a result of their membership in the reserves or National Guard. Reserve forces with prior active military
service in the regular military, are classified according to the branch (Army, Navy, Air Force, Marines) in
which they served while in the regular military, notwithstanding their subsequent service in the Reserve
Forces.
[c] Coast Guard separations estimated from VETDATA ``Non-Defense'' separations by determining the current
proportion of non-defense personnel in the Coast Guard (84.8%) versus NOAA and PHS.
Source: http://www.va.gov/VETDATA/Demographics/Demographics.asp.
The Department proposes to define a serious injury or illness of a
veteran as an injury or illness incurred in the line of duty on active
duty (or a pre-existing injury or illness exacerbated by service) that
manifests itself before or after the member became a veteran and is
either: a continuation of a serious injury or illness that was incurred
or aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember unable to perform the duties of the
servicemember's office, grade, rank, or rating; a physical or mental
condition for which the covered veteran has received a U.S. Department
of Veterans Affairs Service Related Disability Rating (VASRD) of 50
percent or higher and such VASRD rating is based, in whole or in part,
on the condition precipitating the need for military caregiver leave;
or is a condition which significantly impairs the veteran's ability to
secure or follow a substantially gainful occupation. Assuming an annual
cohort of 203,000 personnel separate from the military each year, and
that 20 percent of those personnel incurred an injury or illness in
service that manifests before or after the servicemember became a
veteran, the Department estimates that approximately 40,600 military
personnel (20 percent of 203,000) per year might have family members
who may take FMLA caregiver leave, if the regulatory requirements are
met. This estimate may be over-inclusive due to data limitations on the
severity of service-related injuries and illnesses.
For the 2008 final rule, the Department estimated 1,500 to 14,000
servicemembers will suffer serious injuries or illnesses that require
treatment while in the military, and for which family members will take
military caregiver leave. 73 FR 68043. Because military caregiver leave
may be used for the same injury when the servicemember is in active
duty and again when the servicemember becomes a veteran, the family
members of these servicemembers in most instances will be eligible for
additional caregiver leave after separation from the military by the
servicemember. The economic impact attributable to the first instance
of leave was accounted for in the 2008 revisions to FMLA, and this
economic analysis will need to account for the possibility that these
family members may take additional military caregiver leave when their
servicemember becomes a veteran.
To determine the number of servicemembers whose family members may
take military caregiver leave when the servicemember is on active duty
and again when the servicemember becomes a veteran the Department
assumes that 100 percent of the servicemembers will receive treatment
while in the military and that about 50 percent will seek treatment as
a veteran (e.g., not all the injuries will be severe enough to require
treatment beyond active service in the military). In other words, the
number of injured servicemembers per year with family that may be
eligible for caregiver leave is equal to 1.5 times 26,600 (40,600 less
14,000 already accounted for under the 2008 revisions) new
servicemembers per year. In addition, we assume that one-half of 14,000
servicemembers that already received treatment while in the military,
under the 2008 revisions, will receive treatment after separation.
Therefore, under this revision to the FMLA, servicemembers and veterans
may have approximately 46,900 injuries or illnesses per year that
result in eligible family members taking military caregiver leave.
Using the previously described calculations of the joint probabilities
that a servicemember will have one or more family members eligible for
FMLA (see Appendix A), the Department estimates that those 46,900
veterans and servicemembers will have 59,700 eligible family members
who may qualify for FMLA and act as caregivers (see Appendix A).\33\
The Department assumes that at least 26 percent of eligible employees,
or an average of 15,500 per year, will take FMLA leave to care for a
veteran undergoing medical treatment for a serious injury or illness.
This assumption is based on a survey of injured servicemembers
concerning the impact of their needs on their caregivers. The survey
found that about 16 percent of working caregivers used ``unpaid leave
from their job'' and 10 percent ``cut back their hours'' to care for
the servicemember.\34\ However, the Department is aware that it is not
drawing from a more comprehensive data source and acknowledges the
limitations of its estimate. The Department seeks comments on whether
there are more complete data sources, or if there are ways to develop a
more accurate estimate in the absence of more reliable data, that it
could utilize in conducting this part of the analysis.
---------------------------------------------------------------------------
\33\ The Department made one modification to the joint
probabilities used for caregiver leave. In addition to family
members such as parents, spouses, and adult children, designated
``next-of-kin'' are also eligible to take military caregiver leave
under FMLA. The Department accounted for this difference by assuming
all servicemembers have at least one potential caregiver eligible
for FMLA leave.
\34\ Christensen et al. Economic Impact on Caregivers of the
Seriously Wounded, Ill, and Injured. CNA, April 2009. Available at
URL: http://www.cna.org/documents/D0019966.A2.pdf.
---------------------------------------------------------------------------
In the 2008 final rule, the Department developed a profile of the
``typical'' usage of military caregiver leave over the course of a 12-
month period for an eligible employee. Under this profile of leave, the
typical employee will take a block of four weeks of unforeseeable leave
upon notification of the serious injury or illness, a second block of
two weeks of unforeseeable leave following
[[Page 8996]]
transfer of the covered servicemember to a rehabilitation facility, two
one-week blocks of unforeseeable leave for unanticipated complications,
and 40 individual days of foreseeable leave to care for the covered
servicemember. 73 FR 68051.
This profile is based on a typical leave pattern of an eligible
employee caring for an injured or ill servicemember on active duty; for
the purpose of this analysis, the profile was adjusted to capture a
likely leave pattern for employees taking leave to care for a covered
veteran. In this case, the nature of the serious injury or illness is
expected to be different from those encountered during active duty. We
assume an injury to an active duty servicemember that results in FMLA
caregiver leave is likely to be a sudden, severe injury, which
necessitates a large block of leave for the employee to travel to be at
the bedside of the injured servicemember. Conversely, ongoing treatment
for an existing injury or diagnosis and then treatment of an emerging
injury or illness (e.g., post-traumatic stress disorder, traumatic
brain injury) might call for frequent but short periods of leave for
the employee to take the servicemember to appointments and provide
other ongoing support. Adjusting the leave profile to account for these
differences generates a leave pattern such as that summarized in Table
3-5.
Table 3-5--Profile of Military Caregiver Leave--Veterans
------------------------------------------------------------------------
Reason Description Days Hours
------------------------------------------------------------------------
Diagnosis, therapy, or 1 week unforeseeable 5 40
recuperation.
Travel to appointments and other 50 days foreseeable. 50 400
errands.
---------------
Total......................... .................... 55 440
------------------------------------------------------------------------
Based on this profile, the Department estimates that 15,500
eligible employees will take 854,000 days (6.8 million hours) of FMLA
leave annually to act as a caregiver for a veteran who is undergoing
treatment for a serious illness or injury.
2. Air Transportation Industry FMLA Leave
The proposed changes to the FMLA eligibility requirements for
airline flight crew employees do not alter the number of covered
employers in the airline industry but increase the number of pilots,
co-pilots, flight attendants and flight engineers who are eligible to
take FMLA leave, and as a result, will likely increase the total number
of FMLA leaves taken by these employees in the airline industry.\35\
The amendment changes flight crew eligibility such that an airline
flight crew employee meets the hours of service requirement if, during
the previous 12-month period, he or she has worked or been paid for not
less than 60 percent of the applicable total monthly guarantee (or its
equivalent), and not less than 504 hours, not including personal
commute time, or time spent on vacation, medical, or sick leave.
---------------------------------------------------------------------------
\35\ The FAA defines a flightcrew member as ``A pilot, flight
engineer, or flight navigator assigned to duty in an aircraft during
flight time.'' See URL: http://www.faa-aircraft-certification.com/faa-definitions.html.
---------------------------------------------------------------------------
The Department estimated the profile of covered employers in the
``Air Transportation'' industry, the number of flight crew employees
who would be eligible for FMLA leave, and the number of leaves they may
take. The profile of covered employers, see Table 3-6 below, was
developed by estimating the proportion of NAICS code 48 classified as
``Air Transportation'' (NAICS 481) in each size class from the 2006
Statistics of U.S. Businesses at the 6-digit NAICS level. This
proportion was multiplied by the total number of establishments, firms,
employment and payroll in NAICS 48 according to the 2008 BLS special
tabulations. Next, employers with fewer than 50 employees were dropped
from the profile; as described below, the Department did not attempt to
make an adjustment for establishments with fewer than 50 employees that
are owned by firms with more than 50 employees in a 75 mile area for
this sub-industry.
Table 3-6--2008 Covered Employers in Air Transportation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Size class (employees) Number of Employment Firms Annual payroll revenues net income
establishments ($1000) ($1000) ($1000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
50 to 99.......................................................... 184 5,098 118 $265,903 $741,840 $4,194
100 to 499........................................................ 544 16,577 113 919,239 2,369,610 23,342
500+.............................................................. 2,204 439,315 135 24,905,181 70,921,603 2,295,261
-------------------------------------------------------------------------------------
Total......................................................... 2,932 460,990 366 26,090,323 74,033,052 2,322,797
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: BLS Special Tabulations, 2008; and Statistics of U.S. Businesses, 2006.
Based on conversations with experts in the airline industry, the
Department assumes that all potentially eligible airline flight crew
employees are employed at a covered worksite. In general, flight crew
members are scheduled for flights from a home base, or ``domicile.'' A
domicile would not only include the airline flight crew employees, but
the non-flight crew employees as well; therefore, the interviewees
observed that for most carriers it was very unlikely that airline
flight crew employees would be employed at a domicile with fewer than
50 total employees.\36\ Next, the Department determined the total
number of flight crew members employed in air transportation from the
BLS Occupational Employment Statistics for 2008; in 2008 there were
[[Page 8997]]
about 162,200 airline flight crew employees. This includes pilots, co-
pilots, flight engineers, and flight attendants.
---------------------------------------------------------------------------
\36\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR
Conference, Calvin Franz and Lauren Jankovic, both of ERG. Janet
Zweber. 2010. Interview with Janet Zweber of U.S. Airways Pilots
Association, Calvin Franz and Lauren Jankovic, both of ERG.
---------------------------------------------------------------------------
The next step was to determine the proportion of those flight crew
members who will be eligible for FMLA leave. Crew members who are paid
for 50 to 60 hours per month will, over the course of a 12-month
period, be paid for 600 to 720 hours and they will easily meet the
hours of service required for eligibility under the AFCTCA. According
to sample data provided by the industry, about 80 percent of American
Airlines flight attendants are paid for 50 or more hours per month, and
this is considered reasonably representative of industry patterns.\37\
While a similar distribution of paid hours for pilots is not available,
the FAA indicates that most pilots are paid for an average of 75 hours
per month; based on this observation, the Department assumes that a
similar proportion of pilots, 80 percent, would reach the proposed
hours of service required for eligibility. Based on these estimates,
about 129,760 airline flight crew employees may be eligible to take
FMLA leave.
---------------------------------------------------------------------------
\37\ Table ``AA Flight Attendant Block Hours and Paid Hours''
provided by Interviewee. Rob DeLucia. 2010. Interview with Rob
DeLucia of AIR Conference, Calvin Franz and Lauren Jankovic, both of
ERG. Table available at URL: http://www.aanegotiations.com/documents/AAFACharts_7.8.10.pdf; Last accessed on March 21, 2011.
---------------------------------------------------------------------------
Many airlines have already incorporated FMLA-type provisions in
collective bargaining agreements with pilots and flight attendants. In
terms of the costs associated with the number of leaves resulting from
the proposed changes, it is important to consider the proportion of
airline flight crew employees already taking FMLA-type leave under
collective bargaining agreements. Based on a review of the current
FMLA-type leave policies in the labor contracts for 19 air carriers,
the Department finds that about 20 percent of pilots, and 35 to 40
percent of flight attendants are covered and eligible for FMLA-type
leave policies.\38\ Assuming that 80 percent of pilots and 63 percent
of flight attendants are not currently covered by FMLA-type policies,
the Department estimates, as outlined in Table 3-7, that, of the
129,760 flight crew members that will be eligible, 90,560 are not
already covered by an FMLA-type leave policy under a collective
bargaining agreement.
---------------------------------------------------------------------------
\38\ Based on a review of excerpts from the collective
bargaining agreements of 19 airlines transmitted to the Department
by Steve Schembs, Association of Flight Attendants--CWA, on January
19, 2010.
---------------------------------------------------------------------------
Because there is little information available on the FMLA-type
leave usage patterns of flight crew employees, the Department assumes
that flight attendants will use FMLA leave at a similar rate to the
rest of the population. Based on interviews with experts in the airline
industry, pilots (also co-pilots and flight engineers) tend to use less
FMLA-type leave due to different demographic needs and the availability
of other types of paid leave.\39\ The 2008 PRIA extrapolated leave
usage rates from surveys of FMLA leave usage to estimate expected leave
use among the general population for 2007; the Department further
extrapolated this number to estimate an expected leave usage rate of
7.9 percent of eligible employees and applied this rate to the number
of eligible flight attendants not covered by a collective bargaining
agreement.\40\ Given that pilots use less FMLA-type leave, the
Department assumed a rate of about 5 percent for eligible pilots and
applied that to the estimated number of eligible pilots not covered by
a collective bargaining agreement. Based on these estimates and
assumptions, just under 6,000 flight attendants, pilots, co-pilots, and
flight engineers will take new FMLA leaves under the proposed changes.
Assuming that flight crew members will take approximately the same
number of leaves per 12-month period as the general population, the
Department estimates that each individual will take 1.5 leaves, for a
total of 8,930 leaves.\41\ Table 3-7 summarizes the estimates developed
in this section.
---------------------------------------------------------------------------
\39\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR
Conference, Calvin Franz and Lauren Jankovic, both of ERG. Janet
Zweber. 2010. Interview with Janet Zweber of U.S. Airways Pilots
Association, Calvin Franz and Lauren Jankovic, both of ERG.
\40\ The extrapolation is used because the survey was performed
relatively soon after FMLA was enacted; over time, as employee
knowledge of FMLA provisions has grown, presumably so has FMLA
usage.
\41\ CONSAD Research Corporation, December 7, 2007.
Table 3-7--Estimated FMLA Usage by Flight Crews
----------------------------------------------------------------------------------------------------------------
Eligible crew Eligible crew,
Number of Number of not covered by not covered by Number of
Flight crew crew [a] eligible CBA FMLA- type CBA that will new FMLA
crew [b] policy [c] take leave [d] leaves [e]
----------------------------------------------------------------------------------------------------------------
Pilots............................. 64,800 51,840 41,470 2,070 3,110
Flight Attendants.................. 97,400 77,920 49,090 3,880 5,820
----------------------------------------------------------------------------
Total.......................... 162,200 129,760 90,560 5,950 8,930
----------------------------------------------------------------------------------------------------------------
Sources: BLS Occupational Employment Statistics, May 2008, Scheduled Air Transportation; CONSAD Research
Corporation, December 7, 2007.
[a] Number of pilots includes: pilots, copilots and flight engineers (532011); and commercial pilots (532012).
[b] Eligibility based on estimated proportion of crew members (80%) meeting proposed hours of service
requirement.
[c] Based on a sample of CBA for Flight attendants about 35% to 40% are currently covered by an FMLA-type
provision such that most are eligible to take leave (we assumed a point estimate of 37% for the calculation);
for Pilots about 20% are currently covered by an FMLA-type provision such that they are eligible to take
leave.
[d] Flight attendants take leave at same rate as other industries (7.9%); Pilots and other crew use slightly
less FMLA leave (5%).
[e] Individuals taking FMLA leave average 1.5 leaves per year.
In developing a proposed method to calculate FMLA-leave usage for
airline flight crew employees on reserve status, the Department
considered a methodology based solely on the FLSA principles of hours
worked, as is typically used for employees other than airline flight
crew employees. However, since the airline industry is already tracking
and recording airline flight crew employees' hours pursuant to FAA
regulations, such as the flight, duty, and rest rules, the Department
rejected this option. See 14 CFR pt. 91. The Department believes that
imposing an FLSA ``hours worked'' methodology on the airline industry
would require employers to create another
[[Page 8998]]
recordkeeping system, which would be unduly burdensome and costly for
employers. As such, the Department did not quantify the cost of this
alternative.
