[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Rules and Regulations]
[Pages 8833-8947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02383]



[[Page 8833]]

Vol. 78

Wednesday,

No. 25

February 6, 2013

Part V





Department of Labor





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Wage and Hour Division





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29 CFR Part 825





The Family and Medical Leave Act; Final Rule

Federal Register / Vol. 78 , No. 25 / Wednesday, February 6, 2013 / 
Rules and Regulations

[[Page 8834]]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 825

RIN 1215-AB76, RIN 1235-AA03


The Family and Medical Leave Act

AGENCY: Wage and Hour Division, Department of Labor.

ACTION: Final rule.

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SUMMARY: This Final Rule amends certain regulations of the Family and 
Medical Leave Act of 1993 (the FMLA or the Act) to implement amendments 
to the military leave provisions of the Act made by the National 
Defense Authorization Act for Fiscal Year 2010, which extends the 
availability of FMLA leave to family members of members of the Regular 
Armed Forces for qualifying exigencies arising out of the 
servicemember's deployment; defines those deployments covered under 
these provisions; extends FMLA military caregiver leave for family 
members of current servicemembers to include an injury or illness that 
existed prior to service and was aggravated in the line of duty on 
active duty; and extends FMLA military caregiver leave to family 
members of certain veterans with serious injuries or illnesses. This 
Final Rule also amends the regulations to implement the Airline Flight 
Crew Technical Corrections Act, which establishes eligibility 
requirements specifically for airline flight crewmembers and flight 
attendants for FMLA leave and authorizes the Department to issue 
regulations regarding the calculation of leave for such employees as 
well as special recordkeeping requirements for their employers. In 
addition, the Final Rule includes clarifying changes concerning the 
calculation of intermittent or reduced schedule FMLA leave; 
reorganization of certain sections to enhance clarity; the removal of 
the forms from the regulations; and technical corrections to the 
current regulations.

DATES: This Final Rule is effective March 8, 2013.

FOR FURTHER INFORMATION CONTACT: Mary Ziegler, Director of the Division 
of Regulation, Legislation, and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-
free number). Copies of this rule may be obtained in alternative 
formats (large print, Braille, audio tape or disc), upon request, by 
calling (202) 693-0675 (this is not a toll-free number). TTY/TDD 
callers may dial toll-free 1-877-889-5627 to obtain information or 
request materials in alternative formats.
    Questions of interpretation and/or enforcement of the agency's 
regulations may be directed to the nearest Wage and Hour Division (WHD) 
district office. Locate the nearest office by calling the WHD's toll-
free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 
p.m. in your local time zone, or log onto the WHD's Web site for a 
nationwide listing of WHD district and area offices at http://www.dol.gov/whd/america2.htm.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

Purpose of the Regulatory Action

    This Final Rule amends certain regulations of the FMLA to implement 
amendments to the military leave provisions of the Act made by the 
National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), 
to implement amendments to the hours of service requirements made by 
the Airline Flight Crew Technical Corrections Act (AFCTCA) and add new 
leave calculation regulations for flight crew employees, and to clarify 
existing regulatory provisions related to intermittent leave and make 
other clarifying changes.
    On November 17, 2008, the Department issued a Final Rule (2008 
Final Rule) implementing amendments to the FMLA made by the National 
Defense Authorization Act for Fiscal Year 2008 (FY 2008 NDAA). 73 FR 
67934. The FY 2008 NDAA created two new categories of leave: qualifying 
exigency leave and military caregiver leave. Under the FY 2008 NDAA's 
qualifying exigency leave provision, eligible family members of members 
of the National Guard and Reserves are entitled to take FMLA leave for 
qualifying exigencies, as defined by the Secretary of Labor, arising 
out of the military member's deployment in support of a contingency 
operation. In the 2008 Final Rule, the Secretary defined qualifying 
exigency using eight categories: short notice deployment, military 
events and related activities, childcare and school activities, 
financial and legal arrangements, counseling, rest and recuperation, 
post-deployment activities, and additional activities to which both the 
employer and employee agree. Under the FY 2008 NDAA's military 
caregiver leave provision, eligible family members of current 
servicemembers are entitled to take up to 26 workweeks of military 
caregiver leave in a single 12-month period to care for a current 
servicemember who incurred a serious injury or illness in the line of 
duty on active duty that renders the servicemember unable to perform 
the duties of his or her office, grade, rank, or rating. The Secretary 
implemented the FY 2008 amendments in the 2008 Final Rule.
    The FY 2010 NDAA further amends the FMLA by expanding the 
qualifying exigency leave provision to include leave for eligible 
family members of members of the Regular Armed Forces and by adding a 
foreign deployment requirement for both members of the Regular Armed 
Forces and the National Guard and Reserves. The FY 2010 NDAA amendments 
also expands military caregiver leave to cover injuries or illnesses 
that existed prior to the servicemember's active duty and were 
aggravated in the line of duty on active duty in the Armed Forces. 29 
U.S.C. 2611(18)(A). It further expands the military caregiver leave 
provision to provide leave to eligible family members of certain 
veterans with a serious injury or illness who are receiving medical 
treatment, recuperation, or therapy, if the veteran was a member of the 
Armed Forces at any time during the period of five years preceding the 
date of the medical treatment, recuperation, or therapy. 29 U.S.C. 
2611(15)(B). The amendments define a serious injury or illness for a 
veteran as a ``qualifying (as defined by the Secretary of Labor) injury 
or illness that was incurred by the member in line of duty on active 
duty in the Armed Forces (or existed before the beginning of the 
member's active duty and was aggravated by service in line of duty on 
active duty in the Armed Forces) and that manifested before or after 
the member becomes a veteran.'' 29 U.S.C. 2611(18)(B).
    The AFCTCA establishes special hours of service eligibility 
requirements for airline flight crewmembers and flight attendants 
(collectively referred to as airline flight crew employees) for FMLA 
leave. The amendments provide that an airline flight crew employee 
meets the hours of service requirement if during the previous 12-month 
period, he or she (1) has worked or been paid for not less than 60 
percent of the applicable total monthly guarantee (or the equivalent) 
and (2) has worked or been paid for not less than 504 hours, not 
including personal commute time or time spent on vacation, medical, or 
sick leave. Congress authorized the Department to issue regulations 
providing a method of calculating leave for airline flight crew 
employees as well as regulations regarding employers' maintenance of

[[Page 8835]]

certain information specific to airline flight crew employees.
    Finally, in this rulemaking, the Department also took the 
opportunity to make organizational improvements and clarifying edits to 
enhance the regulated community's understanding of the regulations.

Summary of the Major Provisions of the Final Rule

    To implement the amendments made to the FMLA by the FY 2010 NDAA, 
this Final Rule revises the FMLA regulations to reflect the expansion 
of qualifying exigency leave to include eligible employees with family 
members serving in the Regular Armed Forces and the addition of the 
foreign deployment requirement. It also increases the length of time an 
eligible family member may take for the qualifying exigency leave 
reason of Rest and Recuperation from five days to up to a maximum of 15 
days and creates a new qualifying exigency leave category for parental 
care.
    In military caregiver leave, the Final Rule expands the definition 
of serious injury or illness to include pre-existing injuries or 
illnesses of current service members that were aggravated in the line 
of duty, and expands military caregiver leave to care for covered 
veterans. It defines a covered veteran as an individual who is 
undergoing medical treatment, recuperation, or therapy for a serious 
injury or illness and who was discharged or released under conditions 
other than dishonorable at any time during the five-year period prior 
to the first date the eligible employee takes FMLA leave to care for 
the covered veteran. The Final Rule interprets the five-year period of 
eligibility for a covered veteran to exclude the period between the 
enactment of the FY 2010 NDAA on October 28, 2009, and the effective 
date of this Final Rule to protect the military caregiver leave 
entitlement of family members of veterans whose five-year period has 
either expired or has been diminished during that time. The Final Rule 
defines a serious injury or illness of a covered veteran as: (i) A 
continuation of a serious injury or illness that was incurred or 
aggravated when the covered veteran was a member of the Armed Forces 
and rendered the servicemember unable to perform the duties of the 
servicemember's office, grade, rank, or rating; (ii) a physical or 
mental condition for which the covered veteran has received a U.S. 
Department of Veterans Affairs Service Related Disability Rating 
(VASRD) of 50 percent or higher, and such VASRD rating is based, in 
whole or in part, on the condition precipitating the need for military 
caregiver leave; (iii) a physical or mental condition that 
substantially impairs the covered veteran's ability to secure or follow 
a substantially gainful occupation by reason of a disability or 
disabilities related to military service, or would do so absent 
treatment; or (iv) an injury, including a psychological injury, on the 
basis of which the covered veteran has been enrolled in the Department 
of Veterans Affairs Program of Comprehensive Assistance for Family 
Caregivers.
    In addition to revising the regulations to reflect the statutory 
amendments, the Final Rule also increases the length of time an 
eligible family member make take for the qualifying exigency leave 
reason of Rest and Recuperation from five days to up to a maximum of 15 
days to match the military member's Rest and Recuperation leave orders, 
and creates a new qualifying exigency leave category for parental care. 
The Final Rule also expands the list of authorized health care 
providers from whom an employee may obtain a certification of the 
servicemember's serious injury or illness to include authorized health 
care providers as defined by the regulations in Sec.  825.125. The 
Final Rule permits an employer to request a second and third opinion 
for medical certifications obtained from a health care provider who is 
not affiliated with the Department of Defense (DOD), the Department of 
Veterans Affairs (VA), or the TRICARE network.
    This Final Rule also implements the amendments made to the FMLA by 
the AFCTCA. The Final Rule relocates the special rules applicable only 
to airline flight crew employees and their employers to revised Subpart 
H--Special Rules Applicable to Airline Flight Crew Employees to provide 
clarity to employees and employers and to emphasize the distinction 
between the eligibility requirements and calculation of FMLA leave for 
airline flight crew employees and all other employees. Additionally, 
the Final Rule adopts a uniform entitlement for airline flight crew 
employees of 72 days of leave for one or more of the FMLA-qualifying 
reasons set forth in Sec. Sec.  825.112(a)(1)-(5) and 156 days of 
military caregiver leave under Sec.  825.112(a)(6). The Final Rule 
further provides that employers must account for an airline flight crew 
employee's FMLA leave usage utilizing an increment no greater than one 
day. As revised, Subpart H also includes special recordkeeping 
requirements applicable to the employers of airline flight crew 
employees.
    The Final Rule also revises various regulatory sections the 
Department revisited in the course of implementing the statutory 
amendments described previously. For instance, the Department moves the 
definitions section from current Sec.  825.800 to currently reserved 
Sec.  825.102. These revisions also include clarifications to the rules 
for calculation of intermittent or reduced schedule FMLA leave, 
including clarifying regulatory language regarding increments of leave 
and providing additional explanation of the physical impossibility 
rule. The Department also made modifications to ensure consistency with 
other statutes, such as amending references to the Uniformed Services 
Employment and Reemployment Rights Act (USERRA) to more closely mirror 
the USERRA regulations, and setting forth an employer's obligation to 
comply with the confidentiality requirements of the Genetic Information 
Nondiscrimination Act of 2008 (GINA).
    Finally, the Final Rule updates the FMLA optional use forms (WH-
380, WH-381, WH-382, WH-384, and WH-385) to reflect the statutory 
changes, creates a new optional use form for the certification of a 
serious injury or illness for a veteran (WH-385-V), and removes the 
forms from the regulations.
    This Final Rule revises only some provisions of the existing 
regulations and creates certain new provisions, but the Department is 
republishing the entirety of the FMLA regulations (Part 825). The 
Department is republishing the unchanged provisions along with the 
revised provisions as a convenience to readers and to ensure readers 
are provided the context for the changes made in the Final Rule.

Costs and Benefits

    The Department estimates that 381,000 covered firms and government 
agencies owning 1.2 million establishments and employing 91.1 million 
workers will potentially be affected by the Final Rule changes. These 
employers have an annual payroll of $5.0 trillion, estimated annual 
revenues of $23.7 trillion, and estimated net income of $1.03 trillion. 
See Table 3 in the Summary of Impacts.
    Under the AFCTCA, the Department estimates that nearly 6,000 flight 
attendants, pilots, co-pilots, and flight engineers will take new FMLA 
leaves. The Department estimates that each individual will take 1.5 
leaves, for a total of 8,930 leaves. Under the FY 2010 NDAA amendments, 
the Department estimates that approximately 30,900 eligible employees 
will take 926,000 days (7.4 million hours) of FMLA leave annually to 
address qualifying exigencies; and, that nearly 7,000

[[Page 8836]]

eligible employees will take 385,000 days (3.1 million hours) of FMLA 
leave annually to act as a caregiver for a veteran who is undergoing 
treatment for a serious illness or injury. See Table ES-1.

                                               Table ES-1--Summary of Leaves Taken as a Result of the Rule
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                                                              Covered
                                                             service-         Number        Number who       Number of     Days of leave  Hours of leave
                       Leave taker                          members and    eligible for   will take FMLA      leaves          (1,000)          (mil.)
                                                             veterans          leave           leave          (1,000)
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Flight Crew [a].........................................  ..............          90,560           5,950             8.9             8.9  ..............
Pilots..................................................  ..............          41,470           2,070             3.1             3.1  ..............
Flight Attendants.......................................  ..............          49,090           3,880             5.8             5.8  ..............
NDAA 2010 [b]...........................................         218,130         219,908          37,896             758           1,311            10.5
Qualifying Exigency.....................................         197,000         193,000          30,900             401             926             7.4
Military Caregiver......................................          21,130          26,908           6,966             357             385             3.1
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[a] Number eligible for leave represents only those flight crew employees not currently covered by an FMLA-type provision under a CBA; thus, the number
  of leaves equals new leaves as a result of this rule. The Department did not estimate the number of hours of leave for flight crew employees because
  the rule establishes a bank of days of leave, to be used in full day increments.
[b] Number of days and hours of leave estimated based on leave profiles, see discussion for more detail.

     The Department projects that the annualized cost of the rule will 
average somewhat less than $43 million per year over 10 years. The rule 
is expected to cost $53.9 million in the first year, and $41.3 million 
per year in subsequent years. The amendment to extend FMLA provisions 
to flight crew employees accounts for 0.7 percent of first year costs 
and 0.9 percent in subsequent years, while military exigency and 
caregiver leave account for 75.9 percent of first year costs and 99.1 
percent of costs in subsequent years. Regulatory familiarization costs 
account for 23.4 percent of first year costs. The costs related to the 
provision of health benefits account for the largest share of costs, 
about 44.0 percent of costs in the first year of the rule, and 57.5 
percent of costs each in each of the following years. See Table ES-2.

                              Table ES-2--Summary of Impact of Changes to FMLA [a]
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                                                                                      Annualized ($ mil) [b]
                                                                                 -------------------------------
                    Component                     Year 1 ($ mil)  Year 2 ($ mil)   Real discount   Real discount
                                                                                      rate 3%         rate 7%
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Total...........................................           $53.9           $41.3           $42.8           $43.0
Cost of Each Amendment:
    Any FMLA regulatory revision................            12.6             0.0             1.4             1.7
    Flight Crew Technical Amendment.............             0.4             0.4             0.4             0.4
    NDAA 2010...................................            41.0            41.0            41.0            41.0
        NDAA Subtotal: Qualifying Exigency......            25.8            25.8            25.8            25.8
        NDAA Subtotal: Military Caregiver.......            15.1            15.1            15.1            15.1
Cost of Each Requirement:
    Regulatory Familiarization..................            12.6             0.0             1.4             1.7
    Employer Notices............................            17.1            17.1            17.1            17.1
    Certifications..............................             0.4             0.4             0.4             0.4
    Health Benefits.............................            23.8            23.8            23.8            23.8
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[a] Columns may not sum due to rounding.
[b] Costs are annualized over 10 years.

    The Department anticipates significant benefits resulting from the 
Final Rule. For example, providing job-protected leave for caregivers 
of covered veterans under the military caregiver provision is expected 
to increase family involvement in the veteran's recovery, improve self-
reliance and access to resources for caregivers, and reduce negative 
outcomes for covered veterans and their families. Also, the extension 
of FMLA leave entitlement to flight crew employees will allow them to 
enjoy all the benefits of FMLA coverage, and may also reduce employer 
costs due to presenteeism (the loss of productivity due to employees 
working while injured or ill) and a resulting increase in overall 
productivity, workplace safety and employee wellness. The Department is 
not able to quantify these benefits at this time due to lack of 
suitable data.

II. Background

    This regulatory action first appeared on the Department's Fall 2009 
Regulatory Agenda where the Department stated its intent to review the 
impact of the 2008 Final Rule on the regulated community. 77 FR 67934. 
Subsequently, the FMLA was amended by the National Defense 
Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), Public Law 111-
84, and the Airline Flight Crew Technical Corrections Act (AFCTCA), 
Public Law 111-119. This rulemaking, therefore, makes regulatory 
changes to implement these statutory amendments. It also makes various 
clarifying revisions to existing regulations. The Department continues 
to review the impact of regulatory revisions made in the FMLA 2008 
Final Rule.

A. What the FMLA provides

    The FMLA was enacted on February 5, 1993, and became effective for 
most covered employers on August 5, 1993. As originally enacted, the 
FMLA entitled eligible employees of covered employers to take job-
protected, unpaid leave, or to substitute appropriate accrued paid 
leave, for up to a total of 12 workweeks in a 12-month period for the 
birth of the employee's son or daughter and to care for the newborn

[[Page 8837]]

child; for the placement of a son or daughter with the employee for 
adoption or foster care; to care for the employee's spouse, parent, 
son, or daughter with a serious health condition; or when the employee 
is incapacitated due to the employee's own serious health condition.
    The FMLA was amended in January 2008 with the enactment of the FY 
2008 NDAA. Public Law 110-181. Section 585(a) of FY 2008 NDAA expanded 
the FMLA to allow eligible employees of covered employers to take FMLA 
leave because of any qualifying exigency (as determined by the 
Secretary of Labor) when that employee's spouse, son, daughter, or 
parent is a member of the National Guard or Reserves who is on, or has 
been notified of an impending call or order to, active duty in the 
Armed Forces in support of a contingency operation (referred to as 
qualifying exigency leave). Additionally, the FY 2008 NDAA amendments 
provided up to 26 workweeks of leave in a single 12-month period for an 
eligible employee to care for a covered servicemember with a serious 
injury or illness if the employee is the spouse, son, daughter, parent, 
or next of kin of the covered servicemember (referred to as military 
caregiver leave). These two leave entitlements are collectively 
referred to as military family leave.
    The FMLA was again amended in 2009 with the enactment of the FY 
2010 NDAA on October 28, 2009, and the AFCTCA on December 21, 2009. 
Section 565(a) of the FY 2010 NDAA amended the military family leave 
provisions of the FMLA by extending qualifying exigency leave to 
eligible family members of members of the Regular Armed Forces, and 
military caregiver leave to include care provided to certain veterans. 
The AFCTCA amended the FMLA to provide special hours of service 
eligibility requirements for airline flight crew employees. Each of 
these amendments is discussed in detail in the section-by-section 
analysis that follows.
    FMLA leave may be taken in a block, or under certain circumstances, 
intermittently or on a reduced leave schedule. In addition to providing 
job-protected family and medical leave, employers must also maintain 
any pre-existing group health plan coverage for an employee on FMLA-
protected leave under the same conditions that would apply if the 
employee had not taken leave. 29 U.S.C. 2614. Once the leave period is 
concluded, the employer is required to restore the employee to the same 
or an equivalent position with equivalent employment benefits, pay, and 
other terms and conditions of employment. Id. If an employee believes 
that his or her FMLA rights have been violated, the employee may file a 
complaint with the Department or file a private lawsuit in Federal or 
state court. If the employer has violated the employee's FMLA rights, 
the employee is entitled to reimbursement for any monetary loss 
incurred, equitable relief as appropriate, interest, attorneys' fees, 
expert witness fees, and court costs. Liquidated damages also may be 
awarded. 29 U.S.C. 2617.
    Title I of the FMLA is administered by the Department and applies 
to private sector employers with 50 or more employees, public agencies, 
and certain Federal employers and entities, such as the U.S. Postal 
Service and Postal Regulatory Commission. Title II is administered by 
the U.S. Office of Personnel Management and applies to civil service 
employees covered by the annual and sick leave system established under 
5 U.S.C. Chapter 63 and certain employees covered by other Federal 
leave systems. Title III established a temporary Commission on Leave to 
conduct a study and report on existing and proposed policies on leave 
and the costs, benefits, and impact on productivity of such policies. 
Title IV contains provisions governing the effect of the FMLA on more 
generous leave policies, other laws, and existing employment benefits. 
Finally, Title V originally extended the leave provisions to certain 
employees of the U.S. Senate and House of Representatives; however, 
such coverage was repealed and replaced by the Congressional 
Accountability Act of 1995. 2 U.S.C. 1301.

B. Who the Law Covers

    The FMLA generally covers employers with 50 or more employees. To 
be eligible to take FMLA leave, an employee must meet specified 
criteria, including employment with a covered employer for at least 12 
months, performance of a specified number of hours of service in the 12 
months prior to the start of leave, and work at a location where there 
are at least 50 employees within 75 miles.

C. Regulatory History

    The FMLA required the Department to issue initial regulations to 
implement Title I and Title IV of the FMLA within 120 days of the law's 
enactment (by June 5, 1993) with an effective date of August 5, 1993. 
The Department published a Notice of Proposed Rulemaking (NPRM) in the 
Federal Register on March 10, 1993. 58 FR 13394. The Department 
received comments from a wide variety of stakeholders, and after 
considering these comments the Department issued an Interim Final Rule 
on June 4, 1993, effective August 5, 1993. 58 FR 31794.
    After publication, the Department invited further public comment on 
the interim regulations. 58 FR 45433. During this comment period, the 
Department received a significant number of substantive and editorial 
comments on the interim regulations from a wide variety of 
stakeholders. Based on this second round of public comments, the 
Department published final regulations to implement the FMLA on January 
6, 1995. 60 FR 2180. The regulations were amended February 3, 1995 (60 
FR 6658) and March 30, 1995 (60 FR 16382) to make minor technical 
corrections. The final regulations went into effect on April 6, 1995.
    On December 1, 2006, the Department published a Request for 
Information (RFI) in the Federal Register requesting public comment on 
its experiences with and observations of the Department's 
administration of the FMLA and the effectiveness of the regulations. 71 
FR 69504. Comments were received from workers, family members, 
employers, academics, and other interested parties, ranging from 
personal accounts, surveys, and legal reviews to academic studies and 
recommendations for regulatory and statutory changes to the FMLA. The 
Department published its Report on the comments in the Federal Register 
on June 28, 2007. 72 FR 35550.
    The Department published an NPRM in the Federal Register on 
February 11, 2008 proposing changes to the FMLA's regulations based on 
the Department's experience administering the law, two Department of 
Labor studies and reports on the FMLA issued in 1996 and 2001, several 
U.S. Supreme Court and lower court rulings on the FMLA, and a review of 
the comments received in response to the RFI. 73 FR 7876. Comments were 
also sought on the FY 2008 NDAA military family leave statutory 
provisions. In response to the NPRM, the Department received thousands 
of comments from a wide variety of stakeholders. The Department issued 
a Final Rule on November 17, 2008, which became effective on January 
16, 2009. 73 FR 67934.
    The Department commenced the current rulemaking by publishing an 
NPRM in the Federal Register on February 15, 2012 (77 FR 8960), 
inviting public comment for 60 days. On April 16, 2012, in response to 
requests to extend the comment period, the Department published a 
notice extending the original 60-day comment

[[Page 8838]]

period by 14 days. 77 FR 22519. The comment period closed on April 30, 
2012; approximately 870 comments were received and are available for 
review at the Federal eRulemaking Portal, www.regulations.gov, Docket 
ID WHD-2012-0001. Comments were received from worker advocacy 
organizations, military members, employers, employer associations, 
human resource specialists, labor organizations, and private 
individuals. Approximately 90 percent of the comments received were 
identical or nearly identical form letters sent in response to a 
comment campaign by members of the Society for Human Resource 
Management (SHRM). The Department received one comment ``late''--after 
the close of the comment period--from SHRM. Although SHRM accessed the 
Federal eRulemaking Portal prior to the midnight deadline, it was 
unable to submit its comment in a timely manner due to technical 
difficulties. Since technical difficulties prevented SHRM from 
complying with the deadline, the Department accepted SHRM's comment in 
this rulemaking. Several of the comments received addressed issues that 
are beyond the scope or authority of the proposed regulations including 
expanding the coverage or benefits of the Act. However, many of the 
comments centered on either the military amendments or the AFCTCA 
amendments, with several offering comments on both amendments. Comments 
on specific provisions are discussed in detail in the Summary of 
Comments below.

D. Updates to the Military Family Leave Provisions

    Section 565(a) of the FY 2010 NDAA, enacted on October 28, 2009, 
amends the military family leave provisions of the FMLA. Public Law 
111-84. The FY 2010 NDAA expands the availability of qualifying 
exigency leave and military caregiver leave. Qualifying exigency leave, 
which was made available to family members of the National Guard and 
Reserve components under the FY 2008 NDAA, is expanded to include 
family members of members of the Regular Armed Forces. The entitlement 
to qualifying exigency leave is expanded by substituting the term 
covered active duty for active duty and defining covered active duty 
for a member of the Regular Armed Forces as ``duty during the 
deployment of the member with the Armed Forces to a foreign country'', 
and for a member of the Reserve components of the Armed Forces as 
``duty during the deployment of the member with the Armed Forces to a 
foreign country under a call or order to active duty under a provision 
of law referred to in section 101(a)(13)(B) of title 10, United States 
Code.'' 29 U.S.C. 2611(14).\1\ Prior to the FY 2010 NDAA amendments, 
there was no requirement that members of the National Guard and 
Reserves be deployed to a foreign country.
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    \1\ As with the FY 2008 NDAA, the FY 2010 NDAA references 10 
U.S.C. 101(a)(13)(B), which covers call ups of the National Guard 
and Reserves and certain retired members of the Regular Armed Forces 
and Reserves in support of contingency operations. 73 FR 67954-55. 
For simplicity, the terms ``National Guard and Reserve'' and 
``Reserve components'' are used interchangeably throughout this 
document and refer to these categories of military members.
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    The FY 2010 NDAA amendments expand the definition of a serious 
injury or illness for military caregiver leave for current members of 
the Armed Forces to include an injury or illness that existed prior to 
service and was aggravated in the line of duty on active duty and that 
renders the member medically unfit. 29 U.S.C. 2611(18)(A). These 
amendments also expand the military caregiver leave provisions of the 
FMLA to allow family members to take military caregiver leave to care 
for certain veterans. The definition of a covered servicemember, which 
is the term the Act uses to indicate the group of military members for 
whom military caregiver leave may be taken, is broadened to include a 
veteran with a serious injury or illness who is receiving medical 
treatment, recuperation, or therapy, if the veteran was a member of the 
Armed Forces at any time during the period of five years preceding the 
date of the medical treatment, recuperation, or therapy. 29 U.S.C. 
2611(15)(B). The amendments define a serious injury or illness for a 
veteran as a ``qualifying (as defined by the Secretary of Labor) injury 
or illness that was incurred by the member in line of duty on active 
duty in the Armed Forces (or existed before the beginning of the 
member's active duty and was aggravated by service in line of duty on 
active duty in the Armed Forces) and that manifested itself before or 
after the member became a veteran.'' 29 U.S.C. 2611(18)(B).
    As was the case with the FY 2008 NDAA, the FY 2010 NDAA is silent 
as to the effective date of the FMLA amendments. In the NPRM, the 
Department stated its position that the qualifying exigency provision 
of the FY 2010 NDAA was effective upon the law's enactment on October 
28, 2009. 77 FR 8962. However, because the FY 2010 NDAA requires the 
Secretary to define a serious injury or illness of a veteran, the 
Department concluded that the military caregiver leave provision for 
family members of certain veterans would not be effective until the 
Department defined this term. 77 FR 8962. The Department stated that 
employers were not required to provide employees with leave to care for 
a covered veteran until the Department defined the term. Id. The 
Department noted, however, that employers were not prohibited from 
providing employees with leave to care for a veteran if employers chose 
to do so before the Department defined this term through regulation, 
but such leave, assuming it did not otherwise qualify as FMLA leave to 
care for a family member with a serious health condition, would not be 
FMLA-protected and would not count against employees' FMLA entitlement. 
Id.
    Although the Department did not request comments on its 
interpretation of the effective date of the FY 2010 NDAA amendments, a 
few commenters addressed the effective date of the military caregiver 
leave provision providing care to certain veterans. SHRM and Senators 
Harkin and Murray concurred with the Department's position that 
military caregiver leave is not available to veterans' families until 
the Department defines serious injury or illness of a veteran through 
regulation. The Legal Aid Society--Employment Law Center (Legal Aid) 
asserted that the Department's positions on the effective date of the 
military caregiver leave provision in the FY 2008 NDAA and the FY 2010 
NDAA were inconsistent. It urged the Department to treat the provision 
providing military caregiver leave to care for veterans as effective on 
the signing date of the FY 2010 NDAA in light of the critical needs of 
veterans. It also urged the Department to state that if an employer 
permitted an employee to take leave to care for a veteran before the 
Department defined this term through regulation, such leave is 
protected under the FMLA. The National Employment Lawyers Association 
(NELA) commented that, from the date the law was enacted in 2009 until 
the adoption of final regulations, employers could have permitted 
employees to take leave to care for a veteran pursuant to 29 U.S.C. 
2652(a), which authorizes employers to voluntarily provide leave rights 
broader than those provided for under the FMLA, and asserted that such 
leave would be FMLA protected. At the same time, however, NELA 
supported the Department's position that any such leave taken before 
final regulations are adopted should not count against an employee's 
FMLA entitlement, and recommended that the regulations expressly 
incorporate this requirement.

[[Page 8839]]

    The Department disagrees with Legal Aid's suggestion that the 
Department is being inconsistent in its position on the effective date 
of the 2008 and 2010 amendments. In both the 2008 Final Rule and this 
rulemaking, the Department determined that where the statute requires 
the Secretary to define a term, that portion of the statute is not 
effective until the Department defines the term through regulation; 
where the statute does not require the Secretary to define any terms, 
that portion of the statute is effective upon the statute's enactment. 
In the FY 2008 NDAA, Congress directed the Secretary to define the term 
qualifying exigency, and, therefore, the Department concluded that 
qualifying exigency leave was not effective until the Department 
defined this term in the 2008 Final Rule. 73 FR 7925. In the FY 2010 
NDAA, Congress directed the Secretary to define what qualifies as a 
serious injury or illness of a veteran, and, therefore, the Department 
has taken the position that employers are not required to provide 
military caregiver leave to care for a veteran until the Department 
defines a serious injury or illness of a veteran through regulation. 
Similarly, in the FY 2008 NDAA, Congress did not require the Secretary 
to define any terms related to military caregiver leave, and therefore 
the Department took the position that the military caregiver leave 
provision was effective upon enactment. 73 FR 7925. In the FY 2010 
NDAA, Congress did not require the Secretary to define any terms 
related to the expansion of qualifying exigency leave, and therefore 
Department has taken the position that the qualifying exigency leave 
provision was effective upon enactment. As to the comments regarding 
the treatment of leave to care for a veteran that is voluntarily 
provided by an employer before the effective date of this Final Rule, 
the Department disagrees with the commenters' assertions that such 
leave is FMLA-protected. Because this provision of the FY 2010 NDAA is 
not effective until the Department defines a qualifying serious injury 
or illness of a veteran through regulation, there is no basis to treat 
such leave, if voluntarily provided by an employer, as FMLA-protected. 
There is likewise no basis to interpret 29 U.S.C. 2652(a) as requiring 
that leave to care for a veteran voluntarily provided by an employer 
prior to the effective date of this Final Rule be treated as protected 
FMLA leave. Section 2652(a) states that the FMLA does not diminish an 
employer's obligations to comply with the terms of any employment 
benefit program or plan providing greater rights than the FMLA that the 
employer has agreed to provide through a collective bargaining 
agreement or otherwise voluntarily agreed to provide. This section does 
not say that any benefit provided under such program or plan that 
exceeds the rights provided under the FMLA is protected under the FMLA. 
Nor does it say that the FMLA provides a mechanism for enforcement of 
such benefits. Thus, the Department's position in this Final Rule is 
the same as set out in the NPRM: the qualifying exigency leave 
provision of the FY 2010 NDAA was effective on October 28, 2009; the 
military caregiver leave provision to care for a covered veteran will 
be effective on the effective date of this Final Rule; and any leave to 
care for a veteran voluntarily provided by an employer before the 
effective date of this Final Rule that does not otherwise qualify as 
FMLA leave to care for a family member with a serious health condition 
is not FMLA-protected and does not count against employees' FMLA 
entitlement.

E. Amendments to Eligibility Criteria for Airline Flight Crewmembers 
and Flight Attendants

    On December 21, 2009, the AFCTCA was enacted, establishing a 
special hours of service eligibility requirement for airline flight 
crew employees. The AFCTCA provides that an airline flight crew 
employee will meet the hours of service eligibility requirement if he 
or she has worked or been paid for not less than 60 percent of the 
applicable total monthly guarantee (or its equivalent) and has worked 
or been paid for not less than 504 hours (not including personal 
commute time or time spent on vacation, medical, or sick leave) during 
the previous 12 months. Airline flight crew employees continue to be 
subject to the FMLA's other eligibility requirements. The AFCTCA also 
authorized the Department to issue regulations regarding the 
calculation of FMLA leave for airline flight crew employees as well as 
special recordkeeping requirements for the employers of such employees.
    The AFCTCA is silent as to its effective date. The Department 
concluded in the NPRM that the amendment became effective on the date 
of enactment, December 21, 2009, because the AFCTCA is explicit about 
how to calculate the hours of service requirement for airline flight 
crew employees. 77 FR 8962. Although the AFCTCA authorizes the 
Department to promulgate regulations regarding how to calculate the 
FMLA leave entitlement for airline flight crew employees, and special 
recordkeeping requirements, these authorizations are permissive and do 
not require the Department to engage in rulemaking. The Department did 
not request comments concerning the effective date of the AFCTCA and no 
comments were received on the issue. The Department's position in this 
Final Rule is the same as set out in the NPRM.

III. Summary of Comments

    The Department received approximately 870 comments on the NRPM; of 
those, almost 90 percent were identical or nearly identical form 
letters from SHRM members which addressed concerns about the 
Department's proposed elimination of the employer's ability to utilize 
different increments of FMLA leave at different times of the day or 
shift and the Department's consideration of whether the physical 
impossibility provision should be removed from the regulations. The 
Department also received comments that were general statements, and 
comments addressing issues that are beyond the scope authority of the 
proposed regulations. The remaining comments reflect a wide variety of 
views primarily concerning proposals to implement the FY 2010 NDAA or 
the AFCTCA. Many include substantive analyses of the proposed 
revisions. Some commenters addressed both amendments and some addressed 
other proposed changes as well. The Department has carefully considered 
all of the comments, analyses, and arguments made for and against the 
proposed changes.
    The major comments received on the proposed regulatory changes are 
summarized below, together with a discussion of the changes that have 
been made in the final regulatory text in response to the comments 
received. A number of other minor editorial changes have been made for 
consistency in the regulatory text.