D. Costs
This section describes the costs associated with the proposed
changes to FMLA, including: regulatory familiarization, employer and
employee notices, certifications, and other costs.
1. Regulatory Familiarization
In response to the proposed changes to the FMLA, each employer will
need to review the changes and determine what revisions are necessary
to their policies, obtain copies of the revised FMLA poster and
templates for required notices and certifications, and update their
handbooks or other leave-related materials to incorporate the changes
(see ``General Notice'' below). This is a one-time cost to each
employer, calculated as two hours at the loaded hourly wage of a Human
Resources (HR) staff member in the airline industry and one hour in all
other industries to complete the tasks described above. Industries
other than the airline industry will need less time for this task
because there is no need for them to review the components of the rule
pertaining to flight crews and they are already familiar with the
requirements of FMLA. The Department seeks comment on whether two hours
for the airline industry and one hour for all other industries are
reasonable estimates for employers to review this rule and determine
what revisions may need to be made to their employment guides and
practices, such as updating company policies and/or timekeeping
systems.
2. Employer Notices
Under the FMLA, as described in Sec. 825.300, employers are
required to provide certain types of notices to employees regarding
FMLA eligibility, employee rights and responsibilities, and employee
usage of leave. The estimated time to complete each notice is based on
the PRA contained in the final rule. 73 FR 68040.
General Notice. Every covered employer must provide general notice
of FMLA coverage to all employees; this notice may be provided in
employee handbooks or other benefits and leave materials or as a one-
time notice to new employees. For the purpose of this analysis, the
cost associated with the proposed changes will be a one-time cost to
each employer to update the notice provided and is included under
regulatory familiarization costs above.
Eligibility Notice and Rights and Responsibilities Notice. An
employer is required to notify an employee of their eligibility to take
FMLA leave when an employee requests FMLA leave or the employer becomes
aware that an employee's leave may be for an FMLA-qualifying reason.
The notice must state whether or not the employee is eligible and, if
not, the reason the employee is not eligible. Along with the
eligibility notice, the employer must include a discussion of employee
rights and obligations, amount of leave designated as FMLA, the
applicable 12-month period for leave, certification requirements, and
other key details. The cost of these combined notices is calculated as
10 minutes at the loaded hourly wage of an HR staff member to process
each notice.
Designation Notice. The employer is required to determine if leave
taken by the employee for an FMLA-qualifying reason will be designated
and counted as FMLA leave and provide written notice to the employee of
this determination. Notice must be provided even if the employer
determines that the leave will not be designated as FMLA, and only one
notice is required per FMLA reason per 12-month period. The cost of
this type of notice is calculated as 10 minutes at the loaded hourly
wage of an HR staff member to process each notice.
Certifications
Under the FMLA, as described in Sec. 825.305, employers are
allowed to request certification to support an employee's need for FMLA
leave due to their own or a family member's serious health condition,
the serious injury or illness of a covered servicemember, a qualifying
exigency, or to verify an employee's fitness for duty after an absence
due to their own health condition.\42\ The costs associated with these
certifications include: Employer cost to request, review, and verify
the certification and employee cost to obtain the certification from
the designated authority.
---------------------------------------------------------------------------
\42\ An unknown percent of employers require employees to
periodically recertify their need for FML. We have no data on the
percent of employers that require certification, and believe the
percent of employers that require recertification is a small percent
of those that require certification. Therefore we have not attempted
to estimate the number of employers that require recertification or
the costs associated with it; we expect that these costs are small.
---------------------------------------------------------------------------
Medical Certification. This type of certification may be requested
of employees who take FMLA leave for their own serious health condition
or that of a family member and is obtained from the health care
provider. This is a recurring cost to both the employee and the
employer for each FMLA leave event that is required to have medical
certification. The cost to the employee is calculated as the cost of
the visit to the health care provider completing the certification,
assumed to be approximately $50 per visit.\43\ The cost to the employer
is 30 minutes at the loaded hourly wage of an HR staff person to review
and verify each certification. The proposed changes will only impact
the usage of FMLA leave for the employee's own or the employee's family
member's serious health condition for flight crew members; for the
purposes of this analysis, the additional costs of the proposed changes
will only accrue to flight crew members and airline industry employers.
(The cost for medical certification for military caregiver leave is
discussed below.)
---------------------------------------------------------------------------
\43\ CONSAD, December 2007.
---------------------------------------------------------------------------
Qualifying Exigency. Employees taking FMLA leave for a qualifying
exigency may be asked to provide a copy of the relevant military orders
or other documentation, and a copy of Form WH-384 ``Certification of
Qualifying Exigency'' to their employers to substantiate their need for
leave. This is a recurring cost to the employer for each FMLA
qualifying exigency leave for which the employer requires the employee
to provide certification. The cost is calculated as 20 minutes at the
loaded hourly wage of an HR staff person to review and verify each
certification.
Military Caregiver. Employees taking FMLA military caregiver to
care for a covered servicemember with a qualifying illness or injury
may be asked to provide medical certification of the condition from an
authorized health care provider. This is a recurring cost to both the
employee and the employer for each FMLA military caregiver leave event
that is required to have medical certification. The cost to the
employee is calculated as the cost of the visit to the health care
provider completing the certification, assumed to be approximately $50
per visit.\44\ The cost to the employer is 30 minutes at the loaded
hourly wage of an HR staff person to review and verify each
certification. For the purposes of this analysis, these costs accrue to
employees taking FMLA military caregiver to care for a covered veteran
with a qualifying illness or injury and their employers.
---------------------------------------------------------------------------
\44\ CONSAD, December 2007.
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Fitness for Duty. For certain occupations, employers may desire
certification from a medical professional that an employee is well
enough to
[[Page 8999]]
fulfill their duties following an FMLA leave for the employee's own
serious health condition. Under prescribed circumstances, an employer
may request a fitness-for-duty certification. The cost to the employee
is calculated as the cost of the visit to the health care provider
completing the certification, assumed to be approximately $50 per
visit.\45\ The cost to the employer is 30 minutes at the loaded hourly
wage of an HR staff person to review and verify each certification. For
the purposes of this analysis, the additional costs of the proposed
changes will only accrue to flight crew members and airline industry
employers.
---------------------------------------------------------------------------
\45\ CONSAD, December 2007.
---------------------------------------------------------------------------
3. Other Employer Costs
The FMLA includes employer recordkeeping requirements but those
costs are not addressed here because the proposed changes do not affect
the type of records the employer is required to keep nor the amount of
time they must keep them. Employers must continue to keep and maintain
records under the proposed changes as they are required to do so under
the current regulations. Additionally, while the proposed rule does
newly cover airline flight crew employees, the Department expects that
employers in the airline industry have already been tracking non-flight
crew employees' hours to comply with the FMLA. Covered airlines must
currently comply with FMLA with respect to employees, such as ticketing
agents, baggage handlers, and administrative personnel. As such, the
Department does not expect the proposed rule to create any additional
recordkeeping burdens on airline employers.
a. Employee Health Benefits. Employers are required by FMLA to
maintain employee benefits during their absence on FMLA leave. This is
a recurring cost to each employer that is calculated as the cost per
hour to cover employee health benefits multiplied by the total number
of hours of FMLA leave taken. This cost results from additional reasons
an employee may take FMLA leave (qualifying exigency, military
caregiver), and additional employees entitled to leave (airline flight
crew employees). The Department estimated this cost as part of the 2008
final rule and is using the same methodology here, noting that ``the
marginal costs related to workers taking * * * military family leave *
* * result from the cost of providing health insurance during the
period the worker is on leave * * *. The Department believes these * *
* costs are reasonable proxies for the opportunity cost of the NDAA
provisions, since health insurance coverage represents the marginal
compensation an employer is still required to cover under the FMLA when
a worker is absent.'' 73 FR 68051. According to the BLS ``Employer
Costs for Employee Compensation Survey'' of June 2008, employers spend
an average of $2.25 per employee per hour worked on health insurance
coverage.\46\
---------------------------------------------------------------------------
\46\ BLS Employment Cost Trends, URL: http://www.bls.gov/ncs/ect/. Accessed on 09-29-2010.
---------------------------------------------------------------------------
b. Replacement Workers. In some businesses, employers are able to
redistribute work among other employees while an employee is absent on
FMLA leave but in other cases the employer may need to hire temporary
replacement workers. This process involves costs resulting from
recruitment of temporary workers with needed skill sets, training the
temporary workers, and lost or reduced productivity of these workers.
The cost to compensate the temporary workers is in most cases offset by
the amount of wages not paid to the employee absent on FMLA leave.
In the initial FMLA rulemaking, the Department drew upon available
research to suggest that the cost per employer to adjust for workers
who are on FMLA leave is fairly small. 58 FR 31810. As in previous
rulemakings, the Department is requesting information from businesses
on the impact of different strategies for compensating for workers on
leave, particularly the extent to which work is redistributed among
other workers, and the costs of recruiting and training temporary
workers.
For the purpose of this analysis, we will continue to assume that
these costs are fairly small; furthermore, most employers subject to
this rule change have been implementing FMLA for some time and have
already developed internal systems for work redistribution and
recruitment and training of temporary workers. The air transportation
industry, however, is an exception to this reasoning and employers in
this industry may face additional challenges with respect to
scheduling.
Due to the nature of the industry, airlines have varied and complex
approaches to scheduling airline flight crew employees for flights.\47\
Based on seniority, these employees may bid on their desired domicile
(i.e., primary airport), equipment (i.e., type of airplane), and flying
schedule (e.g., international, shuttle). Generally, the employees can
bid a ``line of flying'' or a ``block'' of flights or may bid on a
number of days on reserve. According to our interviewees, approximately
15-20 percent of employees may be on reserve at any point in time and
this amount fluctuates by airline and demand.\48\ There are different
types of reserve that are loosely based on the proximity of the
employee to the airport; an employee on ``short call'' may be required
to arrive at the domicile within 90 minutes, while an employee on
``long call'' may be given 9 hours notice to arrive at the domicile for
a flight.
---------------------------------------------------------------------------
\47\ This discussion is highly generalized and may not represent
the practices of a specific airline. The purpose of the discussion
is to provide context for understanding the impact of FMLA leave on
overall scheduling practices.
\48\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR
Conference, Calvin Franz and Lauren Jankovic, both of ERG.
---------------------------------------------------------------------------
Overall, the scheduling is fairly flexible in order to manage
schedule changes; for example, ``block holders'' can be rescheduled to
cover additional flights, flight attendants can engage in ``trip
trading'' or volunteer for open flying time, and airlines can use
``dead heading'' to fly in a crew from another airport.
There are several key limitations to the flexibility of the system;
the primary one being regulatory limits on flying time and equipment.
This limitation is the most stringent for pilots who have more
restrictive limitations on flying time than other flight crew members
and who may only fly specific types of aircraft. Additionally, schedule
changes due to events such as severe weather can impact scheduling;
reserve flight crew members are utilized to make up for cancelled and
rescheduled flights.
At this point, it is not clear if the AFCTCA will impose a
significant cost on air transportation employers, nor the potential
magnitude of the cost. The Department believes that the rule will
increase the number of flight crew leaves classified as FMLA, but may
not necessarily increase the absolute number of leaves taken by these
workers.
4. Regulatory Impacts
This section draws on the estimates of potentially affected
employees, and the unit costs discussed above to determine the
anticipated impact of the proposed regulations in terms of total cost
across all industries as well as estimated cost per firm and per
employee.
a. Projected Regulatory Cost
The total estimated impact of the proposed changes is $72.4 million
in the first year with $59.8 million in recurring costs in subsequent
years. Table 5-1 summarizes the total estimated costs of the proposed
changes to FMLA by cost
[[Page 9000]]
type (first year, recurring), amendment (flight crew, military
caregiver), and regulatory requirement (familiarization, notices,
certifications, benefits).
Table 5-1--Summary of Impact of Proposed Changes to FMLA
------------------------------------------------------------------------
Component Year 1 ($1000) Year 2 ($1000)
------------------------------------------------------------------------
Total............................... $72,398 $59,791
By Amendment . . .
Any FMLA revision............... 12,607 0
Flight Crew Technical Amendment. 372 372
NDAA 2010....................... 59,419 59,419
Qualifying Exigency......... 25,832 25,832
Military Caregiver.......... 33,587 33,587
By Requirement . . .
Regulatory Familiarization...... 12,607 0
Employer Notices................ 26,851 26,851
Certifications.................. 722 722
Health Benefits................. 32,218 32,218
------------------------------------------------------------------------
[a] Columns may not sum due to rounding.
All covered employers will incur costs of $12.6 million during the
first year for regulatory familiarization associated with any new FMLA
revision. Other than the initial regulatory familiarization costs that
occur in the first year, all other costs are annual costs; they occur
in the first year, and in each subsequent year. Covered employers in
the air transportation industry who are not already providing family
and medical leave to flight crew employees will incur costs of about
$372 thousand per year to implement the changes. Covered employers of
workers eligible for military family leave will incur costs of about
$59.4 million per year as a result of the proposed changes. Looking at
the key requirements of FMLA, most of the costs of the proposed changes
will stem from generation of employer notices and maintenance of health
benefits in recurring years.
To facilitate the public's understanding of the impact of this
proposed rule, the Department provides some alternative assumptions on
the utilization of leave and corresponding costs. However, due to the
lack of reliable data on which to base alternative assumptions, we do
not include these ranges in the summary analysis.
The Department estimates the cost of the NDAA as $59.4 million,
with qualifying exigency leave costing $25.8 million and military
caregiver leave costing $33.6 million. However, under different
scenarios, the cost of the NDAA may increase or decrease. The cost of
qualifying exigency leave will vary between $2.6 million and $54.6
million in times of low conflict and high conflict.\49\ As a result,
the cost of the NDAA will vary from $36.2 million in low conflict times
and $88.2 million in high conflict times. The cost of qualifying
exigency leave may also change if leave taken for Rest and Recuperation
is closer to 5 days or 15 days. Under this scenario, the cost of
qualifying exigency leave might range from $23.1 million to $28.6
million, and, thus, the total cost of the NDAA will range from $56.6
million to $62.1 million.
---------------------------------------------------------------------------
\49\ In addition, no deployments take place in 16 of the 48
years of data examined (33.3 percent), and costs associated with
qualifying exigency leave for deployment would be zero in those
years. Low levels of conflict occurred in 18 of 48 years (37.5
percent) and high levels of conflict took place in 14 of 48 years
(29.2 percent).
---------------------------------------------------------------------------
Similarly, if the definition of serious injury or illness was set
only to include disability ratings of 60% or greater (i.e., was more
stringent), or alternatively to include more ratings of 30% or greater
(i.e., was more inclusive), then the cost of military caregiver leave
would range from $29.8 million to $44.9 million. As a result, the total
cost of the NDAA would vary between $55.7 million and $70.7 million.
Table 5-2 provides the total, net present value and average
annualized projected compliance costs over 10 years. Average annualized
costs take the entire stream of costs over 10 years, including both
first-year costs that are only incurred once, and recurring costs that
are incurred every year, and converts them into a stream of equal
annual payments with a net present value equal to the original stream
of time-varying costs at the specified real discount rate. Calculating
annualized costs allows the examination of an appropriate measure of
average costs (by accounting for the time-value of money) over time
without overestimating impacts by focusing on initial costs, or
underestimating impacts by focusing solely on recurring costs. The OMB
directs that the streams of costs and benefits should be discounted
using a 7 percent real discount rate; we also include the three percent
real discount rate for reference.
Table 5-2--Average Annualized Costs by Amendment and Requirement
----------------------------------------------------------------------------------------------------------------
Annualized ($1000) [a]
---------------------------------
Component Total Real discount Real discount
($1000) rate 3% rate 7%
($1000) ($1000)
----------------------------------------------------------------------------------------------------------------
Total............................................................ $610,517 $61,226 $61,469
[[Page 9001]]
By Amendment . . .
Any FMLA revision............................................ 12,607 1,435 1,678
Flight Crew Technical Amendment.............................. 3,720 372 372
NDAA 2010.................................................... 594,190 59,419 59,419
Qualifying Exigency...................................... 258,323 25,832 25,832
Military Caregiver....................................... 335,868 33,587 33,587
By Requirement . . .
Regulatory Familiarization................................... 12,607 1,435 1,678
Employer Notices............................................. 268,509 26,851 26,851
Certifications............................................... 7,221 722 722
Health Benefits.............................................. 322,181 32,218 32,218
----------------------------------------------------------------------------------------------------------------
[a] Columns may not sum due to rounding.
The results presented in the table show that the proposed changes
are projected to cost an average of $61.4 million per year over 10
years using a 7 percent real discount rate.
With respect to the proposed amendments to the rule, the military
family leave provisions (FY 2010 NDAA) account for about 96.7 percent
of the total annualized cost. In terms of requirements of the rule,
employer notices and maintenance of health benefits each account for
about 44 and 52 percent of the total cost, respectively.
b. Impacts of Projected Cost
In this section we review the impact of projected regulatory costs
on business income. To avoid misrepresenting impacts, they are
presented in four different ways: First year costs are the largest,
thus the ratio of first-year costs to income (business and worker)
represent the most severe impacts that might be incurred in any one
year; the ratio of recurring costs to income are more typical impacts--
those that can be expected in any year except the first year; finally,
average annualized costs, as described above reflect the overall
average over 10 years.
Table 5-3 presents the impact of the projected costs on firm income
and payroll with respect to first year and recurring costs; the impacts
are disaggregated by proposed amendment and regulatory requirement. The
projected first year costs of the proposed rule are about $190 per
firm, which is less than one-hundredth of a percent of average annual
revenues and payroll. For most firms, the military family leave
provisions account for the largest part of this impact, at $156 per
firm. With the exception of regulatory familiarization, first year
costs for employer notices, certifications, and the maintenance of
health benefits are identical to the amounts incurred in each
subsequent year. The cost of the flight crew technical amendments may
be a small portion of overall first year costs, but the impact will be
concentrated on the air transportation industry. As a result, the cost
per firm is $1,016, which is less than one-hundredth of a percent of
average annual revenues and payroll.
The impact of the recurring costs will be about $157 per firm; the
military family leave provisions continue to be the driver of the size
of the impact due to the cost of employer notices and maintenance of
employee health benefits associated with the requirement.
Table 5-3--Impact of Compliance Costs on Firm Income
----------------------------------------------------------------------------------------------------------------
Costs Projected impacts
-----------------------------------------------------------------------
Component Cost per firm Cost per firm
Total cost Cost per firm as percent of as a percent of
[a] revenues annual payroll
----------------------------------------------------------------------------------------------------------------
First Year Cost......................... $72,398 $190 0.0003 0.0015
By Amendment . . .
Any FMLA revision................... 12,607 33 0.0001 0.0003
Flight Crew Technical Amendment..... 372 1,016 0.0004 0.0014
NDAA 2010........................... 59,419 156 0.0003 0.0012
By Requirement . . .
Regulatory Familiarization.......... 12,607 33 0.0001 0.0003
Employer Notices.................... 26,851 71 0.0001 0.0005
Certifications...................... 722 2 0.0000 0.0000
Health Benefits..................... 32,218 85 0.0001 0.0006
Recurring Cost.......................... 59,791 157 0.0003 0.0012
By Amendment . . .
Any FMLA revision................... 0 0 0.0000 0.0000
Flight Crew Technical Amendment..... 372 1,016 0.0004 0.0014
NDAA 2010........................... 59,419 156 0.0003 0.0012
By Requirement . . .
Regulatory Familiarization.......... 0 0 0.0000 0.0000
Employer Notices.................... 26,851 71 0.0001 0.0005
Certifications...................... 722 2 0.0000 0.0000
Health Benefits..................... 32,218 85 0.0001 0.0006
[[Page 9002]]
7% Real Discount Rate................... 61,469 161 0.0003 0.0013
By Amendment . . .
Any FMLA revision................... 1,677 4 0.0000 0.0000
Flight Crew Technical Amendment..... 372 1,016 0.0004 0.0014
NDAA 2010........................... 59,419 156 0.0003 0.0012
By Requirement . . .
Regulatory Familiarization.......... 1,677 4 0.0000 0.0000
Employer Notices.................... 26,851 71 0.0001 0.0005
Certifications...................... 722 2 0.0000 0.0000
Health Benefits..................... 32,218 85 0.0001 0.0007
----------------------------------------------------------------------------------------------------------------
[a] Calculated as total cost divided by the number of affected firms. For example, first year NDAA cost per firm
is $59 million divided by 381 thousand firms and first year cost per firm for the flight crew technical
amendment is $372 thousand divided by 366 firms.
Table 5-3 also presents the impact of projected costs on firm and
worker income for average annualized costs with a 7 percent real
discount rate. The results demonstrate that the overall average
annualized cost of the rule is $61.5 million, or about $161 per firm
($1,016 per firm in the air transportation industry).
Finally, the impacts presented in Tables 5-3 also show the costs
per firm as a percent of firm resources. The Department estimated
impacts as the national costs of the rule divided by the number of
affected firms (including government entities). The total cost per firm
of $161 based on the total annualized cost at a 7 percent discount rate
composes approximately 3 ten-thousandths of 1 percent of average annual
firm revenue. However, it is likely that some of these costs will be
borne by the firm and some by the workers; the exact incidence of these
impacts will depend on the relative bargaining strength of firms and
workers which will vary by industry.
C. Benefits
The Department anticipates significant benefits resulting from the
proposed revisions. Employers that have adopted flexible workplace
practices cite many economic benefits such as reduced worker
absenteeism and turnover, improvements in their ability to attract and
retain workers, and other positive changes that translate into
increased worker productivity. ``Work-Life Balance and the Economics of
Workplace Flexibility'' at 16, Executive Office of the President,
Council of Economic Advisors (March 2010). However, quantifying the
benefits is challenging. Id. The Department does not attempt to
quantify these benefits in this analysis, but does, however, describe
the expected benefits of each major revision in the proceeding section.
1. Military Family Leave
The benefits stemming from improving access to military leave for
military family members were described in the 2008 final rule as
follows:
[T]he families of servicemembers will no longer have to worry
about losing their jobs or health insurance due to absences to care
for a covered seriously injured or ill servicemember or due to a
qualifying exigency resulting from active duty or call to active
duty in support of a contingency operation.
73 FR 68069. Based on the preceding analysis, and the availability of
recent research examining the impacts of service-connected injuries and
illnesses, the Department also anticipates additional benefits to
accrue to servicemembers and their families from the FY 2010 NDAA
amendments.
Providing job-protected leave for caregivers of covered veterans
under the military caregiver provision is expected to have several
benefits, including increased family involvement in recovery, improved
self-reliance and access to resources for caregivers, and a reduction
in negative outcomes for covered veterans and their families.
Recent research suggests that as many as 30 percent of returning
servicemembers may suffer from symptoms of PTSD, major depression, and/
or traumatic brain injury. These individuals often suffer from:
[ssbox] Co-morbitities such as anxiety and mood disorders, and
substance abuse,
[ssbox] Increased risk of suicidal ideation and attempts;
[ssbox] Higher rates of unhealthy behaviors such as smoking, poor
diet, and unsafe sex;
[ssbox] Higher rates of other health problems and mortality; and
[ssbox] Decreased work productivity in the form of missed work days
and decreased performance at work.\50\
---------------------------------------------------------------------------
\50\ Tanielian, Terri and Lisa Jaycox. 2008. Invisible wounds of
war: psychological and cognitive injuries, their consequences, and
services to assist recovery. RAND. Available for download at URL:
www.rand.org
---------------------------------------------------------------------------
While this study focused on active servicemembers, these disorders
involve long timeframes for recovery and management of the symptoms so
it is reasonable to conclude that these same issues would impact the
servicemember following separation from service. Furthermore, the
impact of these disorders, and other serious injuries or illnesses
incurred by covered servicemembers and veterans, extends to family
members as well. Common issues include marital discord and increased
likelihood of divorce, intimate partner violence, poor parenting skills
and poor child outcomes, and caregiver burden. In ``Economic Impact on
Caregivers of the Seriously Wounded, Ill, and Injured,'' the authors
describe the impact on caregivers as follows:
Family support is critical to patients' successful
rehabilitation. Especially in a prolonged recovery, it is family
members who make therapy appointments and ensure they are kept,
drive the servicemember to these appointments, pick up medications
and make sure they are taken, provide a wide range of personal care,
become the impassioned advocates, take care of the kids, pay the
bills and negotiate with the benefits offices, find suitable housing
for a family that includes a person with a disability, provide
emotional support, and, in short, find they have a full-time job--or
more--for which they never prepared. When family members give up
jobs to become caregivers, income can drop precipitously.\51\
\51\ Christensen, et. al., April 2009, Economic Impact on
Caregivers of the Seriously Wounded, Ill, and Injured, CNA, p. 8.
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[[Page 9003]]
The support provided by caregivers plays a pivotal role in the
course of the servicemember's recovery, as noted in ``Invisible Wounds
---------------------------------------------------------------------------
of War'':
The likelihood that the condition will trigger a negative
cascade of consequences over time is greater if the initial symptoms
of the condition are more severe and the afflicted individual has
other sources of vulnerability * * * Early interventions are likely
to pay long-term dividends in improved outcomes for years to come;
so, it is critical to help servicemembers and veterans seek and
receive treatment.\52\
---------------------------------------------------------------------------
\52\ Tanielian and Jaycox, 2008.
Providing caregivers with job-protected FMLA leave to care for
their family member who is a covered veteran creates a window of
opportunity to interrupt the negative cascade of consequences
experienced by sufferers of PTSD, TBI and depression. Furthermore,
maintaining the flow of resources and self-sufficiency provided by a
secure employment situation ensures that the caregivers are able to
maintain their own mental and physical health during the veteran's
recovery process.\53\
---------------------------------------------------------------------------
\53\ Christensen, et. al., 2009, p.9.
---------------------------------------------------------------------------
At this point, there is not sufficient data to accurately estimate
the number of servicemembers suffering from these disorders or the
range of severity of symptoms; as a result, we are unable to quantify
the benefits of reduced rates of negative outcomes for affected
veterans and their families. However, in ``Invisible Wounds of War,''
RAND developed estimates of costs associated with PTSD, major
depression, and TBI stemming from the conflicts in Afghanistan and
Iraq. For example:
[ssbox] Servicemembers diagnosed with PTSD incur costs of $5,000-
10,000 per servicemember during the first two years after returning
home.\54\
---------------------------------------------------------------------------
\54\ RAND, 2008, p. xxiii. Variation due to severity and
inclusion, or not, of cost of lives lost to suicide. Costs do not
include costs due to substance abuse, domestic violence,
homelessness, or family strain.
---------------------------------------------------------------------------
[ssbox] Servicemembers diagnosed with major depression incur costs
of $15,000--25,000 per servicemember during the first two years after
returning home.\55\
---------------------------------------------------------------------------
\55\ RAND, 2008, p. xxiii. Costs associated with co-morbid PTSD
and depression are approximately $12,000 to 16,000.
---------------------------------------------------------------------------
[ssbox] Servicemembers diagnosed with TBI incur costs of $27,000 to
32,000 for a mild case up to $268,000 to 408,000 for severe cases.\56\
---------------------------------------------------------------------------
\56\ RAND, 2008, p. xxiii. Costs presented in 2007 dollars.
---------------------------------------------------------------------------
The proposed regulatory change will likely reduce these costs, and
the costs associated with other negative outcomes associated with these
diagnoses; but, at this point in time we do not have sufficient data to
estimate the reduction in costs.
2. Airline Industry FMLA Leave
As a result of the proposed changes airline flight crew employees
will enjoy all the benefits of FMLA coverage that have been afforded to
employees in other industries. Additionally, as discussed in the 2008
final rule, employers may see reduced ``presenteeism''--the loss of
productivity due to employees working while injured or ill--and a
resultant increase in overall productivity, workplace safety, and
wellness among employees. 73 FR 68071.
VI. Small Business Regulatory Enforcement Fairness Act; Regulatory
Flexibility
This section describes the analysis of impacts on small entities of
the proposed rule. The Regulatory Flexibility Act of 1980 (RFA)
requires agencies to prepare regulatory flexibility analyses and make
them available for public comment when proposing regulations that will
have a significant economic impact on a substantial number of small
entities. See 5 U.S.C. 603. If the rule is not expected to have a
significant economic impact on a substantial number of small entities,
the RFA allows an agency to certify such, in lieu of preparing an
analysis. See 5 U.S.C. 605.
The Department has determined that an Initial Regulatory
Flexibility Analysis under the RFA is not required for this rulemaking.
The FMLA covers private employers of 50 or more employees; employers
with fewer than 50 employees are exempt. Moreover, Congress defined,
for the purpose of the FMLA, a small business to be one with fewer than
50 employees. Therefore, changes to the FMLA regulations by definition
will not impact small businesses.\57\ However, in the interest of
transparency and to provide an opportunity for public comment, the
Department has prepared the following analysis to assess the impact of
this regulation on small entities (as defined by the applicable SBA
size standards). The Chief Counsel for Advocacy of the Small Business
Administration was notified of a draft of this rule upon submission of
the rule to the Office of Management and Budget under E.O. 12866.
---------------------------------------------------------------------------
\57\ SBA Office of Advocacy: A Guide for Governmental Agencies--
How to Comply with the Regulatory Flexibility Act. June 2010. http://www.sba.gov/sites/default/files/rfaguide.pdf.
---------------------------------------------------------------------------
The Small Business Administration size standard is 500 employees,
therefore employers with 50 to 500 employees will be affected by this
regulation. Coverage under the FMLA is limited to an estimated 314,752
small employers with 50 to 500 employees. This rule is estimated to
cost an average of $190 per firm in the first year, and an average of
$157 per firm each year thereafter. See Table 5-3. Therefore, this
regulation will not have a significant economic impact on any of these
small entities. The Department certifies this NPRM is not likely to
have a significant economic impact on a substantial number of small
entities, and, accordingly, a regulatory flexibility analysis is not
required by the RFA.
1. Number of Small Entities
The RFA defines a ``small entity'' as a: (1) Small not-for-profit
organization, (2) small governmental jurisdiction, or (3) small
business. The Department relied upon standards defined by the Small
Business Administration (SBA) to identify firms and governments
classified as small. For the purposes of this rulemaking effort, we did
not attempt to analyze not-for-profit organizations other than as they
appear in the BLS QCEW data used as the basis for the analysis (e.g.,
not-for-profit hospitals); the estimation of such not-for-profits is
therefore included in the estimation of other small firms as described
below.
This analysis focuses solely on the costs and impacts of the
proposed regulations on small entities and draws on the industry
profile described in the E.O. 12866 analysis of this preamble. The
Department assumed all firms with fewer than 500 employees are small.
A small governmental jurisdiction is defined as the government of a
city, county, town, township, village, school district, or special
district with a population of less than 50,000. The Department used the
field specifying the population of the governmental jurisdiction in the
Census of Governments to determine the number of government entities
considered small for RFA purposes. All State governments were assumed
to be large for RFA purposes.
Applying these size assumptions to the universe of potentially
affected firms (Tables 6-1A) we estimate that 83 percent of entities,
about 315,000 impacted by the proposed rule meet SBA's criteria for a
small entity. Of those, 251,000 are private sector businesses employing
about 57 percent of all workers and earning about 57 percent of
estimated revenues. The remaining 63,600 are small government entities
employing about 11 percent of workers and accruing about 5 percent of
all estimated revenues. About 17
[[Page 9004]]
percent of private businesses and government agencies are non-small for
RFA purposes. These entities employ more than 32 percent of workers,
pay 64 percent of wages, and earn 39 percent of annual revenues.