IV. Section-by-Section Analysis of Proposed Changes to the FMLA 
Regulations

    The following is a section-by-section analysis of the final 
revisions to the FMLA regulations. As explained, this Final Rule 
revises only certain provisions of the existing regulations and creates 
certain new provisions, which are discussed below. The Department is 
republishing, however, the entirety of the FMLA regulations, including 
the unchanged regulatory provisions not discussed here.
    The primary sections of the regulations with revisions to implement 
the FY 2010 NDAA amendments are: Sec.  825.126 (Leave because of a 
qualifying

[[Page 8840]]

exigency); Sec.  825.127 (Leave to care for a covered servicemember 
with a serious injury or illness); Sec.  825.309 (Certification for 
leave taken because of a qualifying exigency); and Sec.  825.310 
(Certification for leave taken to care for a covered servicemember 
(military caregiver leave)). Less substantive changes are made to Sec.  
825.122 (Definitions of covered servicemember, spouse, parent, son or 
daughter, next of kin of a covered servicemember, adoption, foster 
care, son or daughter on covered active duty or call to covered active 
duty status, son or daughter of a covered servicemember, and parent of 
a covered servicemember) and Sec.  825.102 (Definitions) to reflect new 
definitions related to military family leave (moved from Sec.  825.800 
in the current regulations).
    The sections of the regulations with final revisions to implement 
the AFCTCA are located in revised Subpart H newly titled, Special Rules 
Applicable to Airline Flight Crew Employees. This reorganization is 
intended to enhance clarity and utility of the regulations, and to 
prevent confusion about the applicability of the special rules for 
airline flight crew employees to any other types of employees. Subpart 
H includes the following sections: Sec.  825.800 (Special rules for 
airline flight crew employees, general), Sec.  825.801 (Special rules 
for airline flight crew employees, hours of service requirement); Sec.  
825.802 (Special rules for airline flight crew employees, calculation 
of leave); and Sec.  825.803 (Special rules for airline flight crew 
employees, recordkeeping requirements). Additional changes to implement 
the AFCTCA are made in Sec.  825.102 (Definitions).
    In addition to changes to incorporate the statutory amendments, the 
Department also made changes to clarify existing regulatory text and 
for consistency with other statutes and regulations. Specifically, the 
Department moved the definitions section of the regulations from Sec.  
825.800 to Sec.  825.102, which is reserved in the current regulations, 
and made certain substantive revisions to the definitions as discussed 
later in this preamble. Other modified sections include Sec.  825.110 
(Eligible employee), Sec.  825.205 (Increment of FMLA leave for 
intermittent and reduced schedule leave), Sec.  825.500 (Recordkeeping 
requirements), and Sec.  825.702 (Interaction with Federal and State 
anti-discrimination laws).
    The Department also removes the following optional-use forms and 
notices from the regulations' Appendices: Forms WH-380-E (Certification 
of Health Care Provider--Employee), WH-380-F (Certification of Health 
Care Provider--Family Member), WH-384 (Certification of Qualifying 
Exigency for Military Family Leave), and WH-385 (Certification for 
Serious Injury or Illness of Covered Servicemember for Military Family 
Leave) related to certification; and Forms WH-381 (Notice of 
Eligibility and Rights & Responsibilities), WH-382 (Designation Notice 
to Employee of FMLA Leave), and Notice to Employees of Rights under 
FMLA (WH Publication 1420) related to notification. The Department 
noted in the NPRM that the forms would continue to be available to the 
public on the WHD Web site, and that the forms are separately subject 
to the requirements of the Paperwork Reduction Act of 1995 (PRA), which 
provides an opportunity for the public to comment on the forms and 
their information collection requirements every three years. The 
Department also advised that future substantive changes to the forms 
would continue to require separate and additional rulemaking. 77 FR 
8963.
    The Department received several comments on this proposal. Aon 
Hewitt and a self-described labor-employment attorney both supported 
the Department's proposal to remove the forms from the regulations. 
Legal Aid, the National Coalition to Protect Family Leave (Coalition), 
and SHRM opposed the proposal. Legal Aid stated that removing the forms 
from the regulations would eliminate an important source of information 
for employers and employees. This commenter also stated that many 
people lack access to the Internet, and even for those who do have 
access, navigating the Internet and being certain that the most recent 
form is being accessed is difficult. The Coalition expressed concern 
that the PRA procedures would not produce the same amount of public 
participation and awareness of future proposed changes to the forms. 
This commenter further asserted that even the slightest changes to the 
forms can result in a significant economic impact on an employer as 
systems must be updated to accommodate the changes. The commenter also 
stated that the forms are a critical part of the FMLA approval process, 
and even the smallest proposed changes should receive careful 
consideration. SHRM commented that the notice and comment process has 
contributed to the improvement of these forms over time and that it 
would be a mistake to remove the forms from this regulatory process. It 
also commented that removal of the forms from the rulemaking process 
would be contrary to the Administration's commitment to transparency 
and open government, notwithstanding the Department's assertion that 
the PRA review process would facilitate these goals.
    The Department has carefully considered the concerns raised by the 
commenters, and has decided to implement the provision as proposed. The 
Department understands that, for many employers and employees, 
compliance with the FMLA begins with notification and certification of 
the employee's need for leave. The Department recognizes that its 
optional-use FMLA forms, as well as employer forms requiring the same 
information, play a key role in employers' compliance with the FMLA and 
employees' ability to take FMLA-protected leave when needed. Therefore, 
the Department believes it would be helpful to discuss the authority 
for these information collections, briefly describe the PRA process, 
and explain how the removal of the forms from the regulations will and 
will not impact the regulated community.
    The Department's authority for the collection of information and 
the required disclosure of information under the FMLA stems from the 
statute and/or the implementing regulations. The authority for an 
employer requiring medical certification in support of an employee's 
request for FMLA leave due to a serious health condition and for the 
content of the certification are found in 29 U.S.C. 2613(a), 2614(c)(3) 
and 29 CFR 825.100(d), 825.305-.308, 825.312. These provisions are the 
basis for Forms WH-380-E and WH-380-F. The authority for requiring 
certification in support of an employee's need for leave due to a 
qualifying exigency arising from the deployment of the employee's 
family member and the content of the information included in Form WH-
384 are found in 29 U.S.C. 2613(f) and Sec.  825.309. The authority for 
requiring certification of a covered servicemember's serious injury or 
illness and the content of Form WH-385 and new Form WH-385-V are found 
in 29 U.S.C. 2613(a) and Sec.  825.310. The regulations, Sec.  
825.300(b)-(c), set forth the authority and information requirements 
for Form WH-381, Notice to Employee of FMLA Eligibility and Rights and 
Responsibility. The authority for and content of Form WH-382, Notice to 
Employees of FMLA Leave Designation is found in Sec. Sec.  
825.300(c)-.301(a). In order to make any changes to the information 
included in these forms, the Department must engage in

[[Page 8841]]

rulemaking because the content of the forms is determined by the 
regulations.
    Under the PRA process, the WHD publishes a notice in the Federal 
Register notifying the public that the agency is seeking an extension 
of approval from the Office of Management and Budget (OMB) for the 
subject information collection, and that the Department is accepting 
comments for 60-days on the extension of OMB approval of the 
information collection. In this notice, WHD describes the information 
collection, the estimated time needed to complete the information 
collection, the cost of complying with the information collection, and 
describes the changes, if any, to the information collection from the 
previous clearance. Often they are programmatic to the information 
collection requirements or format changes to the instruments. In such 
cases the Agency merely updates number of responses or respondents, or 
updating the cost of responding to account for items such as wage 
increases as reported by the Department's Bureau of Labor Statistics or 
increases in postage rates. The Federal Register notice provides the 
public an opportunity to comment on those estimates and make 
recommendations on how the agency might improve the information 
collection in a way that would not necessarily require rulemaking. 
After the 60 day comment period, the Department publishes a notice 
informing the public of its intention to submit the information 
collection to the OMB for an extension of approval. This notice informs 
the public that they have 30 days to submit comments to OMB on the 
extension of approval, a brief description of the information 
collection, the estimated time needed to complete the information 
collection, the cost of complying with the information collections, and 
describes the changes, if any, to the information collection from the 
previous clearance. The Department also provides OMB with a summary of 
any comments received in response to the first notice and of the 
agency's response to those comments. The public may seek additional 
information about the forms from the WHD Web site at any time. 
Information about specific information collections is also available at 
www.reginfo.gov.
    Removal of the forms from the regulations will allow the Department 
to make non-regulatory changes to the forms in a more effective manner 
while still offering the public an opportunity to comment on the 
proposed changes. For example, the Department regularly receives 
completed medical certification forms (Forms WH-380-E and WH-380-F) 
from health care providers even though respondents are instructed not 
to send the form to the Department of Labor. This results in the 
employee's FMLA leave being delayed because the employer has not 
received the medical certification supporting the employee's need for 
leave. Through the PRA notice and review process, the Department could 
modify the instructions for health care providers in Section III of the 
form to include an instruction not to send the forms to the Department. 
This type of change would not require a regulatory change but would 
enhance the usability of the form and employers' compliance efforts.
    As discussed, even with removal of the forms from the regulations, 
the information collection requirements underlying the FMLA forms 
continue to be subject to both the rulemaking process and the PRA 
process. The FMLA regulations determine what substantive information is 
collected on the forms and the PRA process requires that any Federal 
government information collection be approved by OMB and re-authorized 
every three years. Removing the forms from the regulations gives the 
Department the ability to maintain one version of the FMLA forms, 
thereby lessening the confusion among employees and employers currently 
resulting from the existence of multiple versions of the forms. The 
forms will continue to be available on the WHD Web site, and for those 
individuals who lack Internet access, forms may be obtained from their 
local WHD district office and, in some cases, from their employer. 
Removal of the forms from the regulations does not alter the 
Department's belief that the forms facilitate employer and employee 
compliance with their respective obligations under the FMLA. Employers 
are permitted to use forms other than those issued by the Department so 
long as they do not require information beyond that specified in the 
regulations. See 29 CFR 825.306, 825.309, 825.310. However, if an 
employee provides sufficient certification regardless of format, no 
additional information may be requested.
    In response to SHRM's comment regarding transparency and open 
government and the Coalition's concern that the Department does not 
publicize the PRA process in the same manner that it publicizes 
proposed changes to the regulations, the Department believes that the 
PRA process is open, transparent, and well-publicized; however the 
Department will take into consideration additional steps to alert the 
regulated community that the FMLA forms are undergoing the PRA process. 
Additionally, as stated previously, any changes to the information 
collection requirements underlying the forms would still require full 
notice and comment through the rulemaking process. Changes to the forms 
would still require full notice and comment under the PRA process.
    In the Final Rule, as proposed, the Department makes various minor 
changes or corrections to the forms and regulations. Specifically, the 
Department makes small modifications to the FMLA forms, and creates a 
new form for certification of a serious injury or illness of a covered 
veteran, to reflect the FY 2010 NDAA amendments and the AFCTCA, which 
are discussed in the section-by-section analysis. In addition, minor 
edits to more accurately reflect the new military family leave and 
airline flight crew employee eligibility provisions or to delete 
references to Appendices for prototype forms or notices are made at: 
Sec. Sec.  825.100, 825.101, 825.107, 825.112, 825.200, 825.213, 
825.300, 825.302, 825.303, and 825.306. Cross-references to the special 
rules applicable only to airline flight crew employees and their 
employers in revised Subpart H are included in Sec. Sec.  825.102, 
825.110, 825.120, 825.121, 825.200, 825.205, 825.300, and 825.702. 
Cross-references to the definitions section, which the Department 
moves, as proposed, to Sec.  825.102, are updated throughout the 
regulations. The Department also corrects inadvertent drafting errors 
that were made in the 2008 Final Rule, including correcting the cross-
references in Sec.  825.200(f) and (g) and inserting the word 
``spouse'' in the first lines of Sec.  825.202(b) and (b)(1). 
Furthermore, the Department includes the word ``the'' in the statutory 
phrase ``in line of duty'' where used in the regulations and updates 
the URL for the WHD Web site in Sec. Sec.  825.300, 825.306, and 
825.309 to link viewers directly to the WHD site. These minor editorial 
changes are not addressed in the section-by-section analysis.

A. Revisions To Implement the FY 2010 NDAA Amendments

1. Section 825.122 Definitions of Covered Servicemember Spouse, Parent, 
Son or Daughter, Next of Kin of a Covered Servicemember, Adoption, 
Foster Care, Son or Daughter on Covered Active Duty or Call or Order to 
Covered Active Duty Status, son or Daughter of a Covered Servicemember, 
and Parent of a Covered Servicemember
    The Department proposed to add a definition of covered 
servicemember as

[[Page 8842]]

a new paragraph (a) in this section and to modify the definition in the 
current regulations to reflect the addition of covered veterans as 
covered servicemembers under the FY 2010 NDAA, and to redesignate the 
paragraphs that follow. The Department also proposed to change the term 
active duty to covered active duty in each place it appears in both the 
title of this section and in current paragraph (g), and to update the 
reference in this paragraph to proposed Sec.  825.126(a)(5).
    The Department received several comments on the proposed definition 
of covered servicemember, all of which are discussed below in 
conjunction with Sec.  825.127(b)(2). For the reasons stated in the 
discussion of Sec.  825.127(b)(2), the Final Rule modifies the 
definition of covered servicemember in Sec.  825.122 in the same manner 
that it modifies Sec.  825.127(b)(2), and makes additional minor word 
changes to mirror the language used in Sec.  825.127(b)(2).
    No comments were received on the other proposed changes to this 
section. The Final Rule adopts these proposals without modification, 
and updates cross-references throughout the regulations to the 
definitions in this section that have been redesignated.
2. Section 825.126 Leave Because of a Qualifying Exigency
    Section Sec.  825.126 sets forth the regulation allowing an 
eligible employee whose spouse, parent, son, or daughter is on active 
duty or has been notified of an impending call or order to active duty 
to take FMLA leave for a qualifying exigency arising out of that active 
duty or call to active duty. The FY 2008 NDAA defined active duty as a 
call or order to active duty under a provision of law referred to in 10 
U.S.C. 101(a)(13)(B). Public Law 110-181; Sec.  585(a). The provisions 
referred to in 10 U.S.C. 101(a)(13)(B) are limited to duty by members 
of the Reserve components, the National Guard, and certain retired 
members of the Regular Armed Forces and retired Reserve. The FY 2008 
NDAA thus limited the availability of qualifying exigency leave to 
family members of members of the National Guard and Reserve components. 
73 FR 67954-55.
    The FY 2010 NDAA further amended the FMLA to permit an eligible 
employee to take FMLA leave for any qualifying exigency arising out of 
the fact that the employee's spouse, son, daughter, or parent is on 
covered active duty, or has been notified of an impending call or order 
to covered active duty in the Armed Forces. Public Law 111-84, Sec.  
565(a)(1); see 29 U.S.C. 2611(14)(A), 2612(a)(1)(E). The FY 2010 NDAA 
defined covered active duty to include duty by members of the Regular 
Armed Forces during deployment to a foreign country, and duty by 
members of the Reserve components during deployment to a foreign 
country under a call or order to active duty under a provision of law 
referred to in section 101(a)(13)(B) of title 10, United States Code. 
29 U.S.C. 2611(14). Thus, the FY 2010 NDAA expanded the availability of 
qualifying exigency leave to include family members of the Regular 
Armed Forces during a foreign deployment, and added a foreign 
deployment requirement to the type of call or order to active duty 
required for the Reserve components of the Armed Forces.
    The Department proposed to reverse the order in which the two parts 
of this section appear, so that proposed paragraph (a) addressed an 
employee's entitlement to qualifying exigency leave and proposed 
paragraph (b) identified the specific circumstances under which 
qualifying exigency leave may be taken. The Department also proposed to 
substitute covered active duty for active duty in paragraph (a) (as 
well as throughout the regulations wherever the term appeared) to 
incorporate the FY 2010 NDAA statutory language. Additionally, because 
the term covered military member was associated with the restrictive 
nature of qualifying exigency leave under the FY 2008 NDAA, i.e., the 
limitation of such leave to family members of Reserve component members 
only, the Department proposed to delete references to a covered 
military member and instead use the term member or military member to 
refer to all military members on covered active duty as defined by the 
statute.
    In accordance with the FY 2010 NDAA, the Department proposed to 
delete the statement in current Sec.  825.126(b)(i) that family members 
of members of the Regular Armed Forces are not entitled to qualifying 
exigency leave. The Department proposed in paragraph (a) to state than 
an eligible employee may take FMLA leave for a qualifying exigency 
while the employee's spouse, son, daughter, or parent is on covered 
active duty or call to covered active duty status. The Department 
proposed in Sec.  825.126(a)(1) to define covered active duty or call 
to covered active duty status for a member of the Regular Armed Forces 
as ``duty under a call or order to active duty (or notification of an 
impending call or order to covered active duty) during the deployment 
of the member with the Armed Forces to a foreign country,'' and to 
state that the active duty orders will generally specify if the 
member's deployment is to a foreign country. The Department proposed in 
Sec.  825.126(a)(2) to define covered active duty or call to covered 
active duty status for a member of the Reserve components as ``duty 
under a call or order to active duty (or notification of an impending 
call or order to active duty) during the deployment of the member with 
the Armed Forces to a foreign country under a Federal call or order to 
active duty in support of a contingency operation'' pursuant to the 
provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The 
Department also proposed to use the word Federal in proposed Sec.  
825.126(a)(2) in describing the covered calls or orders to active duty 
in order to make clear that only Federal calls to duty will meet the 
definition of covered active duty. The Department proposed to move to 
Sec.  825.126(a)(2)(i) the list of the specific Reserve components in 
current Sec.  825.126(b)(2)(i). The Department proposed to move to 
Sec.  825.126(a)(2)(ii) the statement in current Sec.  825.126(b)(3) 
that the active duty orders of a member of the Reserve components will 
generally specify if the covered active duty military member is serving 
in support of a contingency operation by citing the relevant section of 
Title 10 of the United States Code and/or by reference to the specific 
name of the contingency operation, and to state also in Sec.  
825.126(a)(2)(ii) that the active duty orders will generally specify 
that the deployment is to a foreign country. The Department proposed in 
Sec.  825.126(a)(3) to define deployment of the member with the Armed 
Forces to a foreign country as deployment to areas outside of the 
United States, the District of Columbia, or any Territory or possession 
of the United States, including deployment in international waters. As 
discussed in the NPRM, this definition was consistent with the 
Department's understanding of the term deployment based on 
consultations with the DOD. 77 FR 8965. The Department also sought 
comment on the types of duty assignments for members of the Navy and 
Coast Guard that would satisfy the definition of deployment. The 
Department proposed to move to Sec.  825.126(a)(4) the provision 
specifying that covered deployments are limited to Federal calls to 
active duty, which is in current Sec.  825.126(b)(2)(ii). Finally, the 
Department proposed to move the definition of son or daughter on active 
duty or call to active duty status to Sec.  825.126(a)(5) from current 
Sec.  825.126(b)(1).
    No comments were received on the proposed changes regarding the

[[Page 8843]]

reorganization of the section, or the changes in proposed paragraph (a) 
regarding the use of the term covered active duty rather than active 
duty or the use of the term military member or member rather than 
covered military member. Therefore, the Final Rule adopts these changes 
as proposed.
    Several commenters suggested additional language changes for 
paragraph (a) of this section. Two commenters, the National Partnership 
for Women and Families (Partnership) and the North Carolina Justice 
Center, suggested that the term qualifying exigency may be confusing to 
military families and that the Department should provide a general 
explanation of what is meant by this term. NELA commented that the 
definition of covered active duty or call to covered active duty status 
is confusing because it seems to indicate that an impending call or 
order to active duty must occur during deployment to a foreign country. 
NELA suggested that the Department remove the phrase call or order to 
active duty from proposed Sec.  825.126(a)(1) defining the term for 
members of the Regular Armed Forces, noting that 29 U.S.C. 2611(14)(A) 
does not use the phrase. NELA further suggested that the Department 
include a definition of the Armed Forces in this subparagraph rather 
than using the term Regular Armed Forces. NELA also commented that the 
use of the term contingency operation in the proposed regulation at 
Sec.  825.126(a)(2), discussing covered active duty, is confusing and 
unnecessary in light of the fact that Congress deleted this term in the 
FY 2010 NDAA. This commenter suggested that, because each of the listed 
military duties in 10 U.S.C. 101(a)(13) is a type of contingency 
operation, there is no reason to include the phrase in the final 
regulations. In contrast, SHRM commented that the inclusion of the 
language that the call or order to active duty must be in support of a 
contingency operation will help clarify this entitlement. The Coalition 
commented that the inclusion of the word Federal in Sec.  825.126(a)(2) 
adds clarity and the reference to Title 10 of the United States Code in 
subparagraph (2) is appropriate, but that this subparagraph should 
provide explicit definitions or descriptions of the different types of 
active duty under the various statutes listed in Title 10 because most 
employers are not familiar with these statutory references.
    The Partnership and the North Carolina Justice Center supported the 
Department's proposed definition of deployment to a foreign country in 
proposed Sec.  825.126(a)(3) to include international waters as 
consistent with congressional intent. The Military Officers Association 
of America also supported the inclusion of international waters in this 
definition, but suggested that the Department ``encourage expansion of 
the law'' to include family members of servicemembers assigned overseas 
to remote areas and to servicemembers of all the uniformed services, 
including the National Oceanic and Atmospheric Administration (NOAA) 
and the U.S. Public Health Service Commissioned Corps.
    The Department has carefully considered all of the comments 
regarding the proposed changes to Sec.  825.126 and has adopted 
paragraph (a) as proposed with a slight modification. The Department 
removes from the proposed definition of covered active duty or call to 
covered active duty status in the Final Rule the phrase ``under a call 
or order to active duty (or notification of an impending call or order 
to active duty)'' and inserts into the regulatory text preceding the 
definition the phrase ``(or has been notified of an impending call or 
order to covered active duty)''. The revised text is not intended to 
change the meaning of Sec.  825.126(a), under which an eligible 
employee may take qualifying exigency leave if that employee's spouse, 
son, daughter, or parent is on covered active duty or call to covered 
active duty status or has been notified of an impending call or order 
to covered active duty, but instead to provide clarity and more closely 
track the statutory language of the FY 2010 NDAA. With regard to 
commenters' request that the Department provide a definition for the 
term qualifying exigency, the Department notes that the 2008 Final Rule 
defined qualifying exigency by providing clearly defined reasons for 
which an eligible employee can take leave because of a qualifying 
exigency. 73 FR 67957. Thus, the proposed rule provided, just as the 
2008 Final Rule did, eight distinct categories that the Department has 
determined to be qualifying exigencies that entitle eligible family 
members to FMLA leave. The Department does not believe that any 
additional explanation of the term qualifying exigency is necessary. In 
response to the comment concerning whether the phrase covered active 
duty or call to covered active duty limits qualifying exigency leave to 
the period during the military member's deployment, the Department 
notes that eligible employees who are family members of military 
members of the Armed Forces are entitled to qualifying exigency leave 
after notification of an impending deployment, during the deployment, 
and post-deployment. As explained in the NPRM, the Department does not 
believe that the FY 2010 NDAA altered the applicability of qualifying 
exigency leave to the limited category of post-deployment activities, 
the need for which immediately and foreseeably arise from the military 
member's covered active duty. In response to the request to define 
Armed Forces, the Department believes that the public has a common 
understanding of the Armed Forces, and that further definition is not 
necessary.
    In response to the comments regarding the continued use of the term 
contingency operation in the definition of covered active duty for 
military members of the Reserve components, the Department declines to 
modify the language in Sec.  825.126(a)(2) as suggested in light of the 
complexity of the different designations for types of duties and 
deployments within the military. The Department maintains its view, as 
explained in the NPRM, that because Congress retained the reference to 
29 U.S.C. 101(a)(13)(B) in the FY 2010 NDAA, and 29 U.S.C. 
101(a)(13)(B) defines contingency operations, this reference continues 
to require that members of the Reserve components be called to duty in 
support of a contingency operation in order for their family members to 
be entitled to qualifying exigency leave. 77 FR 8965. In response to 
the request to provide descriptions of the different types of active 
duty under the statutes listed in Title 10, the Department notes that 
proposed Sec.  825.126(a)(2) provided, just as current Sec.  
825.126(b)(2) does, brief descriptions of the types of active duty to 
which each of the referenced statutes refers in addition to citing the 
statutes referenced in 10 U.S.C. 101(a)(13)(B). The Department believes 
that these descriptions are sufficient for employers and employees to 
ascertain the types of deployments for which members of the National 
Guard and Reserve components may be deployed which would entitle an 
eligible family member to take qualifying exigency leave.
    In response to the Military Officers Association of America's 
comment suggesting expansion of the law to servicemembers assigned 
overseas, the Department notes that military members of the Regular 
Armed Forces who are assigned overseas to remote areas may be 
considered on covered active duty if they are called or ordered to 
active duty under a deployment and the remote area to which they are 
deployed is an area outside of the United States, the District of 
Columbia, or any Territory or possession of the United States, 
including international waters. The

[[Page 8844]]

same is true of military members of the National Guard and Reserve 
components as long as their foreign deployment is in support of a 
contingency operation referenced in Sec.  825.126(a)(2). As to the 
inclusion of servicemembers of all the uniformed services referenced by 
the Military Officers Association of America, the Department notes that 
the definition of covered active duty in the FY 2010 NDAA specifically 
refers to the Armed Forces for members of both the Regular Armed Forces 
and the National Guard and Reserve components. See 29 U.S.C. 2611 (14). 
``[A]rmed [F]orces'' is defined in 10 U.S.C. 101(a)(4) as the ``Army, 
Navy, Air Force, Marine Corps, and Coast Guard.'' While the NOAA 
Commissioned Corps and the U.S. Public Health Service Commissioned 
Corps are, part of the uniformed services as defined in 10 U.S.C. 
101(a)(5), they are explicitly not part of the Armed Forces as defined 
in 10 U.S.C. 101(a)(4) and the Department lacks the authority to expand 
coverage for qualifying exigency leave as requested. Therefore, the 
Department adopts paragraph (a) as proposed in the Final Rule without 
modification.
    Current Sec.  825.126(a) sets forth the list of reasons for which 
an eligible employee may take qualifying exigency leave. The current 
qualifying exigency leave categories are: (1) Short-notice deployment, 
(2) military events and related activities, (3) childcare and school 
activities, (4) financial and legal arrangements, (5) counseling, (6) 
rest and recuperation, (7) post-deployment activities, and (8) 
additional activities. The Department proposed to move this list to 
Sec.  825.126(b) without changing the subparagraph numbers that 
correspond to categories of qualifying exigencies.
    Proposed Sec.  825.126(b)(1) tracked current Sec.  825.126(a)(1), 
which sets forth the requirements for short-notice deployment 
qualifying exigency leave. In addition to redesignating this 
subparagraph from (a)(1) to (b)(1), the proposal inserted the term 
``covered active duty'' and deleted the reference to contingency 
operations from this section. However, the Department requested comment 
on whether the current seven-calendar-day period for short-notice 
deployment qualifying exigency leave remained appropriate. The 
Department received a few comments on this issue. The Coalition 
commented that, based on feedback from its members, the current seven-
day period remains appropriate, and, along with SHRM, urged the 
Department not to make any changes to this section. World at Work 
conducted a survey (to which it received 94 responses) on issues raised 
in the NPRM, and found that the majority of requests for short-notice 
deployment qualifying exigency leave have not been for amounts of time 
beyond the current allotment. In contrast, the National Association of 
Letter Carriers (the Letter Carriers) suggested the period be expanded 
to 15 days, stating its members have found that seven days is often 
inadequate for dealing with all of the arrangements and adjustments 
that family members must make when faced with short-notice deployment. 
Twiga, an organization that advocates for workplace flexibility, also 
suggested an expansion to 15 days, asserting that some military members 
face difficulties in securing alternative childcare arrangements within 
a seven-day period.
    The Department acknowledges the concern that seven days may be 
inadequate to address all issues arising from the short-notice 
deployment of a military member. After this seven-day-period, however, 
the employee remains entitled to qualifying exigency leave for any of 
the other enumerated exigencies set forth in this section. For example, 
an eligible employee would be able to take leave pursuant to Sec.  
825.126(b)(3) to address childcare arrangement issues arising from the 
military member's deployment subsequent to the seven-day short-notice 
period. Likewise, the employee is entitled, pursuant to current Sec.  
825.126(a)(8), to job-protected leave to address events arising out of 
the military member's deployment that are not included in the list of 
qualifying exigencies provided that the employer and employee agree 
that such leave shall qualify as an exigency, and agree to both the 
timing and duration of such leave. Accordingly, the Final Rule adopts 
the redesignation of Sec.  825.126(a)(1) to Sec.  825.126(b)(1) as 
proposed and retains the seven-day period for short-notice deployment 
qualifying exigency leave.
    Proposed Sec.  825.126(b)(3), childcare and school activities, 
tracked current Sec.  825.126(a)(3), which allows eligible employees to 
take qualifying exigency leave to arrange childcare or attend certain 
school activities for a military member's son or daughter. In addition 
to redesignating this paragraph from (a)(3) to (b)(3), the Department 
proposed to delete repetitive text throughout this paragraph 
identifying the relationship between the child and the military member. 
Proposed Sec.  825.126(b)(3) stated that, for purposes of the childcare 
and school activities leave listed in Sec.  825.126(b)(3)(i) through 
(iv), the child must be ``the military member's biological, adopted, or 
foster child, stepchild, legal ward, or child for whom the military 
member stands in loco parentis, who is either under 18 years of age or 
18 years of age or older and incapable of self-care because of a mental 
or physical disability at the time that FMLA leave is to commence'', 
and also added language to clarify that, as with all instances of 
qualifying exigency leave, the military member must be the spouse, son, 
daughter, or parent of the employee requesting leave. As stated in the 
NPRM, the Department believes this clarifying language is necessary 
because of this section's unique relationship requirements. 77 FR 8966. 
While the military member must be the spouse, parent, or son or 
daughter of the eligible employee, the child for whom childcare leave 
is sought need not be a child of the employee requesting leave.
    Several commenters addressed the clarifying language in proposed 
Sec.  825.126(b)(3) with respect to childcare and school activities 
qualifying exigency leave. Legal Aid commended the Department for 
including such language. In contrast, an individual commenter did not 
support granting leave to military members' families to take leave for 
school activities when non-military working parents do not receive this 
benefit. Several commenters, including the Family Equality Council, 
North Carolina Justice Center, the Partnership, and Twiga, urged the 
Department to explicitly note that all FMLA regulations are interpreted 
to include the children of persons standing in loco parentis to those 
children. Twiga recommended the Department strike the requirement that 
the military member must be the spouse, son, daughter, or parent of the 
employee taking qualifying exigency leave and instead simply require 
that the employee be the parent of, or stand in loco parentis to, the 
military member's child for this category of qualifying exigency leave. 
The Partnership, Twiga, and the Family Equality Council noted that the 
Wage and Hour Administrator's Interpretation No. 2010-3, issued on June 
22, 2010, stated that in loco parentis under the FMLA includes all 
persons with day-to-day responsibility to care for or financially 
support a child. For these reasons, Twiga suggested that the definition 
of who may take qualifying exigency leave should be flexible enough to 
account for relationships beyond the nuclear family.
    A number of commenters, including Senators Harkin and Murray, and 
the Partnership, suggested adding a new qualifying exigency leave 
category to address issues regarding educational and related services 
for a child with a disability under the Individuals with

[[Page 8845]]

Disabilities Education Act (IDEA) or section 504 of the Rehabilitation 
Act of 1973, including attending meetings about eligibility, placement, 
and services, or to develop, update, or revise the child's Individual 
Education Plan under the IDEA. The North Carolina Justice Center also 
suggested the Department indicate that other childcare needs, such as 
the need to arrange for summer care and to attend medical appointments 
for children, would be included.
    In response to the comments regarding in loco parentis, the 
Department reiterates its interpretation in Administrator's 
Interpretation No. 2010-3 that either day-to-day care or financial 
support may establish an in loco parentis relationship under the FMLA 
where the adult intends to assume the responsibilities of a parent with 
regard to a child. However, the statutory provisions of the FMLA with 
respect to qualifying exigency leave are very specific that the 
military member on covered active duty or call to covered active duty 
status must be the spouse, parent, or son or daughter of the eligible 
employee in order for the FMLA protections to apply. 29 U.S.C. 
2612(a)(1)(E). Therefore, the fact that an employee may stand in loco 
parentis to a child of a military member is not sufficient to satisfy 
the statutorily-required relationship with the military member for 
qualifying exigency leave. The statute requires that the employee, 
whether or not he or she stands in loco parentis to the military 
member's child, have the requisite relationship with the military 
member. For example, the mother of a military member may be entitled to 
childcare and school activities qualifying exigency leave for the 
military member's child, but the military member's mother-in-law would 
not be regardless of her relationship to the military member's child. 
The Department notes, however, that any eligible employee who stands in 
loco parentis to the child of a military member (or any other child) is 
entitled to take FMLA leave if the child needs care due to a serious 
health condition. In light of the confusion indicated in the comments 
regarding the relationship requirements for qualifying exigency leave 
for childcare and school activities, the Department believes that the 
proposed clarification is beneficial.
    In response to comments seeking the addition of a specific 
qualifying exigency category for educational and related services for 
disabled children, the Department notes that Sec.  825.126(b)(3) allows 
qualifying exigency leave for a broad array of childcare and school 
activities, which could include leave to enroll a child in summer day 
camp or similar kind of summer day care at the end of the school year 
if the need to do so arises out of the military member's covered active 
duty or call to covered active duty. 73 FR 67959. Likewise, Sec.  
825.126(b)(3)(iv) provides for qualifying exigency leave to attend 
meetings with staff at a school or daycare facility, such as meetings 
with school counselors, parent-teacher conferences, or meetings with 
school officials regarding disciplinary matters, when such meetings are 
necessary due to circumstances arising from the covered active duty or 
call to covered active duty of a military member. The Department 
believes the current regulation is sufficient to include attending 
meetings about eligibility, placement, and services, or to develop, 
update or revise a child's Individual Education Plan when those 
meetings are necessary due to the covered active duty or call to 
covered active duty of a military member. The Department does not 
intend for this leave to be used to meet with staff at a school or 
daycare facility for routine academic concerns, nor to be used for 
routine educational and related services for a child with a disability 
under the Individuals with Disabilities Education Act that are 
unrelated to the military member's deployment. Therefore, no additional 
clarification or additional categories of childcare and school 
activities are added to the Final Rule. The Final Rule adopts the re-
designation of Sec.  825.126(a)(3) to Sec.  825.126(b)(3) and the other 
proposed changes in Sec.  825.126(b)(3) without modification.
    Proposed Sec.  825.126(b)(6), Rest and Recuperation, followed 
current Sec.  825.126(a)(6), which allows an eligible employee to take 
up to five days of leave to spend time with a military member on Rest 
and Recuperation leave during a period of deployment. In addition to 
re-designating this paragraph from (a)(6) to (b)(6) and capitalizing 
Rest and Recuperation to correspond directly to the DOD's Rest and 
Recuperation leave programs, the Department also proposed to expand the 
maximum duration of Rest and Recuperation qualifying exigency leave 
from five days to the duration of the military member's Rest and 
Recuperation leave, up to a maximum of 15 days. As stated in the NPRM, 
the DOD has advised the Department that the actual number of days of 
Rest and Recuperation leave provided by the military varies, with some 
military members receiving as many as 15 days, depending upon the 
length of their deployment. 77 FR 8966. The Department proposed to 
allow the amount of leave an employee may take for Rest and 
Recuperation qualifying exigency leave to equal that provided to the 
military member, up to a maximum of 15 days. The Department sought 
comment on the expansion of Rest and Recuperation qualifying exigency 
leave, and whether the proposed 15-day period would be sufficient in 
all instances.
    Several commenters, including World at Work, North Carolina Justice 
Center, the Partnership, and the Military Officers Association of 
America, supported the Department's proposal to expand Rest and 
Recuperation leave up to a maximum of 15 days. The Military Officers 
Association of America and the Partnership stated that it is 
appropriate to grant employees time with their military family members 
when the military member is home for a limited time from a foreign 
deployment, as allowing for such leave positively impacts family 
members at home and improves the morale of those serving abroad. SHRM 
supported the expansion, but suggested that the leave be limited only 
to the actual Rest and Recuperation time at home or some other 
destination where the military member will take the Rest and 
Recuperation leave. The Coalition agreed that an extension is 
appropriate, but commented that 15 days is excessive and suggested a 
10-day period instead. The Coalition commented that as written, the 
proposal would allow an employee to take 15 days off of work, 
potentially equating to three full five-day workweeks of leave, while 
the military's leave programs allow up to 15 calendar days of leave, 
which is meant to allow the military member two weeks at home. The 
Letter Carriers commented that because the need for recuperation can 
vary tremendously depending on the nature of the deployment, the leave 
granted for this exigency should be equal to the amount of leave the 
military has determined to be necessary and has granted for the 
military member, up to a maximum of at least 30 days.
    As stated in the NPRM, the Department believes it is appropriate to 
make the availability of this type of qualifying exigency leave 
consistent with the leave actually provided by the military to the 
member on covered active duty. 77 FR 8966. Therefore, the Department 
has decided to implement the regulation as proposed in the Final Rule, 
providing for up to a maximum of 15 days for Rest and Recuperation 
qualifying exigency leave, but has modified the language for clarity. 
The Department has modified the language to delete the reference to 
eligible

[[Page 8846]]

employees because the paragraph (b) makes it clear that all of the 
subparagraphs under (b), including this one, apply only to eligible 
employees. Further, in response to the comments, the Department has 
modified the language to state that leave taken for this purpose can be 
used for a period of 15 calendar days beginning on the date the 
military member commences each instance of Rest and Recuperation leave. 
This language is consistent with the Department's position for short-
notice deployment leave found in Sec.  825.126(b)(1). The Department 
reiterates that, as noted in the NPRM, this allows an employee to take 
Rest and Recuperation qualifying exigency leave for the same amount of 
time as is provided to the military member for the member's Rest and 
Recuperation leave, up to a maximum of 15 days. 77 FR 8966. The 
Department further clarifies that the employee may choose to take the 
leave in a continuous block of time or intermittently over the duration 
of the military member's Rest and Recuperation leave, up to 15 calendar 
days. Thus, the employee's leave does not need to be taken as a single 
block of time. However, it must be taken during the period of time 
indicated on the Rest and Recuperation orders.
    Proposed Sec.  825.126(b)(7), Post-deployment activities tracked 
current Sec.  825.126(a)(7). In addition to the redesignation of 
paragraph from (a)(7) to (b)(7), the Department proposed to add 
attending funeral services to redesignated paragraph (b)(7)(ii), which 
permits an employee to take qualifying exigency leave to address issues 
that arise from the death of a military member while on covered active 
duty status, as an additional example of the activities that are 
covered by such leave. Legal Aid supported this addition. SHRM endorsed 
the Department's clarification, stating that according to SHRM survey 
data, over 90 percent of all employers currently provide some form of 
paid bereavement leave, and the availability of qualifying exigency 
leave for this purpose ensures coverage for those who take such leave. 
Accordingly, the Department implements the redesignation and Sec.  
825.126(b)(7)(ii) as proposed.
    The Department did not propose any new qualifying exigencies for 
which FMLA leave may be taken, but invited comment on whether 
additional qualifying exigencies should be added in light of the 
extension of this leave entitlement to family members of members of the 
Regular Armed Forces. The Department received one comment in response. 
The Letter Carriers suggested adding an eldercare provision as an 
additional qualifying exigency, stating that several of its members 
have indicated that providing and making arrangements for eldercare is 
as pressing a need for them as childcare is when they face military 
deployment.
    The Department agrees that the need to provide care to a military 
member's parent is analogous to the need to provide care for a military 
member's child and that such a need may arise when a military member is 
called to covered active duty. Consistent with the purpose and intent 
of the qualifying exigency leave provision in the FMLA, the Department 
modifies the Final Rule to create a new provision for parental care 
qualifying exigency leave. An eligible employee may take qualifying 
exigency leave to care for the parent of a military member, or someone 
who stood in loco parentis to the military member, when the parent is 
incapable of self-care and the need for leave arises out of the 
military member's covered active duty or call to covered active duty 
status. In the 2008 Final Rule establishing qualifying exigency leave 
for childcare and school activities, the Department stated that certain 
childcare and school activities require attention because the military 
member is on active duty or has been called to active duty status and 
that qualifying exigency leave would be appropriate in such situations, 
but that routine events that occur regularly for all children would not 
warrant qualifying exigency leave. 73 FR 67959. This same standard 
applies to qualifying exigency leave to care for a military member's 
parent when the parent is incapable of self-care. Therefore, the 
parental care qualifying exigency provision in the Final Rule tracks 
the childcare provision in setting out the types of situations when 
qualifying exigency leave is available. Thus, parental care qualifying 
exigency leave may be used for: (i) Arranging for alternative care for 
a parent of the military member when the parent is incapable of self-
care and the covered active duty or call to covered active duty status 
of the military member necessitates a change in the existing care 
arrangements; (ii) providing care for a parent of the military member 
on an urgent, immediate need basis (but not on a routine, regular, or 
everyday basis) when the parent is incapable of self-care and the need 
to provide such care arises from the covered active duty or call to 
covered active duty status of the military member; (iii) admitting or 
transferring a parent of the military member to a care facility when 
the admittance or transfer is necessitated by the covered active duty 
or call to covered active duty status of the military member; and (iv) 
attending meetings with staff at a care facility for the parent of the 
military member, such as meeting with hospice or social service 
providers, when such meetings are necessitated by the covered active 
duty or call to covered active duty status of the military member (but 
not for routine or regular meetings). For purposes of parental care 
qualifying exigency leave, incapable of self-care means that the parent 
requires active assistance or supervision to provide daily self-care in 
three or more of the ``activities of daily living'' or ``instrumental 
activities of daily living.'' Activities of daily living include, but 
are not limited to, adaptive activities such as caring appropriately 
for one's grooming and hygiene, bathing, dressing, and eating. 
Instrumental activities of daily living include, but are not limited 
to, cooking, cleaning, shopping, taking public transportation, paying 
bills, maintaining a residence, using telephones and directories, using 
a post office, etc. This definition of incapable of self-care is 
adopted from Sec.  825.122(d)(1), where it is used as part of the 
determination of whether a child 18 years of age or older is a son or 
daughter under the FMLA. Thus, for example, if a military member's 
parent is incapable of self-care and the parent was cared for by the 
military member, an eligible employee may take parental care qualifying 
exigency leave to arrange for the alternative care of the military 
member's parent, such as hiring a home health care aide, or to provide, 
on an urgent, immediate need basis, care that a home health care aide 
would normally provide. In either event, however, the employee may not 
take parental care qualifying exigency leave to provide such care to 
the parent on a regular or routine basis, even if the military member 
previously provided such regular or routine care. The Department 
reiterates that as with all instances of qualifying exigency leave, the 
military member must be the spouse, parent, son, or daughter of the 
employee requesting qualifying exigency parental care leave. In the 
case of parental care leave, the parent in need of care must be the 
military member's parent or a person who stood in loco parentis to the 
military member when the member was less than 18 years old. 
Accordingly, the Department creates a new provision for parental care 
leave at Sec.  825.126(b)(8), and redesignates additional activities 
from current Sec.  825.126(a)(8) to Sec.  825.126(b)(9).