Table 6-1A--Covered Firms and Workers by SBA Size Standards
----------------------------------------------------------------------------------------------------------------
Number and percent Number and percent Number and percent
Industry of establishments of employment of firms
----------------------------------------------------------------------------------------------------------------
Small
Private................................... 1,051,716 84 52,113,983 57 251,134 66
Government................................ 127,235 10 10,085,977 11 63,617 17
-----------------------------------------------------------------
Subtotal.............................. 1,178,951 94 62,199,960 68 314,751 83
Non Small
Private................................... 16,436 1 19,646,940 22 40,025 11
Government................................ 52,717 4 9,299,992 10 25,909 7
-----------------------------------------------------------------
Subtotal.............................. 69,153 6 28,946,932 32 65,934 18
Total
Private................................... 1,068,152 86 71,760,923 79 291,159 76
Government................................ 179,952 14 19,385,969 21 89,526 24
-----------------------------------------------------------------
Total................................. 1,248,104 100 91,146,892 100 380,685 100
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Annual Payroll Estimated 2008 Estimated 2008 net
Industry ($mil.) and percent revenues ($mil.) and income ($mil.) and
of total percent of total percent of total
----------------------------------------------------------------------------------------------------------------
Small
Private................................... $1,375,524 28 $13,423,633 57 $304,497 30
Government................................ 395,610 8 1,092,309 5 26,180 3
-----------------------------------------------------------------
Subtotal.............................. 1,771,134 36 14,515,943 61 330,677 32
Non Small
Private................................... 2,823,743 57 6,763,222 29 319,226 31
Government................................ 374,268 8 2,444,202 10 375,124 37
-----------------------------------------------------------------
Subtotal.............................. 3,198,011 64 9,207,424 39 694,349 68
Total
Private................................... 4,199,267 85 20,186,856 85 623,723 61
Government................................ 769,878 15 3,536,511 15 401,304 39
-----------------------------------------------------------------
Total................................. 4,969,145 100 23,723,367 100 1,025,0267 100
----------------------------------------------------------------------------------------------------------------
Table 6-1B presents the number of affected entities for the air
transportation industry. While 63 percent of firms are small by SBA
standards, the 37 percent of firms that are not small account for 75
percent of establishments, 95 percent of employees and payroll, 96
percent of revenues and 99 percent of net income.
Table 6-1B--Air Transportation Industry (NAICS 481) Covered Firms and Workers by SBA Standards
----------------------------------------------------------------------------------------------------------------
Number and percent Number and percent Number and percent
Industry of establishments employment of firms
----------------------------------------------------------------------------------------------------------------
Small......................................... 728 25 25,004 5 231 63
Non Small..................................... 2,204 75 506,796 95 135 37
-----------------------------------------------------------------
Total..................................... 2,932 100 531,800 100 366 100
----------------------------------------------------------------------------------------------------------------
Table 6-1B-Continued--Payroll, Revenue, and Income of Air Transportation Industry Covered Firms by SBA Size
Standards
----------------------------------------------------------------------------------------------------------------
Annual payroll Estimated revenues Estimated net income
Industry ($mil.) and percent ($mil.) and percent ($mil.) and percent
of total of total of total
----------------------------------------------------------------------------------------------------------------
Small......................................... $1,185 5 $4,321 4 $38 1
Non Small..................................... 24,905 95 98,496 96 3,188 99
-----------------------------------------------------------------
Total..................................... 26,090 100 102,817 100 3,226 100
----------------------------------------------------------------------------------------------------------------
[[Page 9005]]
2. Cost to Small Entities
Table 6-2A summarizes estimated first-year, recurring, and
annualized compliance costs attributable to the proposed rule for both
small and non-small businesses. Among all entities (both business and
government) potentially affected by the proposed rule 83 percent are
small for the purposes of the RFA. See Table 6-1A. They are projected
to incur about 71 percent of first-year costs, 68 percent of recurring
costs, and 68 percent of average annualized costs. See Table 6-2A. In
the air transportation industry, small entities account for 8 percent
of first-year costs, 5 percent of recurring costs, and 5 percent of
average annualized costs although they compose 63 percent of firms. See
Table 6-2B.
Table 6-2A--Compliance Costs by Business Size [a]
----------------------------------------------------------------------------------------------------------------
First year ($1000) Recurring ($1000) Annualized ($1000)
Industry and percent of total and percent of total and percent of total
----------------------------------------------------------------------------------------------------------------
Small
Private................................... $40,716 56 $33,981 57 $34,877 57
Government................................ 9,994 14 6,585 11 7,039 11
-----------------------------------------------------------------
Subtotal.............................. 50,709 70 40,566 68 41,916 68
Non Small
Private................................... 14,048 19 12,972 22 13,116 21
Government................................ 7,652 11 6,264 10 6,449 11
-----------------------------------------------------------------
Subtotal.............................. 21,689 30 19,225 32 19,553 32
Total
Private................................... 54,764 76 46,954 79 47,993 78
Government................................ 17,646 24 12,849 22 13,487 22
-----------------------------------------------------------------
Total................................. 72,398 100 59,791 100 61,469 100
----------------------------------------------------------------------------------------------------------------
[a] Column totals may not sum due to rounding.
Table 6-2B--Air Transportation Industry (NAICS 481) Compliance Costs by Business Size
----------------------------------------------------------------------------------------------------------------
First year and Recurring and Annualized and
Industry percent of total percent of total percent of total
($1000) ($1000) ($1000)
----------------------------------------------------------------------------------------------------------------
Small......................................... $30 8 $17 5 $19 5
Non Small..................................... 362 92 355 95 355 95
-----------------------------------------------------------------
Total..................................... 392 100 372 100 375 100
----------------------------------------------------------------------------------------------------------------
Small entities constitute the substantial majority of affected
entities and are projected to incur the majority of compliance costs;
however, they do not bear a disproportionate share of projected costs,
nor will those costs result in a significant economic impact on those
small entities. First-year costs of the rule are the largest costs
incurred by all entities, but these average less than $200 for small
firms in the private sector and for small government entities. See
Table 6-3A. Estimated compliance costs per firm for small firms do not
compose a higher percentage of firm revenues than for large firms, and
in no case does that cost exceed 0.01 percent of firm revenues. For
small air transportation firms, the cost per firm is smaller than the
overall average (see Table 6-3B); for non-small firms, cost per firm is
larger than the overall average, but still composes one ten-thousandth
of a percent of annual revenues.
Table 6-3A--Compliance Costs Presented as Cost per Firm and Cost as a Percent of Firm Income, by SBA Size Standards
--------------------------------------------------------------------------------------------------------------------------------------------------------
First year Recurring Annualized
-----------------------------------------------------------------------------------------------
Industry Cost as Cost as Cost as
Cost per firm percent of Cost per firm percent of Cost per firm percent of
income income income
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small
Private............................................. $162 0.00000 $135 0.00000 $139 0.00000
Government.......................................... 157 0.00001 104 0.00000 111 0.00000
Subtotal........................................ 161 0.00000 129 0.00000 133 0.00000
Non Small
Private............................................. 351 0.00000 324 0.00000 328 0.00000
Government.......................................... 295 0.00000 242 0.00000 249 0.00000
Subtotal........................................ 329 0.00000 292 0.00000 297 0.00000
Total
Private............................................. 188 0.00000 161 0.00000 165 0.00000
Government.......................................... 197 0.00000 144 0.00000 151 0.00000
[[Page 9006]]
Total........................................... 190 0.00000 157 0.00000 161 0.00000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 6-3B--Compliance Costs to Air Transportation Presented as Cost per Firm and Cost as a Percent of Firm Income, by SBA Size Standards
--------------------------------------------------------------------------------------------------------------------------------------------------------
First year Recurring Annualized
-----------------------------------------------------------------------------------------------
Industry Cost as Cost as Cost as
Cost per firm percent of Cost per firm percent of Cost per firm percent of
income income income
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small................................................... $129 0.0003 $76 0.0002 $83 0.0002
Non Small............................................... 2,674 0.0001 2,621 0.0001 2,628 0.0001
Total............................................... 1,070 0.0000 1,016 0.0000 1,023 0.0000
--------------------------------------------------------------------------------------------------------------------------------------------------------
In summary, although the potential impacts of the proposed rule are
larger for small firms when measured as the absolute cost per firm or
employee, or as a percent of firm revenues or employee wages, small
firms do not bear a disproportionate burden under this rule. Therefore,
the Department believes that the proposed rule will not have a
significant economic impact on a substantial number of small entities.
Furthermore, as noted above, Congress defined ``small business'' for
the purpose of the FMLA as one employing fewer than 50 employees and
the proposed regulation therefore, by definition, does not impact small
entities. However, using SBA's size standard of 500 employees to define
``small business'', an estimated 314,752 employers with 50 to 500
employees are covered by the FMLA, this rule is only estimated to cost
an average of $161 per small firm in the first year, and an average of
$129 per small firm each year thereafter. This regulation will not have
a significant economic impact on any of these small entities.
Therefore, the Department has determined and certified that this rule
will not have a significant economic impact on a substantial number of
small entities.
Appendix A: Military Family Leave Profile
In order to estimate the number of individuals who may take leave
under the qualifying exigency or military caregiver provisions as a
result of the proposed changes, the Department estimated (1) the number
of active duty servicemembers whose family members are entitled to
qualifying exigency leave and the number of veterans whose family
members will be entitled to caregiver leave, (2) the age profile of
those servicemembers and veterans, and (3) the number of eligible
family members or caregivers associated with that age profile. The
first estimate is described earlier in this preamble. This appendix
provides an explanation of the method used to develop the age profiles
and eligible family members.
Overview of Approach
The Department attempted to replicate the method used in the CONSAD
2007 report to ensure consistency with previous estimates.\58\ In that
report, CONSAD used data from the Defense Manpower Database, the
Current Population Survey, and the decennial Census of Population to
estimate the age distribution of servicemembers; the proportion of
servicemembers in each age category with living parents, a spouse, and
children (over 18 years of age); \59\ and the proportion of those
individuals who may be employed by a covered employer. The Department
used these estimates to determine the likely number of family members
eligible to take leave for a qualifying exigency or to act as a
caregiver for a covered veteran.
---------------------------------------------------------------------------
\58\ CONSAD 2007. Appendix A.
\59\ Under military caregiver leave a designated ``next of kin''
may also take leave to care for a covered veteran. We accounted for
these individuals by assuming that every covered veteran has at
least one caregiver.
---------------------------------------------------------------------------
The first step is to apply the age profile of servicemembers to the
estimated number of servicemembers to distribute the number of
servicemembers to the age groups. Table A-1 presents the estimated
proportion of servicemembers by age range estimated by CONSAD. The
Department aggregated the age groups for this calculation. For example,
if the proposed rule was expected to affect 100 servicemembers then
this age profile would estimate that 47 of them would be between the
ages of 22 and 30 years old.
Table A-1--Age Profile of Servicemembers
------------------------------------------------------------------------
Average
estimated
proportion of
General military servicemember age range military
members
(percent)
------------------------------------------------------------------------
18-21................................................... 19.9
22-30................................................... 47.0
31-40................................................... 24.8
41-50................................................... 8.0
51-59................................................... 0.6
------------------------------------------------------------------------
The next step is to estimate the number of servicemembers in each
age group with 0, 1, 2, 3, 4, or 5 eligible family members. Table A-2
presents the estimated number of eligible family members by age range
of the servicemember.
[[Page 9007]]
Table A-2--Proportion of Servicemembers With ``n'' Eligible Family Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proportion of servicemembers with n eligible family members, where n =
General military servicemember age range -----------------------------------------------------------------------------------------------
0 (%) 1 (%) 2 (%) 3 (%) 4 (%) 5 (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21................................................... 29.32 49.5 21.0 0.2 0.0 0.0
22-30................................................... 27.38 46.5 23.3 2.8 0.0 0.0
31-40................................................... 31.08 44.1 21.1 3.6 0.2 0.2
41-50................................................... 37.78 40.4 16.9 4.2 0.7 0.1
51-59................................................... 45.25 35.4 14.6 3.9 0.7 0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Finally, the number of estimated eligible family members for each
age group of servicemembers is summed up by multiplying the number of
servicemembers in each column by the number of eligible family members.
For example, for each age group the calculation is ( x 0) +
( x 1) + ( x 2) + ( x 3) + ( x 4) +
( x 5). Next, the total number of eligible family members is
summed across the age groups to estimate the total number of eligible
family members.
The following sections illustrate this method for the calculation
of the number of eligible family members who may take qualifying
exigency leave, and the number of eligible family members who may take
leave to act as a military caregiver for a covered veteran.
Qualifying Exigency Leaves
Table A-3 presents the calculation of the projected number of
servicemembers in each age category based on the estimated average
number of covered military members and age profile of military members.
Table A-3--Estimated Age Profile of Servicemembers on Covered Active Duty
----------------------------------------------------------------------------------------------------------------
Average estimated
Total average proportion of Projected number
General military servicemember age range number of military members of servicemembers
military members by age range on covered active
(percent) duty per year
----------------------------------------------------------------------------------------------------------------
18-21.................................................. 197,000 19.9 39,203
22-30.................................................. 197,000 47.0 92,590
31-40.................................................. 197,000 24.8 48,856
41-50.................................................. 197,000 8.0 15,760
51-59.................................................. 197,000 0.6 1,182
----------------------------------------------------------------------------------------------------------------
Table A-4 presents the calculation of the number of eligible family
members of servicemembers in each age group; this combines the
projected number of servicemembers from Table A-3 with the distribution
of family members presented in Table A-2.
Table A-4--Estimated Number of Eligible Family Members of Servicemembers by Age Range
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of eligible family members Total
Projected ----------------------------------------------------------------- number of
Age range number of eligible
servicemembers 0 1 2 3 4 5 family
members
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21..................................................... 39,203 11,492 19,386 8,233 92.1 0 0 36,128
22-30..................................................... 92,590 25,353 43,086 21,533 2,615 0 0 93,996
31-40..................................................... 48,856 15,184 21,545 10,331 1,750 85.5 9.8 47,848
41-50..................................................... 15,760 5,954 6,362 2,656 657 116 16.5 14,190
51-59..................................................... 1,182 535 419 172 46.5 8.39 1.18 942
---------------------------------------------------------------------------------------------
Total................................................. 197,591 58,519 90,798 42,924 5,161 210 28 193,104
--------------------------------------------------------------------------------------------------------------------------------------------------------
Military Caregiver Leaves
Table A-5 presents the calculation of the projected number of
servicemembers in each age category based on the estimated average
number and age profile of servicemembers and covered veterans.
[[Page 9008]]
Table A-5--Estimated Age Profile of Servicemembers and Covered Veterans With Serious Injury or Illness
----------------------------------------------------------------------------------------------------------------
Average estimated Projected number
Total average proportion of of servicemembers
General military servicemember age range number of military members with serious
military members by age range injury or illness
percent) per year
----------------------------------------------------------------------------------------------------------------
18-21.................................................. 92,500 19.8 18,352
22-30.................................................. 92,500 46.9 43,345
31-40.................................................. 92,500 24.7 22,871
41-50.................................................. 92,500 8.0 7,378
51-59.................................................. 92,500 0.6 553
----------------------------------------------------------------------------------------------------------------
Table A-6 presents the calculation of the number of eligible
caregivers of servicemembers in each age group; this combines the
projected number of servicemembers from Table A-5 with the distribution
of family members presented in Table A-2 with one difference. Under
military caregiver leave we assume that each covered servicemember has
at least one caregiver; so, the servicemembers in the category ``0''
caregivers are assumed to have at least 1 caregiver.