[[Page 8847]]

3. Section 825.127 Leave To Care for a Covered Servicemember With a 
Serious Injury or Illness (Military Caregiver Leave)
    Section 825.127 sets forth the regulation allowing an eligible 
employee who is a covered servicemember's spouse, son, daughter, 
parent, or next of kin to take up to 26 workweeks of leave during a 
single 12-month period to care for a servicemember with a serious 
injury or illness (military caregiver leave). Section 825.127 
implemented Section 585(a) of the FY 2008 NDAA, which entitled an 
eligible employee who is a spouse, parent, son, daughter, or next of 
kin of a current servicemember with a serious injury or illness, to 
take FMLA leave to provide care to that covered servicemember. Section 
565(a) of the FY 2010 NDAA further expands military caregiver leave to 
eligible employees caring for certain veterans with a qualifying (as 
defined by the Secretary of Labor) injury or illness incurred in line 
of duty on active duty or that existed before the member's active duty 
and was aggravated in the line of duty on active duty. 29 U.S.C. 
2611(15)(B). Section 565(a) also amends the FMLA by revising the 
definition of a serious injury or illness for current servicemembers of 
the Armed Forces to include conditions that existed before the current 
servicemember's active duty and were aggravated by service in the line 
of duty on active duty. 29 U.S.C. 2611(18)(A).
    The Department proposed to reorganize Sec.  825.127 to incorporate 
the substantive changes to the military caregiver leave provisions 
pursuant to the FY 2010 NDAA amendments. The Department proposed to add 
the term military caregiver leave to the title of this section for 
clarity. The Department also proposed to move current Sec.  825.127(b), 
which defines the family members qualified to take caregiver leave, to 
proposed Sec.  825.127(d), current Sec.  825.127(c), which explains the 
single 12-month period, to proposed Sec.  825.127(e), and current Sec.  
825.127(d), which addresses circumstances when a husband and wife who 
are both eligible for FMLA leave work for the same employer, to 
proposed Sec.  825.127(f), as well as to update the internal cross-
references in the provision accordingly. The Department did not receive 
any comments on the proposal to redesignate these three paragraphs or 
to modify the title of this section. The Department adopts these 
proposed changes in the Final Rule.
    Consistent with the FY 2008 NDAA, under current Sec.  825.127(a), 
an eligible employee may take FMLA leave to care for a current member 
of the Armed Forces, including National Guard and Reserves members, 
with a serious injury or illness incurred in the line of duty on active 
duty for which the servicemember is undergoing medical treatment, 
recuperation, or therapy, is otherwise in outpatient status, or is 
otherwise on the temporary disability retired list. This paragraph 
specifically excludes former members of the Regular Armed Forces, 
former members of the National Guard and Reserves, and members on the 
permanent disability list from the current definition of a covered 
servicemember. In accordance with the FY 2010 NDAA, the Department 
proposed to remove the statement that military caregiver leave does not 
apply to former members of the military from proposed paragraph (a), 
and to move the definitions in current paragraph (a)(1) to proposed 
paragraph (c) and current paragraph (a)(2) into proposed paragraph (b). 
The Department proposed in paragraph (a) to state simply that eligible 
employees are entitled to take FMLA leave to care for a covered 
servicemember with a serious injury or illness. The Department did not 
receive any comments on proposed paragraph (a), and therefore, adopts 
this paragraph without modification in the Final Rule.
    The Department proposed in Sec.  825.127(b) to define a covered 
servicemember for current members of the Armed Forces and for covered 
veterans. Proposed Sec.  825.127(b)(1) defined covered servicemember 
for current members of the Armed Forces, including members of the 
Reserve components. The proposed definition mirrored the statutory 
definition. 29 U.S.C. 2611(15)(A). The proposed definition also 
incorporated the definition of outpatient status from current Sec.  
825.127(a)(2), which applies only to current servicemembers. No 
comments were received on this proposal. It is adopted without 
modification in the Final Rule.
    Proposed Sec.  825.127(b)(2) defined covered servicemember for 
veterans as a covered veteran who is undergoing medical treatment, 
recuperation, or therapy for a serious injury or illness. It further 
defined a covered veteran as an individual who was discharged or 
released under conditions other than dishonorable at any time during 
the five-year period prior to the first date the eligible employee 
takes FMLA leave to care for the covered veteran. See 29 U.S.C. 
2611(15)(B) (defining a covered servicemember as a veteran ``who is 
undergoing medical treatment, recuperation, or therapy for a serious 
injury or illness'' and who was a member of the Armed Forces ``at any 
time during the period of 5 years preceding the date of which the 
veteran undergoes that medical treatment, recuperation, or therapy''); 
29 U.S.C. 2611(19) (defining veteran as the term is defined in 38 
U.S.C. 101). As discussed in the NPRM, the Department noted that 
Congress extended FMLA leave to care for a particular subset of 
veterans. 77 FR 8967. The Department noted that this interpretation may 
exclude veterans of previous conflicts such as Gulf War veterans, as 
well as certain veterans of the War in Afghanistan and Operation Iraqi 
Freedom. Id. The proposal also indicated that an eligible employee must 
commence leave to care for a covered veteran within five years of the 
veteran's active duty service, but noted the single 12-month period 
described in proposed paragraph (e)(1) may extend beyond the five-year 
period. As explained in the NPRM, the Department proposed to measure 
the five-year period from the date the employee first takes leave to 
care for the veteran, and to permit an employee to continue leave begun 
within the five-year period until the end of the applicable single 12-
month period. Id. Thus, if the leave commences within the five-year 
period, the employee may continue leave for the applicable single 12-
month period even if it extends beyond the five-year period.
    The Department received several comments on this definition. SHRM 
commented that the definition failed to include the requirement that 
the veteran was a member of the Armed Forces (including a member of the 
National Guard or Reserves) that is part of the statutory definition at 
29 U.S.C. 2611(15)(B). The Department had not included this phrase in 
the proposed definition because the Department's understanding was that 
all veterans were, by definition, members of the Armed Forces, and 
therefore the Department believed that the inclusion of such language 
was unnecessary. While this is still the Department's understanding, in 
the interest of clarity, the Department modifies Sec.  825.127(b)(2), 
as well as the corresponding definitions in Sec. Sec.  825.102 and 
825.122, in the Final Rule to incorporate this statutory language.
    The majority of the comments on this section were directed at the 
Department's interpretation of the five-year period. The Partnership 
and Twiga supported the Department's interpretation that an employee 
who begins taking military caregiver leave during the five-year period 
will be permitted to continue taking such leave after the five-year 
period has expired.

[[Page 8848]]

Similarly, the North Carolina Justice Center approved of the 
interpretation of the five-year period for veterans. Both the 
Partnership and the North Carolina Justice Center noted, however, that 
some veterans who would have been covered veterans under this 
interpretation of the five-year period when the FY 2010 NDAA was 
enacted on October 28, 2009 will have been discharged for more than 
five years when these regulations become effective and, therefore, will 
no longer be covered veterans for whom an employee may take military 
caregiver leave. They urged the Department to provide for a special 
exception for the calculation of the five-year period for such veterans 
who have qualifying injuries or illnesses so that their family members 
will be able to take caregiver leave to care for them. The Consortium 
for Citizens with Disabilities (CCD) recognized that the five-year time 
period is statutorily determined, but asked that the Department adopt 
as broad a definition as possible. Senators Harkin and Murray suggested 
that the time period between the date the law was enacted (October 28, 
2009) and the effective date of these regulations should not count in 
the five-year window. They provided an example of a scenario in which a 
servicemember became a veteran on July 1, 2010 and the Department's 
final regulations become effective on July 1, 2012--they asserted that 
this servicemember's family should be eligible to take military 
caregiver leave until June 30, 2017 rather than until June 30, 2015.
    While the Department has taken and continues to take the position 
that the military caregiver leave provision to care for veterans is not 
effective until the effective date of this Final Rule, the Department 
acknowledges that the time in which family members of veterans can take 
military caregiver leave to care for veterans who were discharged or 
released between October 28, 2009 and the effective date of this Final 
Rule has been diminished. The comments highlighted that there are 
veterans whose five-year period will have expired between October 28, 
2009 and the effective date of this Final Rule but who will still have 
serious injuries or illnesses and will still need caregiving from 
family members when this Final Rule becomes effective. The comments 
likewise highlighted that there are servicemembers who will have become 
veterans between October 28, 2009 and the effective date of this Final 
Rule and who will have a shortened period remaining in their five-year 
window during which they may receive needed caregiving from family 
members for a serious injury or illness when this Final Rule becomes 
effective. Similarly, there may be servicemembers who became or will 
become veterans between October 28, 2009 and the effective date of this 
Final Rule and who will manifest a serious injury or illness that was 
incurred or aggravated in the line of duty and will need caregiving 
from family members for longer than the shortened period remaining in 
their five-year window when this Final Rule becomes effective. 
Therefore, after further consideration, the Department believes that it 
would not be consistent with congressional intent to deprive the family 
members of such veterans the complete amount of time that the family 
members would have had to take military caregiver leave to care for 
those servicemembers who became veterans between October 28, 2009 (the 
date the FY 2010 NDAA was enacted) and the effective date of this Final 
Rule. Therefore, the Department has modified Sec.  825.127(b)(2) in the 
Final Rule to provide for a special method of calculating the five-year 
period for this subset of veterans: for an individual who was a member 
of the Armed Forces (including a member of the National Guard or 
Reserves) and who was discharged or released under conditions other 
than dishonorable prior to the effective date of this Final Rule, the 
period between October 28, 2009 and the effective date of this Final 
Rule shall not count towards the determination of the five-year period 
for covered veteran status. This will protect the military caregiver 
leave entitlement for the family members of veterans whose five-year 
period either expired or was diminished between October 28, 2009 and 
the effective date of this Final Rule. Thus, for a veteran whose five-
year period expired between October 28, 2009 and the effective date of 
this Final Rule, the five-year period will be extended by the amount of 
time that the veteran would have had if the provision had been 
effective on October 28, 2009. For example, if, on October 28, 2009, a 
veteran had one year remaining before the expiration of the five-year 
period (i.e., the veteran was honorably discharged from the military on 
October 28, 2005), the veteran's family member would have one year from 
the effective date of this Final Rule during which he or she could, if 
all other conditions were met, commence taking military caregiver 
leave. Similarly, as suggested by Senators Harkin and Murray, for a 
servicemember who became a veteran between October 28, 2009 and the 
effective date of this Final Rule, the five-year period will be 
extended by the amount of time between the veteran's date of discharge 
and the effective date of this Final Rule. For example, if a 
servicemember became a veteran two years before the date this Final 
Rule becomes effective, the two years that elapsed between that date of 
discharge and the effective date of this Final Rule would be excluded 
from the calculation of the period in which the veteran's family 
members could begin taking FMLA military caregiver leave. In such a 
situation, two years would be added to the amount of time that the 
veteran has remaining in his or her five-year window as of the date 
that this Final Rule becomes effective. In all instances of military 
caregiver leave, regardless of how the five-year period is calculated, 
the veteran must have a qualifying serious injury or illness on the 
date the family member seeks to take military caregiver leave. In 
addition, this special provision for the subset of veterans described 
above does not change the character of any leave to care for a veteran 
that was voluntarily provided by an employer before the effective date 
of this Final Rule and that was not otherwise qualified as FMLA-
protected leave. As discussed earlier in this preamble, if such leave 
was provided before the effective date of this Final Rule, the leave is 
not FMLA-protected leave and does not count against an employee's FMLA 
entitlement.
    The Department proposed in Sec.  825.127(c) to define a serious 
injury or illness for both current members of the Armed Forces and 
covered veterans. Proposed Sec.  825.127(c)(1) incorporated the 
definition of a serious injury or illness for a current servicemember 
from current Sec.  825.127(a)(1), and expanded the definition pursuant 
to the FY 2010 NDAA amendments to include an illness or injury that 
existed prior to the member's active duty and was aggravated by service 
in the line of duty on active duty.
    As the Department explained in the NPRM, for both current members 
of the Armed Forces and covered veterans, a serious injury or illness 
that existed before the beginning of the servicemember's active duty 
and was aggravated by service in the line of duty on active duty 
includes both conditions that were noted at the time of entrance into 
active service and conditions that the military was unaware of at the 
time of entrance into active service but that are later determined to 
have existed at that time. 77 FR 8967. A preexisting injury or illness 
would generally be considered to have been aggravated by service in the 
line of duty on active duty where there is an increase in the

[[Page 8849]]

severity of such injury or illness during service, unless there is a 
specific finding that the increase in severity is due to the natural 
progression of the injury or illness. As stated in the NPRM, it was the 
Department's understanding that individuals will not be accepted for 
military service in the Regular or Reserve components unless they are: 
(1) Free of contagious diseases that probably will endanger the health 
of other personnel; (2) free of medical conditions or physical defects 
that may require excessive time lost from duty for necessary treatment 
or hospitalization, or probably will result in separation for medical 
unfitness; (3) medically capable of satisfactorily completing required 
training; (4) medically adaptable to the military environment without 
the necessity of geographical area limitations; and (5) medically 
capable of performing duties without aggravation of existing physical 
defects or medical conditions. 77 FR 8967. In light of these standards, 
the Department sought comments, particularly from military members and 
their families, concerning types of injuries or illnesses that may 
exist prior to service and be aggravated in the line of duty on active 
duty to such an extent as to render the servicemember unable to perform 
the duties of the member's office, grade, rank, or rating. The 
Department did not receive any comments in response.
    The Department received two comments that addressed proposed Sec.  
825.127(c)(1) more generally. Senators Harkin and Murray and the CCD 
suggested that the Department consider participation in or meeting the 
eligibility requirements of the Department of Defense Special 
Compensation for Assistance with Activities of Daily Living (SCAADL) 
caregiver program as a method to establish the current servicemember's 
serious injury or illness. The SCAADL program was authorized by the FY 
2010 NDAA and implemented by the Department of Defense in August 2011. 
See Public Law 111-84 and Department of Defense Instruction 1341.12. 
The SCAADL program provides compensation to an eligible member of the 
active or Reserve components of the military who has a permanent 
catastrophic injury or illness that was incurred or aggravated in the 
line of duty. The compensation is intended to offset the economic 
burden borne by the servicemember's primary caregiver in providing such 
caregiving. The criteria for participation in the SCAADL program 
includes, in relevant part, certification by a licensed DOD or VA 
physician that the servicemember has a permanent catastrophic injury or 
illness and is in need of assistance from another person to perform the 
personal functions required in everyday living and that, in the absence 
of the provision of such assistance, the servicemember would require 
hospitalization, nursing home care, or other residential institutional 
care. 37 U.S.C. 439. The Department notes that the definition of 
serious injury or illness for a current servicemember in Sec.  
825.127(c)(1) reflects the statutory definition of the term. While the 
Department does not believe that it would be appropriate to add 
participation in the SCAADL program as a second definition for serious 
injury or illness of a current servicemember, it does believe that a 
current servicemember enrolled in the program may meet the requirement 
of suffering a serious injury or illness that renders the servicemember 
unable to perform the duties of his or her office, grade, rank, or 
rating. As discussed in more detail in the discussion of Sec.  825.310 
below, private health care providers may consider documentation 
produced by the DOD, such as DD Form 2948, in assessing whether the 
current servicemember has a serious injury or illness that may render 
him or her medically unfit to perform the duties of his or her office, 
grade, rank, or rating.
    The FY 2010 NDAA requires the Department to define a qualifying 
serious injury or illness for a veteran. Proposed Sec.  825.127(c)(2) 
defined serious injury or illness for a covered veteran as an injury or 
illness that was incurred in the line of duty on active duty or existed 
before the beginning of active duty and was aggravated by service in 
the line of duty on active duty and manifested before or after the 
member became a veteran and satisfied one of three alternate 
definitions set out in paragraphs (c)(2)(i), (c)(2)(ii), and 
(c)(2)(iii). With these three proposed definitions, the Department 
intended for there to be parity between the definition of a serious 
injury or illness of a covered veteran and the statutory definition of 
a serious injury or illness of a current servicemember. Because a 
veteran no longer has a military office, grade, rank, or rating and may 
participate in the civilian workforce, the standard for a serious 
injury or illness for current members of the Armed Forces cannot be 
directly applied to veterans. The three alternative definitions set out 
in the proposal at (c)(2)(i), (ii), and (iii) were intended to achieve 
this parity. As discussed later, the Department also requested comment 
on adding enrollment in the Department of Veterans Affairs (VA) Program 
of Comprehensive Assistance for Family Caregivers as a possible fourth 
definition for establishing a qualifying serious injury or illness of a 
covered veteran, and sought comment from veterans and caregivers on 
whether inclusion of this program would be helpful. 77 FR 8969.
    Proposed Sec.  825.127(c)(2)(i) defined a serious injury or illness 
of a covered veteran as a serious injury or illness of a current 
servicemember, as defined in proposed Sec.  825.127(c)(1), that 
continues after the servicemember becomes a veteran. Thus, if a veteran 
suffered a serious injury or illness when he or she was a current 
member of the Armed Forces and that same injury or illness continues 
after the member leaves the Armed Forces and becomes a veteran, the 
injury or illness will continue to qualify as a serious injury or 
illness warranting military caregiver leave. As stated in the NPRM, the 
Department believes that allowing qualifying family members to take 
leave to care for covered veterans who continue to suffer from these 
serious injuries or illnesses is consistent with congressional intent, 
as evidenced by the extension of military caregiver leave provisions 
for veterans for a defined five-year period. 77 FR 8967. Senators 
Harkin and Murray submitted the only comment on this definition, and 
stated that the definition is clear and understandable. The Final Rule 
incorporates this definition as proposed.
    Proposed Sec.  825.127(c)(2)(ii) defined a serious injury or 
illness for a covered veteran as a physical or mental condition for 
which the covered veteran has received a VA Service Related Disability 
Rating (VASRD) of 50 percent or greater, and the VASRD rating is based, 
in whole or part, on the condition for which the caregiver leave is 
needed. As discussed in the NPRM, the Department considered proposing a 
VASRD rating of 60 percent, which is equal to the level at which the 
veteran is considered ``totally disabled'', meaning that the veteran is 
unable to secure or follow a substantially gainful occupation by reason 
of a service-connected disability under the VA regulations. 77 FR 8968; 
see 38 CFR 4.16. The Department was concerned, however, that veterans 
may suffer from injuries and illnesses that do not result in a total 
disability under the VASRD rating system, but which should qualify as a 
serious injury or illness for military caregiver leave. The Department 
also considered proposing a VASRD rating at a level less than 50 
percent, but determined that a lower threshold might capture injuries 
and illnesses that Congress did not intend to qualify as

[[Page 8850]]

serious injuries or illnesses for which employees would be entitled to 
26 workweeks of FMLA leave. In addition, the Department believed that a 
single threshold of an overall VASRD rating of 50 percent (based on a 
single or multiple disabilities) was more appropriate to establish a 
serious injury or illness for a covered veteran than the two-tiered 
test used under VASRD determining total disability based on multiple 
conditions. The Department sought comments on all aspects of this 
proposed definition.
    Several comments were received with respect to the second proposed 
definition of a qualifying serious injury or illness for a veteran set 
out in Sec.  825.127(c)(2)(ii). Senators Harkin and Murray stated that 
the proposed 50 percent VASRD rating threshold is sufficient so long as 
there are other avenues for the veteran to qualify as having a serious 
injury or illness. The Partnership expressed concern that the 50 
percent VASRD rating may not capture certain serious injuries and 
illnesses. The Partnership pointed to traumatic brain injuries and post 
traumatic stress disorder and suggested that these conditions may not 
be captured by the 50 percent threshold. An individual commenter 
expressed a similar concern regarding post traumatic stress disorder. 
The CCD noted that while a 50 percent VASRD rating is likely to capture 
the most significantly disabled veterans, a number of arguably serious 
conditions may not be rated at a level of 50 percent or greater, and 
cited a number of conditions that it asserted should be covered but 
that might not be rated at a level of 50 percent or greater. Legal Aid 
commented that the Department's decision to pick a certain VASRD rating 
rather than allowing for the more fact-specific inquiry allowed for 
under the definition of serious health condition seemed unnecessarily 
rigid.
    The Department has considered the comments, and continues to 
believe that a VASRD rating of 50 percent or greater is most reflective 
of congressional intent and is the rating at which injuries or 
illnesses are on par with a serious injury or illness of a current 
servicemember. In proposing a threshold of 50 percent, the Department 
was attempting to ensure that disabilities or conditions that may 
render the veteran substantially unable to work were captured, so as to 
achieve parity with the definition of serious injury or illness for a 
current servicemember. At the same time, the Department was attempting 
to ensure that the threshold was great enough to preclude injuries or 
illnesses that Congress did not intend to include in the definition of 
a serious injury or illness. The Department's review indicates that a 
VASRD disability rating of 50 percent or greater encompasses 
disabilities or conditions such as amputations, severe burns, post 
traumatic stress disorder, and severe traumatic brain injuries. While 
these and other injuries and illnesses may not result in a total 
disability under the VASRD rating system, the Department believes that 
such conditions should qualify as a serious injury or illness for 
military caregiver leave. Similarly, as noted in the NPRM, the 
Department believes that a VASRD rating below 50 percent would fail to 
reach the level of severity intended by Congress. 77 FR 8968. The 
commenters who addressed this proposed definition did not suggest an 
alternative VASRD rating that would better capture conditions that 
should be considered a serious injury or illness. Therefore, in order 
to achieve parity with the standard of a serious injury or illness for 
a current member of the Armed Forces, the Department concludes that a 
VASRD rating of 50 percent or greater is appropriate and most closely 
approximates a condition that substantially impairs a veteran's ability 
to work.
    The Department is cognizant of the commenters' concern that many 
veterans who will have a need for care arising out of an injury or 
illness related to military service may not have received a VASRD 
rating. The Department reiterates its intent that the VASRD rating be 
only one alternative for establishing a qualifying serious injury or 
illness of a covered veteran. In instances where the servicemember has 
not yet received a VASRD rating, family members will still be able to 
take leave if the veteran's condition is such that it constitutes a 
serious illness or injury in accordance with any one of the other 
definitions set forth in Sec.  825.127(c)(2). Therefore, the Department 
adopts proposed Sec.  825.127(c)(2)(ii) without modification in the 
Final Rule.
    The Department proposed a third definition of serious injury or 
illness for a covered veteran in Sec.  827.127(c)(2)(iii) as a physical 
or mental condition that substantially impairs the veteran's ability to 
secure or follow a substantially gainful occupation by reason of a 
service-connected disability or would do so absent treatment. 77 FR 
8968. This definition was intended to cover injuries and illnesses that 
are similar in severity to the injuries and illnesses qualifying under 
the proposed definitions in (c)(2)(i) and (ii), but for which the 
veteran did not obtain certification as a serious injury or illness 
when he or she was a current member of the military or had not received 
a VASRD rating. In addition, the Department intended by this definition 
to cover veterans who may need a family member to provide care for 
injuries or illnesses that, absent treatment, would substantially 
impair the veteran's ability to secure or follow a substantially 
gainful occupation. 77 FR 8968. The Department explained that it 
expected that, when making determinations of a serious injury or 
illness under this proposed definition, health care providers would do 
so in the same way they make similar determinations for Social Security 
Disability and Workers' Compensation claims. Id. at 8969.
    The Department sought comment specifically on whether this proposed 
definition would be effective at capturing the serious injuries or 
illnesses that covered veterans suffer for which caregiving is needed 
by qualifying family members and which would not be covered under the 
first two proposed definitions in paragraphs (c)(2)(i) and (c)(2)(ii). 
The Department also sought comment on the ability of health care 
providers to certify a serious injury or illness for a covered veteran 
and the ability of employers to administer leave associated with a 
serious injury or illness for a covered veteran under this proposed 
definition. Finally, the Department sought comment on the types of 
injuries and illnesses that typically manifest after the servicemember 
becomes a veteran, whether a family member is needed to care for the 
veteran for such injuries or illnesses, and, if so, whether the 
proposed definition would cover such situations.
    The Department received numerous comments on this proposed third 
definition. The CCD generally supported this proposal (with specific 
exceptions discussed below) given the length of time it may take to 
receive a VASRD rating. Several commenters addressed the part of the 
definition that requires the injury or illness to substantially impair 
the veteran's ability to work or would do so absent treatment. SHRM 
asked that the Department provide further guidance on the terms in the 
definition. Legal Aid, Senators Harkin and Murray, and the Partnership 
similarly expressed concern that this definition contained undefined 
terms, which could cause confusion among military families or medical 
professionals unfamiliar with this language. Twiga and an individual 
commenter expressed support for the Department's recognition that a 
veteran may be able to work while also needing assistance performing 
other daily

[[Page 8851]]

activities. However, Aon Hewitt inquired why a family member would 
still need FMLA leave if the veteran is able to work. This commenter 
believed that this provision would lead to increased abuse of FMLA 
leave. Senators Harkin and Murray expressed concern that the focus on a 
veteran's ability to work might provide a disincentive for the veteran 
to pursue employment. The Senators further asserted, along with the 
Partnership, that making a family member's ability to take military 
caregiver leave dependant on the veteran's inability to work imposes a 
more stringent standard for leave to care for veterans with a serious 
injury or illness than for non-veterans with a serious health 
condition. These commenters recommended that the Department permit 
military caregiver leave for family members of covered veterans who 
have a serious health condition that was caused or aggravated in the 
line of duty on active duty. In contrast, the CCD stated that while the 
Department does not use a substantially gainful work standard for 
others to qualify for leave related to a serious health condition, it 
understood that the Department was attempting to set a higher standard 
for the enhanced leave provision for family members of veterans. In 
keeping with this standard, the CCD suggested that using the standard 
for Social Security Disability Insurance (SSDI) for a healthcare 
provider to determine if the injury or illness renders the veteran 
substantially limited in the ability to work because many veterans with 
significant service-connected disabilities receive an official 
determination of SSDI before obtaining a VASRD rating. The commenter 
suggested that an SSDI determination should qualify a covered veteran 
under this section along with a medical opinion that the injury or 
illness is at least related to military service. At the same time, the 
commenter expressed concern that reliance on an SSDI or Workers' 
Compensation standard could be unnecessarily restrictive. The CCD 
suggested that the Department include as an alternative definition the 
veteran's inability to perform a number of activities of daily living. 
Senators Harkin and Murray similarly suggested as another option a 
definition based on a veteran's inability to perform a number of 
activities of daily living and instrumental activities of daily living. 
Legal Aid asserted that the Department's statement that private health 
care providers can make determinations of serious injuries or illnesses 
in the same way they make similar determinations for Social Security 
Disability and Workers' Compensation claims is unnecessarily 
complicated as not all private healthcare providers make these types of 
determinations and Workers' Compensation standards vary by state. This 
commenter requested that this standard be removed, or if it is 
retained, that the Department provide more guidance. Lastly, the CCD 
and Senators Harkin and Murray suggested that the Department remove the 
term service-connected disability and replace it with a disability that 
is related to military service or a disability or disabilities eligible 
for service connection because only the VA can officially determine 
whether a disability is service-connected.
    After carefully considering these comments, the Department has 
decided to retain the proposed definition in Sec.  825.127(c)(2)(iii) 
with one modification. In response to comments that only the VA can 
determine if a disability is connected to the individual's military 
service, the Department has removed the term service-connected 
disability or disabilities and replaced it with the term a disability 
or disabilities related to military service in the Final Rule. This 
change is made to avoid any confusion as to whether a determination of 
service connection from the VA is required for this definition; the 
Department does not view this as a substantive change as the FY 2010 
NDAA clearly requires that a covered veteran's serious injury or 
illness have been incurred or aggravated in the line of duty on active 
duty. As the Department stated in the NPRM, a certification of serious 
injury or illness under this definition serves only to establish that 
the veteran has a condition that entitles his or her family member to 
military caregiver leave under the FMLA. 77 FR 8969. Such a 
determination provides no basis for a determination of status, rights, 
or benefits for the VA or other agencies. The VA is the sole agency 
qualified to make any service-connected rating determination for 
purposes of VA-related rights or benefits. The Department believes that 
the modified phrasing in the Final Rule will prevent possible confusion 
on this issue.
    In response to the comments by the Partnership and Senators Harkin 
and Murray that this definition links the ability of an employee to 
take military caregiver leave to the veteran's inability to work, the 
Department emphasizes that the definition includes a physical or mental 
condition that would substantially impair a veteran's ability to work 
absent treatment, and therefore does not preclude coverage of veterans 
who are employed. The comments illustrate that further clarification of 
this standard is needed. This definition would cover, for example, a 
covered veteran with post traumatic stress disorder who is receiving 
medical treatment and is able to work, but would not be able to do so 
without treatment, and who needs care from an employee-family member 
because of this treatment. Thus, this definition recognizes that while 
a veteran may be able to work, he or she may have a continuing need for 
treatment for his or her military related injury or illness that, if 
not treated, would substantially impair his or her ability to secure or 
follow a gainful occupation. It is the Department's position that in 
such scenarios, the veteran's family member would be entitled to FMLA 
caregiver leave to provide care for the veteran, such as driving the 
veteran to medical appointments or assisting the veteran with basic 
medical needs. See Sec.  825.124(a). The Department fully supports the 
goal of returning veterans to the workforce, and does not believe that 
this definition will undermine that goal.
    In addition, in response to the comments urging the Department to 
adopt the serious health condition standard as the definition of a 
serious injury or illness of a veteran, the Department notes that an 
eligible family member is entitled to take 26 workweeks of leave in a 
single 12-month period under the FMLA military caregiver leave 
provision. See 29 U.S.C. 2612(a)(3). As the CCD correctly noted, this 
is an enhanced leave entitlement, as traditional FMLA only allows 12 
workweeks of leave for an eligible employee. When Congress passed the 
FY 2008 NDAA first creating this enhanced leave provision, it defined a 
serious injury or illness of a current servicemember as an injury or 
illness that was incurred by the covered servicemember in the line of 
duty on active duty in the Armed Forces, and that may render the member 
medically unfit to perform the duties of the member's office, grade, 
rank, or rating. Public Law 110-181. Congress did not use the existing 
statutory standard of serious health condition as defined in 29 U.S.C. 
2611(11) as the basis for the military caregiver leave entitlement. 
When Congress passed the FY 2010 NDAA, it required the Secretary to 
define a serious injury or illness of a covered veteran. Public Law 
111-84. Again, Congress did not use the statutory standard of serious 
health condition as the basis of the entitlement. Because Congress 
expressly added a new standard for military caregiver

[[Page 8852]]

leave for both current servicemembers and covered veterans instead of 
referencing the existing serious health condition standard, the 
Department's intent in defining serious injury or illness of a covered 
veteran was to achieve parity between the definitions of a serious 
injury or illness for current servicemembers and for covered veterans 
for this enhanced leave entitlement. As the definition of a serious 
injury or illness for a current servicemember is linked to the 
servicemember's inability to perform the duties of his or her office, 
grade, rank, or rating, and in light of the fact that veterans no 
longer have an office, grade, rank, or rating to perform, the 
Department proposed a definition that would link the veteran's injury 
or illness to a condition that substantially impairs the veteran's 
ability to secure or maintain a gainful occupation or would do so 
absent treatment. For these reasons, the Department does not believe it 
would be appropriate to define a serious injury or illness of a covered 
veteran as a serious health condition. The Department notes that where 
a veteran's injury or illness is not a serious injury or illness as 
defined in this Final Rule, the veteran's family members would still be 
able to take FMLA leave to care for the veteran if the condition is a 
serious health condition and the other requirements for FMLA leave are 
met.
    While the Department acknowledges the comments that some of the 
terms used in this definition are new to the FMLA, the Department 
believes that health care providers will be able to make the 
determination of whether an injury or illness substantially impairs the 
veteran's ability to secure or follow a substantially gainful 
occupation or would do so absent treatment. The Department declines to 
further define these terms at this time, as it believes that such 
determinations will be a fact-specific inquiry that the health care 
provider will make based on his or her skills, expertise, and 
experience. As the Department noted in the NPRM, health care providers 
are currently called upon to make determinations about an individual's 
ability to work for Social Security and Workers' Compensation claims, 
and the Department believes that a health care provider can make 
similar determinations for FMLA requests for military caregiver leave 
as well. 77 FR 8969. In response to Legal Aid's comment regarding 
Social Security Disability and Worker's Compensation, the Department 
clarifies that it did not propose that private health care providers 
use the established standards for Social Security Disability or 
Worker's Compensation evaluations for making serious injury or illness 
determinations under the proposed definition at Sec.  
825.127(c)(2)(iii). Rather, the Department was attempting to illustrate 
that health care providers already make similar types of determinations 
regarding an individual's ability to work, and therefore, the 
Department expects that they have the experience and expertise 
permitting them to do so for military caregiver leave 
certifications.\2\
---------------------------------------------------------------------------

    \2\ As discussed in Sec.  825.310, when an employee obtains a 
certification for military caregiver leave from a private health 
care provider that is not affiliated with DOD, VA, or TRICARE, if 
the employer has reason to doubt the validity of the certification, 
he or she may require the employee to obtain a second (or third 
opinion) at the employer's expense. See Sec. Sec.  825.310(d); 
825.307(b), (c).
---------------------------------------------------------------------------

    Lastly, the Department has decided not to adopt the CCD's 
recommendation to use SSDI determinations as another means of 
establishing a serious injury or illness. It is the Department's 
understanding that the criteria upon which SSDI determinations are 
based are distinct from the criteria upon which VASRD ratings are 
based. In light of the fact that the definition in proposed Sec.  
825.127(c)(2)(iii) was intended to mirror a 50 percent or greater VASRD 
rating, relying on a SSDI determination would not necessarily be an 
equivalent standard. The Department is concerned that if it were to use 
SSDI determinations to establish a qualifying serious injury or illness 
of a covered veteran, parity may not be achieved due to the different 
criteria on which SSDI determinations are based. Moreover, the SSDI 
determination does not address whether the veteran's injury or illness 
was incurred or aggravated in the line of duty on active duty. However, 
the Department believes that if a servicemember has an SSDI 
determination, a private health care provider may consider the 
determination in assessing whether a veteran has a qualifying serious 
injury or illness.
    In addition to the three definitions that the Department proposed 
in the NPRM, the Department also discussed the VA's Program of 
Comprehensive Assistance for Family Caregivers (see Caregivers and 
Veterans Omnibus Health Services Act of 2010, Public Law 111-163; 38 
CFR Part 71) as another possible means through which the severity of a 
veteran's injury or illness may be assessed. 77 FR 8969. This program 
is designed to provide health care, travel, training, and financial 
benefits to certain eligible caregivers of veterans who are eligible 
for the program. In general, a veteran or servicemember undergoing 
medical discharge from the Armed Forces is eligible for VA's Program of 
Comprehensive Assistance for Family Caregivers if the individual has 
incurred or aggravated a serious injury (including traumatic brain 
injuries, psychological trauma, or other mental disorders) in the line 
of duty on or after September 11, 2001; the serious injury renders the 
individual in need of a minimum of six continuous months of personal 
care services based on a variety of clinical criteria listed under 38 
CFR 71.20 (c)(1)-(4); and it is in the best interest of the individual 
to participate in the program. See 38 CFR 71.20. According to the VA, 
there are approximately 4,600 participants enrolled in the program, and 
80 percent of these participants have a VASRD rating of 50 percent or 
greater. Based on the eligibility requirements for VA's Program of 
Comprehensive Assistance for Family Caregivers, the Department believed 
that most veterans who qualify for the program meet the requirement of 
having a serious injury or illness as defined in this proposal. The 
Department invited comment on whether adding enrollment in the VA's 
program as a fourth alternative to the definition of a serious injury 
or illness of a covered veteran would be appropriate and would reduce 
the burden placed on military and veterans' families in seeking FMLA 
leave.
    In response to the Department's inquiry, the CCD, Senators Harkin 
and Murray, and the Coalition submitted comments in support of making 
enrollment in the VA's Program of Comprehensive Assistance for Family 
Caregivers part of the definition of serious injury or illness of a 
veteran. Additionally, the CCD and Senators Harkin and Murray wrote 
that the Department should also consider a veteran's eligibility for 
the program as part of the definition for a serious injury or illness 
even if the veteran is not enrolled. The Department did not receive any 
responses that expressed opposition to this possible fourth definition. 
Therefore, in the Final Rule at Sec.  825.127(c)(2)(iv), the Department 
adopts a fourth definition of a serious injury or illness for a 
veteran: an injury, including a psychological injury, on the basis of 
which the covered veteran has been enrolled in the Department of 
Veterans Affairs Program of Comprehensive Assistance for Family 
Caregivers will be a qualifying serious injury or illness for military 
caregiver

[[Page 8853]]

leave for a covered veteran. Only actual enrollment by covered veterans 
in this program will be considered as establishing a qualifying serious 
injury or illness under this definition. The employee seeking military 
caregiver leave under this definition does not, however, have to be the 
designated caregiver for the veteran under the VA's Program of 
Comprehensive Assistance for Family Caregivers. As with the three other 
definitions in paragraphs (c)(2)(i) to (iii), enrollment in VA's 
Program of Comprehensive Assistance for Family Caregivers establishes 
only that the veteran has a serious injury or illness, and does not 
mean that the employee is automatically entitled to take FMLA leave. 
The employee seeking to take FMLA military caregiver leave must qualify 
as a family member and meet the other eligibility criteria under the 
FMLA, and the veteran must meet the definition of a covered veteran in 
Sec.  825.127(b)(2). The Department notes that the VA's Program of 
Comprehensive Assistance for Family Caregivers is open to veterans who 
were injured on or after September 11, 2001, while FMLA military 
caregiver leave requires that a veteran have been discharged within 
five years of the employee's requested leave.
    The Department proposed to move the paragraph defining the family 
members qualified to take military caregiver leave currently in 
paragraph (b) to paragraph (d) (the numbering of the subparagraphs did 
not change). No substantive changes were proposed for this paragraph. 
The Department received several comments, including those submitted by 
Legal Aid and the North Carolina Justice Center on the definition of 
next of kin of a covered servicemember that appears in proposed Sec.  
825.127(d)(3) urging the Department to expand the definition beyond 
blood relatives. Two commenters, the Family Equality Council and the 
Partnership, noted that the repeal of the military's ``Don't Ask, Don't 
Tell'' policy means that gay and lesbian servicemembers may now serve 
openly in the military and that these servicemembers would undoubtedly 
prefer to be cared for by their same-sex partners or spouses. These 
commenters suggested that, because the Defense of Marriage Act prevents 
same-sex couples from being considered spouses for purposes of the 
FMLA, the Department should expand the definition of next of kin of a 
covered servicemember to include domestic partners. On a similar note, 
Twiga stated that Congress intended to provide greater flexibility for 
military caregiver leave to account for servicemembers relying on care 
from people other than spouses, parents, or children. According to 
Twiga, the requirement of consanguinity is outdated because kinship is 
predicated on broader relationships, including partners and in-laws. 
This commenter also asserted that the definition would leave adopted 
servicemembers, who have no literal blood relatives, with no next of 
kin. It urged the Department to interpret the statute's blood relative 
requirement to include caretakers with legal relationships or other 
family members. Additionally, Twiga suggested that, in the special 
circumstance of a servicemember who is at risk of suicide, fellow 
servicemembers of that servicemember should be included in the 
definition of next of kin of a covered servicemember. Lastly, this 
commenter suggested that the definition take into account the 
availability of a particular caregiver and, where the next of kin is 
not available to provide caregiving, the next of kin of a covered 
servicemember definition should default to a relative who is close in 
terms of personal relationship and is available.
    The Department cannot modify the definition as requested because 
the Department is constrained by the statutory definition of next of 
kin in the FMLA. The statute defines next of kin as ``the nearest blood 
relative.'' 29 U.S.C. 2611(17). Based on this statutory definition, the 
Department defined next of kin of a covered servicemember in the 2008 
Final Rule as the nearest blood relative other than the covered 
servicemember's spouse, parent, son, or daughter and then provided the 
order of priority of blood relatives: those who have been granted legal 
custody; brothers and sisters; grandparents; aunts and uncles; and 
first cousins. 73 FR 67967-68. In addition, as an alternative to this 
hierarchy of consanguinity, the 2008 Final Rule provided for the 
servicemember to designate in writing another blood relative as the 
nearest blood relative. Id. Thus, the 2008 Final Rule adhered to the 
consanguinity (i.e., blood relationship) element of the statutory 
definition even in interpreting ``nearest'' broadly to be based on 
closeness of personal relationship as an alternative to closest in 
consanguinity. 73 FR 67968. While a spouse is not a blood relative, the 
inclusion of spouse among the relatives excluded from the definition of 
next of kin of a covered servicemember was intended to make clear that 
the next of kin was an additional family member beyond the covered 
servicemember's spouse, parents, and children; it was not intended to 
suggest that the next of kin could be someone unrelated by blood. Given 
the specific language used in the statutory definition of next of kin 
(i.e., ``blood relative''), there is no basis to include same-sex 
partners or spouses, or fellow servicemembers, in the definition of 
next of kin of a covered servicemember. In response to Twiga's concern 
regarding adopted servicemembers, the Department notes that adoption 
creates a parent-child relationship between the adopted child and the 
adoptive parents with all the rights, privileges and responsibilities 
that attach to that relationship. See Black's Law Dictionary (9th ed. 
2009). Therefore, for purposes of military caregiver leave and the 
definition of next of kin of a covered servicemember, adoption has the 
legal effect of establishing the same consanguineous relationships with 
family members that a non-adopted child has to that child's family 
members. Lastly, the Department notes that in the 2008 Final Rule, it 
considered but rejected the notion of incorporating a ``willing and 
able'' concept into the definition because of the anticipated 
difficulty in proving and verifying the relative's willingness and 
ability to provide care. 73 FR 67967.
    The Department also received two comments, from Senators Harkin and 
Murray and the CCD, requesting that the Department clarify that each 
caregiver who takes care of a covered servicemember is able to take the 
full 26 weeks of leave individually, including situations when multiple 
employees need leave simultaneously to care for a single covered 
servicemember. In response to these comments, the Department notes that 
the military caregiver leave entitlement belongs to the employee-family 
member of the covered servicemember. Therefore, other than situations 
when spouses are employed by the same employer, each employee family 
member who is entitled to take up to 26 workweeks of military caregiver 
leave in a single 12-month period can do so independently of whether 
other caregivers are also taking leave to care for that same covered 
servicemember. As stated in Sec.  825.124(b), ``[t]he employee may need 
not be the only individual or family member available to care for the 
family member or the covered servicemember.'' The Department does not 
believe that further clarification is necessary. Therefore, the 
Department adopts paragraph (d) in the Final Rule without modification.
    The Department proposed to move the paragraph explaining the single 
12-month period currently in paragraph (c) to paragraph (e) (the 
numbering of the subparagraphs did not change). No substantive changes 
were proposed for

[[Page 8854]]

this paragraph. The Department explained in the NPRM that, because the 
FY 2010 NDAA establishes two distinct categories of covered 
servicemembers (i.e., a current member of the Armed Forces and a 
covered veteran) and because military caregiver leave is applied on a 
per-covered servicemember per-injury basis, an eligible employee could 
potentially take military caregiver leave to care for a covered 
servicemember who is a current member of the Armed Forces and then, at 
a later point when the same servicemember becomes a covered veteran, 
could take a subsequent period of military caregiver leave based on the 
same injury or illness. 77 FR 8969. The Department noted, however, that 
all of the normal eligibility requirements, such as the hours of 
service requirement, would apply in such a situation, and that an 
employee may not take more than a combined total of 26 workweeks of 
FMLA leave during a single 12-month period. Id. The Department sought 
comment on this interpretation of the single 12-month period 
limitation.
    Two commenters addressed the Department's interpretation of the 
single 12-month period. Legal Aid approved of the Department's 
interpretation that employees may take leave for the same servicemember 
when he or she is a current member of the Armed Forces and again when 
he or she is a veteran. An individual expressed concern about this 
interpretation of the single 12-month period, however. She stated that, 
as she understood the proposed interpretation, it would permit an 
employee to use two consecutive periods of 26 workweeks of leave (one 
26 workweek period to care for a current servicemember, another 26 
workweek period to care for a veteran), resulting in 52 consecutive 
workweeks of leave for an employee. In response to this comment, the 
Department reiterates that all of the normal eligibility requirements 
apply. The employee in this commenter's scenario would likely not meet 
the hours of service requirement in the preceding 12 months if that 
employee had just taken 26 workweeks of leave to care for a current 
servicemember. Additionally, an employee may not take more than a 
combined 26 workweeks of FMLA leave during a single 12-month period. 
The Department adopts paragraph (e) in the Final Rule without 
modification.
4. Section 825.309 Certification Requirements for Leave Taken Because 
of a Qualifying Exigency
    Section 825.309 sets forth the certification process and the 
elements of a complete certification for qualifying exigency leave. 
Consistent with the proposed changes in Sec.  825.126, the Department 
proposed in Sec.  825.309 to substitute covered active duty for active 
duty and military member or member for covered military member wherever 
it appears in this section. The Department proposed to delete the 
phrase in support of a contingency operation from current Sec.  
825.309(a) to reflect the expansion of qualifying exigency leave to 
family of members of the Regular Armed Forces and the fact that this 
requirement does not apply to members of the Regular Armed Forces. The 
proposal revised the regulatory language at Sec.  825.309(a) to make it 
clear that new active duty orders or documentation do not automatically 
need to be provided if the need for leave because of a qualifying 
exigency arises out of a different covered active duty or call to 
covered active duty status of the same or a different military member; 
rather, in such situations, new active duty orders or documentation 
need only be provided upon request by the employer. As noted in the 
NPRM, the proposed change is consistent with the general certification 
process, which provides that an employer may require certification upon 
receiving an employee request for qualifying exigency leave. 77 FR 
8970. Proposed Sec.  825.309(a) tracked Sec.  825.309(a) in permitting 
an employee to use either a copy of the military member's active duty 
orders or other documentation issued by the military to establish that 
the military member is on covered active duty or call to covered active 
duty status. However, the Department explained in the NPRM that it had 
received information from employees and employers indicating that 
family members have experienced difficulty obtaining copies of active 
duty orders or that the available documentation is insufficient to 
comply with current certification requirements. 77 FR 8970. The 
Department therefore sought comment on whether active duty orders of 
members of the Regular and Reserve components of the Armed Forces 
contain sufficient information to determine that the covered active 
duty involves deployment to a foreign country (and, in the case of the 
Reserve components, that the deployment is in support of a contingency 
operation), and, if not, what other documentation would meet the 
certification requirements. The Department also sought comment on 
whether employees have experienced difficulty in obtaining copies of 
active duty orders or other military documents establishing their 
family member's covered service, and whether employers have experienced 
difficulty in confirming covered service. Id.
    The Partnership and SHRM commented that employees have experienced 
difficulty obtaining copies of active duty orders, particularly when 
the servicemember is a member of the Regular Armed Forces. The Letter 
Carriers reported that a member contacted DOD on behalf of an employee 
and was unable to secure active duty orders, with DOD citing concern 
for national security. The Letter Carriers suggested that the 
determination of whether a military member meets the covered active 
duty requirement should be left up to the military. They proposed that 
a standardized certification form could be issued by the appropriate 
branch of the military or that a section indicating that the military 
member is on covered active duty, to be signed by the appropriate 
military official, could be added to the Form WH-384 (FMLA 
Certification of Qualifying Exigency for Military Family leave) or an 
equivalent form without requiring that further, sensitive information 
about the deployment be disclosed. Several commenters, including 
Senators Harkin and Murray and the North Carolina Justice Center, 
suggested the regulations should clarify that acceptable ``other 
documentation'' permitted under the regulation includes official 
military correspondence indicating a foreign deployment, such as a 
letter from the military member's commanding officer.
    The Department considered the commenters' concerns that employees 
experience difficulties in obtaining the active duty orders for members 
of the Regular Armed Forces. Several factors weigh against adding a new 
section to the Form WH-384 or creating a separate certification form 
that a military member could present to the appropriate member of the 
military member's command to utilize for verification of covered active 
duty. Obtaining an official signature, especially if the military 
member is already deployed, would present logistical challenges. 
Electronic document transmission may not be available at remote 
deployment locations and postal delays could result in undue delay for 
the eligible employee. Additionally, the information contained on the 
Form WH-384 concerning the specific reason for qualifying exigency 
leave may be personal and raise privacy issues for the employee or the 
military member. The Department also considered creating an additional 
form, but believes doing so

[[Page 8855]]

could be confusing for employees and administratively burdensome for 
employers. However, the Department believes that official military 
correspondence such as a letter from a superior officer in the military 
member's chain of command will be sufficient to establish that the 
military member is on covered active duty or under a call to covered 
active duty and will fulfill the requirements of Sec.  825.309(a). 
Therefore, the Department adopts proposed Sec.  825.309(a) in the Final 
Rule without modification.
    Current Sec.  825.309(b) addresses information that may be required 
to support a request for qualifying exigency leave. Consistent with the 
proposed changes to Sec.  825.126(b)(6), Rest and Recuperation 
qualifying exigency leave, the Department proposed a new paragraph at 
Sec.  825.309(b)(6) to permit an employer to request a copy of the 
military member's Rest and Recuperation orders, or other documentation 
issued by the military indicating that the military member has been 
granted Rest and Recuperation leave, and the dates of the leave, in 
order to determine the employee's specific qualifying exigency leave 
period available for Rest and Recuperation. 77 FR 8970. No other 
changes were proposed to Sec.  825.309(b). SHRM endorsed the 
Department's proposal. Twiga suggested that the Department and the DOD 
should agree on a certification form that is easy for a civilian 
employer to use to verify that the employee's requested period of 
qualifying exigency leave corresponds with the military member's 
allotted Rest and Recuperation orders. It is the Department's 
understanding that the military's Rest and Recuperation orders clearly 
state the member's dates of leave, and will therefore be sufficient to 
establish that the employee's requested period of qualifying exigency 
leave corresponds with the military member's allotted Rest and 
Recuperation leave. The Department does not believe that it is 
necessary to create another certification form specific for Rest and 
Recuperation qualifying exigency leave. Accordingly, the Department 
adopts Sec.  825.309(b)(6) as proposed.
    Current Sec.  825.309(c) identifies optional-use Form WH-384, which 
may be used by an employee when requesting qualifying exigency leave 
and states that another form containing the same basic information may 
be used by an employer as long as no information beyond that specified 
is required. The Department proposed to make minor changes to this form 
to reflect the FY 2010 NDAA amendments. As discussed above, the 
Department proposed to delete the optional-use forms from the 
Appendices to the regulations. Accordingly, the Department proposed to 
delete the reference in Sec.  825.309(c) to Appendix G, and proposed to 
add language explaining that Form WH-384 may be obtained from local WHD 
offices or the WHD Web site. No other changes were proposed for Sec.  
825.309(c). Several comments were received concerning the removal of 
the forms from the Appendices. Those comments and the Department's 
decision to remove the forms from the Appendices in the Final Rule are 
discussed earlier in this preamble. No comments were received on the 
proposed revisions to Form WH-384. The form is modified to refer to a 
military member, use the term covered active duty, and contain the 
requirement that the member be deployed to a foreign country. The Final 
Rule implements Sec.  825.309(c) as proposed.
    Current Sec.  825.309(d) indicates that where a complete and 
sufficient certification is submitted in support of a request for 
leave, an employer may not request additional information from an 
employee. Where the qualifying exigency involves a third party, 
employers may contact the individual or entity for purposes of 
verifying the meeting or appointment and the nature of the meeting. 
Employers may also contact the appropriate unit of the DOD to verify 
that the military member is on active duty or call to active duty 
status. The employee's permission is not required to conduct such 
verifications. The employer may not, however, request any additional 
information. The Department solicited information on how this provision 
has been working for employers and employees, specifically whether any 
privacy issues have arisen for employees and whether any employees have 
been denied qualifying exigency leave because their employers have been 
unable to verify their leave requests. The Department also sought 
information on whether employers have encountered any difficulties in 
making third-party verifications, and if so, why and whether they have 
denied an employee leave as a result. 77 FR 8971. The Department 
received several comments concerning third-party meeting verification 
and privacy issues related to third-party verification. The National 
Business Group on Health supported the provision that allows the 
employer to contact the individual or third parties to verify meetings, 
appointments, and the purpose of meetings for FMLA purposes and to 
contact the appropriate unit of DOD to verify that military members are 
on active duty or call to active duty status. SHRM commented that there 
was nothing to justify any change to this provision. World at Work's 
survey indicated that 18 of the 94 respondents reported that making 
third-party verifications of qualifying exigency leave is one of their 
top three challenges in administering qualifying exigency leave. Only 
nine respondents listed ``concern about privacy issues surrounding 
third-party verification of qualifying exigency leave'' as one of their 
top three challenges in administering the FMLA. By contrast, Legal Aid 
expressed privacy concerns and asserted that such contacts should occur 
under very limited circumstances.
    Although the commenters were divided on the issue of third-party 
contact, the Department did not receive any comments addressing 
administrative difficulties making third party contacts, nor did the 
Department receive any specific comments from employees or employee 
advocacy groups indicating that this provision has not been adhered to 
or has been abused. Accordingly, the Department maintains that where 
the qualifying exigency involves a third party, employers may contact 
the third party to verify the meeting and the purpose of the meeting, 
and may contact the appropriate unit of the DOD to verify that a 
military member is on covered active duty or call to covered active 
duty status. The Department makes no changes to Sec.  825.309(d) in the 
Final Rule.
5. Section 825.310 Certification for Leave Taken To Care for a Covered 
Servicemember (Military Caregiver Leave)
    Section 825.310 sets forth the certification process and the 
elements of a complete certification for military caregiver leave. 
Current Sec.  825.310(a) permits an employer to require that a request 
for leave to care for a covered servicemember with a serious injury or 
illness be supported by a certification issued by an authorized health 
care provider, defined as: (1) A DOD health care provider; (2) a VA 
health care provider; (3) a DOD TRICARE network authorized private 
health care provider; or (4) a DOD non-network TRICARE authorized 
private health care provider. The Department proposed in Sec.  
825.310(a)(5) to add health care providers, as defined by regulation in 
Sec.  825.125, as a fifth component to the definition of an authorized 
health care provider from whom medical certification can be obtained 
for a serious injury or illness. The Department based this proposal on 
its

[[Page 8856]]

understanding that in certain circumstances, such as when seeking 
treatment for a mental health condition, some current servicemembers 
may wish to seek care from a health care provider unaffiliated with the 
DOD. As explained in the NPRM, the Department believes that a family 
member of a current servicemember who is seeking treatment outside of 
the military's health care network for an injury or illness that was 
incurred or aggravated in the line of duty on active duty should be 
eligible for FMLA leave under this provision. 77 FR 8971. The 
Department noted that the proposed expansion of authorized health care 
providers would apply to covered veterans as well because veterans may 
use non-military-affiliated health care providers (private health care 
providers) rather than DOD, VA, or TRICARE network health care 
providers. Id. Additionally some veterans may no longer be entitled to 
seek care through DOD or VA affiliated health care providers, or 
veterans may also be covered by the private health care plans of a 
spouse or parent and may utilize the services of private health care 
providers through these plans. Whether it is because there is no VA 
center in the area or due to other circumstances, the Department stated 
that families of veterans should be able to rely upon the determination 
of the veteran's own private health care provider, who otherwise meets 
the definition of an FMLA health care provider at Sec.  825.125, in 
determining if the treated condition is a qualifying serious injury or 
illness. The Department also noted that expanding the pool of health 
care providers would avoid increasing the administrative burdens on the 
VA and DOD. Id.
    The Department expressed concern, however, that private health care 
providers would not have the specialized information available to DOD, 
VA, and TRICARE network health care providers that is necessary to make 
several of the military-related determinations. Therefore, the 
Department sought public comment on the available processes for a 
private health care provider to obtain information related to whether 
an injury or illness was incurred in the line of duty while on active 
duty or whether the covered servicemember's injury or illness existed 
before beginning service and was aggravated by service in the line of 
duty while on active duty. The Department also sought comment on 
whether the covered servicemember will have a copy of medical records 
from his or her military service, or whether the covered servicemember, 
or family member, would be able to access medical records or other 
documentation that would support the determination that an injury or 
illness was incurred in the line of duty while on active duty, and the 
types of documentation that may be available to the covered 
servicemember or family member. Finally, the Department requested 
comment on whether a veteran or family member has access to 
documentation of a VASRD disability rating. Id.
    Many of the comments, including those submitted by Senators Harkin 
and Murray, the North Carolina Justice Center, and the National 
Business Group on Health, expressed support for the proposal to expand 
the list of medical providers in Sec.  827.310(a) to include health 
care providers as defined by the FMLA regulation at Sec.  825.125. The 
CCD stated that this expansion will reduce the administrative burden on 
the DOD, VA, and TRICARE network health care providers, while also 
providing some measure of confidentiality for those family members 
concerned about the impact on a servicemember's military career of an 
FMLA application based on certain mental health conditions. Twiga 
stated that this expansion will make taking leave easier for families. 
The Partnership affirmed the Department's belief that veterans are 
frequently treated in private facilities and applauded the proposal. 
Aon Hewitt supported permitting private health care providers to 
certify serious injuries or illnesses as long as the Department retains 
its proposal that employers are permitted to obtain second and third 
opinions from such providers.
    Several comments were received on the private health care 
provider's ability to determine if a serious injury or illness is 
related to the servicemember's military service. The Partnership, as 
well as the National Business Group on Health and the Coalition, 
requested additional guidance for private health care providers to 
determine what constitutes a serious injury or illness since private 
health care providers do not necessarily have experience in providing 
medical certifications related to military service. Sedgwick Claims 
Management Services requested that the Department provide private 
health care providers with directions on how to evaluate whether a 
caregiver situation applies and to provide such health care providers 
with the resources to access information necessary to make this 
determination. This commenter suggested that if private health care 
providers do not have this necessary information, that they not be 
added to the list of authorized health care providers. One individual 
commenter opposed the proposal based on her belief that it could lead 
to increased abuse of intermittent leave usage. She expressed concern 
that a health care provider as defined by the FMLA regulations, is 
likely to be a family health care provider who would not be able to 
determine if the medical condition was incurred during or aggravated by 
the covered servicemember's military duty, and who may be willing, 
according to the commenter, to certify the frequency and duration of 
absence requested by the patient. The CCD explained that all veterans 
receive written notice from the VA of their disability rating, as do 
servicemembers in the case of a service department disability rating. 
The CCD further explained that for veterans who have filed claims for 
disability compensation through the VA, but who have not yet received 
an official determination of service-connection and a disability 
rating, veterans or their veterans' service officers may be able to 
provide documentation to assist the health care provider. It also 
commented that if a veteran has not received a VASRD rating, and has 
not received a medical opinion, then the health care provider could 
make a determination that it is as likely as not that the disability is 
service-connected, which should be sufficient for FMLA military 
caregiver leave benefits. According to the CCD, health care providers 
can also review service medical and administrative records that 
veterans and their representatives can obtain from the National 
Personnel Records Center (NPRC) in St. Louis, Missouri. These records 
may be obtained by submitting a request through the NPRC Web site. The 
Partnership recommended that the regulations permit the health care 
provider to contact veteran service officers, with the veteran's 
permission, since veteran service officers are familiar with the 
veteran's service record and are often called upon to make similar 
assessments about their veteran-clients.
    With respect to the commenters' request that the Department provide 
guidance for private health care providers on making medical 
determinations related to military service, the Department believes 
that health care providers will be able to make the determinations 
necessary for a certification, without further regulatory instruction, 
based on the information provided by the servicemember and any military 
documentation that may be supplied by the servicemember. The Department 
understands, based on

[[Page 8857]]

consultation with the DOD and VA, that current servicemembers and 
veterans have access to their medical records for their time during 
service through eBenefits, an electronic portal provided by the DOD and 
VA. Veterans may also request their records through their local VA 
medical facility. In addition, the commenters indicated that veterans 
who have received a VASRD rating will possess documentation of their 
disability ratings, which can be produced as part of the medical 
certification process. While the servicemember is not required to 
provide the health care provider with military records to complete a 
certification, if the servicemember does so, the information in these 
medical records and any other military documentation may aid a health 
care provider in making a determination that a servicemember's injury 
or illness is related to the individual's military service. Moreover, 
private health care providers, while not necessarily familiar with 
military related determinations, are frequently called upon in 
conjunction with a patient's Worker's Compensation claim to determine 
that the patient's medical condition was caused by the patient's work 
even if the health care provider is not intimately familiar with that 
patient's particular occupation. Based on their medical experience, 
private health care providers are able to make such determinations. The 
Department believes that private health care providers will similarly 
be able to determine if the servicemember's injury or illness was 
incurred in or aggravated in the line of duty on active duty. In 
addition, as discussed in more detail below, if employers have reason 
to question the certification provided by a private health care 
provider, employers may seek a second, and if necessary, a third 
medical opinion. For these reasons, Sec.  825.310(a)(5) is adopted as 
proposed.
    The Department proposed to modify portions of paragraph (b), which 
sets forth the information an employer may request from the health care 
provider in order to support the employee's request for leave. The 
Department proposed to modify the language at the beginning of 
paragraph (b) and in subparagraphs (1)-(4) to reflect the changes to 
the statute to add preexisting conditions aggravated by service for 
current servicemembers and to add leave to care for veterans. Proposed 
Sec.  825.310(b) was modified to indicate that an authorized health 
care provider may rely on military-related determinations from an 
authorized VA representative in addition to an authorized DOD 
representative. Consistent with the Department's proposal to allow 
covered servicemembers to utilize any health care provider as defined 
in Sec.  825.125, the Department proposed to add a new provision (v) to 
paragraph (b)(1) clarifying that the medical certification may be 
provided by any health care provider as defined in Sec.  825.125. The 
Department proposed to add language to paragraph (b)(2) to allow an 
employer to obtain information that specifies whether the covered 
servicemember's injury or illness existed before beginning service and 
was aggravated by service in the line of duty on active duty. The 
Department sought comment on what processes are or may be used to 
determine that an injury or illness existed prior to active duty 
service and was aggravated by service in the line of duty on active 
duty. Comment was also sought on the basis that a non-DOD or non-VA 
health care provider would determine that an injury or illness is a 
condition that existed before the military member's service and was 
aggravated in the line of duty on active duty. Proposed paragraph 
(b)(3) allowed an employer to request the approximate date on which the 
serious injury or illness commenced or was aggravated and its probable 
duration. The Department proposed to move the description of the 
medical facts that must be included in the certification for a serious 
injury or illness of a current servicemember from current Sec.  
825.310(b)(4) to proposed Sec.  825.310(b)(4)(i), without any changes 
in that subparagraph. The Department proposed to describe in Sec.  
825.310(b)(4)(ii) the medical facts that must be included in the 
certification for an injury or illness of a covered veteran, which 
tracked the proposed definition of a serious injury or illness of a 
covered veteran. In light of the Department's consideration of adding 
enrollment in VA's Program of Comprehensive Assistance for Family 
Caregivers as a fourth definition of serious injury or illness of a 
veteran, the Department sought comment on whether the medical 
documentation required for enrollment in that program provides 
sufficient medical facts to support the need for FMLA leave. The 
Department proposed no other changes to Sec.  825.310(b).
    The National Business Group on Health generally supported the 
proposal permitting employers to require this new information in the 
certification supporting military caregiver leave. The Sedgwick 
Management Group requested that the criteria for determining a pre-
existing condition be clearly stated in the regulation, and that the 
FMLA forms contain questions to identify whether such a condition 
exists in order to reduce potential ambiguity and employer burden in 
having to make that determination. As noted in the discussion of Sec.  
825.127(c)(1), the Department received two comments from Senators 
Harkin and Murray and the CCD suggesting that the Department should 
consider participation in or meeting the eligibility requirements of 
the SCAADL Caregiver Program as establishing a current servicemember's 
serious injury or illness. The SCAADL program is available to current 
servicemembers who have a permanent catastrophic injury or illness that 
was incurred or aggravated in the line of duty, as certified by a 
licensed DOD or VA physician, and who need assistance from another 
person to perform the personal functions required in everyday living. 
See 37 U.S.C. 439(b); DODI 1341.12 (May 24, 2012). Twiga expressed 
concern that requiring servicemembers to disclose medical information 
could raise privacy issues and possibly deter a servicemember from 
seeking medical treatment, particularly for mental health issues and 
for conditions such as alcohol or drug dependence. To address these 
concerns, Twiga suggested that the regulation make clear that the 
certification need only describe whether a qualifying serious injury or 
illness exists, but need not include a description of the specific 
medical condition.
    With respect to the commenters' request that the Department provide 
guidance for health care providers on making medical determinations 
regarding preexisting conditions, the Department believes that health 
care providers will be able to make the determinations necessary for a 
certification, without further regulatory instruction, based on the 
information provided by the servicemember and any military medical 
records the servicemember may provide. The Department believes that 
documentation indicating a current servicemember's enrollment in the 
SCAADL program may be considered by a health care provider in 
determining whether the current servicemember has a serious injury or 
illness that makes the current servicemember unable to perform the 
duties of the member's office, grade, rank, or rating. Similarly, SSDI 
determinations may be considered by private health care providers in 
determining whether a veteran has a qualifying serious injury or 
illness. To the extent that additional information is necessary to 
establish a complete and

[[Page 8858]]

sufficient FMLA certification (e.g., information showing the 
relationship of the employee to the covered servicemember for whom the 
employee is requesting leave to care, that the injury or illness was 
incurred or aggravated in military service, the probable duration of 
the serious injury or illness, and the servicemember's need for care 
and an estimate of the time period during which care will be needed), 
the employee seeking leave will be responsible for providing the 
employer with the additional information. The Final Rule adopts the 
provision as proposed.
    The privacy concerns raised by Twiga, while not directed at the new 
information that can be required under the proposal, nonetheless merit 
discussion. As an initial matter, the Department reiterates that the 
certification of a serious injury or illness, both for a current 
servicemember and a veteran, addresses only the serious illness or 
injury related to military service for which the family member seeks 
leave. Any medical information unrelated to that serious injury or 
illness is not part of the certification process for FMLA leave. In 
addition, the same standard applies to the amount of information 
required for the certification of the serious illness or injury of a 
covered servicemember as applies to the amount of information required 
for the certification of serious health condition. As the Department 
stated in the 2008 Final Rule in the preamble discussion of 
certification of a serious health condition in Sec.  825.306:

    [T]he determination of what medical facts are appropriate for 
inclusion on the certification form will vary depending on the 
nature of the serious health condition at issue, and is 
appropriately left to the health care provider.* * * [T]he 
Department continues to believe that it would not be appropriate to 
require a diagnosis as part of a complete and sufficient FMLA 
certification. Whether a diagnosis is included in the certification 
form is left to the discretion of the health care provider and an 
employer may not reject a complete and sufficient certification 
because it lacks a diagnosis.

73 FR 68014. Other than the information necessary to show that the 
servicemember has a qualifying serious injury or illness, as well as 
the other regulatory requirements (e.g., need for care, probable 
duration), the certification does not require identification of the 
servicemember's diagnosis. Inclusion of such information is left to the 
discretion of the servicemember's health care provider. The Department 
does not believe that further clarification is necessary.
    As noted above in the discussion of Sec.  825.127(c)(2)(iii), the 
Department removed the term service-connected disability or 
disabilities in the third definition of a serious injury or illness of 
a covered veteran and replaced it with the term a disability or 
disabilities related to military service. This change was in response 
to comments that only the VA can determine if a disability is service-
connected. For the reasons outlined in the discussion of Sec.  825.127 
above, the Department makes the same modification to Sec.  
825.310(b)(4)(ii)(C) by replacing the term service-connected disability 
or disabilities with the term a disability or disabilities related to 
military service.

    The Department did not receive any comments in response to its 
query on whether the medical documentation required for enrollment in 
VA's Program of Comprehensive Assistance for Family Caregivers provides 
sufficient medical facts to support the need for FMLA leave. As 
discussed above in conjunction with Sec.  825.127(c)(2), the Department 
has decided to add in the Final Rule at Sec.  825.127(c)(2)(iv), a 
veteran's enrollment in the VA's Program of Comprehensive Assistance 
for Family Caregivers as the fourth definition for establishing a 
qualifying serious injury or illness for a covered veteran. The VA has 
advised the Department that upon enrollment in VA's Program for 
Comprehensive Assistance for Family Caregivers, the caregiver receives 
a letter from the VA indicating that the caregiver has been designated 
and approved as the caregiver for the veteran named in the letter. 
Therefore, the Final Rule provides in Sec.  825.310(b)(4) that such 
documentation may be produced as part of the certification process to 
demonstrate that a covered veteran has a qualifying serious injury or 
illness under the fourth definition of a serious injury or illness. The 
Department noted in the NPRM that medical documentation prepared in 
connection with the VA's Program of Comprehensive Assistance for Family 
Caregivers may be submitted as part of the FMLA certification process 
under the second and third alternative definitions of serious injury 
and illness in Sec.  825.127(c)(2)(ii) and (c)(2)(iii). 77 FR 8972. 
While that is still the case, documentation establishing enrollment in 
the program will meet the definition of a serious injury or illness 
under Sec.  825.127(c)(2)(iv) and therefore will not need to meet the 
definition under (c)(2)(ii) or (iii). The Department notes that, 
similar to the treatment of invitational travel orders and 
international travel authorizations in Sec.  825.310(e), enrollment 
documentation for the VA Program for Comprehensive Assistance for 
Family Caregivers may be used by eligible employee family members other 
than the designated VA caregiver to support a need for military 
caregiver leave. However, as the Department explained in the NPRM, to 
the extent that additional information is necessary to establish a 
complete and sufficient FMLA certification (e.g., information showing 
the relationship of the employee to the covered servicemember for whom 
the employee is requesting leave, that the veteran is within five years 
of discharge, the probable duration of the serious injury or illness, 
and the servicemember's need for care and an estimate of the time 
period during which care will be needed), the employee seeking leave is 
responsible for providing the employer with the additional information. 
Therefore, the Department adopts paragraph (b) in the Final Rule with 
the addition of provision (D) to subparagraph (b)(4)(ii) to permit 
documentation of enrollment in the VA Program for Comprehensive 
Assistance for Family Caregivers program to show that the veteran has a 
qualifying serious injury or illness as defined in Sec.  
825.127(c)(2)(iv) of the Final Rule.
    The Department proposed to modify portions of Sec.  825.310(c), 
which sets forth the information an employer may request from the 
employee or covered servicemember, by adding a new paragraph (c)(6) and 
renumbering current paragraph (c)(6) as (c)(7). Proposed paragraph 
(c)(6) permitted an employer to require that the employee or covered 
servicemember indicate whether the member is a veteran, the date of 
separation, and whether the separation was other than dishonorable. The 
proposal also permitted the employer to request documentation 
confirming this information. It indicated that an eligible employee may 
provide a copy of the veteran's DD Form 214 (Report of Separation) or 
other proof of veteran status to satisfy such documentation 
requirement. Two commenters addressed this subparagraph. The 
Partnership and the North Carolina Justice Center commented that the 
Department should use the discharge date on DD Form 214 as the date 
when the veteran officially transitioned from being active duty to 
being a veteran. The Department's intention in referencing DD Form 214 
in the proposal was to indicate that this form was one available method 
of showing the veteran's discharge date. Therefore, the Department 
adopts

[[Page 8859]]

paragraph (c) in the Final Rule without modification.
    Current Sec.  825.310(d) identifies an optional-use form that may 
be used to provide certification for military caregiver leave, Form WH-
385, Certification for Serious Injury or Illness of a Covered 
Servicemember for Military Family Leave. The Department proposed to 
make revisions to this form to implement the statutory amendments. 77 
FR 8963. The Department stated in the NPRM that it was considering the 
development of a new form for certification of military caregiver leave 
for a covered veteran. 77 FR 8972. The Department sought comments on 
whether it would be less confusing to develop a separate form or 
whether adapting the current Form WH-385 would be preferable.
    No comments were received on the Department's proposal to revise 
Form WH-385 to reflect the statutory amendments concerning the 
definition of a serious injury or illness for current servicemembers. 
However, the Department received comments supporting the creation of a 
new form, as well as comments urging the Department to adapt current 
Form WH-385 to reflect the expansion of military caregiver leave to 
covered veterans. Aon Hewitt supported the creation of a separate form 
as this structure would mirror the separate forms available for FMLA 
leave for a serious health condition for an employee and a family 
member. Moreover, Aon Hewitt asserted that one form, combining both 
current servicemembers and covered veterans, would be too cluttered, 
too long, and harder to use. However, the North Carolina Justice Center 
and the Partnership recommended that the Department adapt current Form 
WH-385 for covered veterans in order to avoid confusion and unnecessary 
complication. The Partnership stated that if the Department does adopt 
a separate form for covered veterans, then an employee who has 
previously submitted a form for military caregiver leave for a current 
servicemember should not have to submit a new certification for leave 
to care for that same servicemember when he or she becomes a covered 
veteran.
    The Department considered these comments and has decided to create 
a new form for military caregiver leave for a covered veteran. The 
Department believes that the addition of a separate form will 
ultimately be less confusing for employees, employers, and health care 
providers. Adding information related to the serious injury or illness 
of a covered veteran to current WH-385 would increase the length and 
complexity of the form. Two separate forms, one containing the 
instructions and information germane to a current servicemember and one 
containing the instructions and information germane to a covered 
veteran, will lessen the administrative burden on health care 
providers. Form WH-385 will continue to be the form for military 
caregiver leave for current servicemembers, and the form for covered 
veterans is marked WH-385-V for easy identification. While an eligible 
family member may take military caregiver leave for a current 
servicemember, and again for the same servicemember when he or she 
becomes a covered veteran, the employee must submit a new certification 
form for each leave request. However, the eligible family member, 
assuming he or she is asserting that the covered veteran has a 
qualifying serious injury or the first definition at Sec.  
825.127(c)(2)(i), may attach the original certification with 
appropriate veteran documentation attached as part of the certification 
for leave to care for the covered veteran.
    Form WHD-385 is updated to include injuries and illnesses that pre-
existed the servicemember's active duty but were aggravated in the line 
of duty on active duty. The Department has also amended this form to 
reflect that a health care provider as defined in Sec.  825.125 may 
certify a serious injury or illness for a current servicemember and 
that a serious injury or illness includes a condition that existed 
before the member's military service and was aggravated by service in 
the line of duty on active duty in the Armed Forces.
    As discussed previously in this preamble, the Department has 
decided to remove the forms from the Appendices. The forms for military 
caregiver leave, like the other FMLA forms, are available on the WHD 
Web site (www.dol.gov/whd) and at local WHD offices. Accordingly, 
consistent with the proposal, in this Final Rule the reference to 
Appendix H in paragraph (d) is deleted, and in its place language is 
inserted stating that the applicable form may be obtained either from a 
local WHD office or the WHD Web site.
    In conjunction with the Department's proposal to allow family 
members of covered servicemembers to rely upon certifications completed 
by health care providers that are not affiliated with DOD, VA, or 
TRICARE, the Department proposed in Sec.  825.310(d) to permit second 
and third opinions in these instances. As discussed in the NPRM, when a 
medical certification is completed by a private health care provider 
unaffiliated with the DOD, VA, or TRICARE network system, the process 
is more akin to the certification process for the serious health 
condition of civilian family members. 77 FR 8972. Consequently, the 
Department concluded that in such situations there is no basis to 
prohibit employers from obtaining second and third opinions. For these 
reasons, the Department proposed in Sec.  825.310(d) to state that 
second and third opinions are not permitted when the certification has 
been completed by a DOD health care provider, a VA health care 
provider, a DOD TRICARE network authorized private health care 
provider, or a DOD non-network TRICARE authorized private health care 
provider (identified in Sec.  825.310(a)(1)-(4)), but are permitted 
when the certification has been completed by a health care provider 
that is not one of the types identified in Sec.  825.310(a)(1)-(4).
    Aon Hewitt and the National Business Group on Health expressed 
their support for permitting second and third opinions in cases of 
military caregiver certifications completed by health care providers 
who are not affiliated with the VA, DOD, or TRICARE. In contrast, the 
CCD and Twiga opposed this provision. The CCD questioned the logic of 
permitting second and third opinions, since the current regulation does 
not permit second and third opinions even though a DOD non-network 
TRICARE authorized provider could be almost any health care provider, 
and recommended that the sufficiency of the certification be based on 
the health care provider's expertise and not his or her affiliation. 
Twiga expressed the view that second and third opinions are burdensome 
on military families, especially if a specialist's care is necessary 
because wait times to see a specialist can be long and additional 
expenses may be incurred by family members.
    After considering these comments, the Department has decided to 
retain this provision without change in the Final Rule. In response to 
the CCD's comment that DOD non-network TRICARE authorized providers may 
be any health care provider, the Department continues to believe that 
it is appropriate to distinguish between health care providers who are 
affiliated in some way with DOD, VA, or TRICARE and health care 
providers who have no such affiliation in permitting second and third 
opinions on certifications for military caregiver leave. While 
obtaining second and third opinions may be time consuming, the employee 
remains provisionally entitled to FMLA leave while obtaining the second 
(or third) opinion, and the costs associated with a second or third 
opinion are the responsibility of the employer. See

[[Page 8860]]

Sec.  825.307(b). As the Department explained in the NPRM, permitting 
authorized health care providers as defined in Sec.  825.125 to certify 
military caregiver leave is more akin to the traditional FMLA 
certification process for a serious health condition. Therefore, the 
Department adopts the provision regarding second and third opinions 
when the certification for military caregiver leave is provided by a 
health care provider who is not affiliated with DOD, VA, or TRICARE in 
Sec.  825.310(d) as proposed.
    Other than to update internal references, the Department did not 
propose any changes for Sec.  825.310(e), which addresses the use of 
invitational travel orders (ITO) or invitational travel authorizations 
(ITA) issued for medical purposes, in lieu of a certification form. The 
Department sought comment on the effectiveness of the substitution of 
ITOs and ITAs in support of a need for military caregiver leave, and no 
comments were received. The Final Rule adopts Sec.  825.310(e) as 
proposed.
    In light of the modifications to Sec.  825.310(b)(4)(i) and (ii) to 
permit documentation of a veteran's enrollment in the VA's Program for 
Comprehensive Assistance for Family Caregivers to show that the veteran 
has a qualifying serious injury or illness, the Department creates a 
new paragraph (f) in the Final Rule to address such documentation. 
Section 825.310(f) of the Final Rule requires an employer that is 
requiring an employee to submit a certification for leave to care for a 
covered servicemember to accept as sufficient certification of the 
servicemember's serious injury or illness documentation indicating the 
servicemember's enrollment in the VA's Program for Comprehensive 
Assistance for Family Caregivers. This is similar to the provision in 
paragraph (e) regarding ITOs and ITAs, except that the documentation 
indicating the servicemember's enrollment in the VA's Program for 
Comprehensive Assistance for Family Caregivers serves only to show that 
the covered veteran has a serious injury or illness, but does not 
necessarily establish the other requirements necessary for a complete 
certification. The Final Rule further provides at Sec.  825.310(f) that 
such documentation is sufficient certification of the servicemember's 
serious injury or illness regardless of whether the employee is the 
named caregiver in the enrollment documentation. As with ITOs and ITAs, 
the Final Rule at Sec.  825.310(f)(1) permits an employer to seek 
authentication and clarification of the documentation indicating the 
servicemember's enrollment in the program under Sec.  825.307, but 
indicates that an employer may not utilize the second or third opinion 
process outlined in Sec.  825.307 or the recertification process under 
Sec.  825.308 when the servicemember's serious injury or illness is 
shown by documentation of enrollment in this program. Lastly, the Final 
Rule at Sec.  825.310(f)(2) permits an employer to require that an 
employee provide confirmation of covered family relationship to the 
servicemember and documentation, such as a veteran's Form DD-214, 
showing that the discharge was other than dishonorable and the date of 
the veteran's discharge when an employee supports his or her request 
for FMLA leave with documentation of enrollment in this program.
    Section 825.310(f) currently states that it is the employee's 
responsibility to provide the employer with a complete and sufficient 
certification and describes the consequences of failing to do so. The 
Department proposed to add text that clarified this requirement, 
providing that ``an employee may not be held liable for administrative 
delays in the issuance of military documents, despite the employee's 
diligent, good-faith efforts to obtain such documents.'' While current 
Sec.  825.305(b) states that employees who are unable to provide the 
requested FMLA certification (including certification for military 
caregiver leave) within 15 days despite their diligent, good faith 
efforts must be provided with additional time, the Department believed 
that it was important to reiterate this principle in Sec.  825.310(f). 
The Department sought to clarify that employees may not be held 
responsible for administrative delays in the issuance of military 
documents where a good faith attempt is made by the employee to obtain 
such documents. Two organizations provided comments on this proposal. 
Legal Aid commended the Department for making this clarification in 
Sec.  825.310(f). Twiga suggested that, in light of the burden on 
military families of obtaining second and third opinions from a non-
military-affiliated health care provider, Sec.  825.310(f) should be 
clarified to ``make clear that the extension also applies to second and 
third opinions of non-military doctors.''
    In response to Twiga's comment, the Department notes that the 
current regulations do not prescribe a time frame for completion of 
second or third opinions. Instead, Sec.  825.307(b) provides that when 
an employer seeks a second (and third) opinion, the employee is 
provisionally entitled to the benefits of the FMLA pending the receipt 
of the second (and third) opinion. There is no prescribed time within 
which an employee must obtain the second or third opinion. Therefore, 
the Department believes that it is unnecessary to state in the 
regulation that administrative delays in obtaining medical 
certifications cannot be held against the employee in obtaining second 
and third opinions. Because the Final Rule creates a new paragraph (f), 
the Final Rule redesignates proposed Sec.  825.310(f) as Sec.  
825.310(g) without modification to the text of the paragraph.