Table A-6--Estimated Number of Eligible Caregivers of Servicemembers by Age Range
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of eligible family members Total
Projected ----------------------------------------------------------------- number of
Age range number of eligible
service 0 1 2 3 4 5 family
members members
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21........................................................ 18,352 5,380 9,075 3,854 43.1 0 0 22,293
22-30........................................................ 43,345 11,869 20,170 10,080 1,224 0 0 55,872
31-40........................................................ 22,871 7,108 10,086 4,836 819 40.0 4.6 29,508
41-50........................................................ 7,378 2,787 2,978 1,243 308 54 7.7 9,430
51-59........................................................ 553 250 196 81 21.7 3.93 0.55 691
------------------------------------------------------------------------------------------
Total.................................................... 92,500 27,395 42,506 20,094 2,416 98 13 117,794
--------------------------------------------------------------------------------------------------------------------------------------------------------
VII. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments as well as on the private sector. Under Section 202(a) of
UMRA, the Department must generally prepare a written statement,
including a cost-benefit analysis, for proposed and final regulations
that ``includes any Federal mandate that may result in the expenditure
by State, local, and tribal governments, in the aggregate or by the
private sector'' in excess of $100 million in any one year (equivalent
to $143 million in 2010 dollars after adjusting for inflation).
State, local, and tribal government entities are within the scope
of the regulated community for this proposed regulation. The Department
has determined that this rule contains a Federal mandate that is
unlikely to result in expenditures of $143 million or more for State,
local, and tribal governments, in the aggregate, or the private sector
in any one year. Total costs to government entities do not exceed $25
million in any single year of the rule (see Table 7-2A). Total costs to
the private sector do not exceed $53 million in the first, most costly
year of the rule. See Table 7-2A. The total first year cost of this
rule is estimated at $72.4 million to the private and public sectors
combined. Thus, the proposed rule is not expected to result in any
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
VIII. Executive Order 13132, Federalism
The proposed rule does not have federalism implications as outlined
in E.O. 13132 regarding federalism. Although States are covered
employers under the FMLA, the proposed rule does not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
IX. Executive Order 13175, Indian Tribal Governments
This proposed rule was reviewed under the terms of E.O. 13175 and
determined not to have ``tribal implications.'' The proposed rule does
not have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.'' As a result, no tribal summary impact
statement has been prepared.
X. Effects on Families
The undersigned hereby certifies that this proposed rule will not
adversely affect the well-being of families, as discussed under section
654 of the Treasury and General Government Appropriations Act, 1999.
XI. Executive Order 13045, Protection of Children
E.O. 13045 applies to any rule that (1) is determined to be
``economically significant'' as defined in E.O. 12866, and (2) concerns
an environmental health or safety risk that the promulgating agency has
reason to believe may have a disproportionate effect on children. This
proposal is not subject to E.O. 13045 because although the rule
addresses family and medical leave provisions of the FMLA including the
rights of employees to take leave for the birth or adoption of a child
and to care for a healthy newborn or adopted
[[Page 9009]]
child, and to take leave to care for a son or daughter with a serious
health condition, it does not concern environmental health or safety
risks that may disproportionately affect children.
XII. Environmental Impact Assessment
A review of this proposal in accordance with the requirements of
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq.; the regulations of the Council on Environmental Quality, 40 CFR
part 1500 et seq.; and the Departmental NEPA procedures, 29 CFR part
11, indicates that the proposed rule will not have a significant impact
on the quality of the human environment. There is, thus, no
corresponding environmental assessment or an environmental impact
statement.
XIII. Executive Order 13211, Energy Supply
This proposed rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution or use of
energy.
XIV. Executive Order 12630, Constitutionally Protected Property Rights
This proposal is not subject to E.O. 12630, because it does not
involve implementation of a policy ``that has takings implications'' or
that could impose limitations on private property use.
XV. Executive Order 12988, Civil Justice Reform Analysis
This proposed rule was drafted and reviewed in accordance with E.O.
12988 and will not unduly burden the Federal court system. The proposed
rule was: (1) Reviewed to eliminate drafting errors and ambiguities;
(2) written to minimize litigation; and (3) written to provide a clear
legal standard for affected conduct and to promote burden reduction.
List of Subjects in 29 CFR Part 825
Employee benefit plans, Health, Health insurance, Labor management
relations, Maternal and child health, Teachers.
Signed at Washington, DC, this 30th day of January, 2012.
Nancy J. Leppink,
Deputy Administrator, Wage and Hour Division.
For the reasons set out in the preamble, the Department of Labor
proposes to amend Title 29 part 825 of the Code of Federal Regulations
as follows:
1. The authority citation for part 825 continues to read as
follows:
Authority: 29 U.S.C. 2654
Subpart A--Coverage Under the Family and Medical Leave Act
2. Amend Sec. 825.100 by revising the first and second sentences
of paragraph (a) to read as follows:
Sec. 825.100 The Family and Medical Leave Act.
(a) The Family and Medical Leave Act of 1993, as amended, (FMLA or
Act) allows ``eligible'' employees of a covered employer to take job-
protected, unpaid leave, or to substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 12 workweeks in
any 12 months (see Sec. 825.200(b)) because of the birth of a child
and to care for the newborn child, because of the placement of a child
with the employee for adoption or foster care, because the employee is
needed to care for a family member (child, spouse, or parent) with a
serious health condition, because the employee's own serious health
condition makes the employee unable to perform the functions of his or
her job, or because of any qualifying exigency arising out of the fact
that the employee's spouse, son, daughter, or parent is a military
member on covered active duty or call to covered active duty status. In
addition, ``eligible'' employees of a covered employer may take job-
protected, unpaid leave, or substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 26 workweeks in
a ``single 12-month period'' to care for a covered servicemember with a
serious injury or illness. * * *
* * * * *
3. Amend Sec. 825.101 by revising the first sentence of paragraph
(a) to read as follows:
Sec. 825.101 Purpose of the Act.
(a) FMLA is intended to allow employees to balance their work and
family life by taking reasonable unpaid leave for medical reasons, for
the birth or adoption of a child, for the care of a child, spouse, or
parent who has a serious health condition, for the care of a covered
servicemember with a serious injury or illness, or because of a
qualifying exigency arising out of the fact that the employee's spouse,
son, daughter, or parent is a military member on covered active duty or
call to covered active duty status. * * *
* * * * *
4. Amend Sec. 825.107 by revising the last sentence of paragraph
(c) to read as follows:
Sec. 825.107 Successor in interest coverage.
* * * * *
(c) * * * A successor which meets FMLA's coverage criteria must
count periods of employment and hours of service with the predecessor
for purposes of determining employee eligibility for FMLA leave.
5. Amend Sec. 825.110 by:
a. revising paragraph (a)(2);
b. revising the first and third sentences of paragraph (b)(2)(i);
c. revising the first sentence of paragraph (c)(1);
d. adding new paragraph (c)(2);
e. re-designating current paragraph (c)(2) as (c)(3);
f. revising the first sentence of newly designated paragraph
(c)(3);
g. re-designating current paragraph (c)(3) as (c)(4);
h. revising newly designated (c)(4); and
i. revising paragraph (d)
to read as follows:
Sec. 825.110 Eligible employee.
(a) * * *
(2) Has been employed for at least 1,250 hours of service during
the 12-month period immediately preceding the commencement of the leave
(see Sec. 825.110(c)(2) for special hours of service requirements for
airline flight crew employees), and
* * * * *
(b) * * *
(2) * * *
(i) The employee's break in service is occasioned by the
fulfillment of his or her Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., qualifying
military service obligation. * * * However, this section does not
provide any greater entitlement to the employee than would be available
under USERRA; or * * *
* * * * *
(c)(1) Except as provided in paragraph (c)(2) and (3) of this
section, whether an employee has worked the minimum 1,250 hours of
service is determined according to the principles established under the
Fair Labor Standards Act (FLSA) for determining compensable hours of
work. * * *
(2) Whether an airline flight crew employee meets the hours of
service requirement is determined by assessing the number of hours the
employee has worked or been paid over the previous 12 months. An
airline flight crew employee will meet the hours of service requirement
during the previous 12-month period if he or she has worked or been
paid for not less than 60 percent of the employee's applicable monthly
guarantee and has worked or been paid for not less than 504 hours.
[[Page 9010]]
(i) The applicable monthly guarantee for an airline flight crew
employee who is not on reserve status is the minimum number of hours
for which an employer has agreed to schedule such employee for any
given month. The applicable monthly guarantee for an airline flight
crew employee who is on reserve status is the number of hours for which
an employer has agreed to pay the employee for any given month
(ii) The hours an airline flight crew employee has worked for
purposes of the hours of service requirement is the employee's duty
hours during the previous 12-month period. The hours an airline flight
crew employee has been paid is the number of hours for which an
employee received wages during the previous 12-month period. The 504
hours do not include personal commute time or time spent on vacation,
medical, or sick leave.
(3) An employee returning from his or her USERRA qualifying
military service shall be credited with the hours of service that would
have been performed but for the period of military service in
determining the employee's eligibility for FMLA-qualifying leave. * * *
(4) In the event an employer does not maintain an accurate record
of hours worked by an employee (or hours paid, in the case of an
airline flight crew employee), including for employees who are exempt
from FLSA's requirement that a record be kept of their hours worked
(e.g., bona fide executive, administrative, and professional employees
as defined in FLSA regulations, 29 CFR part 541), the employer has the
burden of showing that the employee has not worked the requisite hours.
An employer must be able to clearly demonstrate, for example, that
full-time teachers (see Sec. 825.102 for definition) of an elementary
or secondary school system, or institution of higher education, or
other educational establishment or institution (who often work outside
the classroom or at their homes) did not work 1,250 hours during the
previous 12 months in order to claim that the teachers are not eligible
for FMLA leave. Similarly, an employer must be able to clearly
demonstrate that airline flight crew employees have not ``worked or
been paid'' for 60 percent of their applicable monthly guarantee or for
504 hours during the previous 12 months in order to claim that the
airline flight crew employees are not eligible for FMLA leave.
(d) The determination of whether an employee meets the hours of
service requirement and has been employed by the employer for a total
of at least 12 months must be made as of the date the FMLA leave is to
start. An employee may be on ``non-FMLA leave'' at the time he or she
meets the 12-month eligibility requirement, and in that event, any
portion of the leave taken for an FMLA-qualifying reason after the
employee meets the eligibility requirement would be ``FMLA leave.''
(See Sec. 825.300(b) for rules governing the content of the
eligibility notice given to employees.)
* * * * *
6. Amend Sec. 825.112 by revising paragraph (a)(5) and (a)(6) to
read as follows:
Sec. 825.112 Qualifying reasons for leave, general rule.
(a) * * *
(5) Because of any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a military member on
covered active duty or call to covered active duty status (see
Sec. Sec. 825.122 and 825.126); and
(6) To care for a covered servicemember with a serious injury or
illness if the employee is the spouse, son, daughter, parent, or next
of kin of the covered servicemember (see Sec. Sec. 825.122 and
825.127).
* * * * *
7. Amend Sec. 825.122 by:
a. revising the section heading;
b. replacing ``active duty'' with ``covered active duty'' in each
instance that it appears in the heading and this section;
c. re-designating current paragraphs (a) through (j) as (b) through
(k)
d. adding new paragraph (a); and
e. revising the last sentence in paragraph (h)
The additions and revisions read as follows:
Sec. 825.122 Definitions of covered servicemember, spouse, parent,
son or daughter, next of kin of a covered servicemember, adoption,
foster care, son or daughter on covered active duty or call to covered
active duty status, son or daughter of a covered servicemember, and
parent of a covered servicemember.
(a) Covered servicemember. Covered servicemember means
(1) A current member of the Armed Forces, including a member of the
National Guard or Reserves, who is undergoing medical treatment,
recuperation or therapy, is otherwise in outpatient status, or is
otherwise on the temporary disability retired list, for a serious
injury or illness; or
(2) A covered veteran who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness. ``Covered
veteran'' means an individual who was discharged or released under
conditions other than dishonorable at any time during the five-year
period prior to the first date of the employee's military caregiver
leave.
* * * * *
(h) * * * See Sec. 825.126(a)(5).
* * * * *
7. Revise Sec. 825.126 to read as follows:
Sec. 825.126 Leave because of a qualifying exigency.
(a) Eligible employees may take FMLA leave for a qualifying
exigency while the employee's spouse, son, daughter, or parent (the
``military member'' or ``member'') is on covered active duty or call to
covered active duty status.
(1) ``Covered active duty or call to covered active duty status''
in the case of a member of the Regular Armed Forces means duty under a
call or order to active duty (or notification of an impending call or
order to covered active duty) during the deployment of the member with
the Armed Forces to a foreign country. The active duty orders of a
member of the Regular components of the Armed Forces will generally
specify if the member is deployed to a foreign country.
(2) ``Covered active duty or call to covered active duty status''
in the case of a member of the Reserve components of the Armed Forces
means duty under a call or order to active duty (or notification of an
impending call or order to active duty) during the deployment of the
member with the Armed Forces to a foreign country under a Federal call
or order to active duty in support of a contingency operation pursuant
to: Section 688 of Title 10 of the United States Code, which authorizes
ordering to active duty retired members of the Regular Armed Forces and
members of the retired Reserve who retired after completing at least 20
years of active service; Section 12301(a) of Title 10 of the United
States Code, which authorizes ordering all reserve component members to
active duty in the case of war or national emergency; Section 12302 of
Title 10 of the United States Code, which authorizes ordering any unit
or unassigned member of the Ready Reserve to active duty; Section 12304
of Title 10 of the United States Code, which authorizes ordering any
unit or unassigned member of the Selected Reserve and certain members
of the Individual Ready Reserve to active duty; Section 12305 of Title
10 of the United States Code, which authorizes the suspension of
promotion, retirement or separation rules for certain Reserve
[[Page 9011]]
components; Section 12406 of Title 10 of the United States Code, which
authorizes calling the National Guard into Federal service in certain
circumstances; Chapter 15 of Title 10 of the United States Code, which
authorizes calling the National Guard and State military into Federal
service in the case of insurrections and national emergencies; or any
other provision of law during a war or during a national emergency
declared by the President or Congress so long as it is in support of a
contingency operation. See 10 U.S.C. 101(a)(13)(B).
(i) For purposes of covered active duty or call to covered active
duty status, the Reserve components of the Armed Forces include the
Army National Guard of the United States, Army Reserve, Navy Reserve,
Marine Corps Reserve, Air National Guard of the United States, Air
Force Reserve and Coast Guard Reserve, and retired members of the
Regular Armed Forces or Reserves who are called up in support of a
contingency operation pursuant to one of the provisions of law
identified in paragraph (a)(2).
(ii) The active duty orders of a member of the Reserve components
will generally specify if the military member is serving in support of
a contingency operation by citation to the relevant section of Title 10
of the United States Code and/or by reference to the specific name of
the contingency operation and will specify that the deployment is to a
foreign country.
(3) ``Deployment of the member with the Armed Forces to a foreign
country'' means deployment to areas outside of the United States, the
District of Columbia, or any Territory or possession of the United
States, including international waters.
(4) A call to covered active duty for purposes of leave taken
because of a qualifying exigency refers to a Federal call to active
duty. State calls to active duty are not covered unless under order of
the President of the United States pursuant to one of the provisions of
law identified in paragraph (a)(2) of this section.
(5) A ``son or daughter on covered active duty or call to covered
active duty status'' means the employee's biological, adopted, or
foster child, stepchild, legal ward, or child for whom the employee
stood in loco parentis, who is on covered active duty or call to
covered active duty status, and who is of any age.
(b) An eligible employee may take FMLA leave for one or more of the
following qualifying exigencies:
(1) Short-notice deployment.
(i) To address any issue that arises from the fact that the
military member is notified of an impending call or order to covered
active duty seven or less calendar days prior to the date of
deployment;
(ii) Leave taken for this purpose can be used for a period of seven
calendar days beginning on the date the military member is notified of
an impending call or order to covered active duty;
(2) Military events and related activities.
(i) To attend any official ceremony, program, or event sponsored by
the military that is related to the covered active duty or call to
covered active duty status of the military member; and
(ii) To attend family support or assistance programs and
informational briefings sponsored or promoted by the military, military
service organizations, or the American Red Cross that are related to
the covered active duty or call to covered active duty status of the
military member;
(3) Childcare and school activities. For purposes of leave for the
childcare and school activities listed in paragraphs (b)(3)(i) through
(iv) of this section, a child of the military member must be the
military member's biological, adopted, or foster child, stepchild,
legal ward, or child for whom the military member stands in loco
parentis, who is either under 18 years of age or 18 years of age or
older and incapable of self-care because of a mental or physical
disability at the time that FMLA leave is to commence. As with all
instances of qualifying exigency leave, the military member must be the
spouse, son, daughter, or parent of the employee requesting qualifying
exigency leave.
(i) To arrange for alternative childcare for a child of the
military member when the covered active duty or call to covered active
duty status of the military member necessitates a change in the
existing childcare arrangement;
(ii) To provide childcare for a child of the military member on an
urgent, immediate need basis (but not on a routine, regular, or
everyday basis) when the need to provide such care arises from the
covered active duty or call to covered active duty status of the
military member;
(iii) To enroll in or transfer to a new school or day care facility
a child of the military member when enrollment or transfer is
necessitated by the covered active duty or call to covered active duty
status of the military member; and
(iv) To attend meetings with staff at a school or a daycare
facility, such as meetings with school officials regarding disciplinary
measures, parent-teacher conferences, or meetings with school
counselors, for a child of the military member, when such meetings are
necessary due to circumstances arising from the covered active duty or
call to covered active duty status of the military member;
(4) Financial and legal arrangements.
(i) To make or update financial or legal arrangements to address
the military member's absence while on covered active duty or call to
covered active duty status, such as preparing and executing financial
and healthcare powers of attorney, transferring bank account signature
authority, enrolling in the Defense Enrollment Eligibility Reporting
System (DEERS), obtaining military identification cards, or preparing
or updating a will or living trust; and
(ii) To act as the military member's representative before a
Federal, State, or local agency for purposes of obtaining, arranging,
or appealing military service benefits while the military member is on
covered active duty or call to covered active duty status, and for a
period of 90 days following the termination of the military member's
covered active duty status;
(5) Counseling. To attend counseling, provided by someone other
than a health care provider, for oneself, for the military member, or
for the biological, adopted, or foster child, a stepchild, or a legal
ward of the military member, or a child for whom the military member
stands in loco parentis, who is either under age 18, or age 18 or older
and incapable of self-care because of a mental or physical disability
at the time that FMLA leave is to commence, provided that the need for
counseling arises from the covered active duty or call to covered
active duty status of the military member;
(6) Rest and Recuperation.
(i) To spend time with the military member who is on short-term,
temporary Rest and Recuperation leave during the period of deployment;
(ii) Eligible employees may take leave for the duration of the Rest
and Recuperation leave provided to the military member, up to a maximum
of 15 days for each instance of Rest and Recuperation leave;
(7) Post-deployment activities.
(i) To attend arrival ceremonies, reintegration briefings and
events, and any other official ceremony or program sponsored by the
military for a period of 90 days following the termination of the
military member's covered active duty status; and
(ii) To address issues that arise from the death of the military
member while on covered active duty status, such as
[[Page 9012]]
meeting and recovering the body of the military member, making funeral
arrangements, and attending funeral services;
(8) Additional activities. To address other events which arise out
of the military member's covered active duty or call to covered active
duty status provided that the employer and employee agree that such
leave shall qualify as an exigency, and agree to both the timing and
duration of such leave.
9. Amend Sec. 825.127 by:
a. revising the section heading;
b. re-designating current paragraphs (b) through (d) as (d) through
(f) respectively;
c. adding new paragraph (b)
d. adding new paragraph (c);
e. revising the last sentence of newly designated paragraph (d)(3);
f. removing ``weeks'' and adding in its place ``workweeks'' every
time it appears in paragraph (e)(3);
g. revising newly designated paragraph (f)
h. removing the phrase ``paragraph (c)'' everywhere it appears in
newly designated paragraph (e) and adding in its place ``paragraph
(e)'' to read as follows:
Sec. 825.127 Leave to care for a covered servicemember with a serious
injury or illness (``military caregiver leave'').
* * * * *
(a) Eligible employees are entitled to FMLA leave to care for a
covered servicemember with a serious illness or injury.
(b) ``Covered servicemember'' means:
(1) A current member of the Armed Forces, including a member of the
National Guard or Reserves, who is undergoing medical treatment,
recuperation or therapy, is otherwise in outpatient status, or is
otherwise on the temporary disability retired list, for a serious
injury or illness. ``Outpatient status'' means the status of a member
of the Armed Forces assigned to either a military medical treatment
facility as an outpatient or a unit established for the purpose of
providing command and control of members of the Armed Forces receiving
medical care as outpatients.
(2) A covered veteran who is undergoing medical treatment,
recuperation or therapy for a serious injury or illness. ``Covered
veteran'' means an individual who was discharged or released under
conditions other than dishonorable at any time during the five-year
period prior to the first date the eligible employee takes FMLA leave
to care for the covered veteran. An eligible employee must commence
leave to care for a covered veteran within five years of the veteran's
active duty service but the ``single 12-month period'' described in
paragraph (e)(1) of this section may extend beyond the five-year
period.
(c) A ``serious injury or illness'':
(1) In the case of a current member of the Armed Forces, including
a member of the National Guard or Reserves, means an injury or illness
that was incurred by the covered servicemember in the line of duty on
active duty in the Armed Forces or that existed before the beginning of
the member's active duty and was aggravated by service in the line of
duty on active duty in the Armed Forces, and that may render the member
medically unfit to perform the duties of the member's office, grade,
rank or rating; and,
(2) In the case of a covered veteran, an injury or illness will be
a qualifying serious injury or illness if it was incurred by the member
in the line of duty on active duty in the Armed Forces (or existed
before the beginning of the member's active duty and was aggravated by
service in the line of duty on active duty in the Armed Forces) and
manifested itself before or after the member became a veteran, and is:
(i) A continuation of a serious injury or illness that was incurred
or aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember unable to perform the duties of the
servicemember's office, grade, rank, or rating; or
(ii) A physical or mental condition for which the covered veteran
has received a U.S. Department of Veterans Affairs Service Related
Disability Rating (VASRD) of 50% or higher, and such VASRD rating is
based, in whole or in part, on the condition precipitating the need for
military caregiver leave; or
(iii) A physical or mental condition that substantially impairs the
covered veteran's ability to secure or follow a substantially gainful
occupation by reason of a service-connected disability or disabilities,
or would do so absent treatment.
(d) * * *
(3) * * * An employer is permitted to require an employee to
provide confirmation of covered family relationship to the covered
servicemember pursuant to Sec. 825.122(k). * * *
(f) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 26 workweeks of leave during the ``single 12-month period''
described in paragraph (e) of this section if the leave is taken for
birth of the employee's son or daughter or to care for the child after
birth, for placement of a son or daughter with the employee for
adoption or foster care, or to care for the child after placement, to
care for the employee's parent with a serious health condition, or to
care for a covered servicemember with a serious injury or illness.
Subpart B--Employee Leave Entitlements Under the Family and Medical
Leave Act
10. Amend Sec. 825.200 as follows:
a. revising paragraph (a)(5);
b. revising the citation following the last sentence in paragraph
(f); and
c. revising the citation following the last sentence in paragraph
(g), to read as follows:
Sec. 825.200 Amount of leave.
(a) * * *
(5) Because of any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a military member on
covered active duty or call to covered active duty status.
* * * * *
(f) * * * See Sec. 825.127(e)(1).
(g) * * * See Sec. 825.127(e)(2).
* * * * *
11. Amend Sec. 825.202 by revising the second sentence in
paragraph (b) and revising the first sentence in paragraph (b)(1), to
read as follows:
Sec. 825.202 Intermittent leave or reduced leave schedule.
* * * * *
(b) * * * For intermittent leave or leave on a reduced leave
schedule taken because of one's own serious health condition, to care
for a spouse, parent, son, or daughter with a serious health condition,
or to care for a covered servicemember with a serious injury or
illness, there must be a medical need for leave and it must be that
such medical need can be best accommodated through an intermittent or
reduced leave schedule. * * *
(1) Intermittent leave may be taken for a serious health condition
of a spouse, parent, son, or daughter, for the employee's own serious
health condition, or a serious injury or illness of a covered
servicemember which requires treatment by a health care provider
periodically, rather than for one continuous period of time, and may
include leave of periods from an hour or more to several weeks. * * *
* * * * *
12. Amend Sec. 825.205 by:
a. revising paragraph (a);
b. revising paragraph (b)(1);
c. revising paragraph (c), and
[[Page 9013]]
d. adding paragraph (d), to read as follows:
Sec. 825.205 Increments of FMLA leave for intermittent or reduced
schedule leave.
(a) Minimum increment. (1) When an employee takes FMLA leave on an
intermittent or reduced leave schedule basis, the employer must account
for the leave using an increment no greater than the shortest period of
time that the employer uses to account for use of other forms of leave
provided that it is not greater than one hour and provided further that
an employee's FMLA leave entitlement may not be reduced by more than
the amount of leave actually taken. An employer may not require an
employee to take more leave than is necessary to address the
circumstances that precipitated the need for the leave, provided that
the leave is counted using the shortest increment of leave used to
account for any other type of leave. (See also Sec. 825.205(a)(2) for
the physical impossibility exception and Sec. Sec. 825.600 and 825.601
for special rules applicable to employees of schools.) If an employer
uses different increments to account for different types of leave, the
employer must account for FMLA leave in the smallest increment used to
account for any other type of leave. For example, if an employer
accounts for the use of annual leave in increments of one hour and the
use of sick leave in increments of one-half hour, then FMLA leave use
must be accounted for using increments no larger than one-half hour. If
an employer accounts for other forms of leave use only in increments
greater than one hour, the employer must account for FMLA leave use in
increments no greater than one hour. An employer may account for FMLA
leave in shorter increments than used for other forms of leave. For
example, an employer that accounts for other forms of leave in one hour
increments may account for FMLA leave in a shorter increment when the
employee arrives at work several minutes late, and the employer wants
the employee to begin work immediately. Such accounting for FMLA leave
will not alter the increment considered to be the shortest period used
to account for other forms of leave or the use of FMLA leave in other
circumstances. In all cases, employees may not be charged FMLA leave
for periods during which they are working.
(2) Where it is physically impossible for an employee using
intermittent leave or working a reduced leave schedule to commence or
end work mid-way through a shift, such as where a flight attendant or a
railroad conductor is scheduled to work aboard an airplane or train, or
a laboratory employee is unable to enter or leave a sealed ``clean
room'' during a certain period of time and no equivalent position is
available, the entire period that the employee is forced to be absent
is designated as FMLA leave and counts against the employee's FMLA
entitlement. The period of the physical impossibility is limited to the
period during which the employer is unable to permit the employee to
work at the same or an equivalent position prior to a period of FMLA
leave or return the employee to the same or equivalent position due to
the physical impossibility after a period of FMLA leave. See Sec.
825.214.
(b) Calculation of leave. (1) When an employee takes leave on an
intermittent or reduced leave schedule, only the amount of leave
actually taken may be counted toward the employee's leave entitlement.
The actual workweek is the basis of leave entitlement. Therefore, if an
employee who would otherwise work 40 hours a week takes off 8 hours,
the employee would use one-fifth (\1/5\) of a week of FMLA leave.
Similarly, if a full-time employee who would otherwise work 8-hour days
works 4-hour days under a reduced leave schedule, the employee would
use one-half (\1/2\) week of FMLA leave. When an employee works a part-
time schedule or variable hours, the amount of FMLA leave that an
employee uses is determined on a pro rata or proportional basis If an
employee who would otherwise work 30 hours per week works only 20 hours
a week under a reduced leave schedule, the employee's ten hours of
leave would constitute one-third (\1/3\) of a week of FMLA leave for
each week the employee works the reduced leave schedule. An employer
may convert these fractions to their hourly equivalent so long as the
conversion equitably reflects the employee's total normally scheduled
hours. An employee does not accrue FMLA-protected leave at any
particular hourly rate. An eligible employee is entitled to up to a
total of 12 workweeks of leave, or 26 workweeks in the case of military
caregiver leave, and the total number of hours contained in those
workweeks is necessarily dependent on the specific hours the employee
would have worked but for the FMLA leave.
* * * * *
(c) Overtime. If an employee would normally be required to work
overtime, but is unable to do so because of an FMLA-qualifying reason
that limits the employee's ability to work overtime, the hours which
the employee would have been required to work may be counted against
the employee's FMLA entitlement. In such a case, the employee is using
intermittent or reduced schedule leave. For example, if an employee
would normally be required to work for 48 hours in a particular week,
but due to a serious health condition the employee is unable to work
more than 40 hours that week, the employee would utilize eight hours of
FMLA-protected leave out of the 48-hour workweek, or one-sixth (\1/6\)
of a week of FMLA leave. Voluntary overtime hours that an employee does
not work due to an FMLA-qualifying reason may not be counted against
the employee's FMLA leave entitlement.
(d) Calculation of leave for airline flight crew employees. (1) For
flight crew employees who are ``line holders,'' the employee's
scheduled workweek, which is the total scheduled duty hours for that
workweek, is the basis for calculating the employee's FMLA leave. The
amount of FMLA leave is determined on a pro rata or proportional basis
according to principles established in paragraph (b) of this section.
For example, if a line holder needed to take four hours of leave during
a workweek in which the employee was scheduled to work 20 hours, the
FMLA leave used would be one-fifth (\1/5\) of a workweek.
(2) For an airline flight crew employee on reserve status, an
average of the greater of the applicable monthly guarantee or actual
duty hours worked in each of the prior 12 months would be used for
calculating the employee's average workweek. The workweek determination
must be completed at the employee's first instance of leave and is
valid for the remainder of the FMLA leave year. The amount of FMLA
leave is determined on a pro rata or proportional basis according to
principles established in paragraph (b) of this section. For example,
if it was determined that a reserve status employee had a workweek of
20 hours after averaging the greater of the employee's monthly
guarantee or actual duty hours over the past 12 months, the employee
would be entitled to 12 20-hour workweeks for FMLA leave. If the
employee needed four hours of FMLA leave in one workweek, the employee
would have used one-fifth (\1/5\) of a workweek.
13. Amend Sec. 825.213(a) by revising the fifth sentence in
paragraph (a)(3) to read as follows:
Sec. 825.213 Employer recovery of benefit costs.
(a) * * *
(3) * * * For purposes of medical certification, the employee may
use the optional DOL forms developed for these
[[Page 9014]]
purposes (see Sec. Sec. 825.306(b), 825.310(c)-(d)). * * *
* * * * *
Subpart C--Employee and Employer Rights and Obligations Under the
Act
14. Amend Sec. 825.300 by:
a. Removing ``www.wagehour.dol.gov'' and adding in its place
``www.dol.gov/whd'' whenever it appears in this section.
b. revising the first sentence of paragraph (a)(4);
c. revising paragraph (b)(2);
d. revising paragraph (c)(1)(ii);
e. revising the first sentence of paragraph (c)(6); and
f. revising the second sentence of paragraph (d)(4) to read as
follows:
Sec. 825.300 Employer notice requirements.