B. Revisions To Implement the AFCTCA Amendments Subpart H--Special 
Rules Applicable to Airline Flight Crew Employees

1. Section 825.800 Special Rules for Airline Flight Crew Employees, 
General
    Current Sec.  825.800 contains the definitions of significant 
terms, phrases, and acronyms used in the regulations. In the NPRM, the 
Department proposed to move the definitions section of the regulations 
to Sec.  825.102 to enhance the utility of the regulations. As 
explained earlier in this preamble, the Department has made that 
change, leaving Sec.  825.800 available for the use described here.
    The AFCTCA established special rules for determining whether 
airline flight crew employees meet the hours of service requirement for 
FMLA eligibility, authorized the Department to issue regulations 
providing a method of calculating leave for airline flight crew 
employees, and authorized the Department to issue regulations regarding 
employers' maintenance of certain information for airline flight crew 
employees. In the NPRM, the Department proposed that the regulations 
implementing these provisions of AFCTCA be incorporated by topic in 
Sec. Sec.  825.110 (employee eligibility), 825.205 (calculation of 
leave), and 825.500 (recordkeeping). In the Final Rule, the provisions 
specific to airline flight crew employees are located in a separate, 
newly titled subpart, Subpart H--Special Rules Applicable to Airline 
Flight Crew Employees.
    Accordingly, Sec.  825.800, Special rules for airline flight crew 
employees, general, explains that airline flight crew employees are 
subject to special rules for determining employee eligibility and 
calculation of leave, and that special recordkeeping provisions also 
apply. Section 825.800 also explains that, except as noted, the other 
provisions of the FMLA regulations also apply to airline flight crew 
employees. The proposed revisions concerning the hours of service 
requirement for airline

[[Page 8861]]

flight crew employees are located in Sec.  825.801, Special rules for 
airline flight crew employees, hours of service requirement; the 
proposed additions regarding calculation of leave for airline flight 
crew employees, as modified in response to comments, will be located in 
Sec.  825.802, Special rules for airline flight crew employees, 
calculation of leave; and the proposed addition discussing special 
recordkeeping requirements for employers of airline flight crew 
employees will be located in Sec.  825.803, Special rules for airline 
flight crew employees, recordkeeping requirements. The Department 
believes this reorganization will enhance the utility of the 
regulations and minimize confusion regarding the rules applicable only 
to airline flight crew employees. The Department emphasizes, and has 
noted in the regulatory text, that except as otherwise provided in 
Subpart H, airline flight crew employees and their employers continue 
to be subject to all requirements of the FMLA as set forth in part 825, 
subparts A, B, C, D, E, and G.
2. Section 825.801 Special Rules for Airline Flight Crew Employees, 
Hours of Service Requirement
    The AFCTCA established a special hours of service requirement for 
airline flight crew employees. In the NPRM, the Department proposed to 
insert into Sec.  825.110(c) language implementing this new 
requirement. After considering the comments received, the Department 
has adopted the regulation as proposed in Sec.  825.801.
    Proposed Sec.  825.110(c)(2) provided that airline flight crew 
employees are eligible for FMLA leave if they have worked or been paid 
for not less than 60 percent of the applicable monthly guarantee and 
for not less than 504 hours during the previous 12-month period.
    Proposed paragraph (c)(2)(i) defined the applicable monthly 
guarantee for airline flight crew employees on reserve and non-reserve 
status. As required by the AFCTCA, the Department proposed to define 
the applicable monthly guarantee for non-reserve airline flight crew 
employees as the number of hours for which an employer has agreed to 
schedule the employee for any given month. For airline flight crew 
employees on reserve status, the applicable monthly guarantee would be 
defined as the minimum number of hours for which an employer has agreed 
to pay such employee for any given month. The Department proposed to 
refer to airline flight crew employees who are not on reserve status as 
``line holders'' in the definition of applicable monthly guarantee in 
proposed Sec.  825.102.
    In the first sentence of proposed Sec.  825.110(c)(2)(ii), the 
Department provided that the number of hours that an airline flight 
crew employee has worked would be the employee's duty hours during the 
previous 12-month period. The Department noted its understanding that 
while duty hours may not always reflect all hours that would be 
considered hours worked under the FLSA, duty hours are closely tracked 
in a similar manner by all employers in the industry. The Department 
noted its understanding that the schedule for non-reserve employees is 
based on duty hours, and that duty hours include the flight or block 
hours as determined by the Federal Aviation Administration (FAA) as 
well as additional time before and after the flight as determined by 
employer policy or applicable collective bargaining agreement. The 
Department sought comments on whether this was an accurate 
interpretation of what comprises non-reserve employees' scheduled hours 
or whether some other basis such as flight or block hours would be more 
appropriate for this calculation.
    The second sentence of proposed paragraph (c)(2)(ii) provided that 
the hours for which an airline flight crew employee has been paid are 
the number of hours for which the employee received wages. The 
Department explained that airline flight crew employees are generally 
paid on an hourly basis, and that these hours are routinely tracked by 
each airline.
    In the NPRM, the Department noted that airline flight crew 
employees are eligible for FMLA leave if they meet either the hours 
worked or hours paid requirement. It invited comments on whether the 
proposed calculation methods are the most appropriate bases for 
determining whether an airline flight crew employee has met the hours 
of service requirement.
    Finally, the Department proposed to add language to current Sec.  
825.110(c)(3), which explains an employer's burden when it does not 
maintain accurate records of hours worked for an employee, clarifying 
the application of this rule to airline flight crew employees.
    Few comments were received on the Department's implementation of 
the AFCTCA eligibility requirements in proposed Sec.  825.110(c)(2) and 
(c)(2)(i). Two employee associations, the Air Line Pilots Association 
(ALPA) and the Association of Flight Attendants (AFA), suggested that 
where an employer has determined that an employee meets the 504 hours 
requirement and is prepared to confirm FMLA eligibility based upon that 
criterion alone, the employer should not have to perform the 
calculation for determining whether the employee has worked or been 
paid for 60 percent of the applicable monthly guarantee. Similarly, 
Airlines for America (A4A) \3\ commented that as a matter of 
administrative efficiency, employers should not be required to look 
beyond the 504 hours requirement where that criterion is met. A4A 
suggested that there be a rebuttable presumption that airline flight 
crew employees who have been paid for 504 hours have satisfied the 
eligibility requirements.
---------------------------------------------------------------------------

    \3\ A4A is the principal trade and service organization of the 
U.S. scheduled airline industry. Its members include: Alaska 
Airlines, Inc.; American Airlines, Inc.; ASTAR Air Cargo, Inc.; 
Atlas Air, Inc.; Delta Air Lines, Inc.; Evergreen International 
Airlines, Inc.; Federal Express Corporation; Hawaiian Airlines; 
JetBlue Airways Corp.; Southwest Airlines Co.; United Continental 
Holdings; United Parcel Service Co.; and US Airways, Inc. In 
addition, Air Canada is an A4A associate member, and ABX Air, Inc., 
Allegiant Air, LLC, Global Air Holdings, NetJets, Inc., and Virgin 
America participated in A4A's Labor and Employment Council and 
joined in its comment.
---------------------------------------------------------------------------

    With reference to the Department's implementation of the statutory 
definition of applicable monthly guarantee for airline flight crew 
employees on reserve and non-reserve status, both ALPA and the 
International Association of Machinists and Aerospace Workers (IAM) 
agreed that the Department appropriately defined the applicable monthly 
guarantee. The ALPA further stated that the Department's 
characterization of non-reserve employees as ``line holders'' reflects 
common industry parlance. A4A stated that the distinction between line 
holder and reserve employees has some validity ``insofar as the monthly 
guarantee test for eligibility''.
    The vast majority of commenters who addressed the Department's 
proposal to use duty hours as the number of hours that an airline 
flight crew employee has worked for purposes of meeting the hours of 
service requirement supported the proposal. Employer and employee 
groups, such as ALPA, AFA, APFA, IAM, United Steelworkers (USW), and US 
Airline Pilots Association (USAPA), stated that duty hours provide the 
most uniform basis for determining hours of service for FMLA 
eligibility purposes, and most accurately represent the amount of time 
an airline flight crew employee is working in any single day. Senators 
Harkin and Murray also supported the Department's use of duty hours to 
determine the hours an employee has worked for purposes of

[[Page 8862]]

determining the hours of service requirement, stating that they 
understand that duty hours are tracked by all airlines, as required by 
the FAA. In addition, several commenters, including ALPA, 
Transportation Trades Department, AFL-CIO (TTD), IAM, and USAPA, 
confirmed the Department's understanding that scheduled hours for line 
holders encompass duty hours. ALPA, AFA, APFA, IAM, and TTD commented 
that the term duty hours should also encompass time spent in mandatory 
training such as ground school and simulator training or training for 
new aircraft or services as required by the FAA and carriers. AFA 
further commented that the Department should provide a definition for 
duty hours in the regulations, explaining all of the duties that may be 
encompassed within the term, including training time.
    Two commenters opposed the Department's use of the term duty hours. 
Legal Aid stated that hours of service should be measured by hours paid 
rather than duty hours, arguing that there are many different 
contractual definitions of on duty within the industry. RAA claimed 
that defining eligibility as duty hours imposes an ``artificial and 
undefined term upon the industry.'' RAA suggested that the Department 
should instead utilize either the carrier's own minimum guarantee 
components or an industry standard such as flight or block hours.
    The Department received few, and only positive, comments regarding 
its proposal to define hours paid to an airline flight crew employee as 
the number of hours for which the employee received wages. ALPA stated 
that the Department proposed an appropriate measure because airline 
flight crew employees are generally paid on an hourly basis, and such 
hours are regularly tracked by carriers. AFA agreed that the proposed 
definition was ``appropriate and fair.''
    Several commenters supported the Department's proposed revision to 
the explanation of the employer's burden of proof in current Sec.  
825.110(c)(3). ALPA, TTD, and IAM stated that the provision 
appropriately places the burden of proving employee ineligibility if 
the employer fails to keep accurate records of hours worked or paid, 
and is consistent with application of the law for non-airline flight 
crew employees.
    After careful consideration of the comments received, the 
Department has decided to adopt the provisions as proposed, with the 
aforementioned relocation to Subpart H. Section 825.801(a) explains 
that airline flight crew employees remain subject to the eligibility 
requirements in Sec.  825.110 other than those regarding the hours of 
service requirement. Section 825.801(b) contains the text that appeared 
in proposed Sec.  825.110(c)(2). (Consistent with this change, the 
Department has updated the cross references in the definitions of 
airline flight crew employee and applicable monthly guarantee in Sec.  
825.102 to refer to Sec.  825.801.) Section 825.801(c) explains the 
exception to the special rules in paragraph (b) for absences from work 
due to or necessitated by USERRA-covered service, consistent with Sec.  
825.110(c)(2). Section 825.801(d) contains the proposed text regarding 
the employer's burden of proof in the absence of accurate records.
    The Department has adopted the definition of applicable monthly 
guarantee as proposed because it received positive comment on this 
portion of the proposal and the text conforms to the requirements of 
the AFCTCA. With regard to commenters that requested that the 
Department approve use of an abridged method for determining whether an 
employee meets the hours of service requirement, basing eligibility 
only on the 504-hour criterion, the Department notes that the AFCTCA 
sets forth a two-part test for eligibility and the Department does not 
have authority to alter its requirements. The AFCTCA requires that both 
criteria be met, stating that an employee that has worked or been paid 
for not less than 60 percent of the applicable monthly guarantee and 
for not less than 504 hours (not including personal commute time or 
time spent on vacation leave or sick or medical leave) during the 
previous 12-month period meets the hours of service eligibility 
requirement. The Department notes that consistent with the purpose and 
intent of the FMLA, and the Department's longstanding policy, an 
employer is not prohibited from providing a more generous leave policy 
provided the employer complies with the FMLA. See Sec.  825.700(b) 
(explaining that nothing in the Act is intended to discourage employers 
from adopting or retaining more generous leave policies than are 
required). Therefore, if an employer of airline flight crew employees 
chooses to assume that all employees who meet the 504-hours requirement 
also meet the 60 percent requirement, the employer may do so, provided 
that they only deduct from employees' FMLA leave entitlements leave 
that is covered under the Act.
    Additionally, the Department notes that it continues to use the 
term line holder in the definition of applicable monthly guarantee in 
Sec.  825.102. Because comments confirmed that the industry uses the 
term line holder to refer to an airline flight crew employee who is not 
on reserve status, the Department believes use of this term is 
appropriate.
    The Final Rule will also, as proposed, define an airline flight 
crew employee's hours worked as duty hours. The response to this 
proposal was largely positive. As many industry commenters indicated, 
an airline flight crew employee's typical day of work can include a 
variety of support duties that begin before a plane takes flight and 
end after it lands. In contrast to flight or block hours, duty hours 
encompasses time spent performing these duties. Furthermore, the 
inclusion of time worked beyond actual flight time is consistent with 
the FAA's definition of duty period. See 14 CFR 121.467(a) (defining 
duty period as ``the period of elapsed time between reporting for an 
assignment involving flight time and release from that assignment''). 
Furthermore, the Department did not find Legal Aid or RAA's comments 
opposed to use of the term duty hours persuasive. Even if duty hours 
are not always precisely or consistently defined by different air 
carriers, they are, as other commenters noted, the most accurate 
readily available measure of hours worked in the airline industry. As 
explained, the alternative definition of hours worked considered by the 
Department and suggested by RAA, flight or block hours, discounts 
significant amounts of time when airline flight crew employees are 
working. RAA's other suggestion, to define hours worked as the hours 
used by each carrier to measure the applicable monthly guarantee, would 
similarly undercount time spent working as to many airline flight crew 
employees because, according to RAA itself, the guarantee is 
``[t]ypically'' based on flight or block hours.
    In light of the overwhelming response from commenters that the term 
duty hours is recognized and widely utilized by carriers and employees 
in the industry, the Department does not find it necessary to provide 
further definition of the term in the regulatory text. Further, in 
response to comments specifically requesting the inclusion of training 
time in the definition of duty hours, the Department declines to alter 
the proposed regulatory text but notes that some airline employers pay 
for training time and to the extent airline flight crew employees are 
paid for time spent in training, that time will be counted toward the 
employee's hours of service requirement.
    The Department adopts in Sec.  825.801(b)(2) its definition of 
hours

[[Page 8863]]

paid to airline flight crew employees as proposed because, based on the 
positive comments received, the Department believes that definition is 
logical, easy to understand, and easy to administer. The Department 
also inserts a new paragraph Sec.  825.801(c) to address the 
application of USERRA covered service to airline flight crew employees. 
This paragraph is consistent with the general provisions concerning 
USERRA-covered service in determining employees' eligibility found at 
Sec.  825.110(c)(2).
    The Department also adopts the proposed language regarding an 
employer's burden of proof. Placing the burden of proving employee 
ineligibility on the employer if the employer does not maintain 
accurate records of the employee's hours worked or paid is consistent 
with application of the law to non-airline flight crew employees. This 
statement, proposed as a revision to current Sec.  825.110(c)(3), is 
located in Sec.  825.801(d), with some duplication of the text in 
current Sec.  825.110(c)(3) to provide appropriate context.
3. Section 825.802 Special Rules for Airline Flight Crew Employees, 
Calculation of Leave
    The current regulations contain no provision regarding the 
calculation of FMLA leave specifically for airline flight crew 
employees. The AFCTCA explicitly authorized the Department to 
promulgate such regulations.
    In the NPRM, the Department proposed to address FMLA leave 
calculation for airline flight crew employees in Sec.  825.205(d). 
Proposed Sec.  825.205(d)(1) provided the method for calculating leave 
usage for airline flight crew employees who are line holders, i.e., who 
are not on reserve status, based on principles established for the 
calculation of FMLA leave for eligible employees who are not airline 
flight crew employees. Specifically, the Department proposed that the 
employee's scheduled workweek (defined as the number of scheduled duty 
hours for that workweek) would serve as the basis for calculating FMLA 
leave usage. The amount of FMLA leave used would be determined on a pro 
rata or proportional basis.
    Proposed Sec.  825.205(d)(2) provided the method for calculating 
leave usage for airline flight crew employees on reserve status. For 
those employees, an average of the greater of the applicable monthly 
guarantee or actual duty hours worked in each of the prior 12 months 
would be used to calculate the employee's average workweek. The amount 
of FMLA leave used would be determined on a pro rata or proportional 
basis. The Department proposed use of the calculation method described 
for airline flight crew employees on reserve status for employees who 
work as both line holders and on reserve status, as this method was 
flexible enough to encompass both the applicable monthly guarantee and 
duty hours.
    The Department sought comment on these proposed methods of 
calculation of leave. It also requested comment on industry practice in 
this area, application of the FMLA regulations to employees who work on 
both reserve and non-reserve status, and alternative FMLA leave 
calculation methods. For the reasons stated below, the Department is 
modifying the method for calculation of leave for airline flight crew 
employees, and is implementing a uniform leave entitlement for such 
employees at Sec.  825.802, Special rules for airline flight crew 
employees, calculation of leave.
    Comments from both employee and employer groups opposed the 
Department's proposed methods of FMLA leave calculation for airline 
flight crew employees. Almost uniformly, commenters representing air 
carrier employers, flight crew employee organizations, and labor 
organizations, such as TTD, A4A, IAM, and Senators Harkin and Murray, 
asserted that due to the unique scheduling practices in the airline 
industry, the proposed calculation of leave methods would be 
complicated to administer, cause confusion, and lead to inequitable 
deductions from employees' FMLA entitlements. Even commenters who 
appreciated that the Department's proposal was an attempt to treat 
airline flight crew employees similarly to other employees with 
variable schedules, such as ALPA, nevertheless opposed the proposal 
because of its complexity and variability.
    The Department received two comments regarding the proposed 
distinction between line holders and employees on reserve status for 
leave calculation purposes, both of which were critical. RAA stated 
that many line holders also work reserve days, while reserves are often 
assigned lines during their reserve period. A4A cautioned that drawing 
this distinction for calculation of leave purposes would be 
inappropriate, because airline flight crew employees do not clearly fit 
within the Department's proposed categories. Both RAA and A4A suggested 
that by requiring air carriers to use the 12-month averaging option for 
employees who worked as both line holders and reserves, the Department 
was unnecessarily complicating FMLA leave calculation.
    There was near consensus among commenters representing both 
employers and employees in the airline industry regarding an 
appropriate alternative method for calculating FMLA leave for airline 
flight crew employees. Employer and employee groups, including IAM, 
ALPA, TTD, APFA, A4A, AFA, and USAPA, supported the establishment of a 
uniform FMLA leave entitlement for airline flight crew employees, with 
a one-day increment for leave use. A4A noted that prior to the AFCTCA, 
various air carriers had instituted internal FMLA programs, including 
leave entitlement banks, which have proved to be successful. ALPA, 
among other commenters, believed this approach would be easier for 
airline flight crew employees to understand and for employers to 
administer.
    RAA opposed the Department's proposal but did not suggest the 
establishment of a uniform leave entitlement. Rather, RAA suggested 
that unique calculation provisions for airline flight crew employees 
are unnecessary. RAA stated that the Department's two proposed 
calculation methods are historical methods, long utilized to administer 
FMLA leave, and that under the current regulations, airline carriers 
should be able to make the proper distinction as to what method 
(fractional workweek method versus 12-month averaging) to use based on 
an individual employee's work schedule, regardless of reserve status.
    Although commenters were nearly universally in favor of a uniform 
FMLA leave entitlement or ``bank'' for airline flight crew employees, 
there were several different suggestions regarding the appropriate size 
of that entitlement. IAM noted that they had already negotiated an 
entitlement bank of 90 days for flight attendant contracts, and stated 
that a uniform bank of 84 days (7 days x 12 weeks) for all airline 
flight crew employees would be a ``fair application'' of the FMLA 
entitlement. APFA agreed that all airline flight crew employees should 
be entitled to a uniform bank of 84 days, and explained that this 84-
day bank is currently used by American Airlines. TTD stated that while 
an 84-day bank was ``ideal,'' a 72-day bank was the ``absolute minimum 
benefit'' that should be considered. AFA also suggested a bank of 72 
days, contending that this would be the ``simplest calculation'' for an 
FMLA entitlement. USAPA and ALPA both supported a bank of 72 days. 
These commenters explained that a 72-day bank was based on FAA 
regulations mandating that airline flight crew employees have one 24-
hour period off

[[Page 8864]]

duty in any 7-day period, giving the employee a maximum possible 6-day 
workweek. (6 days x 12 weeks = 72 days of FMLA leave.) A4A suggested 
significantly smaller numbers, reasoning that for non-airline flight 
crew employees, the FMLA entitlement represents 23 percent of the 
average work year (52 weeks divided by 12 weeks) and therefore the 
uniform entitlement for airline flight crew employees should consist of 
a reasonable proxy for 23 percent of the average work year for a 
typical airline flight crew employee. Because of each airline's unique 
operations, schedules, policies, and collective bargaining agreements, 
A4A suggested that each air carrier establish its own entitlement based 
on the average days worked by its airline flight crew employees. A4A 
provided the example that if a carrier's pilots averaged 200 work days 
per year, then an allotment bank of 46 days would be the equivalent of 
12 weeks (200 days x 23 percent = 46 days of FMLA leave).
    Additionally, APFA urged the Department to provide a definition for 
``day.'' APFA believed that a day should be defined as a single 
scheduled duty period, which they noted is the approach utilized by 
American Airlines for charging employees for the use of vacation days.
    The Department has thoroughly considered the comments, and agrees 
with the commenters that asserted the unique scheduling practices of 
the airline industry could make administering FMLA leave as proposed 
confusing and difficult for airline flight crew employees and their 
employers. In particular, because of the constantly and widely 
fluctuating workweeks of many airline flight crew employees, the 
calculation of leave rules proposed would have created uncertainty 
about how much intermittent or reduced schedule FMLA leave an employee 
had used and/or had available. Further, the Department understands that 
the proposed differentiation between line holders and reserves for 
purposes of leave calculation is inconsistent with the realities of the 
airline industry. Although the Department attempted to create a method 
that was similar to the way other employers and employees calculate 
FMLA leave, the Department is convinced by the many comments it 
received that the airline industry is best served by a different 
system.
    The Department adopts in Sec.  825.802(a) a uniform entitlement, 
expressed as a number of days, for eligible airline flight crew 
employees taking leave for an FMLA-qualifying reason. The Department 
believes that a uniform day entitlement of FMLA leave allows for clear 
FMLA entitlement calculations for the airline industry. It also 
reflects a consensus among commenters representing both airline flight 
crew employees and their employers. The Department has considered RAA's 
comment and acknowledges that the adopted method does not track 
employees' actual workweeks as is required for FMLA leave usage for all 
other types of employees. However, the Department was persuaded by the 
majority of comments from the airline industry which made clear how 
difficult the proposed methods of calculation of FMLA leave, from which 
RAA's proposal would not significantly differ, would be to administer 
and understand.
    Additionally, the Department concludes that the appropriate size of 
the uniform entitlement is 72 days of leave for one or more of the 
FMLA-qualifying reasons set forth in Sec. Sec.  825.112(a)(1)-(5). This 
number corresponds to the maximum 6-day workweek an airline flight crew 
employee can work under FAA regulations. (6 days x 12 workweeks = 72 
days of FMLA leave.) See, e.g., TTD, USAPA, AFA, ALPA; see also 14 CFR 
121.471(d) (mandating that airline flight crew employees have one 24-
hour period off duty in any seven-day period). By the same method, the 
Department concluded that airline flight crew employees are entitled to 
156 days of military caregiver leave. (6 days x 26 workweeks = 156 days 
of military caregiver leave.)
    Section 825.802(b) explains that an employer must account for an 
airline flight crew employee's intermittent or reduced schedule FMLA 
leave usage utilizing an increment no greater than one day. In light of 
the practical realities of the airline industry, the Department agrees 
with the numerous commenters representing both airline flight crew 
employees and their employers who agreed that one day is the most 
suitable increment of FMLA leave. As stated in Sec.  825.802(b)(1), if 
an airline flight crew employee needs to take FMLA leave for a two-hour 
physical therapy appointment, the employer may require the employee to 
use a full day of FMLA leave, during which the employee would not 
return to work. The entire amount of leave actually taken (in this 
example, one day) is designated as FMLA leave and would be deducted 
from the employee's 72-day entitlement. Further, if the employee must 
miss work for a physical therapy appointment for an FMLA-qualifying 
reason once a week for eight weeks, the employer may subtract one day 
each week from the employee's entitlement, provided that in each 
instance of leave, the employer restores the employee to work the 
following day. After eight weeks, if no other FMLA leave had been 
taken, the employee would have used eight days of FMLA leave and have 
64 days of FMLA leave remaining.
    The Department emphasizes that the provisions set forth in Sec.  
825.802 maintain an FMLA entitlement of 12 workweeks, as required by 
statute, and assumes a uniform six-day workweek for airline flight crew 
employees. For example, an airline flight crew employee who takes four 
weeks of FMLA leave will use 24 days of FMLA leave regardless of how 
many days he or she was scheduled to work, or for which he or she would 
have been paid, during that week. (6 days x 4 workweeks = 24 days of 
FMLA leave.) Where an airline flight crew employee takes two days of 
intermittent FMLA leave in one workweek, he or she has taken leave for 
two days of his or her six-day workweek regardless of the number of 
days he or she was scheduled to work or for which he or she would have 
been paid during that week and two days would be subtracted from the 
employee's leave entitlement.
    The Department further emphasizes that the rules set forth in Sec.  
825.802, including the use of one-day increments, are applicable only 
to airline flight crew employees. The AFCTCA specifically provided the 
Department with authority to promulgate regulations regarding the 
calculation of leave for airline flight crew employees. Congress 
clearly contemplated that the general FMLA leave calculation provisions 
might not be appropriate for flight crew employees. The Department has 
determined that a special leave calculation rule is necessary in light 
of the unique scheduling constraints of the airline industry. The one-
day increment in Sec.  825.802 applies only to airline flight crew 
employees. All eligible employees who are not airline flight crew 
employees, as defined in Sec.  825.102, are subject to the minimum 
increment rules set forth in Sec.  825.205(a)(1), which, among other 
requirements, permit the use of FMLA leave in increments no greater 
than one hour.
    Concerning APFA's comment addressing what constitutes a ``day,'' 
the Department understands a ``day'' to mean one calendar day, 
consistent with other provisions of the Act. See Sec. Sec.  825.115; 
825.120; 825.126; 825.213; 825.305; 825.308; 825.313. The Department is 
concerned that accounting for days in any other manner would create 
administrative difficulties.

[[Page 8865]]

    Finally, as indicated in Sec.  825.800(b), except as otherwise 
provided in this subpart, airline flight crew employees and their 
employers continue to be subject to the requirements of the FMLA as set 
forth in part 825. In particular, the Department emphasizes that two 
broadly applicable rules about the calculation of FMLA leave continue 
to apply to airline flight crew employees despite the special 
calculation method set out in Sec.  825.802. First, the physical 
impossibility provision set forth in Sec.  825.205(a)(2) applies to 
airline flight crew employees. Section 825.802(c) makes this point by 
explaining that Sec.  825.205, which sets forth rules for calculation 
of intermittent or reduced schedule FMLA leave for all employees who 
are not airline flight crew employees, does not apply to airline flight 
crew employees except for paragraph (a)(2) of that section, the 
physical impossibility provision. Second, as required by the Act, in 
all cases, if an employer chooses to restore an employee to work on the 
same day during which intermittent or reduced schedule FMLA leave is 
taken, the employee's FMLA leave entitlement may not be reduced by more 
than the amount of leave actually taken. See 29 U.S.C. 2612(b)(1).
4. Section 825.803 Special Rules for Airline Flight Crew Employees, 
Recordkeeping Requirements
    The current regulations do not contain recordkeeping requirements 
that apply specifically to employers of airline flight crew employees. 
In the NPRM, the Department proposed to add a new paragraph, Sec.  
825.500(h), that described the statutory requirement, established by 
AFCTCA, that employers of airline flight crew employees maintain 
certain records ``on file with the Secretary.'' The Department 
explained that proposed paragraph (h) provided that records are to be 
maintained on file by the employer by making, keeping, and preserving 
records in accordance with the requirements already delineated in Sec.  
825.500, with no actual submission to the Secretary unless requested. 
Proposed Sec.  825.500(h)(1) and (h)(2) outlined additional records 
that employers of airline flight crew employees must maintain on file. 
Paragraph (h)(1) required employers of airline flight crew employees to 
make, keep, and preserve any records or documents that specify the 
applicable monthly guarantee for each type of employee to whom the 
guarantee applies, including any relevant collective bargaining 
agreements or employer policy documents that establish the applicable 
monthly guarantee. Proposed paragraph (h)(2) required employers of 
airline flight crew employees to make, keep, and preserve records of 
hours scheduled.
    The Department received no substantive comments regarding proposed 
Sec.  825.500(h). The Department adopts the text essentially as 
proposed, but proposed Sec.  825.500(h) will be located in Sec.  
825.803, Special rules for airline flight crew employees, recordkeeping 
requirements.
    In the Final Rule, Sec.  825.803(a) makes clear that the 
requirements of Sec.  825.500 apply to employers of airline flight crew 
employees. Section 825.803(b) describes, as proposed Sec.  
825.500(h)(1) and (h)(2) did, the additional recordkeeping requirements 
that apply to those employers. The Department has slightly modified 
proposed paragraph (h)(2); the text of Sec.  825.803(b)(2) now 
specifies, consistent with the AFCTCA, that employers of airline flight 
crew employees must make, keep, and preserve records of hours worked 
and hours paid, as those terms are defined in new Sec.  825.801(b)(2).

C. Proposed Revisions Definitions (Sec.  825.102), Employee Eligibility 
(Sec.  825.110), Calculation of Leave (Sec.  825.205), and 
Recordkeeping (Sec.  825.500)

1. Section 825.102 Definitions
    In the NPRM, the Department proposed to move Sec.  825.800, which 
currently contains the definitions of significant terms, phrases, and 
acronyms used in part 825, to Sec.  825.102, which is currently 
reserved. The Department intended the reorganization to enhance the 
utility of the regulations by defining terms before they are used in 
the substantive provisions. Additionally, the proposed change would 
organize the regulations to be more consistent with other regulations 
implementing statutes administered by the WHD.
    The Department received comments from the Coalition and SHRM 
addressing the proposed relocation of the definitions section, both of 
which supported the change. Therefore, the Department adopts the 
proposal, and the definitions section appears in the Final Rule as 
Sec.  825.102.
    Discussions of comments regarding the proposed substantive changes 
to certain definitions, as well as modifications to those definitions, 
appear in the parts of this preamble addressing each of the relevant 
substantive regulatory sections to which those definitions correspond.
    In the Final Rule, the Department modifies the definitions of the 
terms covered servicemember, eligible employee, serious injury or 
illness, and son or daughter on covered active duty or call to covered 
active duty status in Sec.  825.102 to mirror the modifications to the 
definitions of these terms that are made in the corresponding relevant 
substantive regulatory sections. In addition, in the Final Rule, the 
Department adds definitions for the new terms airline flight crew 
employee, applicable monthly guarantee, covered active duty or call to 
covered active duty status, and covered veteran to Sec.  825.102 to 
mirror the addition of these terms and their definitions that are made 
in the corresponding relevant substantive regulatory sections. The 
Department also updated the cross-references that appear in the 
definitions of contingency operation, next of kin of a covered 
servicemember, parent of a covered servicemember, and son or daughter 
of a covered servicemember in the Final Rule in Sec.  825.102. The 
Department modified the definition of outpatient status in the Final 
Rule in Sec.  825.102 to reflect the fact that this term is only 
relevant to current servicemembers. The Department also proposed to 
add, as an aid and service to the reader, definitions of the terms ITO 
or ITA, key employee, military caregiver leave, reserve components of 
the Armed Forces, and TRICARE, which are terms that are already used in 
the regulations. The Final Rule adopts these definitions as proposed. 
Lastly, the Department removes, as proposed, the terms active duty or 
call to active duty status and covered military member from the Final 
Rule because these terms are no longer relevant.
2. Section 825.110 Eligible Employee
    Section 825.110 sets forth the eligibility standards an employee 
must meet in order to take FMLA leave. To be eligible, an employee must 
have been employed by the employer for at least 12 months, must have 
been employed for at least 1,250 hours of service in the 12-month 
period immediately preceding the commencement of the leave, and must be 
employed at a worksite where 50 or more employees are employed by the 
employer within 75 miles.
    The Department proposed revisions to Sec.  825.110(a), (c) and (d) 
to reflect the AFCTCA's special definition of the hours of service 
requirement for airline flight crew employees. As explained earlier in 
this preamble, the Department has decided to place the provisions 
implementing the AFCTCA in new Subpart H--Special Rules Applicable to 
Airline Flight Crew Employees.