(a) * * *
(4) To meet the requirements of paragraph (a)(3) of this section,
employers may duplicate the text of the Department's prototype notice
(WHD Publication 1420) or may use another format so long as the
information provided includes, at a minimum, all of the information
contained in that notice. * * *
(b) * * *
(2) The eligibility notice must state whether the employee is
eligible for FMLA leave as defined in Sec. 825.110. If the employee is
not eligible for FMLA leave, the notice must state at least one reason
why the employee is not eligible, including as applicable the number of
months the employee has been employed by the employer, the number of
hours of service with the employer during the 12-month period, and
whether the employee is employed at a worksite where 50 or more
employees are employed by the employer within 75 miles of that
worksite. Notification of eligibility may be oral or in writing;
employers may use optional Form WH-381 (Notice of Eligibility and
Rights and Responsibility) to provide such notification to employees.
Prototypes are available from the nearest office of the Wage and Hour
Division or on the Internet at www.dol.gov/whd. The employer is
obligated to translate this notice in any situation in which it is
obligated to do so in Sec. 825.300(a)(4).
* * * * *
(c) * * *
(1) * * *
(ii) Any requirements for the employee to furnish certification of
a serious health condition, serious injury or illness, or qualifying
exigency arising out of covered active duty or call to covered active
duty status, and the consequences of failing to do so (see Sec. Sec.
825.305, 825.309, 825.310, 825.313);
* * *
(6) A prototype notice of rights and responsibilities may be
obtained from local offices of the Wage and Hour Division or from the
Internet at www. dol.gov/whd. * * *
* * * * *
(d) * * *
(4) * * * A prototype designation notice may be obtained from local
offices of the Wage and Hour Division or from the Internet at
www.dol.gov/whd. * * *
* * * * *
15. Amend Sec. 825.302 by:
a. removing ``active duty'' and adding in its place ``covered
active duty'' whenever it appears in paragraph (c); and
b. revising the citation in the second sentence of paragraph (c),
to read as follows:
Sec. 825.302 Employee notice requirements for foreseeable FMLA leave.
(a) * * *
(c) * * * Depending on the situation, such information may include
that a condition renders the employee unable to perform the functions
of the job; that the employee is pregnant or has been hospitalized
overnight; whether the employee or the employee's family member is
under the continuing care of a health care provider; if the leave is
due to a qualifying exigency, that a military member is on covered
active duty or call to covered active duty status, and that the
requested leave is for one of the reasons listed in Sec. 825.126(b);
if the leave is for a family member, that the condition renders the
family member unable to perform daily activities, or that the family
member is a covered servicemember with a serious injury or illness; and
the anticipated duration of the absence, if known. * * *
* * * * *
16. Amend Sec. 825.303 by:
a. removing ``active duty'' and adding in its place ``covered
active duty'' every time it appears in paragraph (b);
b. revising the citation in the second sentence from 825.126(a) to
825.126(b) in paragraph (b) to read as follows:
Sec. 825.303 Employee notice requirements for unforeseeable FMLA
leave.
* * * * *
(b) * * * Depending on the situation, such information may include
that a condition renders the employee unable to perform the functions
of the job; that the employee is pregnant or has been hospitalized
overnight; whether the employee or the employee's family member is
under the continuing care of a health care provider; if the leave is
due to a qualifying exigency, that a military member is on covered
active duty or call to covered active duty status, that the requested
leave is for one of the reasons listed in Sec. 825.126(b), and the
anticipated duration of the absence; or if the leave is for a family
member that the condition renders the family member unable to perform
daily activities or that the family member is a covered servicemember
with a serious injury or illness; and the anticipated duration of the
absence, if known. * * *
* * * * *
17. Amend Sec. 825.306 by revising paragraph (b) to read as
follows:
Sec. 825.306 Content of medical certification for leave taken because
of an employee's own serious health condition or the serious health
condition of a family member.
* * * * *
(b) DOL has developed two optional forms (Form WH-380E and Form WH-
380F, as revised) for use in obtaining medical certification, including
second and third opinions, from health care providers that meets FMLA's
certification requirements. Optional form WH-380E is for use when the
employee's need for leave is due to the employee's own serious health
condition. Optional form WH-380F is for use when the employee needs
leave to care for a family member with a serious health condition.
These optional forms reflect certification requirements so as to permit
the health care provider to furnish appropriate medical information.
Form WH-380E and WH-380F, as revised, or another form containing the
same basic information, may be used by the employer; however, no
information may be required beyond that specified in Sec. Sec.
825.306, 825.307, and 825.308. In all instances the information on the
form must relate only to the serious health condition for which the
current need for leave exists. Prototype forms WH-380E and WH-380F may
be obtained from local offices of the Wage and Hour Division or from
the Internet at www.dol.gov/whd.
* * * * *
18. Amend Sec. 825.309 by:
a. removing ``active duty'' and adding in its place ``covered
active duty'' every time it appears in this section;
b. revising paragraph (a);
c. revising paragraphs (b)(4) and (b)(5);
d. adding paragraph (b)(6);
e. removing the parenthetical at the end of the first sentence in
paragraph (c); and
f. revising the first and second sentences in paragraph (c).
[[Page 9015]]
The additions and revisions read as follows:
Sec. 825.309 Certification for leave taken because of a qualifying
exigency.
(a) Active Duty Orders. The first time an employee requests leave
because of a qualifying exigency arising out of the covered active duty
or call to covered active duty status of a military member (as defined
in Sec. 825.126(a)(1)-(2)), an employer may require the employee to
provide a copy of the military member's active duty orders or other
documentation issued by the military which indicates that the military
member is on covered active duty or call to covered active duty status,
and the dates of the military member's covered active duty service.
This information need only be provided to the employer once. A copy of
new active duty orders or other documentation issued by the military
may be required by the employer if the need for leave because of a
qualifying exigency arises out of a different covered active duty or
call to covered active duty status of the same or a different military
member.
(b) * * *
(4) If an employee requests leave because of a qualifying exigency
on an intermittent or reduced schedule basis, an estimate of the
frequency and duration of the qualifying exigency;
(5) If the qualifying exigency involves meeting with a third party,
appropriate contact information for the individual or entity with whom
the employee is meeting (such as the name, title, organization,
address, telephone number, fax number, and email address) and a brief
description of the purpose of the meeting; and
(6) If the qualifying exigency involves Rest and Recuperation
leave, a copy of the military member's Rest and Recuperation orders, or
other documentation issued by the military which indicates that the
military member has been granted Rest and Recuperation leave, and the
dates of the military member's Rest and Recuperation leave.
(c) DOL has developed an optional form (Form WH-384) for employees'
use in obtaining a certification that meets FMLA's certification
requirements. Form WH-384 may be obtained from local offices of the
Wage and Hour Division or from the Internet at www.dol.gov/whd. * * *
* * * * *
19. Amend Sec. 825.310 by:
a. adding paragraph (a)(5);
b. revising the first sentence of paragraph (b);
c. adding paragraph (b)(1)(v);
d. revising paragraph (b)(2);
e revising paragraph (b)(4);
f. re-designating current paragraph (c)(6) as (c)(7);
g. adding new paragraph (c)(6);
h. revising paragraph (d);
i. revising the citation in paragraph (e)(3) from Sec. 825.122(j)
to Sec. 825.122(k);
j. revising paragraph (f) to read as follows:
Sec. 825.310 Certification for leave taken to care for a covered
servicemember (military caregiver leave).
(a) * * *
(5) Any health care provider as defined in Sec. 825.125.
(b) If the authorized health care provider is unable to make
certain military-related determinations outlined below, the authorized
health care provider may rely on determinations from an authorized DOD
representative (such as a DOD recovery care coordinator) or an
authorized VA representative. * * *
(1) * * *
(v) A health care provider as defined in Sec. 825.125.
(2) Whether the covered servicemember's injury or illness was
incurred in the line of duty on active duty or, if not, whether the
covered servicemember's injury or illness existed before the beginning
of the servicemember's active duty and was aggravated by service in the
line of duty on active duty;
* * * * *
(4) A statement or description of appropriate medical facts
regarding the covered servicemember's health condition for which FMLA
leave is requested. The medical facts must be sufficient to support the
need for leave.
(i) In the case of a current member of the Armed Forces, such
medical facts must include information on whether the injury or illness
may render the covered servicemember medically unfit to perform the
duties of the servicemember's office, grade, rank, or rating and
whether the member is receiving medical treatment, recuperation, or
therapy;
(ii) In the case of a covered veteran, such medical facts must
include information on whether the veteran is receiving medical
treatment, recuperation, or therapy for an injury or illness that is:
(A) The continuation of an injury or illness that was incurred or
aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember medically unfit to perform the duties of
the servicemember's office, grade, rank, or rating; or
(B) A physical or mental condition for which the covered veteran
has received a U.S. Department of Veterans Affairs Service Related
Disability Rating (VASRD) of 50% or higher, and that such VASRD rating
is based, in whole or in part, on the condition precipitating the need
for military caregiver leave;
(C) A physical or mental condition that substantially impairs the
covered veteran's ability to secure or follow a substantially gainful
occupation by reason of a service-connected disability or disabilities,
or would do so absent treatment.
* * * * *
(c) * * *
(6) Whether the covered servicemember is a veteran, the date of
separation from military service, and whether the separation was other
than dishonorable. The employer may require the employee to provide
documentation issued by the military which indicates that the covered
servicemember is a veteran, the date of separation, and that the
separation is other than dishonorable. Where an employer requires such
documentation, an employee may provide a copy of the veteran's
Certificate of Release or Discharge from Active Duty issued by the U.S.
Department of Defense (DD Form 214) or other proof of veteran status.
* * * * *
(d) DOL has developed an optional form (WH-385) for employees' use
in obtaining certification that meets FMLA's certification
requirements, which may be obtained from local offices of the Wage and
Hour Division or on the Internet at www.dol.gov/whd. This optional form
reflects certification requirements so as to permit the employee to
furnish appropriate information to support his or her request for leave
to care for a covered servicemember with a serious injury or illness.
WH-385, or another form containing the same basic information, may be
used by the employer; however, no information may be required beyond
that specified in this section. In all instances the information on the
certification must relate only to the serious injury or illness for
which the current need for leave exists. An employer may seek
authentication and/or clarification of the certification under Sec.
825.307. Second and third opinions under Sec. 825.307 are not
permitted for leave to care for a covered servicemember when the
certification has been completed by one of the types of health care
providers identified in Sec. 825.310(a)(1)-(4). However, second and
third opinions under Sec. 825.307 are permitted when the certification
has been completed by a health care
[[Page 9016]]
provider as defined in Sec. 825.125 that is not one of the types
identified in Sec. 825.310(a)(1)-(4). Additionally, recertifications
under Sec. 825.308 are not permitted for leave to care for a covered
servicemember. An employer may require an employee to provide
confirmation of covered family relationship to the seriously injured or
ill servicemember pursuant to Sec. 825.122(k) of the FMLA.
(e) * * *
(3) An employer may require an employee to provide confirmation of
covered family relationship to the seriously injured or ill
servicemember pursuant to Sec. 825.122(k) when an employee supports
his or her request for FMLA leave with a copy of an ITO or ITA.
(f) Where medical certification is requested by an employer, an
employee may not be held liable for administrative delays in the
issuance of military documents, despite the employee's diligent, good-
faith efforts to obtain such documents. See Sec. 825.305(b). In all
instances in which certification is requested, it is the employee's
responsibility to provide the employer with complete and sufficient
certification and failure to do so may result in the denial of FMLA
leave. See Sec. 825.305(d).
Subpart E--Record-keeping Requirements
20. Amend Sec. 825.500 by:
a. revising paragraph (g) introductory text; and
b. adding new paragraph (h), to read as follows:
Sec. 825.500 Record-keeping requirements.
* * * * *
(g) Records and documents relating to certifications,
recertifications or medical histories of employees or employees' family
members, created for purposes of FMLA, shall be maintained as
confidential medical records in separate files/records from the usual
personnel files. If the Genetic Information Nondiscrimination Act of
2008 (GINA) is applicable, records and documents created for purposes
of FMLA containing ``family medical history'' or ``genetic
information'' as defined in GINA shall be maintained in accordance with
the confidentiality requirements of Title II of GINA (see 29 CFR
1635.9), which permit such information to be disclosed consistent with
the requirements of FMLA. If the ADA, as amended, is also applicable,
such records shall be maintained in conformance with ADA
confidentiality requirements (see 29 CFR 1630.14(c)(1)), except that:
* * * * *
(h) Covered employers who employ eligible airline flight crew
employees are required to maintain certain records ``on file with the
Secretary.'' To comply with this requirement, such employers shall
make, keep, and preserve records in accordance with the requirements of
this section, and additional records as follows:
(1) Records and documents containing information specifying the
applicable monthly guarantee with respect to each category of employee
to whom such guarantee applies, including copies of any relevant
collective bargaining agreements or employer policy documents; and
(2) A record of hours scheduled for airline flight crew employees
on non-reserve status.
21. Redesignate Sec. 825.800 as Sec. 825.102, and revise newly
designated Sec. 825.102 to read as follows:
Sec. 825.102 Definitions.
For purposes of this part:
Act or FMLA means the Family and Medical Leave Act of 1993, Public
Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq., as
amended).
ADA means the Americans with Disabilities Act (42 U.S.C. 12101 et
seq., as amended).
Administrator means the Administrator of the Wage and Hour
Division, U.S. Department of Labor, and includes any official of the
Wage and Hour Division authorized to perform any of the functions of
the Administrator under this part.
Airline flight crew employee means an airline flight crewmember or
flight attendant as those terms are defined in regulations of the
Federal Aviation Administration. See also Sec. 825.110(c)(2).
Applicable monthly guarantee, means:
(1) For the individual airline flight crew employee who is not on
reserve status (line holder), the minimum number of hours for which an
employer has agreed to schedule such employee for any given month; and
(2) For an airline flight crew employee who is on reserve status,
the number of hours for which an employer has agreed to pay the
employee for any given month. See also Sec. 825.110(c)(2).
COBRA means the continuation coverage requirements of Title X of
the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended
(Public Law 99-272, title X, section 10002; 100 Stat 227; 29 U.S.C.
1161-1168).
Commerce and industry or activity affecting commerce mean any
activity, business, or industry in commerce or in which a labor dispute
would hinder or obstruct commerce or the free flow of commerce, and
include ``commerce'' and any ``industry affecting commerce'' as defined
in sections 501(1) and 501(3) of the Labor Management Relations Act of
1947, 29 U.S.C. 142(1) and (3).
Contingency operation means a military operation that:
(1) Is designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(2) Results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12305, or 12406 of Title 10 of the United States Code,
chapter 15 of Title 10 of the United States Code, or any other
provision of law during a war or during a national emergency declared
by the President or Congress. See also Sec. 825.126(a)(2).
Continuing treatment by a health care provider means any one of the
following:
(1) Incapacity and treatment. A period of incapacity of more than
three consecutive, full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition, that also
involves:
(i) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider;
or
(ii) Treatment by a health care provider on at least one occasion,
which results in a regimen of continuing treatment under the
supervision of the health care provider.
(iii) The requirement in paragraphs (1)(i) and (ii) of this
definition for treatment by a health care provider means an in-person
visit to a health care provider. The first in-person treatment visit
must take place within seven days of the first day of incapacity.
(iv) Whether additional treatment visits or a regimen of continuing
treatment is necessary within the 30-day period shall be determined by
the health care provider.
(v) The term ``extenuating circumstances'' in paragraph (1)(i)
means circumstances beyond the
[[Page 9017]]
employee's control that prevent the follow-up visit from occurring as
planned by the health care provider. Whether a given set of
circumstances are extenuating depends on the facts. See also Sec.
825.115(a)(5).
(2) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(3) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(i) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(ii) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(iii) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(4) Permanent or long-term conditions. A period of incapacity which
is permanent or long-term due to a condition for which treatment may
not be effective. The employee or family member must be under the
continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(5) Conditions requiring multiple treatments. Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
for:
(i) Restorative surgery after an accident or other injury; or
(ii) A condition that would likely result in a period of incapacity
of more than three consecutive full calendar days in the absence of
medical intervention or treatment, such as cancer (chemotherapy,
radiation, etc.), severe arthritis (physical therapy), kidney disease
(dialysis).
(6) Absences attributable to incapacity under paragraphs (2) or (3)
of this definition qualify for FMLA leave even though the employee or
the covered family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three consecutive full calendar days. For example, an employee
with asthma may be unable to report for work due to the onset of an
asthma attack or because the employee's health care provider has
advised the employee to stay home when the pollen count exceeds a
certain level. An employee who is pregnant may be unable to report to
work because of severe morning sickness.
Covered active duty or call to covered active duty status means:
(1) In the case of a member of the Regular Armed Forces, duty under
a call or order to active duty (or notification of an impending call or
order to covered active duty) during the deployment of the member with
the Armed Forces to a foreign country; and,
(2) In the case of a member of the reserve components of the Armed
Forces, duty under a call or order to active duty (or notification of
an impending call or order to active duty) during the deployment of the
member with the Armed Forces to a foreign country under a Federal call
or order to active duty under a provision of law referred to in section
101(a)(13)(B) of Title 10, United States Code. See also Sec.
825.126(a).
Covered servicemember means:
(1) A current member of the Armed Forces, including a member of the
National Guard or Reserves, who is undergoing medical treatment,
recuperation, or therapy, is otherwise in outpatient status, or is
otherwise on the temporary disability retired list, for a serious
injury or illness, or
(2) A covered veteran who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness.
Covered veteran means an individual who was discharged or released
under conditions other than dishonorable at any time during the five-
year period prior to the first date the eligible employee takes FMLA
leave to care for the covered veteran.
Eligible employee means:
(1) An employee who has been employed for a total of at least 12
months by the employer on the date on which any FMLA leave is to
commence, except that an employer need not consider any period of
previous employment that occurred more than seven years before the date
of the most recent hiring of the employee, unless:
(i) The break in service is occasioned by the fulfillment of the
employee's National Guard or Reserve military service obligation (the
time served performing the military service must be also counted in
determining whether the employee has been employed for at least 12
months by the employer, but this section does not provide any greater
entitlement to the employee than would be available under the Uniformed
Services Employment and Reemployment Rights Act (USERRA)); or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes); and
(2) Who, on the date on which any FMLA leave is to commence, has
been employed for at least 1,250 hours of service with such employer
during the previous 12-month period, except that:
(i) An employee returning from fulfilling his or her National Guard
or Reserve military obligation shall be credited with the hours-of-
service that would have been performed but for the period of military
service in determining whether the employee worked the 1,250 hours of
service (accordingly, a person reemployed following military service
has the hours that would have been worked for the employer added to any
hours actually worked during the previous 12-month period to meet the
1,250 hour requirement);
(ii) To determine the hours that would have been worked during the
period of military service, the employee's pre-service work schedule
can generally be used for calculations;
(iii) An airline flight crew employee will be considered to meet
the hours of service requirement if in the previous 12 months the
employee has worked or been paid for not less than 60 percent of the
applicable total monthly guarantee and has worked or been paid for not
less than 504 hours (not counting personal commute time, or vacation,
medical or sick leave). See 825.110(c)(2)-(3).
(3) Who is employed in any State of the United States, the District
of Columbia or any Territories or possession of the United States.
(4) Excludes any Federal officer or employee covered under
subchapter V of chapter 63 of title 5, United States Code.
(5) Excludes any employee of the United States House of
Representatives or the United States Senate covered by the
Congressional Accountability Act of 1995, 2 U.S.C. 1301.
(6) Excludes any employee who is employed at a worksite at which
the employer employs fewer than 50 employees if the total number of
employees employed by that employer within 75 miles of that worksite is
also fewer than 50.
(7) Excludes any employee employed in any country other than the
United States or any Territory or possession of the United States.
[[Page 9018]]
Employ means to suffer or permit to work.
Employee has the meaning given the same term as defined in section
3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows:
(1) The term ``employee'' means any individual employed by an
employer;
(2) In the case of an individual employed by a public agency,
``employee'' means--
(i) Any individual employed by the Government of the United
States--
(A) As a civilian in the military departments (as defined in
section 102 of Title 5, United States Code),
(B) In any executive agency (as defined in section 105 of Title 5,
United States Code), excluding any Federal officer or employee covered
under subchapter V of chapter 63 of Title 5, United States Code,
(C) In any unit of the legislative or judicial branch of the
Government which has positions in the competitive service, excluding
any employee of the United States House of Representatives or the
United States Senate who is covered by the Congressional Accountability
Act of 1995,
(D) In a nonappropriated fund instrumentality under the
jurisdiction of the Armed Forces, or
(ii) Any individual employed by the United States Postal Service or
the Postal Regulatory Commission; and
(iii) Any individual employed by a State, political subdivision of
a State, or an interstate governmental agency, other than such an
individual--
(A) Who is not subject to the civil service laws of the State,
political subdivision, or agency which employs the employee; and
(B) Who--
(1) Holds a public elective office of that State, political
subdivision, or agency,
(2) Is selected by the holder of such an office to be a member of
his personal staff,
(3) Is appointed by such an officeholder to serve on a policymaking
level,
(4) Is an immediate adviser to such an officeholder with respect to
the constitutional or legal powers of the office of such officeholder,
or
(5) Is an employee in the legislative branch or legislative body of
that State, political subdivision, or agency and is not employed by the
legislative library of such State, political subdivision, or agency.
Employee employed in an instructional capacity. See the definition
of Teacher in this section.
Employer means any person engaged in commerce or in an industry or
activity affecting commerce who employs 50 or more employees for each
working day during each of 20 or more calendar workweeks in the current
or preceding calendar year, and includes--
(1) Any person who acts, directly or indirectly, in the interest of
an employer to any of the employees of such employer;
(2) Any successor in interest of an employer; and
(3) Any public agency.
Employment benefits means all benefits provided or made available
to employees by an employer, including group life insurance, health
insurance, disability insurance, sick leave, annual leave, educational
benefits, and pensions, regardless of whether such benefits are
provided by a practice or written policy of an employer or through an
``employee benefit plan'' as defined in section 3(3) of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term
does not include non-employment related obligations paid by employees
through voluntary deductions such as supplemental insurance coverage.
(See Sec. 825.209(a).)
FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.).
Group health plan means any plan of, or contributed to by, an
employer (including a self-insured plan) to provide health care
(directly or otherwise) to the employer's employees, former employees,
or the families of such employees or former employees. For purposes of
FMLA the term ``group health plan'' shall not include an insurance
program providing health coverage under which employees purchase
individual policies from insurers provided that:
(1) No contributions are made by the employer;
(2) Participation in the program is completely voluntary for
employees;
(3) The sole functions of the employer with respect to the program
are, without endorsing the program, to permit the insurer to publicize
the program to employees, to collect premiums through payroll
deductions and to remit them to the insurer;
(4) The employer receives no consideration in the form of cash or
otherwise in connection with the program, other than reasonable
compensation, excluding any profit, for administrative services
actually rendered in connection with payroll deduction; and
(5) The premium charged with respect to such coverage does not
increase in the event the employment relationship terminates.
Health care provider means:
(1) The Act defines ``health care provider'' as:
(i) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery (as appropriate) by the State in which the
doctor practices; or
(ii) Any other person determined by the Secretary to be capable of
providing health care services.
(2) Others ``capable of providing health care services'' include
only:
(i) Podiatrists, dentists, clinical psychologists, optometrists,
and chiropractors (limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by
X-ray to exist) authorized to practice in the State and performing
within the scope of their practice as defined under State law;
(ii) Nurse practitioners, nurse-midwives, clinical social workers
and physician assistants who are authorized to practice under State law
and who are performing within the scope of their practice as defined
under State law;
(iii) Christian Science Practitioners listed with the First Church
of Christ, Scientist in Boston, Massachusetts. Where an employee or
family member is receiving treatment from a Christian Science
practitioner, an employee may not object to any requirement from an
employer that the employee or family member submit to examination
(though not treatment) to obtain a second or third certification from a
health care provider other than a Christian Science practitioner except
as otherwise provided under applicable State or local law or collective
bargaining agreement.
(iv) Any health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits; and
(v) A health care provider listed above who practices in a country
other than the United States, who is authorized to practice in
accordance with the law of that country, and who is performing within
the scope of his or her practice as defined under such law.
(3) The phrase ``authorized to practice in the State'' as used in
this section means that the provider must be authorized to diagnose and
treat physical or mental health conditions.
Incapable of self-care means that the individual requires active
assistance or supervision to provide daily self-care in several of the
``activities of daily living'' (ADLs) or ``instrumental activities of
daily living'' (IADLs). Activities of daily living include adaptive
activities such as caring appropriately for one's grooming and hygiene,
bathing, dressing and eating. Instrumental activities of
[[Page 9019]]
daily living include cooking, cleaning, shopping, taking public
transportation, paying bills, maintaining a residence, using telephones
and directories, using a post office, etc.
Instructional employee: See the definition of Teacher in this
section.
Intermittent leave means leave taken in separate periods of time
due to a single illness or injury, rather than for one continuous
period of time, and may include leave of periods from an hour or more
to several weeks. Examples of intermittent leave would include leave
taken on an occasional basis for medical appointments, or leave taken
several days at a time spread over a period of six months, such as for
chemotherapy.
ITO or ITA, invitational travel order (ITO) or invitational travel
authorization (ITA), are orders issued by the Armed Forces to a family
member to join an injured or ill servicemember at his or her bedside.
See also Sec. 825.310(e).
Key employee means a salaried FMLA-eligible employee who is among
the highest paid 10 percent of all the employees employed by the
employer within 75 miles of the employee's worksite. See also Sec.
825.217.
Mental disability: See the definition of Physical or mental
disability in this section.
Military caregiver leave means leave taken to care for a covered
servicemember with a serious injury or illness under the Family and
Medical Leave Act of 1993. (See Sec. 825.127.)
Next of kin of a covered servicemember means the nearest blood
relative other than the covered servicemember's spouse, parent, son, or
daughter, in the following order of priority: blood relatives who have
been granted legal custody of the covered servicemember by court decree
or statutory provisions, brothers and sisters, grandparents, aunts and
uncles, and first cousins, unless the covered servicemember has
specifically designated in writing another blood relative as his or her
nearest blood relative for purposes of military caregiver leave under
the FMLA. When no such designation is made, and there are multiple
family members with the same level of relationship to the covered
servicemember, all such family members shall be considered the covered
servicemember's next of kin and may take FMLA leave to provide care to
the covered servicemember, either consecutively or simultaneously. When
such designation has been made, the designated individual shall be
deemed to be the covered servicemember's only next of kin. See also
Sec. 825.127(g)(3).
Outpatient status means, with respect to a covered servicemember
who is a current member of the Armed Forces, the status of a member of
the Armed Forces assigned to either a military medical treatment
facility as an outpatient; or a unit established for the purpose of
providing command and control of members of the Armed Forces receiving
medical care as outpatients. See also Sec. 825.127(e).
Parent means a biological, adoptive, step or foster father or
mother, or any other individual who stood in loco parentis to the
employee when the employee was a son or daughter as defined below. This
term does not include parents ``in law.''
Parent of a covered servicemember means a covered servicemember's
biological, adoptive, step or foster father or mother, or any other
individual who stood in loco parentis to the covered servicemember.
This term does not include parents ``in law.'' See also Sec.
825.127(g)(2).
Person means an individual, partnership, association, corporation,
business trust, legal representative, or any organized group of
persons, and includes a public agency for purposes of this part.
Physical or mental disability means a physical or mental impairment
that substantially limits one or more of the major life activities of
an individual. Regulations at 29 CFR part 1630, issued by the Equal
Employment Opportunity Commission under the Americans with Disabilities
Act (ADA), 42 U.S.C. 12101 et seq., as amended, define these terms.
Public agency means the government of the United States; the
government of a State or political subdivision thereof; any agency of
the United States (including the United States Postal Service and
Postal Regulatory Commission), a State, or a political subdivision of a
State, or any interstate governmental agency. Under section 101(5)(B)
of the Act, a public agency is considered to be a ``person'' engaged in
commerce or in an industry or activity affecting commerce within the
meaning of the Act.
Reserve components of the Armed Forces, for purposes of qualifying
exigency leave, include the Army National Guard of the United States,
Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of
the United States, Air Force Reserve, and Coast Guard Reserve, and
retired members of the Regular Armed Forces or Reserves who are called
up in support of a contingency operation. See also Sec.
825.126(a)(2)(ii).
Reduced leave schedule means a leave schedule that reduces the
usual number of hours per workweek, or hours per workday, of an
employee.
Secretary means the Secretary of Labor or authorized
representative.
Serious health condition means an illness, injury, impairment or
physical or mental condition that involves inpatient care as defined in
Sec. 825.114 or continuing treatment by a health care provider as
defined in Sec. 825.115. Conditions for which cosmetic treatments are
administered (such as most treatments for acne or plastic surgery) are
not ``serious health conditions'' unless inpatient hospital care is
required or unless complications develop. Restorative dental or plastic
surgery after an injury or removal of cancerous growths are serious
health conditions provided all the other conditions of this regulation
are met. Mental illness or allergies may be serious health conditions,
but only if all the conditions of Sec. 825.113 are met.
Serious injury or illness means:
(1) In the case of a current member of the Armed Forces, including
a member of the National Guard or Reserves, an injury or illness that
was incurred by the covered servicemember in the line of duty on active
duty in the Armed Forces or that existed before the beginning of the
member's active duty and was aggravated by service in the line of duty
on active duty in the Armed Forces and that may render the
servicemember medically unfit to perform the duties of the member's
office, grade, rank, or rating; and
(2) In the case of a covered veteran,
(i) A continuation of a serious injury or illness that was incurred
or aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember unable to perform the duties of the
servicemember's office, grade, rank, or rating; or
(ii) A physical or mental condition for which the covered veteran
has received a U.S. Department of Veterans Affairs Service Related
Disability Rating (VASRD) of 50% or higher, and such VASRD rating is
based, in whole or in part, on the condition precipitating the need for
military caregiver leave; or
(iii) A physical or mental condition that substantially impairs the
covered veteran's ability to secure or follow a substantially gainful
occupation by reason of a service-connected disability or disabilities,
or would do so absent treatment. See also Sec. 825.127(c).
Son or daughter means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is either under age 18, or age 18 or older and
``incapable of self-care because of a
[[Page 9020]]
mental or physical disability'' at the time that FMLA leave is to
commence.
Son or daughter of a covered servicemember means a covered
servicemember's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the covered servicemember stood in loco
parentis, and who is of any age. See also Sec. 825.127(g)(1).
Son or daughter on covered active duty or an impending call or
order to covered active duty means the employee's biological, adopted,
or foster child, stepchild, legal ward, or a child for whom the
employee stood in loco parentis, who is on or has received notice of a
call or order to covered active duty, and who is of any age. See also
Sec. 825.126(b)(1).
Spouse means a husband or wife as defined or recognized under State
law for purposes of marriage in the State where the employee resides,
including common law marriage in States where it is recognized.
State means any State of the United States or the District of
Columbia or any Territory or possession of the United States.
Teacher (or employee employed in an instructional capacity, or
instructional employee) means an employee employed principally in an
instructional capacity by an educational agency or school whose
principal function is to teach and instruct students in a class, a
small group, or an individual setting, and includes athletic coaches,
driving instructors, and special education assistants such as signers
for the hearing impaired. The term does not include teacher assistants
or aides who do not have as their principal function actual teaching or
instructing, nor auxiliary personnel such as counselors, psychologists,
curriculum specialists, cafeteria workers, maintenance workers, bus
drivers, or other primarily noninstructional employees.
TRICARE is the health care program serving active duty
servicemembers, National Guard and Reserve members, retirees, their
families, survivors, and certain former spouses worldwide.
22. Remove and Reserve Appendices B through E, and G and H to part
825.
[FR Doc. 2012-2311 Filed 2-14-12; 8:45 am]
BILLING CODE 4510-27-P