[[Page 8866]]

Proposed Sec.  825.110(c)(2), as well as the proposed addition to Sec.  
825.110(d) relevant to airline flight crew employees, are moved to 
Sec.  825.801, Special rules for airline flight crew employees, hours 
of service requirement, and comments on that topic are discussed in the 
section of this preamble addressing Sec.  825.801. Because proposed 
paragraph (c)(2) will now appear in Subpart H, the Department will not 
implement its proposal to renumber current paragraphs (c)(2) and (c)(3) 
and cross-references to Sec.  825.801 have replaced references to 
proposed paragraph (c)(2) in current paragraphs (a)(2) and (c)(1) of 
Sec.  825.110. Additionally, for accuracy where statements apply to 
airline flight crew employees as well as other types of employees, the 
Department has replaced references to 1,250 hours with the term ``hours 
of service requirement'' in Sec. Sec.  825.110(c)(2) and (d), 
825.300(b)(3), and 825.702(g). The Department has also inserted, after 
the references to hours worked in Sec. Sec.  825.301(b)(2) and 
825.702(g), clarification that, as required by AFCTCA and set forth in 
Sec.  825.801(b), the relevant number for airline flight crew employees 
only is of hours worked or paid. Corresponding updates are made to the 
definition of eligible employee in Sec.  825.102.
    The Department also proposed clarifying edits to Sec. Sec.  
825.110(b), (c), and (d) that were not specific to airline flight crew 
employees. Two of these changes were to references in the current 
regulations to the Uniformed Services Employment and Reemployment Act 
(USERRA). Current Sec.  825.110(b)(2)(i) concerns employee eligibility 
when there is a break in service occasioned by the fulfillment of the 
employee's National Guard or Reserve military service. The Department 
proposed to modify the language in the first sentence of Sec.  
825.110(b)(2)(i) to clarify that the protections afforded by USERRA 
extend to all military members (active duty and reserve) returning from 
USERRA-qualifying military service. Current Sec.  825.110(c)(2) 
provides rules pursuant to USERRA for crediting an employee returning 
from a National Guard or Reserve obligation with the hours of service 
that would have been performed but for the military service when 
evaluating whether the hours of service eligibility requirement has 
been met. The Department proposed to modify the language in this 
paragraph in recognition that USERRA rights may extend to certain 
employees returning to civilian employment from service in the Regular 
Armed Forces.
    The Department received two comments regarding the proposed 
references to USERRA in the regulations. The Coalition supported the 
Department's proposed change to current Sec.  825.110(c)(2), stating 
that the language properly aligns with the USERRA regulations. NELA 
recommended clarification of current Sec.  825.110(c)(2), expressing 
concern that the reference to the period of military service in the 
regulatory text could be misconstrued as allowing an employer to count 
only the amount of time spent performing military duty rather than--as 
required by the USERRA regulation at 20 CFR 1002.210--the entire length 
of absence due to or necessitated by military service. Accordingly, 
NELA suggested that the Department replace the phrase ``the period of 
military service'' with ``the period of absence from work due to or 
necessitated by military service.'' NELA also suggested similar edits 
to the definition of eligible employee in proposed Sec.  825.102. NELA 
also commented that the current definition of eligible employee in 
Sec.  825.800 includes only National Guard and Reserve service as 
service that may be credited toward FMLA eligibility requirements, and 
recommended that the phrase National Guard or Reserve military service 
obligation in paragraph (1)(i) and the phrase National Guard or Reserve 
military obligation in paragraph (2)(i) be replaced with USERRA-
protected military service obligation.
    The Department has carefully considered the comments regarding the 
proposed changes to the USERRA provisions and has decided to adopt the 
proposed changes to Sec.  825.110(b)(2)(i) and (c)(2), with 
modification, as well as corresponding modifications elsewhere in the 
regulations, in response to comments and for consistency with USERRA 
regulations. The Department believes the revised language clarifies 
that these provisions refer to both active and reserve military 
members. Additionally, the Department agrees that using the language of 
the USERRA regulations provides consistency and should prevent any 
misunderstanding concerning the impact of the employee's military 
service on his or her entitlement to FMLA, and is therefore 
implementing NELA's suggested revisions. The Department is also 
referring to the protected services as USERRA-covered service 
throughout the regulations to accurately reflect that these provisions 
apply to an absence from work due to any service covered by USERRA. 
Accordingly, the phrase the period of military service is replaced by 
the period of absence from work due to or necessitated by USERRA-
covered service in paragraph (c)(2), and the Department makes 
corresponding changes to language in Sec.  825.110(b)(2)(i), the 
definition of eligible employee in Sec.  825.102, and Sec.  825.702(g), 
which also addresses the interaction of USERRA and the FMLA. The 
Department believes that these revisions will ensure that, consistent 
with the USERRA regulations, the entire absence necessitated by USERRA-
protected service will be counted in computing a returning military 
member's eligibility.
    Finally, the Department also proposed, for purposes of clarity, 
replacing the general reference to eligibility requirements in the 
second sentence of Sec.  825.110(d) with a specific reference to the 
12-month eligibility requirement. The Department did not receive any 
comments regarding this proposed revision, and adopts Sec.  825.110(d) 
as proposed.
3. Section 825.205 Increments of FMLA Leave for Intermittent or Reduced 
Schedule Leave
    In the NPRM, the Department proposed several changes to Sec.  
825.205 to clarify the existing rules regarding intermittent or reduced 
schedule FMLA leave and to implement the AFCTCA provisions regarding 
calculation of FMLA leave for airline flight crew employees. The 
Department also proposed removing the varying increments of leave rule 
from this section and sought comment on whether the physical 
impossibility rule should also be removed. The Department is adopting 
most of the changes as proposed, declining to adopt others, and making 
additional clarifying changes in response to comments. The Department 
is revising the proposed provision regarding the calculation of FMLA 
leave for airline flight crew employees, but because the Department has 
relocated the relevant regulatory text to Sec.  825.802, those 
revisions are discussed in that section of this preamble.
Minimum Increment
    Current Sec.  825.205(a)(1) defines the permissible increment of 
intermittent or reduced schedule FMLA leave as an increment no greater 
than the shortest period of time that the employer uses to account for 
other forms of leave, provided that it is not greater than one hour and 
further provided that an employee's FMLA leave entitlement may not be 
reduced by more than the amount of leave actually taken. This paragraph 
also permits employers to utilize different increments of FMLA leave at 
different times of the day or shift under certain circumstances, a 
provision referred to in this preamble as

[[Page 8867]]

the ``varying increments rule.'' In the NPRM, the Department proposed 
three clarifying changes and one substantive change to Sec.  
825.205(a)(1). 77 FR 8974.
    The Department's three proposed clarifying changes were intended to 
more thoroughly explain concepts already set forth in the Act and in 
paragraph (a)(1). First, the Department proposed re-inserting language 
used in the 1995 regulation at Sec.  825.203(d) to clarify that an 
employer may not require an employee to take more leave than is 
necessary to address the circumstances that precipitated the need for 
leave. Second, the Department proposed inserting an example to 
illustrate that when an employer uses different increments to account 
for different types of leave, the employer must use the smallest of the 
increments to account for FMLA leave usage. Third, the Department 
proposed adding language to emphasize that an employer may only reduce 
an employee's FMLA entitlement by the amount of leave actually taken, 
excluding any time after an employee has returned to work.
    The Department received few comments addressing these three 
proposed clarifications to paragraph (a)(1). Labor organizations, such 
as the Brotherhood of Locomotive Engineers and Trainman (BLET) and 
United Transportation Union (UTU), supported the proposed clarification 
regarding the prohibition on requiring an employee to take more FMLA 
leave than necessary, commenting that ``returning this language to the 
regulations * * * is a needed reminder to employers.'' The Equal 
Employment Advisory Council (EEAC), however, expressed concern that the 
proposed clarification would result in additional confusion, because 
``it could be read as requiring employers to return to counting 
intermittent leave in the smallest increments that their payroll system 
is capable of calculating.'' SHRM also opposed insertion of this 
language because, SHRM believed, it is redundant and could cause 
confusion. No commenters addressed the insertion of the example 
regarding an employer's use of different increments for different types 
of leave. As to the third clarification, regarding the prohibition on 
reducing an employee's entitlement by more than the amount of leave 
actually taken, the Coalition acknowledged that this requirement 
appears in the statute but stated that ``[a]bsent a showing the current 
language has somehow resulted in harm to affected employees, the 
language should not be amended from its current form.'' In contrast, 
one individual commenter thought that because this third proposed 
addition is merely a clarification of an existing requirement, ``there 
is no cogent reason not to include it.''
    After careful consideration of the comments regarding the three 
clarifying changes proposed in paragraph (a)(1), the Department adopts 
the clarifying language as proposed, with one modification. The 
Department adopts the proposed language stating that an employer may 
not require an employee to take more leave than necessary. As explained 
in the NPRM, the proposed language was reinserted as a clarification of 
an employer's statutory obligation. The adopted regulatory text makes 
clear that this principle does not alter an employer's obligation to 
account for FMLA leave in an increment no greater than the smallest 
increment the employer uses to account for other forms of leave so long 
as it is not greater than one hour and the employee is not required to 
take more leave than is necessary. For that reason, the Department 
disagrees with the comments asserting that the language could be 
understood to impose a requirement to use the smallest increment made 
possible by a company's timekeeping system. In response to those 
comments, the Department emphasizes that it is not creating a 
requirement that employers track FMLA leave using the smallest 
increment possible under their payroll timekeeping systems. Rather, as 
explained in the 2008 Final Rule, the increment of FMLA leave is 
determined by the increment of leave used by the employer for other 
types of leave (subject to a one hour maximum). The regulatory text 
further explains that the clarifying provision is subject to the 
physical impossibility rule in paragraph (a)(2) and the special rules 
for intermittent leave for school employees in Sec. Sec.  825.601 and 
825.602. The Final Rule modifies the proposed language to make clear 
that this provision is also subject to the unique increment of leave 
rules for airline flight crew employees in Sec.  825.802.
    The Department also adopts the proposed illustrative example 
regarding an employer's use of different increments for different types 
of leave. The Department received no comments addressing this 
clarifying edit, and continues to believe the new example serves to 
make Sec.  825.205(a)(1) more understandable.
    Additionally, the Department adopts the proposed clarifying 
language concerning an employer's obligation to deduct from an 
employee's FMLA entitlement only the amount of leave actually taken. As 
the Coalition acknowledged, the proposed regulatory text simply 
restates a statutory requirement. See 29 U.S.C. 2612(b)(1). 
Furthermore, the Department believes this clarification in the 
regulatory text will aid employers and employees to better understand 
the counting of FMLA leave usage when an employee returns to work after 
intermittent or reduced schedule leave. Accordingly, where an employer 
chooses to waive its increment of leave policy in order to return an 
employee to work--for example, where an employee arrives a half hour 
late to work due to an FMLA-qualifying condition and the employer 
waives its normal one-hour increment of leave and puts the employee to 
work immediately--only the amount of leave actually taken by the 
employee may be counted against the FMLA entitlement.
    In addition to proposing specific clarifying language for paragraph 
(a)(1), the Department also proposed to remove the sentence stating 
that if an employer accounts for use of leave in varying increments at 
different times of the day or shift, the employer may not account for 
FMLA leave in a larger increment than the shortest period used to 
account for other leave during the period in which the FMLA leave is 
taken. In the NPRM, the Department noted that its enforcement 
experience indicated some confusion regarding this provision. 
Specifically, the Department understands that some employers have 
interpreted the varying increments rule to permit the use of a larger 
increment of FMLA leave at certain points in a shift than the increment 
used for other forms of leave in the same time period.
    Employers and employer groups opposed the elimination of the 
varying increments rule. The rule was one subject of the letter-writing 
campaign by members of SHRM, and the Department therefore received 
hundreds of comments stating that eliminating the rule would make 
administration of FMLA leave more difficult, as the current provision 
``is important for [] ease in implementing FMLA leave.'' In addition, 
World at Work reported that employers have difficulty administering 
intermittent FMLA leave, so the Department should ``maintain the 
maximum amount of flexibility for employers'' by retaining the varying 
increments rule. SHRM similarly noted that the varying increments rule 
gives employers flexibility in administering intermittent or reduced 
schedule FMLA leave. Furthermore, SHRM members and the Coalition 
asserted that the varying increment rule discourages employees from 
using intermittent FMLA leave as an excuse to avoid discipline for 
arriving late to work. EEAC commented that no confusion

[[Page 8868]]

exists in the application of the rule and that employers understand 
that ``they may only count as FMLA leave the shortest increment of time 
available to all employees for other types of leave during that time 
period.'' Sedgwick Claim Management Services, Inc. and SHRM suggested 
that the Department clarify, rather than remove, the rule to eliminate 
any confusion about its application. The Department did not receive any 
comments in support of deleting the varying increments rule.
    After reviewing the comments, the Department has decided to retain 
the varying increments rule but to modify the regulatory text to 
clarify the intended application of the rule. The Department did not 
eliminate the provision because comments from employers, which were 
universally opposed to that proposal, made clear that the varying 
increments rule is helpful in administering FMLA leave, and there were 
no comments supporting the Department's proposal to delete the rule. 
The Department is concerned, however, that some employers have found 
the provisions confusing and has therefore clarified the regulatory 
text to emphasize that employers who use varying increments of other 
types of leave may use varying increments of FMLA leave but may not 
account for FMLA leave in a larger increment than the smallest 
increment used for any other form of leave during the period in which 
the FMLA leave is taken. This clarification is meant to better explain 
that employers may not apply a varying increment of leave only to FMLA 
leave, but instead must use the varying increment for all types of 
leave. For example, if an employer usually accounts for all types of 
leave in increments of 15 minutes, but accounts for all non-FMLA leave 
for the first hour of the day in 30-minute increments, the employer may 
also account for FMLA leave in an increment no greater than 30 minutes 
only during the first hour of the day. This modified text is intended 
as a clarification of the existing varying increment rule, not as a 
substantive change to the current regulations.
Physical Impossibility
    Section 825.205(a)(2) sets forth the physical impossibility 
provision, which provides that where it is physically impossible for an 
employee to commence or end work mid-way through a shift, the entire 
period that the employee is forced to be absent is designated as FMLA 
leave and counted against the employee's FMLA leave entitlement. The 
Department revisited this provision in the proposed rule in connection 
with the AFCTCA because of the impact of the physical impossibility 
provision on the airline industry. In the NPRM, the Department proposed 
adding language to Sec.  825.205(a)(2) clarifying that the period of 
physical impossibility may not extend beyond the period during which 
the employer is unable either to permit the employee to work prior to a 
period of FMLA leave, or to return the employee to work after a period 
of FMLA leave, because of physical impossibility. The proposed language 
was intended to emphasize that the physical impossibility provision be 
applied in only the most limited circumstances and only where it is, in 
fact, physically impossible to allow the employee to leave his or her 
shift early or to restore the employee to his or her same position or 
to an equivalent position at the time the employee no longer needs FMLA 
leave. The Department also noted that it was considering deleting the 
physical impossibility provision in its entirety because of concern 
that employers may be applying the provision where reinstatement was 
possible but inconvenient and requested comments on whether the 
provision should be retained.
    Employers, employer groups, and industry organizations, a majority 
of whom represented the airline and railroad industries, opposed the 
removal of the physical impossibility provision and emphasized that the 
airline and railroad industries rely on the exception. For example, 
they stated that when a flight crew member or railroad employee uses 
intermittent or reduced schedule FMLA leave at a time that causes him 
or her to miss a flight or trip, the employer must find a replacement 
employee to fill in for the employee for the duration of the trip, 
which can sometimes span several days. Commenters including RAA also 
asserted that for reasons including travel time and contractual 
agreements, it is usually not possible, and where possible, it is 
costly, to return the original worker to his or her scheduled trip. 
Similarly, A4A argued that it is not always possible to assign the 
original worker to a new trip the day after he or she returns from FMLA 
leave because collective bargaining agreements often require that 
employers prioritize giving assignments to employees based on factors 
such as seniority, work rules on reserve staffing, and minimum and 
maximum flight hours when making trips available. The Association of 
American Railroads (AAR) raised analogous concerns.
    A4A and AAR also contended that the provision prevents railroad and 
airline employees from misusing FMLA leave, because allowing employees 
to use only a small amount of intermittent or reduced schedule FMLA 
leave in order to miss work over the entire duration of a trip may 
create an incentive to manipulate the system. World at Work, as well as 
the members of SHRM who submitted hundreds of form letters opposed to 
deletion of the rule in response to the NPRM, emphasized that employers 
understand the application of the provision is limited and the existing 
regulation makes clear the provision is meant to apply narrowly. In 
addition, both SHRM and the AAR noted they were unaware of any evidence 
that the exception is being misused by employers, and asserted that the 
provision protects employees because if FMLA protection does not cover 
the full period during which reinstatement is physically impossible, 
the employee may be subject to discipline based on the unprotected 
portion of the leave.
    A number of employee advocacy groups and labor organizations also 
commented on the physically impossibility provision and generally 
recommended that the Department remove the exception. These commenters, 
including BLET and UTU, asserted that the railroad and airline 
industries have used the exception to improperly diminish employees' 
FMLA entitlements, because the provision allows employers to deduct 
more time from an employee's FMLA entitlement than the employee has 
asked to use. For example, TTD stated that a flight attendant who needs 
only a single day of FMLA leave at the beginning of a scheduled five-
day trip could lose five days of her FMLA entitlement. Airline employee 
groups asserted that the airline industry is not adversely affected by 
employees' use of intermittent or reduced schedule FMLA leave, and 
there is no need for the physical impossibility provision. ALPA and AFA 
noted that flight crew members frequently take short-term leave for a 
variety of reasons, often without advance notice, so the industry is 
prepared to address such situations when they arise because of the use 
of intermittent or reduced schedule FMLA leave.
    Both employer and employee groups argued that the statute compels 
their preferred result concerning this provision. AAR asserted that the 
statute's requirement to calculate FMLA leave based on ``actual work 
time'' mandates that employers be permitted to deduct from an 
employee's FMLA entitlement the entire work period the employee missed 
when the use of FMLA leave caused him or her to be

[[Page 8869]]

unavailable at the time a trip commences. In contrast, ALPA, TTD, and 
BLET and UTU argued that because the FMLA provides that the use of 
intermittent or reduced schedule leave ``shall not result in a 
reduction in the total amount of leave to which the employee is 
entitled * * * beyond the amount of leave actually taken,'' 29 U.S.C. 
2612(b)(1), deductions from FMLA entitlements for more than the amount 
of leave needed are prohibited.
    Numerous comments addressed how the Department should clarify the 
physical impossibility provision. SHRM opposed the Department's 
proposed clarification, asserting that it is ``unnecessary and likely 
to cause confusion'' and that the changes would ``[add] little if any 
clarification.'' Specifically, SHRM contended that the Department's 
proposed clarification concerning an ``equivalent position'' could be 
misinterpreted to mean that an employer could transfer or reassign to a 
new position an employee involved in a physical impossibility scenario. 
Other employer organizations were concerned that the proposed 
clarifying sentence was meant to indicate that when an employee returns 
from intermittent or reduced schedule FMLA leave, his or her employer 
must prioritize assignment to a new trip above the assignment of other 
employees. For example, AAR asserted that treating FMLA leave users 
differently by allowing them to jump to the top of the list of 
employees waiting for assignments would violate the statute. The 
Coalition also requested that the Department not require employers to 
demonstrate that no equivalent position exists. Furthermore, some 
employer groups, such as RAA, suggested that the definition of physical 
impossibility should include contractual and other restrictions on an 
employer's ability to return an employee to work, including 
requirements in collective bargaining agreements to assign employees to 
trips based on seniority. Employee groups, including BLET and UTU, 
opposed any such expansion to the provision. AFA asked the Department 
to clarify, should it maintain the provision, that for purposes of the 
airline industry, an ``equivalent position'' to which an employee may 
be assigned to allow the return to work after the use of intermittent 
or reduced schedule FMLA leave includes equivalence regarding the type 
of trip to which the employee is entitled due to seniority.
    Commenters also offered suggestions regarding an employee's 
obligation to make him or herself available for work after using 
intermittent or reduced schedule FMLA leave. A4A suggested that the 
Department add language to the provision clarifying that if the 
employer finds an alternative trip that makes the employee's return to 
work after the use of intermittent or reduced schedule FMLA leave 
possible, the employee must make him or herself available for the trip 
or accept that the full duration of the original trip will be deducted 
from the employee's FMLA entitlement. IAM proposed that flight crew 
members who miss the beginning of a trip be given two options: take the 
entire duration of the trip as protected FMLA leave or take one day of 
FMLA leave and agree to be available to work for the remaining days of 
the trip, with no FMLA leave deduction for that remaining time if no 
work assignment is forthcoming.
    After careful consideration of the comments, the Department has 
decided to retain the physical impossibility rule. The Department 
recognizes the unique circumstances that can make it physically 
impossible to immediately return employees to work when they need to 
use intermittent or reduced schedule FMLA leave in certain industries. 
Although employee groups supported the proposal to remove the rule, 
they offered only general objections. In addition, the Department notes 
that the physical impossibility rule is protective of employees who may 
be subject to disciplinary action because they need to take leave 
beyond that required for their FMLA condition to account for time not 
worked due to the physical impossibility. In contrast, under the 
provision, all of the leave taken due to physical impossibility is 
counted as FMLA leave. Further, as explained in the 2008 Final Rule, 
employers have an obligation not to discriminate between employees 
taking FMLA leave and employees taking other forms of leave in 
restoring employees or offering alternative work. See 73 FR 67978.
    With regard to comments asserting that the Act itself mandates a 
particular result, the Department rejects these contentions. As 
explained in the 2008 Final Rule, the Department does not believe that 
a physical impossibility exception contravenes 29 U.S.C. 2612(b) or any 
other provision of the Act because only the amount of leave used will 
be counted against the employee's FMLA leave entitlement, and no FMLA 
provision requires employers to provide alternative work to employees 
when the employee is unable to return to his or her same or equivalent 
position due to physical impossibility. See 73 FR 67977.
    Furthermore, after consideration of the comments regarding 
clarification to the physical impossibility rule, the Department is 
adopting the clarifying language as proposed. The Department believes 
that the clarification effectively responds to the concerns raised by 
employee groups and labor organizations regarding misapplication of the 
rule by emphasizing the Department's intent that the physical 
impossibility rule apply solely to situations in which it is truly 
physically impossible to return the employee to work. See 73 FR 67977.
    The Department will not modify the clarifying language in 
accordance with the suggestions of employer groups because the 
Department does not consider contractual or other scheduling 
restrictions to be appropriate reasons to delay an employee's return to 
the same or an equivalent position. The FMLA regulations provide that 
the rights established by the Act may not be diminished by any 
employment benefit program or plan. The FMLA would supersede a 
provision of a collective bargaining agreement that allows seniority to 
take precedence over an employee's reinstatement to an equivalent 
position. See Sec.  825.700(a). The physical impossibility provision is 
intended to make a limited allowance for the practical realities of the 
airline, railroad, and other industries with unique workplaces in which 
it is physically impossible for employees to leave work early or start 
work late.
    The Department also will not modify the proposed regulatory text 
referring to an ``equivalent position.'' In response to SHRM's comments 
that the clarifying language concerning ``equivalent position'' may be 
misinterpreted, the Department notes that Sec.  825.204 already 
addresses the limited scenarios in which an employer may transfer or 
reassign an employee during intermittent leave. Additionally, with 
regard to comments requesting that the Department define ``equivalent 
position'' and state that, in the case of airline flight crew 
employees, an employee must be returned to the same type of trip, the 
Department believes addressing this issue in the regulations is 
unnecessary. The Department has already promulgated a general 
``equivalent position'' regulation, see Sec.  825.215, and has further 
clarified in this preamble that a contractual restriction is not an 
appropriate reason to delay restoration.
Calculation of Leave
    Section 825.205(b) addresses the rules concerning the calculation 
of leave when FMLA leave is taken on an intermittent or reduced 
schedule basis. The Department proposed only clarifying changes to this 
paragraph.

[[Page 8870]]

The Department proposed to include in the regulatory text language from 
the 2008 Final Rule preamble to reinforce the requirements that the 
employee's total available entitlement is 12 workweeks (or 26 workweeks 
in the case of military caregiver leave), that FMLA leave does not 
accrue at any particular hourly rate, and that the specific number of 
hours contained in the workweek is dependent upon the hours the 
employee would have worked but for the taking of leave. The Department 
also proposed minor edits making uniform the references to fractions 
contained in this paragraph. The Department did not receive any 
comments regarding these changes and adopts paragraph (b) essentially 
as proposed. The Department makes one correction to the proposed 
language, changing ``but for the FMLA leave'' to ``but for the use of 
leave,'' to accurately reflect the method of calculating an employee's 
workweek. In addition, because in the Final Rule, the calculation of 
leave rules for airline flight crew employees appear in Sec.  825.802, 
the Department has added to paragraph (b) a reference to that section.
Overtime
    Section 825.205(c) addresses when overtime hours that are not 
worked may be counted as FMLA leave. The Department proposed to change 
the term ``serious health condition'' in the last sentence in paragraph 
(c) to ``FMLA-qualifying reason.'' In the NPRM, the Department 
explained that this change would be consistent with the language used 
in the first sentence of the paragraph to more accurately reflect that 
overtime hours missed by an employee may be due to any FMLA-qualifying 
reason. The Department did not receive any comments concerning this 
proposed change, and adopts the modification in the Final Rule.
Calculation of Leave for Airline Flight Crew Employees
    Finally, the Department proposed adding a new paragraph (d) to 
Sec.  825.205 that would provide the method for calculating FMLA leave 
use for airline flight crew employees. As explained earlier in this 
preamble, the Department has decided to place all of the regulatory 
provisions implementing the AFCTCA in Subpart H--Special Rules 
Applicable to Airline Flight Crew Employees. Accordingly, the Final 
Rule does not include a paragraph (d) in Sec.  825.205, and the 
discussion of calculation of FMLA leave for airline flight crew 
employees appears in the section of this preamble addressing new Sec.  
825.802, Special rules for airline flight crew employees, calculation 
of leave.
4. Section 825.500 Recordkeeping requirements
    Section 825.500 explains the recordkeeping requirements under the 
FMLA. The Department proposed two changes to this section, both of 
which it is adopting, although the second addition will appear in a 
different regulatory section than proposed.
    First, the Department proposed to add a new sentence at the end of 
paragraph (g) setting forth the employer's obligation to comply with 
the confidentiality requirements of the Genetic Information 
Nondiscrimination Act of 2008 (GINA), Public Law 110-233. To the extent 
that records and documents created for FMLA purposes contain family 
medical history or genetic information as defined in GINA, employers 
must maintain such records in accordance with the confidentiality 
requirements of Title II of GINA. GINA permits genetic information, 
including family medical history, obtained by the employer in FMLA 
records and documents to be disclosed consistent with the requirements 
of the FMLA.
    The Department received two comments addressing this proposed 
change. SHRM expressed agreement with this change. The Illinois Credit 
Union League commented that because the Equal Employment Opportunity 
Commission (EEOC) is the agency with authority from Congress to 
administer GINA, the Department ``is not and should not be empowered to 
exercise authority which it is not delegated to use.''
    The Department adopts the proposed new sentence regarding GINA. 
While the EEOC is the agency charged with administering GINA, as noted 
in the NPRM, employers must maintain FMLA records in accordance with 
the confidentiality requirements of Title II of GINA. The GINA 
regulations provide a narrow exception to the limitations on disclosure 
for genetic information obtained by the employer for records and 
documents to be disclosed consistent with the requirements of the FMLA. 
See 29 CFR 1635.9. The Department is acting within its authority to 
require employers to maintain any relevant FMLA records in conformance 
with applicable GINA confidentiality and disclosure requirements and 
believes that this provision provides useful guidance to employers 
regarding their confidentiality obligations in the FMLA process.
    The Department also proposed to add paragraph (h), implementing the 
AFCTCA statutory requirement that employers of airline flight crew 
employees maintain certain records on file with the Secretary. The 
substance of proposed Sec.  825.500(h) will be located in Sec.  
825.803, Special rules for airline flight crew employees, recordkeeping 
requirements. In the Final Rule, Sec.  825.500(h) provides a cross-
reference to Sec.  825.803. The discussion of the recordkeeping 
requirements specific to employers of airline flight crew employees 
appears with the section of this preamble addressing Subpart H.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its attendant regulations, 5 CFR part 1320, requires that the 
Department consider the impact of paperwork and other information 
collection burdens imposed on the public. Under the PRA, an agency may 
not collect or sponsor the collection of information, nor may it impose 
an information collection requirement unless it displays a currently 
valid Office of Management and Budget (OMB) control number. See 5 CFR 
1320.8(b)(3)(vi).
    OMB has assigned control number 1235-0003 to the FMLA information 
collections. In accordance with the PRA, the February 15, 2012 NPRM 
solicited comments on the FMLA information collections. This paperwork 
burden analysis estimates the burdens for the Final Rule. The Final 
Rule implements amendments to the military leave provisions made by the 
FY 2010 NDAA, which extends the availability of FMLA leave for 
qualifying exigencies to employee-family members of members of the 
Regular Armed Forces and defines the deployments covered by such leave, 
and extends FMLA military caregiver leave to employee-family members of 
certain veterans with a serious injury or illness and expands the 
provision of such leave to cover serious injuries or illnesses that 
existed prior to a covered servicemember's active duty and were 
aggravated in the line of duty while on active duty. The Final Rule 
also implements the AFCTCA, which establishes special hours of service 
eligibility requirements for airline flight crew members and flight 
attendants eligibility requirements for airline flight crew members and 
flight attendants and authorizes the Department to promulgate 
regulations regarding the calculation of leave for airline flight crew 
employees as well as recordkeeping requirements for their employers.
    Many of the estimates in the analysis of the paperwork requirements 
derive from data developed for the Regulatory

[[Page 8871]]

Impact Analysis (RIA) under Executive Orders 13563 and 12866. However, 
the specific needs that the PRA analysis and RIA are intended to meet 
often require that the data undergo a different analysis to estimate 
burdens imposed by the paperwork requirements from the analysis used in 
estimating the effect the regulations will have on the economy. In 
addition, for certain sections, a range of values is provided in the 
RIA; the PRA uses the midpoint of those ranges. Consequently, the 
differing assessment in the PRA analysis and the RIA of the regulatory 
changes may lead to different results. For example, the PRA analysis 
measures the additional burden of the information collection on those 
who are providing information due to the regulatory changes; however, 
the RIA measures the incremental changes expected to result in the 
broader economy due to the regulatory changes. Thus, this PRA analysis 
will calculate the additional paperwork burden in relation to the 
existing FMLA information collection burden arising from this rule. 
Conversely, the regulatory definition of collection of information for 
PRA purposes specifically excludes the public disclosure of information 
originally supplied by the Federal government to the recipient for the 
purpose of disclosure to the public. 5 CFR 1320.3(c)(2). The RIA, 
however, may need to consider the impact of any regulatory changes in 
such notifications provided by the government. Finally, the PRA 
definition of burden can exclude the time, effort, and financial 
resources necessary to comply with a collection of information that 
would be incurred by persons in the normal course of their activities 
(e.g., in compiling and maintaining business records) if the agency 
demonstrates that the reporting, recordkeeping, or disclosure 
activities needed to comply are usual and customary. 5 CFR 
1320.3(b)(2). The RIA, however, must consider the economic impact of 
any changes in the Final Rule.
    On December 31, 2011, the previous approval for the FMLA 
information collections expired. Accordingly, the Department issued a 
60-day notice on September 28, 2011, on the proposed extension of the 
approval of information collection requirements (paperwork re-
clearance). The burden analyses that were calculated for the paperwork 
re-clearance only accounted for the increased burdens stemming from the 
expansion of qualifying exigency leave to the Regular Armed Forces, 
pursuant to the 2010 NDAA, and the enactment of AFCTCA. The analyses 
did not account for the increased burden resulting from the expansion 
of military caregiver leave to care for covered veterans.\4\ OMB 
approved the request for renewal of the FMLA information collection on 
February 10, 2012, thereby extending the expiration date to February 
28, 2015.
---------------------------------------------------------------------------

    \4\ As explained earlier in this preamble, it is the 
Department's position that the expansion of qualifying exigency 
leave to the Regular Armed Forces was effective on October 28, 2009, 
the date the FY 2010 NDAA was enacted. It is also the Department's 
position that the provisions of the AFCTCA were effective on the 
date of its passage, December 9, 2009. However, the Department's 
position is that the provision of the FY 2010 NDAA permitting 
military caregiver leave to care for certain veterans is not 
effective until the Department issues regulations defining a serious 
injury or illness for a covered veteran as required by the statute.
---------------------------------------------------------------------------

    On January 30, 2012, the Department announced that it would be 
publishing the NPRM proposing changes to the regulations to implement 
the FY 2010 NDAA and AFCTCA amendments to the FMLA. On February 15, 
2012, the NPRM was published in the Federal Register. See 77 FR 8960. 
In the NPRM, the Department specifically solicited comments on the 
proposed changes to the FMLA information collections. The publication 
of the NPRM subsequent to the approval of the paperwork re-clearance 
package required the Department to re-conduct the paperwork analyses 
for the Final Rule. The final burden analyses for this Final Rule are 
based upon the most recently approved burdens by OMB for the FMLA 
information collections. A copy of the NPRM was submitted to OMB and on 
March 28, 2012 OMB requested that the Department resubmit the 
information collection request upon promulgating the Final Rule and 
after considering public comments on the FMLA NPRM. The Department did 
receive one comment on the PRA, which is discussed later in this 
section.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The information collection 
requirements contained in this Final Rule have been approved by OMB 
under OMB control number 1235-0003 through February 28, 2015. A copy of 
the information collection request can be obtained at www.reginfo.gov 
or by contacting the WHD as shown in the FOR FURTHER INFORMATION 
CONTACT section of this preamble.
    Circumstances Necessitating Collection: The Family and Medical 
Leave Act of 1993 (FMLA), 29 U.S.C. 2601, et seq., requires private 
sector employers who employ 50 or more employees, all public and 
private elementary schools, and all public agencies to provide up to 12 
weeks of unpaid, job-protected leave during any 12-month period to 
eligible employees for certain family and medical reasons (i.e., for 
birth of a son or daughter and to care for the newborn child; for 
placement with the employee of a son or daughter for adoption or foster 
care; to care for the employee's spouse, son, daughter, or parent with 
a serious health condition; because of a serious health condition that 
makes the employee unable to perform the functions of the employee's 
job; to address qualifying exigencies arising out of the deployment of 
the employee's spouse, son, daughter, or parent to covered active duty 
in the military), and up to 26 workweeks of unpaid, job-protected leave 
during a single 12-month period to an eligible employee who is the 
spouse, son, daughter, parent, or next of kin of a covered 
servicemember for the employee to provide care for the covered 
servicemember with a serious injury or illness. FMLA section 404 
requires the Secretary of Labor to prescribe such regulations as 
necessary to enforce this Act. 29 U.S.C. 2654. In addition, the FY 2010 
NDAA amended the FMLA to expand qualifying exigency leave to employee-
family members of the Regular Armed Forces, and military caregiver 
leave to employee-family members of certain veterans with a serious 
injury or illness. Public Law 111-84. The FMLA was also amended by the 
AFCTCA, which created special hours of service eligibility requirement 
for airline flight crew employees. Public Law 111-119.
    The Department's authority for the collection of information and 
the required disclosure of information under the FMLA stems from the 
statute and/or the implementing regulations. These third-party 
disclosures ensure that both employers and employees are aware of and 
can exercise their rights and meet their respective obligations under 
FMLA. The required disclosures, which now also include the disclosure 
of a serious injury or illness for a covered veteran, are listed below.
    A. Employee Notice of Need for FMLA Leave [29 U.S.C. 2612(e); 29 
CFR 825.100(d), 825.301(b), 825.302, 825.303]. An employee must provide 
the employer at least 30 days advance notice before FMLA leave is to 
begin if the need for the leave is foreseeable based on an expected 
birth, placement for adoption or foster care, or planned medical 
treatment for a serious health condition of the employee or of a family 
member or planned medical treatment for a serious injury or illness of 
a

[[Page 8872]]

covered servicemember. If 30 days notice is not practicable, such as 
because of a lack of knowledge of approximately when leave will be 
required to begin, a change in circumstances, or a medical emergency, 
notice must be given as soon as practicable under the facts and 
circumstances of the particular case. When an employee seeks leave for 
the first time for an FMLA-qualifying reason, the employee need not 
expressly assert rights under the FMLA or even mention the FMLA. The 
employee must, however, provide sufficient information that indicates 
that leave is potentially FMLA-qualifying and the timing and 
anticipated duration of the absence. Such information may include that 
a condition renders the employee unable to perform the functions of the 
job, or if the leave is to care for a family member, that the condition 
renders the family member unable to perform daily activities, or that 
the family member is a covered servicemember with a serious injury or 
illness, and whether the employee or the employee's family member is 
under the continuing care of a health care provider. Sufficient 
information for leave due to a qualifying family member's call (or 
impending call) to covered active duty status may include that the 
military member is on or has been called to covered active duty and 
that the requested leave is for one of the categories of qualifying 
exigency leave. An employer, generally, may require an employee to 
comply with its usual and customary notice and procedural requirements 
for requesting leave.
    B. Notice to Employee of FMLA Eligibility and Rights and 
Responsibilities Notice [29 CFR 825.219-.300(b)]. When an employee 
requests FMLA leave or when the employer acquires knowledge that an 
employee's leave may be for an FMLA-qualifying reason, the employer 
must notify the employee--within five business days, absent extenuating 
circumstances--of the employee's eligibility to take FMLA leave and any 
additional requirements for taking such leave. The eligibility notice 
must provide information regarding the employee's eligibility for FMLA 
leave, and, if the employee is determined not to meet the eligibility 
criteria, provide at least one reason why the employee is not eligible. 
The rights and responsibilities notice must detail the specific rights 
and responsibilities of the employee, and explain any consequences of a 
failure to meet these responsibilities. If an employee provides notice 
of a subsequent need for FMLA leave during the applicable 12-month 
period due to a different FMLA-qualifying reason, the employer does not 
have to provide an additional eligibility notice if the employee's 
eligibility status has not changed. If the employee's eligibility 
status has changed, then the employer must notify the employee of the 
change in eligibility status within five business days, absent 
extenuating circumstances. The rights and responsibilities notice must 
be provided to the employee each time the eligibility notice is 
provided to the employee. Form WH-381 allows an employer to satisfy the 
regulatory requirement to provide employees with specific information 
concerning eligibility status and with written notice detailing 
specific rights as well as expectations and obligations of the employee 
and explaining any consequences of a failure to meet these obligations. 
See Sec.  825.300(b) and (c).
    C. Employee Certifications--Serious Health Condition of Employee or 
Employee's Family Member, Recertification, Fitness for Duty, Leave for 
a Qualifying Exigency, and Leave to Care for a Covered Servicemember.
    1. Medical Certification and Recertification [29 U.S.C. 2613, 
2614(c)(3); 29 CFR 825.100(d), 825.305-.308]. An employer may require 
that an employee's leave due to the employee's own serious health 
condition that makes the employee unable to perform one or more 
essential functions of the employee's position or to care for the 
employee's spouse, son, daughter, or parent with a serious health 
condition, be supported by a certification issued by the health care 
provider of the eligible employee or of the employee's family member. 
In addition, an employer may request recertification under certain 
conditions. The employer must provide the employee at least 15 calendar 
days to provide the initial certification, and any subsequent 
recertification, unless the employee is not able to do so despite his 
or her diligent good faith efforts. An employer must advise an employee 
whenever it finds a certification incomplete or insufficient and state 
in writing what additional information is necessary to make the 
certification complete and sufficient and must provide the employee 
seven calendar days (unless not practicable under the particular 
circumstances despite the employee's diligent good faith efforts) to 
cure any identified deficiency. The employer may contact the employee's 
health care provider for purposes of clarification and authentication 
of the medical certification (whether initial certification or 
recertification) after the employer has given the employee an 
opportunity to cure any identified deficiencies. An employer, at its 
own expense and subject to certain limitations, may also require an 
employee to obtain a second and third medical opinion. Form WH-380-E 
allows an employee requesting FMLA leave for his or her own serious 
health condition to satisfy the statutory requirement to furnish, upon 
the employer's request, appropriate certification (including a second 
or third opinion and recertification) to support the need for leave for 
the employee's own serious health condition. See Sec.  825.305(a). Form 
WH-380-F allows an employee requesting FMLA leave for a family member's 
serious health condition to satisfy the statutory requirement to 
furnish, upon the employer's request, appropriate certification 
(including a second or third opinion and recertification) to support 
the need for leave for the family member's serious health condition. 
See Sec.  825.305(a).
    2. Fitness-for-Duty Medical Certification [29 U.S.C. 2614(a)(4); 29 
CFR 825.312]. As a condition of restoring an employee whose FMLA leave 
was occasioned by the employee's own serious health condition that made 
the employee unable to perform the employee's job, an employer may have 
a uniformly applied policy or practice that requires all similarly 
situated employees (i.e., same occupation, same serious health 
condition) who take leave for such conditions to obtain and present 
certification from the employee's health care provider that the 
employee is able to resume work. The employee has the same obligations 
to participate and cooperate in providing a complete and sufficient 
certification to the employer in the fitness-for-duty certification 
process as in the initial certification process. An employer may 
require that the fitness-for-duty certification specifically address 
the employee's essential job functions if the employer has provided the 
employee with a list of those essential functions and notified the 
employee of the need for a fitness-for-duty certification in the 
designation notice. Certain managers for an employer, but not the 
employee's immediate supervisor, may contact a health care provider for 
purposes of clarifying and authenticating a fitness-for-duty 
certification. An employer is not entitled to a fitness-for-duty 
certification for each absence taken on an intermittent or reduced 
leave schedule; however, an employee may be required to furnish a 
fitness-for-duty certificate no more often than once every 30 days if 
an employee has used

[[Page 8873]]

intermittent leave during that period and reasonable safety concerns 
exist.
    3. Certification for Leave for a Qualifying Exigency [29 CFR 
825.309]. An employer may require an employee who requests FMLA leave 
due to a qualifying exigency to certify the need for leave. In 
addition, the first time an employee requests leave for a qualifying 
exigency related to a qualifying family member's active duty status, an 
employer may require the employee to provide a copy of the military 
member's active duty orders or other documentation issued by the 
military that indicates the military member is on covered active duty. 
Optional form WH-384 allows an employee requesting FMLA leave based on 
a qualifying exigency to satisfy the statutory requirement to furnish, 
upon the employer's request, appropriate certification to support leave 
for a qualifying exigency.
    4. Certification for Leave to Care for Covered Servicemember [29 
CFR 825.310]. An employee who requests FMLA leave to care for a covered 
servicemember (either a current servicemember or a veteran) may be 
required by his or her employer to certify the need for leave. An 
employee requesting FMLA leave based on a covered servicemember's 
serious injury or illness may satisfy the statutory requirement to 
furnish, upon the employer's request, a medical certification from an 
authorized health care provider with optional form WH-385 or WH-385-V. 
An employer must accept as sufficient certification of leave to care 
for a current servicemember an invitational travel order or 
invitational travel authorization (ITO or ITA) issued to the employee 
or to another family member in lieu of optional form WH-385 or the 
employer's own form.
    D. Notice to Employees of FMLA Designation [29 CFR 
825.300(c)-.301(a)]. When the employer has enough information to 
determine whether the leave qualifies as FMLA leave (after receiving a 
medical certification, for example), the employer must notify the 
employee within five business days of making such determination whether 
the leave has or has not been designated as FMLA leave and the number 
of hours, days or weeks that will be counted against the employee's 
FMLA leave entitlement. If it is not possible to provide the hours, 
days or weeks that will be counted against the employee's FMLA leave 
entitlement (such as in the case of unforeseeable intermittent leave), 
then such information must be provided upon request by the employee but 
not more often than once every 30 days if leave is taken during the 30-
day period. If the employer requires paid leave to be substituted for 
unpaid leave, or that paid leave taken under an existing leave plan be 
counted as FMLA leave, this designation also must be made at the time 
of the FMLA designation. In addition, if the employer will require the 
employee to submit a fitness-for-duty certification, the employer must 
provide notice of the requirement with the designation notice. Form WH-
382 allows an employer to meet its obligation to designate leave as 
FMLA-qualifying. See 29 CFR Sec.  825.300(d).
    E. Notice to Employees of Change of 12-Month Period for Determining 
FMLA Entitlement [29 CFR 825.200(d)(1)]. An employer generally must 
choose a single uniform method from four options available under the 
regulations for determining the 12-month period for FMLA leave for 
reasons other than care of a covered servicemember with a serious 
injury or illness (which is subject to a set single 12-month period). 
An employer wishing to change to another alternative is required to 
give at least 60 days notice to all employees.
    F. Key Employee Notification [29 U.S.C. Sec.  2614(b)(1)(B); 29 CFR 
825.217-.219 and 825.300(c)(1)(v)]. An employer that believes that it 
may deny reinstatement to a key employee must give written notice to 
the employee at the time the employee gives notice of the need for FMLA 
leave (or when FMLA leave commences, if earlier) that he or she 
qualifies as a key employee. At the same time, the employer must also 
fully inform the employee of the potential consequences with respect to 
reinstatement and maintenance of health benefits if the employer should 
determine that substantial and grievous economic injury to the 
employer's operations would result if the employer were to reinstate 
the employee from FMLA leave. If the employer cannot immediately give 
such notice, because of the need to determine whether the employee is a 
key employee, the employer must give the notice as soon as practicable 
after receiving the employee's notice of a need for leave (or the 
commencement of leave, if earlier). If an employer fails to provide 
such timely notice it loses its right to deny restoration, even if 
substantial and grievous economic injury will result from 
reinstatement.
    As soon as an employer makes a good faith determination--based on 
the facts available--that substantial and grievous economic injury to 
its operations will result if a key employee who has given notice of 
the need for FMLA leave or is using FMLA leave is reinstated, the 
employer must notify the employee in writing of its determination, 
including that the employer cannot deny FMLA leave and that the 
employer intends to deny restoration to employment on completion of the 
FMLA leave. The employer must serve this notice either in person or by 
certified mail. This notice must explain the basis for the employer's 
finding that substantial and grievous economic injury will result, and, 
if leave has commenced, must provide the employee a reasonable time in 
which to return to work, taking into account the circumstances, such as 
the length of the leave and the urgency of the need for the employee to 
return.
    An employee may still request reinstatement at the end of the leave 
period, even if the employee did not return to work in response to the 
employer's notice. The employer must then again determine whether there 
will be substantial and grievous economic injury from reinstatement, 
based on the facts at that time. If the employer determines that 
substantial and grievous economic injury will result from reinstating 
the employee, the employer must notify the employee in writing (in 
person or by certified mail) of the denial of restoration.
    G. Periodic Employee Status Reports [29 CFR 825.300(b)(4)]. An 
employer may require an employee to provide periodic reports regarding 
the employee's status and intent to return to work.
    H. Notice to Employee of Pending Cancellation of Health Benefits 
[29 CFR 825.212(a)]. Unless an employer establishes a policy providing 
a longer grace period, an employer's obligation to maintain health 
insurance coverage ceases under FMLA if an employee's premium payment 
is more than 30 days late. In order to drop the coverage for an 
employee whose premium payment is late, the employer must provide 
written notice to the employee that the payment has not been received. 
Such notice must be mailed to the employee at least 15 days before 
coverage is to cease and advise the employee that coverage will be 
dropped on a specified date at least 15 days after the date of the 
letter unless the payment has been received by that date.
    I. Documenting Family Relationship [29 CFR 825.122(k)]. An employer 
may require an employee giving notice of the need for FMLA leave to 
provide reasonable documentation or statement of family relationship. 
This documentation may take the form of a simple statement from the 
employee, or a child's birth certificate, a court document, etc. The 
employer is entitled to examine documentation such as a birth 
certificate, etc., but the employee

[[Page 8874]]

is entitled to the return of the official document submitted for this 
purpose.
    J. General FMLA Recordkeeping [29 U.S.C. 2616; 29 CFR 825.500]. The 
FMLA provides that employers shall make, keep, and preserve records 
pertaining to the FMLA in accordance with the recordkeeping 
requirements of Fair Labor Standards Act section 11(c), 29 U.S.C. 
211(c), and regulations issued by the Secretary of Labor. This 
statutory authority provides that no employer or plan, fund, or program 
shall be required to submit books or records more than once during any 
12-month period unless the Department has reasonable cause to believe a 
violation of the FMLA exists or is investigating a complaint.
    Covered employers who have eligible employees must maintain basic 
payroll and identifying employee data, including name, address, and 
occupation; rate or basis of pay and terms of compensation; daily and 
weekly hours worked per pay period; additions to or deductions from 
wages; total compensation paid; and dates FMLA leave is taken by FMLA 
eligible employees (available from time records, requests for leave, 
etc., if so designated). Leave must be designated in records as FMLA 
leave and leave so designated may not include leave required under 
State law or an employer plan which is not also covered by FMLA; if 
FMLA leave is taken by eligible employees in increments of less than 
one full day, the hours of the leave; copies of employee notices of 
leave furnished to the employer under FMLA, if in writing, and copies 
of all eligibility notices given to employees as required under FMLA 
and these regulations; any documents (including written and electronic 
records) describing employee benefits or employer policies and 
practices regarding the taking of paid and unpaid leaves; premium 
payments of employee benefits; records of any dispute between the 
employer and an eligible employee regarding designation of leave as 
FMLA leave, including any written statement from the employer or 
employee of the reasons for the designation and for the disagreement.
    Covered employers with no eligible employees must maintain the 
basic payroll and identifying employee data already discussed. Covered 
employers that jointly employ workers with other employers must keep 
all the records required by the regulations with respect to any primary 
employees, and must keep the basic payroll and identifying employee 
data with respect to any secondary employees.
    If FMLA-eligible employees are not subject to FLSA recordkeeping 
regulations for purposes of minimum wage or overtime compliance (i.e., 
not covered by, or exempt from, FLSA), an employer need not keep a 
record of actual hours worked (as otherwise required under FLSA, 29 CFR 
516.2(a)(7)), provided that: eligibility for FMLA leave is presumed for 
any employee who has been employed for at least 12 months; and with 
respect to employees who take FMLA leave intermittently or on a reduced 
leave schedule, the employer and employee agree on the employee's 
normal schedule or average hours worked each week and reduce their 
agreement to a written record.
    Employers must maintain records and documents relating to any 
medical certification, recertification or medical history of an 
employee or employee's family member created for FMLA purposes as 
confidential medical records in separate files/records from the usual 
personnel files. Employers must also maintain such records in 
conformance with any applicable Americans with Disabilities Act (ADA) 
and GINA confidentiality requirements; except that: supervisors and 
managers may be informed regarding necessary restrictions on the work 
or duties of an employee and necessary accommodations; first aid and 
safety personnel may be informed, when appropriate, if the employee's 
physical or medical condition might require emergency treatment; and 
government officials investigating compliance with the FMLA, or other 
pertinent law, shall be provided relevant information upon request.
    The FLSA recordkeeping requirements, contained in Regulations 29 
CFR part 516, are currently approved under OMB control number 1215-
0018; consequently, this information collection does not duplicate 
their burden, despite the fact that for the administrative ease of the 
regulated community this information collection restates them.
    Public Comments: On February 15, 2012, the Department published a 
proposed rule and sought comments on the burdens imposed by the 
information collections covered by the proposed regulations. 77 FR 
8960. The same notice provided that comments could also be sent 
directly to OMB, in accordance with provisions of 5 CFR 1320.11.
    As part of the proposed rule, the Department sought public comment 
regarding the burdens imposed by the information collection contained 
in this Final Rule. The Department received one comment from an 
individual identifying himself as a labor-employment attorney stating 
that the agency's FMLA information collections are necessary for the 
proper performance for the functions of the agency. This comment, along 
with all of the comments relating to the other provisions of the NPRM 
that were received, are a matter of public record, and posted without 
change to http://www.regulations.gov, including any personal 
information provided.
    Burden Hours Estimates: The PRA section of the FMLA NPRM published 
February 15, 2012 (77 FR 8960) used the 2008 analysis as the baseline 
to determine the burden increase for this paperwork package, and 
accounts for respondent and burden increases resulting from the 
statutory amendments to the FMLA covering qualifying exigency leave, 
military caregiver leave, and airline flight crew employee eligibility. 
Subsequent to OMB's clearance of the NPRM, but before its publication 
in the Federal Register, OMB approved the re-clearance of the existing 
FMLA ICRs under the PRA. That re-clearance reflected increases in 
respondents and burden stemming from the self-executing portions of the 
FY 2010 NDAA (qualifying exigency leave for family members of members 
of the Regular Armed Forces) and the Airline Flight Crew Technical 
Corrections Act. The following burden analyses are based upon the 2012 
reclearance issued on February 9, 2012, and reflect the increase in 
respondents and burdens resulting from the extension of military 
caregiver leave to covered veterans. Additionally, due to refinements 
in the analysis conducted under E.O. 12866, the number of eligible 
employees assumed to take leave to care for a covered veteran has 
decreased.
    Except as otherwise noted, the Department bases the following 
burden estimates on the Regulatory Impact Analysis in the Final Rule 
and the 2012 paperwork reclearance. The Department estimates that the 
FMLA covers 91.1 million workers. The Department estimates 381,000 
employers, comprised of 291,000 private businesses and 89,566 
government entities, respond to the FMLA collections. For PRA purposes 
89,499 employers are assumed to be state, local, or tribal governmental 
entities and 67 are assumed to be Federal entities. The Department 
assumes a proportional response burden between the employer entities 
(74.033172415 percent private, 25.94333834 percent state, local, and 
tribal governments, and 0.02348951 percent Federal). Within each 
information collection, the respondents, responses, and burden 
estimates are rounded to the nearest whole number.

[[Page 8875]]

In the interest of transparency, for each FMLA information collection 
requirement this PRA discussion includes references to the incremental 
burden changes that would be imposed by the rule, the burden imposed by 
existing requirements, and the total burden after the rule takes 
effect.
    A. Employee Notice of Need for FMLA Leave. The Department estimates 
that there are 26,908 employees who are newly eligible to take leave to 
care for a covered veteran under the FY 2010 NDAA. Based on leave usage 
patterns, 7,000 of these employees will take leave to care for a 
covered veteran (26 percent of 26,908 employees).
    Based on the leave patterns estimated by the Department in the PRIA 
analysis, the Department estimates that there will be 357,000 employee 
requests for military caregiver leave.
    New burden: 357,000 employee respondent notices of leave x 2 
minutes/60 minutes per hour = 11,900 hours.
    Existing burden for this requirement: 13,829,680 responses and 
460,990 hours.
    Total estimated burden requested for this requirement: 14,186,680 
responses and 472,890 hours.
    B. Notice to Employee of FMLA Eligibility and Rights and 
Responsibilities Notice. Based on the leave usage patterns for military 
caregiver leave, the Department is assuming that all subsequent leave 
requests will be for the same servicemember for whom the leave was 
originally requested. The employee is required to notify the employer 
in each instance of the need for leave. But the employer is not 
required to provide the employee with a notice of eligibility or rights 
and responsibilities unless the employee's eligibility status changes. 
For military caregiver leave, 7,000 leave takers will provide 357,000 
employee notices of their need for leave, but employers will only have 
to issue 7,000 eligibility and rights and responsibilities notices.
    New burden: 7,000 total responses (notices of eligibility and 
rights and responsibilities) x 10 minutes/60 minutes per hour = 1,167 
hours
    Burden Disaggregation by Sector:
Private (74.03317215%): 5,182 responses x 10 minutes/60 minutes = 864 
hours
State, local, tribal (25.943338%): 1,816 responses x 10 minutes/60 
minutes = 303 hours
Federal (0.02348951%): 2 responses x 10 minutes/60 minutes = 0 hours
    Existing burden requirement:
Private: 16,142,733 responses and 7,031,756 hours
State, local, tribal: 5,656,874 responses and 2,464,128 hours
Federal: 5,121 responses and 2,231 hours
    Total estimated burden requested for this requirement:
Private: 16,147,915 responses and 7,032,619 hours
State, local, tribal: 5,658,690 responses and 2,464,431 hours
Federal: 5,123 responses and 2,231 hours
    C. Employee Certifications: Employee Certifications-Serious Health 
Condition Certification, Recertification, and Fitness-for-Duty 
Certification; Documenting Call to Military Active Duty; Certification 
of Qualifying Exigency Due to Call to Military Active Duty; Covered 
Servicemember's Serious Injury or Illness Certification.
    1. Medical Certification and Recertification. The Department 
assumes that the number of employees who will obtain medical 
certifications to care for a covered veteran from a health care 
provider as defined in Sec.  825.125 will be very small as most 
employees will obtain medical certifications from VA, DOD, TRICARE, or 
DOD non-network TRICARE providers, which are not subject to second or 
third opinions or recertifications. As such, the Department assumes 
that five percent of employees will be asked to obtain a second or 
third opinion/recertification. Utilizing these assumptions, 7,000 
employees taking leave multiplied by 5% asked to provide medical 
certification results in 350 employees requiring additional 
certification.
    New burden: 350 employees x 20 minutes/60 minutes per hour = 117 
hours.
    2. Fitness-for-Duty Medical Certification. No change from current 
burden estimate.
    3. Certification of Qualifying Exigency for Military Family Leave. 
Although this Final Rule adds parental leave as a new qualifying 
exigency for FMLA leave the Department did not update the burden 
because it lacks any data on which to base an estimate of the number of 
days of qualifying exigency leave that might be taken for parental 
leave. Therefore, there is no change from the current burden estimate.
    4. Certification for Leave Taken to Care for a Covered 
Servicemember--Current Servicemember. Pursuant to the FY 2010 NDAA, an 
eligible employee-family member may take FMLA leave to care for a 
current servicemember who has a serious injury or illness that existed 
before the member's active duty and was aggravated by service in the 
line of duty while on active duty. At the NPRM stage the Department did 
not have sufficient information to develop an estimate of employees who 
will qualify for military caregiver leave for a covered servicemember 
with a serious injury or illness that existed prior to the 
servicemember's active duty and was aggravated in the line of duty on 
active duty, and, thus, did not revise the current burden analysis for 
certification of leave to care for a current servicemember. The 
Department did not receive any comments in response to the NPRM 
addressing this issue. Consequently, the Department still lacks 
sufficient information to develop an estimate of employees who will 
qualify for military caregiver leave for a covered servicemember with a 
serious injury or illness that existed prior to the servicemember's 
active duty and was aggravated in the line of duty on active duty. 
However, as stated in the Regulatory Impact Analysis, the Department 
believes that the number of servicemembers entering the military with 
an injury or illness with the potential to be aggravated by service to 
the point of rendering the servicemember unable to perform the duties 
of his or her office, grade, rank, or rating is quite small due to the 
selection process used by the Armed Forces.
    5. Certification for Leave Taken to Care for a Covered 
Servicemember--Covered Veteran. The FY 2010 NDAA provided FMLA leave 
for eligible employees to care for a covered veteran with a serious 
injury or illness that was incurred in the line of duty on active duty 
(or existed before the member's active duty and was aggravated in the 
line of duty on active duty) and manifested itself before or after the 
member became a veteran. The Department estimates that 7,000 employees 
will take leave to care for a covered veteran. The Department expects 
that employers will request certification forms for this leave. The 
Department estimates that it will take a Human Resources specialist 30 
minutes to request, review, and verify the employee's certification 
papers.
    New burden: 7,000 responses (certification papers) x 30 minutes/60 
minutes per hour = 3,500 hours.
    All new certification and recertification requirements: 7,350 
responses and 3,617 hours.
    Existing total burden for this requirement: 12,118,019 responses 
and 4,022,236 hours.
    Total estimated burden for this requirement: 12,125,369 responses 
and 4,025,853 hours.
    D. Notice to Employees of FMLA Designation. The Department 
estimates that each written FMLA designation

[[Page 8876]]

notice takes approximately ten minutes to complete.
    New burden: 7,000 total responses (designation notices) x 10 
minutes/60 minutes per hour = 1,167 hours.
    Burden Disaggregation by Sector:
Private (74.03317215%): 5,182 responses x 10 minutes/60 minutes = 864 
hours
State, local, tribal (25.943338%): 1,816 responses x 10 minutes/60 
minutes = 303 hours
Federal (0.02348951%): 2 responses x 10 minutes/60 minutes = 0 hours
    Existing total burden for this requirement:
Private: 12,898,914 responses and 3,479,716 hours
State, local, tribal: 4,520,148 responses and 1,219,392 hours
Federal: 4,092 responses and 1,104 hours
    Total estimated burden requested for this requirement:
Private: 12,904,096 responses and 3,480,580 hours
State, local, tribal: 4,521,964 responses and 1,219,695 hours
Federal: 4,094 responses and 1,104 hours
    E. Notice to Employees of Change of 12-month period of determining 
FMLA eligibility. No change from current burden estimate.
    Existing burden for this requirement:
Private: 7,099,082 respondents and 3,536 hours
State, local, tribal: 2,487,721 respondents and 1,239 hours
Federal: 2,351 respondents and 1 hour
    Total estimated burden requested for this requirement:
Private: 7,099,082 respondents and 3,536 hours
State, local, tribal: 2,487,721 respondents and 1,239 hours
Federal: 2,351 respondents and 1 hour
    F. Key Employee Notification. The Department assumes that a very 
small percentage of employees taking leave to care for a covered 
veteran will be determined key employees and even fewer of those 
employees will receive notice from the employer that they intend to 
exercise the option to not reinstate those employees. As such, the 
Department does not associate a new burden hour estimate with this 
particular provision for employees taking leave to care for a covered 
veteran.
    Existing burden for this requirement:
Private: 31,676 respondents and 2,640 hours
State, local, tribal: 11,100 respondents and 925 hours
Federal: 11 respondents and 1 hour
    Total estimated burden requested for this requirement:
Private: 31,676 respondents and 2,640 hours
State, local, tribal: 11,100 respondents and 925 hours
Federal: 11 respondents and 1 hour
    G. Periodic Employee Status Reports. The Department estimated in 
the 2008 paperwork analysis that employers require periodic reports 
from 25 percent of FMLA leave users, and since it has not received any 
evidence to believe otherwise, it continues to estimate 25 percent 
today. The Department also estimates a typical employee would normally 
respond to an employer's request for a status report; however, to 
account for any additional burden the regulations might impose, the 
Department estimates that 10 percent of employees will respond to a 
request only because of the regulatory requirement, imposing a burden 
of two minutes per response. The Department also estimates that each 
such employee provides two annual periodic status reports.
    New burden: 7,000 leave takers x 25% x 10% = 175 employee 
responses.
175 employee responses x 2 responses = 350 total responses.
350 responses x 2 minutes/60 minutes = 12 hours.
    Existing burden for this requirement: 371,547 responses and 12,384 
hours.
    Total estimated burden for this requirement: 371,897 responses and 
12,396 hours.
    H. Documenting Family Relationships. The Department assumes that 
under the military amendments all employees who take leave will be 
doing so for a family-related reason. (7,000 leave takers). In the 2008 
PRA analysis, the Department estimated that employers may require 
additional documentation to support a family relationship in five 
percent of these cases, and the additional documentation will take five 
minutes.
    New burden: 7,000 (employees taking leave for family-related 
reasons) x 5% (additional documentation) = 350 employees required to 
document family relationships. 350 employees x 5 minutes/60 minutes per 
hour = 29 hours.
    Existing burden for this requirement: 185,681 responses and 15,473 
hours.
    Total estimated burden requested for this requirement: 186,031 
responses and 15,502 hours.
    I. Notice to Employee of Pending Cancellation of Health Benefits. 
The Department believes that most employees who take leave to care for 
a covered veteran will be covered by the military member's health 
benefits and not by his or her employer's health plan. As such, the 
Department assumes that a very small percentage of employees taking 
leave for a covered veteran will receive notification of the pending 
cancellation of his or her health benefits. The Department does not 
associate a new burden hour estimate with this provision.
    Existing burden for this requirement:
Private: 105,585 responses and 8,799 hours
State, local, tribal: 37,000 responses and 3,083 hours
Federal: 34 responses and 3 hours
    Total burden requested for this requirement:
Private: 105,585 responses and 8,799 hours
State, local, tribal: 37,000 responses and 3,083 hours
Federal: 34 responses and 3 hours
    J. General Recordkeeping. No change from current burden estimate.
    Existing burden for this requirement:
Private: 9,934,548 responses and 206,970 hours
State, local, tribal: 3,481,350 responses and 72,528 hours
Federal: 3,152 responses and 66 hours
    Total burden requested for this requirement:
Private: 9,934,548 responses and 206,970 hours
State, local, tribal: 3,481,350 responses and 72,528 hours
Federal: 3,152 responses and 66 hours.

                                                     PRA Summary of Burden Increase Due to This Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Existing       Increase in      Existing       Increase in      Existing       Increase in
                   Required disclosure                      respondents     respondents      responses       responses     burden hours    burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Employee Notice of Need for FMLA Leave..................       7,249,100           7,000      13,829,680         357,000         460,990          11,900
Notice to Employee of FMLA Eligibility and Rights and
 Responsibilities Notice:
    Private.............................................         211,170           5,182      16,142,733           5,182       7,031,756             864

[[Page 8877]]

 
    State, local, tribal................................          74,000           1,816       5,656,874           1,816       2,464.128             303
    Federal.............................................              67               2           5,121               2           2,231               0
Employee Certifications.................................       5,461,097           7,350      12,118,019           7,350       4,022,236           3,617
Notice to Employees of FMLA Designation:
    Private.............................................         211,170           5,182      12,898,914           5,182       3,479,716             864
    State, local, tribal................................          74,000           1,816       4,520,148           1,816       1,219,392             303
    Federal.............................................              67               2           4,092               2           1,104               0
Notice to Employee of 12-month Period Change:
    Private.............................................          21,117               0       7,099,082               0           3,536               0
    State, local, tribal................................           7,400               0       2,487,721               0           1,239               0
    Federal.............................................               7               0           2,351               0               1               0
Key Employee Notification:
    Private.............................................          21,117               0          31,676               0           2,640               0
    State, local, tribal................................           7,400               0          11,100               0             925               0
    Federal.............................................               7               0              11               0               1               0
Periodic Employee Status Reports........................         184,852             175         371,547             350          12,384              12
Documenting Family Relationships........................         183,987             350         185,681             350          15,473              29
Notice to Employee of Pending Cancellation of Health
 Benefits:
    Private.............................................         105,585               0         105,585               0           8,799               0
    State, local, tribal................................          37,000               0          37,000               0           3,083               0
    Federal.............................................              34               0              34               0               3               0
General Record Keeping:
    Private.............................................         21,1170               0       9,934,548               0         206,970               0
    State, local, tribal................................          74,000               0       3,481,350               0          72,528               0
    Federal.............................................              67               0           3,152               0              66               0
--------------------------------------------------------------------------------------------------------------------------------------------------------

Grand Total Incremental Increase of Burden Hours = 17,892
Grand Total Annual Burden Hours = 19,027,093 Hours
    Persons responding to the various FMLA information collections may 
be employees of any of a wide variety of businesses. Absent specific 
wage data regarding respondents, the Department used the median hourly 
wage for a non-supervisory Human Resources Assistant (Except Payroll 
and Timekeeping) for May 2010. The median hourly wage is $17.69 plus 40 
percent in fringe benefits ($24.77). See BLS Occupational Employment 
Statistics, Occupational Employment and Wages, May 2010 (http://www.bls.gov/oes/current/oes434161.htm). The Department estimates total 
annual respondent costs for the value of their time to be $471,301,094 
($24.77 x 19,027,093 total annual burden hours).
    Other Respondent Cost Burdens (Maintenance and Operation): The 
Department estimates that it will take approximately 20 minutes to 
complete the certification for a covered veteran. Thus, the time would 
equal the employee's time in obtaining the certification. The 
Department used the median hourly wage for a physician's assistant of 
$41.54 plus 40 percent in fringe benefits ($58.17) to compute a $19.39 
cost for the certification of a serious health condition ($58.17 x 20 
minutes/60 minutes per hour). See BLS Occupational Employment 
Statistics, Occupational Employment and Wages, May 2010, http://www.bls.gov/oes/current/oes291071.htm.
    New burden (covered veterans): 7,000 medical certifications for 
covered veterans x $19.39 cost per certification = $135,730.
    Existing maintenance and operations cost estimate for the existing 
FMLA information collections: $163,332,185.
    Grand total of maintenance and operations cost burden for 
respondents = $163,467,915.
    The total burden imposed by the FMLA information collections 
(existing and new) is summarized as follows.
    Agency: Wage and Hour Division.
    Title of Collection: Family and Medical Leave Act, as Amended.
    OMB Control Number: 1235-0003.
    Affected Public: Individuals or Households; Private Sector--
Businesses or other for profits. Not for profit institutions, Farms: 
State, Local, or Tribal Governments.
    Total estimated number of respondents: 14,134,414.
    Total estimated number of responses: 89,305,469.
    Total estimated annual burden hours: 19,027,093.
    Total estimated annual other cost burdens: $163,467,915.

VIII. Executive Order 12866; Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' because, although not economically significant under section 
3(f) of Executive Order 12866, it raises novel issues of law and 
policy. Therefore, the rule was reviewed by OMB. The Family and Medical 
Leave Act (FMLA or Act) is administered by the U.S. Department of 
Labor, Wage and Hour Division (WHD). The FMLA provides a means for 
employees to balance their work and family responsibilities by taking 
unpaid leave for certain reasons. The Act is intended to promote the 
stability and economic security of families as well as the nation's 
interest in preserving the integrity of families.
    The FMLA applies to any employer in the private sector engaged in 
commerce

[[Page 8878]]

or in an industry or activity affecting commerce who employed 50 or 
more employees each working day during at least 20 weeks in the current 
or preceding calendar year; all public agencies and local education 
agencies; and most Federal employees.\5\
---------------------------------------------------------------------------

    \5\ Most Federal employees are covered under Title II of the 
FMLA (incorporated in Title V, Chapter 63, Subchapter 5 of the U.S. 
Code), which is administered by the Office of Personnel Management 
under regulations set forth at 5 CFR part 630, subpart L.
---------------------------------------------------------------------------

    To be eligible for leave, an individual must:
    B. Be employed by a covered employer at a worksite that employs at 
least 50 employees within 75 miles;
    C. Have worked at least 12 months for the employer (not necessarily 
consecutively); and
    [ssquf] Have at least 1,250 hours of service during 12 months 
preceding the beginning of the FMLA leave (as discussed herein, special 
hours of service rules apply to airline flight crew employees).
    The FMLA provides for job-protected, unpaid leave, which may be 
continuous or intermittent, and allows for the substitution of paid 
leave. Employees are entitled to:
    [ssquf] A combined total of 12 workweeks of leave in a 12-month 
period for:
    [cir] birth and care of the employee's child (within one year);
    [cir] placement with employee of a child for adoption or foster 
care (within one year);
    [cir] care of a spouse, child, or parent with serious health 
condition;
    [cir] the employee's own serious health condition; and
    [cir] qualifying exigencies arising out of the fact that the 
employee's spouse, son, daughter, or parent is a military member and is 
on covered active duty or has been notified of an impending call or 
order to covered active duty.
    Employees are also entitled to 26 workweeks of leave in a single 
12-month period to care for a covered servicemember with a serious 
injury or illness if the employee is the spouse, son, daughter, parent, 
or next of kin of the servicemember.

A. Need for Regulation

    The changes to the FMLA regulations are primarily to implement 
statutory amendments to the FMLA's military family leave provisions and 
separate statutory changes affecting the eligibility requirements for 
airline flight crewmembers and flight attendants (collectively referred 
to as airline flight crew employees). The military statutory amendments 
are designed to make it easier for workers with family in military 
service to balance their work and family lives during particularly 
demanding times without the fear of losing their jobs. 73 FR 68070. The 
amendments relating to the airline flight crew employees established a 
special hours of service eligibility requirement in order to address 
this industry's unique scheduling practices and expand access to FMLA-
protected leave for airline flight crew employees.
1. National Defense Authorization Act for Fiscal Year 2010 Amendments
    On October 28, 2009, the President signed into law the National 
Defense Authorization Act for FY 2010 (FY 2010 NDAA), Public Law 111-
84. Section 565(a) of the FY 2010 NDAA amends the FMLA. These 
amendments expand the military family leave provisions added to the 
FMLA in 2008, which provide qualifying exigency and military caregiver 
leave for employees with family members who are covered military 
members.
    The FY 2010 NDAA amendments to the FMLA provide that an eligible 
employee may take FMLA leave for any qualifying exigency arising out of 
the fact that the employee's spouse, son, daughter, or parent is on (or 
has been notified of an impending call to) covered active duty in the 
Armed Forces. Covered active duty for members of a regular component of 
the Armed Forces means duty during deployment of the member with the 
Armed Forces to a foreign country. For members of the U.S. National 
Guard and Reserves it means duty during deployment of the member with 
the Armed Forces to a foreign country under a call or order to active 
duty in a contingency operation as defined in section 101(a)(13)(B) of 
title 10, United States Code. Prior to the FY 2010 NDAA amendments, 
qualifying exigency leave did not apply to employees with family 
members serving in a regular component of the Armed Forces.
    The FY 2010 NDAA also expands the military caregiver leave 
provisions of the FMLA. Military caregiver leave entitles an eligible 
employee who is the spouse, son, daughter, parent, or next of kin of a 
covered servicemember with a serious injury or illness, to take up to 
26 workweeks of FMLA leave in a single 12-month period to care for the 
covered servicemember. Under the FY 2010 NDAA amendments, the 
definition of covered servicemember is expanded to include a veteran 
``who is undergoing medical treatment, recuperation, or therapy for a 
serious injury or illness'' if the veteran was a member of the Armed 
Forces ``at any time during the period of 5 years preceding the date on 
which the veteran undergoes that medical treatment, recuperation, or 
therapy.'' Prior to the FY 2010 NDAA amendments, military caregiver 
leave was limited to care for current members of the U.S. Armed Forces, 
including members of the Regular Armed Forces and members of the 
National Guard and Reserves.
    In addition, the FY 2010 NDAA amends the FMLA's definition of a 
serious injury or illness for a current member of the U.S. Armed 
Forces, including National Guard or Reserves, to include not only a 
serious injury or illness that was incurred by the member in the line 
of duty on active duty but also one that ``existed before the beginning 
of the member's active duty and was aggravated by service in line of 
duty on active duty in the Armed Forces'' that may render the member 
medically unfit to perform the duties of the member's office, grade, 
rank, or rating. For covered veterans, the term is defined as ``a 
qualifying (as defined by the Secretary of Labor) injury or illness 
that was incurred by the member in line of duty on active duty in the 
Armed Forces (or existed before the beginning of the member's active 
duty and was aggravated by service in line of duty on active duty in 
the Armed Forces) and that manifested itself before or after the member 
became a veteran.''
2. Airline Flight Crew Technical Amendments
    On December 21, 2009, the President signed into law the Airline 
Flight Crew Technical Corrections Act (AFCTCA), Public Law 111-119. 
This amendment to the FMLA establishes a special hours of service 
eligibility provision for airline flight crew employees. This amendment 
also permits the Secretary of Labor to provide by regulation a method 
of calculating FMLA leave for airline flight crew employees. Airline 
flight crew employees continue to be subject to the FMLA's other 
eligibility requirements.
    The amendment provides that an airline flight attendant or flight 
crewmember meets the hours of service requirement if, during the 
previous 12-month period, he or she has worked or been paid for:
    [ssquf] Not less than 60 percent of the applicable total monthly 
guarantee (or its equivalent), and
    D. Not less than 504 hours, not including personal commute time, or 
time spent on vacation, medical, or sick leave.
    Prior to this amendment, many flight crew employees were not 
eligible for FMLA leave because the nature of the airline industry, 
including regulatory limits on the flying time, prevented

[[Page 8879]]

them from meeting the required 1,250 hours of service requirement. 
Airline employees other than flight crew employees continue to be 
subject to the 1,250 hours of service eligibility requirement with 
hours of service determined according to principles established under 
the FLSA for compensable work time (i.e., hours worked). See Sec.  
825.110.

B. Summary of Public Comments

1. Additional Data
    World at Work and Airlines for America (A4A) provided additional 
data about FMLA usage and administration in their comments; these 
comments were especially relevant to the data and assumptions used in 
the economic analysis.
    World at Work provided a summary of survey results from a recent 
``Snapshot Survey'' of their members' opinions about issues raised by 
the NPRM as well as an overview of insights from earlier surveys 
related to more general FMLA issues. World at Work found that 65 
percent of their members have received no requests for qualifying 
exigency leave and that members must focus most of their time on 
administration related to intermittent leaves for other FMLA-qualifying 
reasons. While the most recent results presented in the World at Work 
comment are derived from a fairly small sample size (93 responses), 
they provide useful feedback on qualifying exigency leave that is 
generally consistent with the estimates in the NPRM.
    There were numerous general comments on the burden of tracking 
intermittent FMLA leave; however, absent new data, the Department 
continues to rely on its previous surveys as the best available data 
for calculations regarding intermittent leave usage. The Department 
notes that it is conducting a new survey of employers and employees to 
obtain current representative data for FMLA leave usage.
    A4A provided a detailed comment including information on trends of 
usage of FMLA-type leave in the airline industry. In the comment, A4A 
noted that on the enactment of the AFCTCA all airlines implemented the 
new eligibility standard and there have been few reported disputes of 
airline flight crew employee eligibility. Additionally, airline 
experience implementing FMLA-type leave has shown that for airline 
flight crew employees, intermittent leave is far more common than block 
leave, likely due to the way this industry schedules work and provides 
banks of paid leave for many workers. This commenter further stated 
that when airline flight crew employees use FMLA leave, they ``almost 
always request and are charged a minimum of one day usage or the hourly 
equivalent of one paid day.'' The Department notes that this Final Rule 
recognizes industry practice and establishes a bank of leave for 
eligible airline flight crew employees and a minimum increment of one 
day of leave.
    The Department notes that the economic analysis of leave taken by 
airline flight crew employees as a result of the rule may be an 
underestimate, because such employees may take more short periods of 
leave rather than fewer long periods of leave. However, the Department 
received no data concerning how leave usage by airline flight crew 
employees may vary from FMLA leave usage by non-airline employees or 
from the assumption of FMLA leave use contained in the proposed rule: 
that airline flight crew employees take approximately the same number 
of FMLA leave periods as the rest of the population of eligible 
employees. 77 FR 8997. As a result, the costs driven by number of 
leaves (certifications, notices) may be underestimated; however, it is 
likely that the underestimated costs are offset by an associated 
overestimate of costs driven by leave length (maintenance of health 
benefits).
2. Regulatory Familiarization
    Two commenters, Aon Hewitt and the National Coalition to Protect 
Family Leave, raised concerns about the Department's estimate of the 
amount of time required for employers to familiarize themselves with 
the rule. Specifically, both commenters felt that two hours was too low 
and that it is unclear if this includes time for the employer to make 
revisions based on its review of the rule. Aon Hewitt observed that its 
clients usually involve staff in multiple roles to review and make 
decisions, and that a more appropriate estimate of the time required 
would be 20 hours for airline companies and 15 hours for all others.
    The commenters did not provide justification for why employers 
already administering FMLA leave should require a 10-fold increase in 
the amount of time for regulatory familiarization. The Department notes 
that this rulemaking builds upon changes made in the 2008 Final Rule. 
Therefore, the Department believes that covered employers are already 
familiar with the relevant provisions of the FMLA and merely have to 
apply those provisions to additional groups of workers, or with slight 
modification for particular types of employees. The Final Rule is 
limited in scope and length, limiting the time required for 
familiarization. Furthermore, the Department believes that most 
employers will make use of guidance and educational materials from the 
Department, industry trade groups, franchisers and other organizations 
to help them review the regulations more efficiently. Accordingly, the 
Department will leave the assumption as is.
3. Other Costs to Employers
    Several individual commenters and the National Business Group on 
Health raised concerns about the administrative burden to employers of 
tracking FMLA leaves and rescheduling work. The National Business Group 
on Health noted ``our members, many of whom are the human resources 
professionals who administer FMLA leave, consistently confirm that 
compliance with FMLA involves complex and costly processes.'' An 
individual, identifying himself as an employment law attorney and human 
resources professional, agreed with business concerns about the time-
consuming task of administering FMLA leave, but also noted that there 
are creative approaches available to lessen this burden.
    These commenters did not provide any additional data or 
observations on which to base any revisions to the analysis. Based on 
the survey results presented by World at Work, in 2005 respondents 
indicated that processing a request for FMLA leave requires 30 minutes 
to two hours of time, which is consistent with the time estimates used 
in the economic analysis.
4. Costs to Employees
    One commenter discussed the burden of certification costs to 
employees, noting that for workers with multiple serious conditions the 
cost of obtaining certifications (and recertifications) could become 
quite expensive. This commenter noted that he typically pays $25 to $55 
per certification to the health care provider, depending on specialty.
    This range of costs per certification is consistent with the cost 
the Department cites in the economic analysis. The Department has 
proposed only minor revisions to the certifications to reflect the 
statutory amendments under the FMLA but encourages employers to work 
with employees with multiple conditions to reduce cost.

C. Summary of Impacts 6
---------------------------------------------------------------------------

    \6\ On certain provisions, the Department provides a range of 
estimates. Where the ranges provide a summary of information, the 
midpoint of the range is represented.
---------------------------------------------------------------------------

    The Department projects that the average annualized cost of the 
rule will

[[Page 8880]]

be somewhat less than $43 million per year over 10 years. The rule is 
expected to cost $53.9 million in the first year, and $41.3 million per 
year in subsequent years. The amendment to extend FMLA provisions to 
airline flight crew employees accounts for 0.7 percent of first year 
costs and 0.9 percent in subsequent years, while qualifying exigency 
and military caregiver leave account for 75.9 percent of first year 
costs and 99.1 percent of costs in subsequent years. Regulatory 
familiarization costs account for 23.4 percent of first year costs. The 
costs related to the provision of health benefits account for the 
largest share of costs, about 44.0 percent of costs in the first year 
of the rule, and 57.5 percent of costs each in each of the following 
years.

                                Table 1--Summary of Impact of Changes to FMLA \a\
----------------------------------------------------------------------------------------------------------------
                                                                                      Annualized ($1,000)\b\
                                                      Year 1          Year 2     -------------------------------
                    Component                        ($1,000)        ($1,000)      Real discount   Real discount
                                                                                      rate 3%         rate 7%
----------------------------------------------------------------------------------------------------------------
Total...........................................           $53.9           $41.3           $42.8           $43.0
Cost of Each Amendment
    Any FMLA regulatory revision................            12.6               0             1.4             1.7
    Flight Crew Technical Amendment.............             0.4             0.4             0.4             0.4
    FY 2010 NDAA................................            41.0            41.0            41.0            41.0
        NDAA Subtotal Qualifying Exigency.......            25.8            25.8            25.8            25.8
            NDAA Subtotal Military Caregiver....            15.1            15.1            15.1            15.1
Cost of Each Requirement
    Regulatory Familiarization..................            12.6               0             1.4             1.7
    Employer Notices............................            17.1            17.1            17.1            17.1
    Certifications..............................             0.4             0.4             0.4             0.4
    Health Benefits.............................            23.8            23.8            23.8            23.8
----------------------------------------------------------------------------------------------------------------
\a\ Columns may not sum due to rounding.
\b\ Costs are annualized over 10 years.

D. Industry Profile

    The first step in the analysis is to estimate the number of firms, 
establishments and employees in the public and private sectors that 
will be impacted by the changes. The Department estimates that there 
are a total of 7.9 million firms and government agencies with 10.6 
million establishments in the U.S.\7\ These entities employ 133.4 
million workers with an annual payroll of $5.9 trillion.\8\ Estimated 
annual revenues equal $33.2 trillion and estimated net income is $1.1 
trillion.\9\
---------------------------------------------------------------------------

    \7\ Number of firms and establishments includes private 
industry, farms, and governments.
    \8\ The Department's analysis is based on: USDA 2007 Census of 
Agriculture, available at: http://www.agcensus.usda.gov/Publications/2007/index.asp; 2007 Annual Survey of State and Local 
Government Employment and Payroll, available at: http://www.census.gov/govs/estimate/; and Unpublished Special Tabulations 
produced by the Bureau of Labor Statistics, Quarterly Census of 
Employment and Wages (QCEW) Program. For more information on the 
QCEW program, please see the Web site: http://www.bls.gov/cew/.
    \9\ Estimated net income does not include net income for farms. 
The Department's analysis is based on: U.S. Census Bureau, 
Statistics of U.S. Businesses, ``Number of Firms, Number of 
Establishments, Employment, Annual Payroll, and Receipts by 
Employment Size of the Enterprise for the United States, All 
Industries--2002''; Unpublished Special Tabulations, BLS; and, IRS, 
2007 Statistics of Income, Returns of Active Corporations, Table 5--
Selected Balance Sheet, Income Statement, and Tax Items, by sector, 
by Size of Business Receipts.
---------------------------------------------------------------------------

    After identifying and excluding from the analysis those businesses 
that are not covered by the FMLA, the Department estimates that there 
are 381,000 covered firms and government agencies with 1.2 million 
establishments. These firms employ 91.1 million workers that will 
potentially be impacted by the Final Rule changes. These employers have 
an annual payroll of $5.0 trillion, estimated annual revenues of $23.7 
trillion, and estimated net income of $1.03 trillion.

Table 2 presents the estimated number of establishments, firms, 
employment, annual wages, revenue, and net income for all employers; 
Table 3 presents the same information for covered employers. The 
following subsection describes in detail the methods and data sources 
used to develop the industry profile.

                                         Table 2--2008 Industry Profile: All Private and Public Sector Employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Number of                                         Estimated     Estimated net
              NAICS                     Industry          Number of      establishments     Employment    Annual payroll    revenues ($      income ($
                                                        firms (1,000)       (1,000)           (1,000)        ($ bil.)          bil.)           bil.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
11..............................  Agriculture,                     86                 93           1,084          $30               $192            $2.4
                                   Forestry, Fishing
                                   & Hunting.
11f.............................  Farms..............           2,208              2,205             843            0.02             284             \a\
21..............................  Mining.............              21                 30             729           62                265            23.8
22..............................  Utilities..........               7                 16             561           47                589            28.5
23..............................  Construction.......             686                789           6,692          348              1,764            13.1
31-33...........................  Manufacturing......             285                347          12,992          727              5,042           220.0
42..............................  Wholesale Trade....             341                588           5,901          366              5,217            34.9
44-45...........................  Retail Trade.......             638              1,019          15,737        4,006              5,603            94.0
48-49...........................  Transportation and              154                208           4,981          183                920            14.5
                                   Warehousing \b\.
51..............................  Information........              73                136           2,970          210                830            46.7

[[Page 8881]]

 
52..............................  Finance and                     234                459           5,824          492              2,590           114.9
                                   Insurance.
53..............................  Real Estate and                 243                342           2,085           91                439            14.6
                                   Rental and Leasing.
54..............................  Professional,                   695                933           7,876          578              1,476            18.5
                                   Scientific &
                                   Technical Serv.
55..............................  Management of                    35                 48           1,896          179                466            57.0
                                   Companies &
                                   Enterprises.
56..............................  Admin, Support,                 315                432           7,705          255                649             4.0
                                   Waste Mgmt & Remed
                                   Serv.
61..............................  Education Services--             68                 85           2,502           97                269             4.7
                                   Total.
61a.............................  Education Services--             51                 65           1,624           73                185             3.8
                                   all others.
61e.............................  Education Services--             19                 20             878           24                 83             1.0
                                   Elementary and
                                   Secondary.
62..............................  Health Care and                 594                748          15,911          655              1,750            14.4
                                   Social Assistance.
71..............................  Arts,                            99                116           1,816           62                194             3.0
                                   Entertainment, and
                                   Recreation.
72..............................  Accommodation and               447                592          11,218          189                560             4.2
                                   Food Services.
81&95...........................  Other Services &                455              1,112           4,466          128                544             3.3
                                   Auxiliaries.
99..............................  Unclassified.......             101                140             190            7                 30             0.8
                                  All industries.....           7,786             10,438         113,978        5,108             29,672           717.3
                                  Government.........              90                180          19,386          770              3,537           401.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Public and Private Sector Total......................           7,876             10,618         133,364        5,878             33,209         1,118.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government
  Finance; Census of Agriculture; IRS 2001 Statistics of Income.
\a\ Net income for farms is not available.
\b\ NAICS code 48-49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the final
  rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management.


                                                    Table 3--2008 Industry Profile: Covered Employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Number of                                         Estimated     Estimated net
              NAICS                     Industry          Number of      establishments     Employment    Annual payroll    revenues ($      income ($
                                                        firms (1,000)       (1,000)           (1,000)        ($ bil.)          bil.)           bil.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
11..............................  Agriculture,                    2.0                4.9             538              $9             $90            $1.3
                                   Forestry, Fishing
                                   & Hunting.
11f.............................  Farms..............             \a\                \a\             \a\             \a\             \a\             \a\
21..............................  Mining.............             1.6                5.4             534              54             214            22.1
22..............................  Utilities..........             0.9                6.4             473              48             504            26.1
23..............................  Construction.......            19.0               25.9           2,651             181             787             7.0
31-33...........................  Manufacturing......            34.9               63.9          10,272             638           4,435           211.7
42..............................  Wholesale Trade....            21.3               78.0           3,057             291           2,863            21.1
44-45...........................  Retail Trade.......            22.3              215.7          10,146             338           3,998            84.8
48-49...........................  Transportation and              8.8               32.7           3,908             216             716            12.8
                                   Warehousing b.
51..............................  Information........             5.0               38.8           2,323             205             693            42.9
52..............................  Finance and                     9.3              115.4           4,008             478           2,195           104.3
                                   Insurance.
53..............................  Real Estate and                 5.2               37.5             842              62             163             8.4
                                   Rental and Leasing.
54..............................  Professional,                  17.4               59.8           4,020             408             789            13.7
                                   Scientific &
                                   Technical Serv.
55..............................  Management of                  24.3               22.2           1,650             188             334            40.9
                                   Companies &
                                   Enterprises.
56..............................  Admin, Support,                20.0               52.8           5,416             218             389             2.8
                                   Waste Mgmt & Remed
                                   Serv.

[[Page 8882]]

 
61..............................  Education Services-- ..............  .................  ..............  ..............  ..............  ..............
                                   Total.
61a.............................  Education Services--            3.3                7.6           1,329              67             158             3.5
                                   all others.
61e.............................  Education Services--           18.6               20.0             878              24              83             1.0
                                   Elementary and
                                   Secondary.
62..............................  Health Care and                34.3              114.7          11,364             524           1,202            12.7
                                   Social Assistance.
71..............................  Arts,                           5.8               10.3           1,135              39             116             2.1
                                   Entertainment, and
                                   Recreation.
72..............................  Accommodation and              27.6              105.2           5,956             150             285             3.0
                                   Food Services.
81&95...........................  Other Services &                9.5               51.0           1,260              59             171             1.7
                                   Auxiliaries.
99..............................  Unclassified.......             0.0                0.0               1               0               0             0.0
                                  All industries.....           291.2            1,068.2          71,761           4,199          20,187           623.7
                                  Government.........            89.5              180.0          19,386             770           3,537           401.3
                                                      --------------------------------------------------------------------------------------------------
    Total.......................  ...................           380.7            1,248.1          91,147           4,969          23,723         1,025.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government
  Finance; Census of Agriculture; IRS 2001 Statistics of Income.
\a\ Based on the 2007 Census of Agriculture, about 2% of all farms have more than 10 hired employees, suggesting that the number of covered farms is
  likely very close to zero. Due to the seasonal nature of farm employment, it is similarly likely that few employees would be eligible for FMLA leave
  even if the farm were covered.
\b\ NAICS code 48-49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the final
  rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management.

1. Methods and Data Sources
    The analysis draws on the methods used in the 2008 Final Rule to 
estimate a profile of employers and employees who will be impacted by 
the Final Rule. The foundation for the profile is a special tabulation 
of data produced by the Bureau of Labor Statistics (BLS) Quarterly 
Census of Employment and Wages (QCEW) Program. The tabulation describes 
the distribution of establishments and employment by major industry 
division (two-digit NAICS level) across nine employment size 
categories. As explained more fully below, the analysis is based on 
establishment-level data because employer coverage and employee 
eligibility for the Final Rule is determined, in part, by establishment 
size.
    The number of establishments and employment for each two-digit 
industry, as defined by the North American Industry Classification 
System (NAICS), by employment size class, were obtained directly from 
BLS Quarterly Census of Employment and Wages Business Employment 
Dynamics (QCEW).\10\ The number of farms was obtained from the U.S. 
Department of Agriculture 2007 Census of Agriculture. The number of 
governments and number of government workers was obtained from the U.S. 
Census of Governments.
---------------------------------------------------------------------------

    \10\ Unpublished Special Tabulations, BLS.
---------------------------------------------------------------------------

    The number of firms was determined by distributing the BLS QCEW 
total number of firms at the two-digit industry level to each size 
class using the proportion of firms in each size class calculated from 
the Statistics of U.S. Businesses 2006. The Department used a similar 
approach to determine the annual payroll within each industry. The 
total annual payroll at the two-digit industry level was distributed to 
each of the employment size classes using the proportion of payroll in 
each size class calculated from the Statistics of U.S. Businesses 
2006.\11\ Annual wages for government entities were obtained from the 
U.S. Census of Governments.\12\
---------------------------------------------------------------------------

    \11\ Statistics of U.S. Businesses, 2006 features a range of 
size classes; in some cases these size classes were aggregated to 
match the size classes available in the BLS Quarterly Census of 
Employment and Wages Business Employment Dynamics data set.
    \12\ 2007 Annual Survey of State and Local Government Employment 
and Payroll, available at: http://www.census.gov/govs/estimate/.
---------------------------------------------------------------------------

    In order to determine estimated 2008 revenues for each industry and 
employment size class, the Department calculated the receipts per 
employee in each size class from the 2007 Statistics of U.S. Business 
by aggregating the 2007 size classes to match BLS size classes, then 
dividing total receipts by the number of employees in each size class. 
Then, the Department estimated the BLS worker output index and producer 
price index for each two-digit sector as a weighted average of 
industries composing that sector. For sectors where no indices were 
available, the Department used the median value from those sectors with 
indices. Finally, to obtain an estimate of 2008 revenues, the 
Department multiplied receipts per employee in each size class by the 
2008 number of employees in each size class, the worker output index 
and the producer price index. Government revenues were directly 
obtained from the 2007 Census of Government Finance.\13\
---------------------------------------------------------------------------

    \13\ U.S. Census Bureau 2007 Census of Government Finance, 
available at: http://www.census.gov/govs/estimate/index.html#state_local.
---------------------------------------------------------------------------

    To determine estimated 2008 net income for each industry and 
employment class size, the Department calculated the average revenues 
per firm in each size class and calculated the ratio of net income to 
total receipts using the 2007 IRS Statistics of Income.\14\ The 
estimated average revenue per firm in each size class was used to 
select an appropriate ``size of business receipts'' category from

[[Page 8883]]

Statistics of Income for a size class in a particular industry and to 
generate the ratio of net income to total receipts for that category. 
The 2007 ratio of net income to total receipts was multiplied by the 
estimated 2008 revenues in each size class to calculate the estimated 
2008 net income. Government net income was estimated by subtracting 
expenditures from revenues.\15\
---------------------------------------------------------------------------

    \14\ Internal Revenue Service, 2007 Statistics of Income, 
Returns of Active Corporations, Table 5--Selected Balance Sheet, 
Income Statement, and Tax Items, by Sector, by Size of Business 
Receipts.
    \15\ 2007 Census of Government Finance.
---------------------------------------------------------------------------

2. Covered Employers
    The FMLA applies to any employer in the private sector engaged in 
commerce or in an industry affecting commerce who employed 50 or more 
employees each working day during at least 20 weeks in the current or 
preceding calendar year; and all public agencies and local education 
agencies. Most Federal employees are covered by Title II of the FMLA 
which is administered by the Office of Personnel Management (OPM).
    First, the Department dropped from the profile all establishments 
in employment size classes of less than 50 employees (i.e., 0--49 
employees) except for those in elementary and secondary education. For 
the purpose of this analysis, all Federal government employers are 
assumed to be covered by FMLA regulations as administered by the OPM 
and, therefore, not subject to these revisions; state and local 
government employees, as well as U.S. Postal Service employees, are 
covered by this final rulemaking and are included in the profile of 
covered workers. Additionally, based on estimates from the 2007 Census 
of Agriculture, it is likely that very few farms employ more than 50 
employees, and among those that do, very few of their employees are 
eligible for FMLA as the seasonal nature of the work limits the total 
number of hours employees work each year. As a result, this analysis 
assumes that no farm employers are covered by FMLA.\16\ See Table 3 for 
a summary of covered employers.
---------------------------------------------------------------------------

    \16\ Based on the 2007 Census of Agriculture, about 2% of all 
farms have more than 10 hired employees, suggesting that the number 
of covered farms is likely very close to zero. Due to the seasonal 
nature of farm employment, it is similarly likely that few employees 
would be eligible for FMLA leave even if the farm were covered.
---------------------------------------------------------------------------

    Additionally, the Department used Statistics of U.S. Business, 2006 
at the six-digit NAICS level to identify the proportion of employers in 
NAICS 61 ``Education Services'' who are categorized as ``Elementary and 
Secondary Education.'' This proportion was used to calculate the number 
of employers in each size class in NAICS 61 that are considered local 
education agencies, and, therefore, covered by FMLA regardless of size. 
These employers were subtracted from the broader category of education 
services, and treated separately by the analysis; the remaining 
employers in education services with fewer than 50 employees were 
dropped from the profile.
    Next, in the absence of reliable data on the geographic proximity 
of establishments owned by the same firm, and employment at those 
establishments, the Department calculated an adjustment factor to 
account for establishments with fewer than 50 employees at a worksite 
owned by a firm with more than 50 employees within 75 miles. This is 
necessary to avoid underestimating the number of covered employers and 
eligible employees affected by the Final Rule.
    The Department calculated this adjustment factor as the midpoint of 
a range defined by assumptions concerning the proximity of 
establishments employing fewer than 50 workers owned by the same 
company. To define one end of this range, the Department takes 
employment in establishments with more than 50 employees according to 
the U.S. County Business Patterns of 2007.\17\ This essentially assumes 
that no establishments with fewer than 50 workers and owned by the same 
company are located within 75 miles of each other, and therefore 
excludes all employees in such establishments from the calculation. The 
other end of this range is defined by taking all employment in firms 
with greater than 50 employees according to the Statistics of U.S. 
Businesses 2007 small employment size classes.\18\ This assumes that 
all establishments with fewer than 50 workers owned by the same company 
are located within 75 miles of each other and includes all such 
employees in the calculation. The adjustment factor is the midpoint of 
this range, that isthe Department calculated 50 percent of the 
difference between the higher and lower number of employees to estimate 
the number of workers at covered worksites of less than 50 employees in 
2007. This estimate was then calculated as a percent of total 
employment in each industry, and that percent multiplied by the total 
employment in each industry in 2008 to estimate the number of workers 
at covered worksites of less than 50 employees in 2008. The Department 
did not attempt to distribute these workers to size classes. This 
approach was repeated to estimate the number of establishments and 
annual payroll for this category.\19\ The numbers presented in Table 3 
are the Department's best estimates based on this methodology.
---------------------------------------------------------------------------

    \17\ U.S. County Business Patterns of 2007, available at http://www.census.gov/econ/cbp/download/07_data/index.htm.
    \18\ Statistics of U.S. Businesses, available at: http://www.census.gov/econ/susb/.
    \19\ This is the same approach used in the 2007 ``Preliminary 
Analysis of the Impacts of Prospective Revision to the Regulation 
Implementing the FMLA of 1993 at 29 CFR 825'' (hereafter, ``the 2007 
PRIA''). CONSAD Research Corporation, December 7, 2007, pp. 6-8.
---------------------------------------------------------------------------

E. FMLA Leave Profile

    This section describes how, in light of the recent amendments, the 
Department estimated the number of covered, eligible workers who may be 
in a position to take qualifying exigency or military caregiver leave 
and the number of leaves they may take, and the number of covered 
eligible airline flight crew employees who may take FMLA leave and the 
number of leaves they may take. Table 4 provides a summary of the 
estimated leaves, a discussion of the methodology used to produce these 
estimates follows.

                                             Table 4--Summary of Leaves Taken as a Result of the Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Covered
                                                           service-         Number        Number who       Number of      Days of leave   Hours of leave
                      Leave taker                         members and    eligible for   will take FMLA   leaves (1,000)      (1,000)          (mil.)
                                                           veterans          leave           leave
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flight Crew \a\.......................................  ..............          90,560           5,950              8.9              8.9  ..............
Pilots................................................  ..............          41,470           2,070              3.1              3.1  ..............
Flight Attendants.....................................  ..............          49,090           3,880              5.8              5.8  ..............
NDAA 2010 \b\.........................................         218,130         219,908          37,896            758            1,311              10.5
Qualifying Exigency...................................         197,000         193,000          30,900            401              926               7.4

[[Page 8884]]

 
Military Caregiver....................................          21,130          26,908           6,966            357              385               3.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Number eligible for leave represents only those flight crew employees not currently covered by an FMLA-type provision under a CBA; thus, the number
  of leaves equals new leaves as a result of this rule. The Department did not estimate the number of hours of leave for flight crew employees because
  the rule establishes a bank of days of leave, to be used in full day increments.
\b\ Number of days and hours of leave estimated based on leave profiles, see discussion for more detail.

1. Military Family Leave Under the FMLA
    The changes to the military family leave provisions of the FMLA 
impact a variety of employees and employers across the economy. While 
these changes do not alter the conditions for employer coverage or 
employee eligibility under the FMLA, they do change the circumstances 
under which eligible employees who are family members of covered 
servicemembers qualify for FMLA leave and, as a result, will affect the 
number and frequency of FMLA leaves taken for those reasons.
    In order to estimate the number of individuals who may take leave 
under the qualifying exigency or military caregiver provisions as a 
result of the changes, the Department estimated the number of 
servicemembers or veterans covered by the amendments, completed an age 
profile of those individuals and estimated the number of eligible 
family members or potential caregivers likely to be associated with 
each age range. This method is described in full detail in Appendix A.
a. Qualifying Exigency
    The FY 2010 NDAA amendments to the FMLA provide that an eligible 
employee may take FMLA leave for any qualifying exigency arising out of 
the fact that the employee's spouse, son, daughter, or parent is on (or 
has been notified of an impending call to) covered active duty in the 
Armed Forces. For members of a regular component of the Armed Forces, 
this means duty during deployment to a foreign country. For members of 
the U.S. National Guard and Reserves, it means duty during deployment 
to a foreign country under a call or order to active duty under a 
provision of law referred to in section 101(a)(13)(B) of title 10, 
United States Code.
    To determine the number of eligible employees who may take FMLA 
leave as a result of this amendment, the Department first estimated the 
number of servicemembers on covered active duty and the number of 
family members who may be eligible and employed at a covered employer 
and then subtracted those servicemembers and family members already 
entitled to take qualifying exigency leave prior to the FY 2010 NDAA 
amendments. Clear, consistent data on the number of military personnel 
deployed in any given year are difficult to find; many sources, for 
example, do not adequately distinguish military personnel deployed 
overseas from those stationed overseas. For example, the U.S. 
Department of Defense publishes an annual report profiling the military 
community including the distribution of geographic location of active 
duty members, but without any designation of deployed versus stationed 
status.\20\ In addition, estimates might vary significantly depending 
on sources utilized.\21\ Furthermore, when deployments do occur, a 
Congressional Research Service report showed that estimates of 
personnel involved might vary significantly depending on definition and 
source. Thus, estimates of ``boots on the ground'' in Iraq between 2003 
and 2008 are only 30 percent to 60 percent of the total involved when 
personnel outside Iraq are included.\22\ Therefore, the Department drew 
on several data sources to determine the number of servicemembers 
likely to be called to covered active duty in the Armed Forces 
annually.
---------------------------------------------------------------------------

    \20\ U.S. Department of Defense. Demographics: Profile of the 
Military Community. Available for the years 2003 to 2010 at http://www.militaryhomefront.dod.mil/pls/psgprod/f?p=MHF:DETAIL0:0::::CID:20.20.60.70.0.0.0.0.0.
    \21\ See, for example, the promisingly, but misleadingly, 
titled: Kane, T. 2004. Global U.S. Troop Deployment, 1950-2003. The 
Heritage Foundation. October 27. accessed at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on July 7, 2012.
    \22\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, 
FY2001--FY2010: Cost and Other Potential Issues. Congressional 
Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on July 7, 2012.
---------------------------------------------------------------------------

    Table 5 provides a summary of deployments of the U.S. Armed Forces 
from 1960 through 2007. Although composed of the best data found to 
date, some estimates of personnel deployed appear to use more 
restrictive definitions than would be covered by the Department's 
definition of covered active duty. For example, the table shows 
deployment of 1,200 personnel for operations in Lebanon from 1982 
through 1984. However, this appears to include only those Marine Corps 
troops that were on the ground in Lebanon, but excludes sailors on the 
Navy support ships that were also deployed in this operation.\23\
---------------------------------------------------------------------------

    \23\ For example, the U.S.S. New Jersey provided offshore fire 
support during this operation; this ship alone has a crew of about 
1,900. Thus, this source may use a ``boots on the ground'' 
definition.

                                        Table 5--U.S. Deployments and Total Active Military Personnel, 1960-2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Total active         Deployed personnel        Total deployed
               Year                    military    --------------------------------  as % of total                       Deployment
                                     personnel \b\     Total \a\        Active          active
--------------------------------------------------------------------------------------------------------------------------------------------------------
1960..............................       2,490,000             900             900             0.1  Vietnam \c\
1961..............................       2,550,000           3,000           3,000             0.1
1962..............................       2,690,000          11,000          11,000             0.4
1963..............................       2,700,000          16,000          16,000             0.6
1964..............................       2,690,000          23,000          23,000             0.9
1965..............................       2,720,000         184,000         184,000             6.8
1966..............................       3,230,000         385,000         385,000            11.9
1967..............................       3,410,000         486,000         486,000            14.3

[[Page 8885]]

 
1968..............................       3,490,000         536,000         536,000            15.4
1969..............................       3,450,000         475,000         475,000            13.8
1970..............................       2,980,000         335,000         335,000            11.2
1971..............................       2,630,000         157,000         157,000             6.0
1972..............................       2,360,000          24,000          24,000             1.0
1973..............................       2,230,000              50              50             0.0
1974..............................       2,160,000  ..............  ..............  ..............  ....................................................
1975..............................       2,100,000  ..............  ..............  ..............  ....................................................
1976..............................       2,080,000  ..............  ..............  ..............  ....................................................
1977..............................       2,070,000  ..............  ..............  ..............  ....................................................
1978..............................       2,060,000  ..............  ..............  ..............  ....................................................
1979..............................       2,030,000  ..............  ..............  ..............  ....................................................
1980..............................       2,050,000  ..............  ..............  ..............  ....................................................
1981..............................       2,080,000  ..............  ..............  ..............  ....................................................
1982..............................       2,110,000          10,000          10,000             0.5  Lebanon \e\, Grenada \e\
1983..............................       2,120,000           1,200           1,200             0.1  Lebanon \e\
1984..............................       2,140,000           1,200           1,200             0.1
1985..............................       2,150,000  ..............  ..............  ..............  ....................................................
1986..............................       2,170,000  ..............  ..............  ..............  ....................................................
1987..............................       2,170,000  ..............  ..............  ..............  ....................................................
1988..............................       2,140,000  ..............  ..............  ..............  ....................................................
1989..............................       2,130,000          27,000          27,000             1.3  Panama \e\
1990..............................       2,050,000  ..............  ..............  ..............  ....................................................
1991..............................       1,990,000         560,000         476,000            28.1  Iraq (1) \f\
1992..............................       1,810,000          25,800          25,800             1.4  Iraq OSW [f], Somalia \e\
1993..............................       1,710,000          25,800          25,800             1.5
1994..............................       1,610,000          26,500          26,500             1.7  Somalia \e\, Rwanda \e\, Haiti \e\
1995..............................       1,520,000          12,200          12,200             0.8  Somalia \e\, Haiti \e\, Bosnia \e\
1996..............................       1,470,000           9,300           9,300             0.6  Haiti \e\, Bosnia \e\
1997..............................       1,440,000           1,400           1,400             0.1  Iraq ONW \f\
1998..............................       1,410,000  ..............  ..............  ..............  ....................................................
1999..............................       1,390,000          37,100          37,100             2.7  Kosovo \f\
2000..............................       1,380,000  ..............  ..............  ..............  ....................................................
2001..............................       1,390,000          83,400          83,400             6.0  Afghanistan \d\
2002..............................       1,410,000          21,100          21,100             1.5
2003..............................       1,430,000         237,600         178,200            16.6  Afghanistan [d], Iraq (2) \g\
2004..............................       1,410,000         236,100         177,100            16.7
2005..............................       1,380,000         258,900         194,200            18.8
2006..............................       1,380,000         265,400         199,100            19.2
2007..............................       1,380,000         285,700         214,300            20.7
Average...........................       2,102,000          99,200          90,800             4.7  Overall, 1960-2007
                                         2,140,000         144,000         132,000             6.7  Deployment Years Only
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total deployed personnel is equal to the active personnel plus Reserve and/or National Guard personnel.
\b\ Kane, T. 2004. Global U.S. Troop Deployment, 1950-2003. The Heritage Foundation. October 27. Available at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on July 7, 2012.
\c\ American War Library. Vietnam War Allied Troop Levels 1960-73. Available at: http://www.americanwarlibrary.com/vietnam/vwatl.htm on July 7, 2012.
\d\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, FY2001-FY2010: Cost and Other Potential Issues. Congressional Research Service. July 2.
  Available at http://www.fas.org/sgp/crs/natsec/R40682.pdf on July 7, 2012.
\e\ Sarafino, N.M. 1999. Military Interventions by U.S. Forces from Vietnam to Bosnia: Background, Outcomes, and ``Lessons learned'' for Kosovo.
  Congressional Research Service. May 20.
\f\ U.S. Department of Defense, Deployment Health Clinical Center (DHCC): Deployments by Operation. Available at http://www.pdhealth.mil/dcs/deploy_op.asp on July 7, 2012.
\g\ ``Contingency Tracking System deployment file for Operation Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.'' Available at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
OSW (Operation Southern Watch) and ONW (Operation Northern Watch) refer to operations in support of the Iraqi no-fly zones.

    According to the Department of Defense reports on active duty 
military strengths, the number of troops (including Reserve and 
National Guard) deployed as part of overseas contingency operations 
deployments has steadily declined since 2007.\24\ As of December 31, 
2008 there were 226,950 servicemembers deployed as part of an overseas 
contingency operation; by September 30, 2012 there were 146,712 total 
servicemembers deployed for such an operation.
---------------------------------------------------------------------------

    \24\ Active Duty Military Personnel by Service by Region/
Country. United States Department of Defense. Retrieved January 24, 
2013. Available at: http://siadapp.dmdc.osd.mil/personnel/MILITARY/miltop.htm.
---------------------------------------------------------------------------

    Supplementing the deployment data with annual active military 
personnel counts, the Department estimated the annual number and 
percent of military personnel deployed on average over the 1960 to 2007 
period.\25\ Over the entire 48-year period, each year the U.S. deployed 
on average about 99,200 of its

[[Page 8886]]

2.1 million personnel active military force (4.7 percent) on operations 
that meet the definition of covered active duty. The overall average 
covers a wide variation in the timing, duration, and size of those 
operations; of the 48 years included in Table 5, in:
---------------------------------------------------------------------------

    \25\ For the years available in the U.S. Department of Defense 
``Demographics'' reports, the numbers of ``Active Duty personnel'' 
are consistent with the numbers of ``Total Active Military 
Personnel'' listed in Table 5.
---------------------------------------------------------------------------

    [ssquf] 16 years, essentially no personnel were deployed (with the 
exception of 50 servicemembers in Vietnam in 1973);
    [ssquf] 18 years, 900 to 37,100 personnel were deployed, an average 
of 15,400 per year (0.8 percent of active servicemembers);
    [ssquf] 14 years (Vietnam and the two Iraq conflicts), deployments 
ranged from 83,400 to 560,000 personnel, an average of 320,400 per year 
(13.9 percent of active servicemembers).

Finally, with the exception of the Vietnam and second Iraq conflicts, 
most of the conflicts listed in Table 5 were for two years or less.
    Based on the information provided in Table 5, and acknowledging the 
limitations of those data, the Department judged that the simple 
average of 99,200 deployed personnel does not adequately represent the 
typical number of service personnel on covered active duty in any given 
year for projecting the costs associated with this rule. The Department 
also calculated that, on average, 144,000 personnel per year were 
deployed in the 33 years in which a deployment occurred. Using this 
figure instead to represent average annual deployments on covered 
active duty provides a 45 percent cushion to account for data 
inconsistencies and omissions. Therefore, for the purposes of this 
analysis, the Department assumes an average of 144,000 military 
personnel are deployed per year on covered active duty.
    Two additional adjustments to this estimate must be made:
    [ssquf] Qualifying exigency leave for eligible family members of 
National Guard and Reserve personnel was promulgated in 2008.
    [ssquf] Military personnel may deploy more than once in any given 
year; if their eligible family members use less than the entire 
allotment of leave on the first deployment (12 weeks), they may use 
some or all of the remaining leave on subsequent deployments that year.
    Data on U.S. military deployments showed that 17 percent of 
personnel deployed to Iraq in 1991 were Reserve units, while 28 percent 
of personnel deployed to Iraq between 2003 and 2007 were Reserve or 
National Guard units.\26\ Therefore, the Department adjusted the 
estimated number of personnel downward by 15 percent for 1991, and 25 
percent for 2003 through 2007. Thus, the Department estimates that on 
average 132,000 active military personnel per year are deployed on 
covered active duty.
---------------------------------------------------------------------------

    \26\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, 
FY2001-FY2010: Cost and Other Potential Issues. Congressional 
Research Service. July 2. Accessed at: http://www.fas.org/sgp/crs/natsec/R40682.pdf on July 7, 2012.
    ``Contingency Tracking System deployment file for Operation 
Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.'' 
Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
---------------------------------------------------------------------------

    The Department used a Department of Defense news release on typical 
deployment lengths in the Iraq conflict by service (Army, one year; 
Navy and Marines, six months; Air Force, three months) \27\ to estimate 
the average number of deployments per person. This average was weighted 
by the relative percent of active personnel by service deployed to Iraq 
(Army, 61 percent; Navy and Marines, 28 percent; Air Force, 11 percent) 
\28\ to determine that the military would use 1.49 deployments to 
maintain one person in Iraq for one year. Thus, deployment of 132,000 
personnel might require 197,000 actual deployments per year.
---------------------------------------------------------------------------

    \27\ DOD News Briefing with Secretary Gates and Gen Pace from 
the Pentagon. April 11, 2007. Available at: http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=3928. See also Powers, R. 
2007. ``Joint Chiefs Continue to Examine Deployment Lengths.'' April 
14. Accessed at: http://usmilitary.about.com/od/terrorism/a/deploylength.htm.
    \28\ ``Contingency Tracking System deployment file for Operation 
Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.'' 
Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
---------------------------------------------------------------------------

    In the 2008 Final Rule, the Department estimated the joint 
probability that a servicemember will have one or more family members 
(parent, spouse, or adult child), that those family members will be 
employed at an FMLA-covered establishment, and that they would be 
eligible to take FMLA leave under the qualifying exigency provision 
(see 2007 PRIA and Appendix A). Applying these joint probabilities to 
the 197,000 annual deployments, the Department estimates approximately 
193,000 family members will be eligible to take FMLA leave to address 
qualifying exigencies. Military deployments represent a non-routine 
departure from normal family life to potentially long-term exposure to 
a high stress, high risk environment, often at relatively short notice. 
Therefore, the Department assumes the rate at which eligible employees 
take FMLA leave for this purpose will be twice the rate (about 16 
percent) of those taking regular FMLA leave (7.9 percent). The 
Department does not assert that only 16 percent of family members will 
take leave for reasons related to the servicemember's deployment, but 
that 16 percent will use leave designated as FMLA leave for qualifying 
exigencies. Based on these assumptions, the Department estimates 30,900 
family members will take FMLA leave annually to address qualifying 
exigencies.
    In the 2008 Final Rule, the Department developed a profile of the 
``typical'' usage of qualifying exigency leave over the course of a 12-
month period for an eligible employee. 73 FR 68051. Under this leave 
profile, the typical employee will take a one week block of leave upon 
notification of the deployment of the servicemember, 10 days of 
unforeseeable leave during deployment, one week of foreseeable leave to 
join the servicemember while on rest and recuperation, and one week of 
foreseeable leave post deployment to address qualifying exigencies. Id. 
The revisions to the rule increase foreseeable leave to join a 
servicemember while the servicemember is on Rest and Recuperation 
leave. Table 6 summarizes the revised leave pattern.

              Table 6--Profile of Qualifying Exigency Leave
------------------------------------------------------------------------
            Reason               Description        Days        Hours
------------------------------------------------------------------------
Notice of Deployment.........  1 week                     5           40
                                unforeseeable.
During Deployment............  10 days                   10           80
                                unforeseeable.
During Deployment, ``Rest and  10 days                   10           80
 Recuperation''.                foreseeable.
Post Deployment..............  1 week                     5           40
                                foreseeable.
                                               -------------------------
    Total....................  ...............           30          240
------------------------------------------------------------------------


[[Page 8887]]

    For the purpose of this analysis, the Department is assuming that 
the average employee will take 10 days of leave to be with their 
servicemember during rest and recuperation leave. While the Department 
proposed in the NPRM to increase the number of days of qualifying 
exigency leave an employee may take for the servicemember's Rest and 
Recuperation leave to coincide with the number of days provided the 
servicemember, up to 15 days, the Department does not have a basis at 
this time to estimate the percentage of servicemembers who would be 
granted 15 days of Rest and Recuperation or the probability that their 
family member(s) would join them for the entire Rest and Recuperation 
leave. Therefore, the Department assumes for the purpose of this 
analysis that a covered and eligible employee will take 10 days of 
qualifying exigency leave for the servicemember's Rest and Recuperation 
leave. The Department invited comment on the amount of Rest and 
Recuperation leave provided to service personnel and the extent to 
which employees would take an equal number of days of FMLA qualifying 
exigency leave to be with their servicemember family member. Several 
commenters, including the National Association of Letter Carriers, the 
North Carolina Justice Center, the Partnership, the Military Officers 
Association of America, Twiga, and the Coalition confirmed that 
servicemembers are often granted 15 days of leave for Rest and 
Recuperation and that family members should be allowed to take an 
amount of leave that is equal to the amount granted to the 
servicemember. None of these commenters were able to provide any 
further information on the percent of servicemembers that are granted 
five, 10, or 15 days of leave, or the frequency with which family 
members join them or for how long; therefore, the Department will 
continue to use the midpoint of 10 days for this analysis. Similarly, 
because the Department has no data on which to base an estimate of the 
number of days of qualifying exigency leave that might be taken for 
parental care, it will continue to use 10 days of unforeseen leave 
during deployment for this analysis.
    Based on this profile, the Department estimates that 30,900 
eligible employees will take 926,000 days (7.4 million hours) of FMLA 
leave annually to address qualifying exigencies under the FY 2010 NDAA 
amendments. These estimates may vary from 770,000 days (6.2 million 
hours) if eligible employees average five days of leave to 1.1 million 
days (8.7 million hours) if they average 15 days of leave when a 
servicemember is on Rest and Recuperation leave.
    The Department acknowledges that estimated qualifying exigency 
leave also represents an average of periods with high levels of 
deployment and active conflict and periods with low or minimal 
deployments. Therefore, the Department supplements its analysis by 
considering a ``heavy conflict'' scenario and a ``low conflict'' 
scenario to capture the range of leave usage that may be expected in 
any given year in the future.
    Drawing on the data in Table 5, for the purposes of these cost 
estimates, the Department defines the low conflict scenario as a year 
containing no deployment exceeding 40,000 servicemembers, while the 
heavy conflict scenario is one in which deployments exceed 40,000 
servicemembers. Applying this standard to the data in Table 5, the 
average size of a deployment during the low conflict scenario is 15,400 
troops, compared to 320,400 during a period of heavy conflict.
    The Department applied the same probabilities of having eligible 
family members and patterns of leave usage as were used for the average 
analysis. Using this method, the Department estimates that 2,400 
employees will take 72,000 days (576,500 hours) of leave for qualifying 
exigencies under the low conflict scenario, while 50,100 employees will 
take 1.5 million days (12 million hours) of leave during periods of 
heavy conflict. See Table 7.

                                 Table 7--Estimated Qualifying Exigency Leave Usage Under a Range of Conflict Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Covered        Number of
                                                             service-        eligible        Number of     Days of leave  Hours of leave   Leave events
                       Leave type                           members or       family or     leave  takers     per year        per year        per year
                                                             veterans       caregivers        (1,000)         (1,000)         (1,000)         (1,000)
                                                              (1,000)         (1,000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low Conflict............................................              15              15               2              72             576              31
Average Deployment......................................             197             193              31             926           7,393             401
Heavy Conflict..........................................             320             313              50           1,503          12,023             651
--------------------------------------------------------------------------------------------------------------------------------------------------------

b. Military Caregiver Leave
    Military caregiver leave entitles an eligible employee who is the 
spouse, son, daughter, parent, or next of kin of a covered 
servicemember to take up to 26 workweeks of FMLA leave in a single 12-
month period to care for a covered servicemember with a serious injury 
or illness. Under the FY 2010 NDAA amendments, the definition of 
covered servicemember is expanded to include a veteran ``who is 
undergoing medical treatment, recuperation, or therapy for a serious 
injury or illness'' if the veteran was a member of the Armed Forces 
``at any time during the period of 5 years preceding the date on which 
the veteran undergoes that medical treatment, recuperation, or 
therapy.'' The FY 2010 NDAA amendments define a serious injury or 
illness for a covered veteran as ``a qualifying (as defined by the 
Secretary of Labor) injury or illness that was incurred by the member 
in line of duty on active duty in the Armed Forces (or existed before 
the beginning of the member's active duty and was aggravated by service 
in line of duty on active duty in the Armed Forces) and that manifested 
itself before or after the member became a veteran.''
    The amendments also expand the definition of serious illness or 
injury to include an injury or illness of a current member of the 
military that ``existed before the beginning of the member's active 
duty and was aggravated by service in line of duty'' and that may cause 
the servicemember to be unable to perform the duties of his or her 
office, grade, rank, or rating. The Department does not attempt in this 
analysis to estimate the number of additional current servicemembers 
who may be covered under this expansion of the definition due to the 
lack of data to support reasonable assumptions on the potential size of 
this group. However, for the reasons discussed earlier in this 
preamble, the Department believes it is reasonable to conclude that the 
number of servicemembers entering the military with an injury or 
illness with the potential to be aggravated by service to the point of 
rendering the servicemember unable to perform the duties of his or her 
office, grade, rank, or rating is quite small due to the

[[Page 8888]]

selection process used by the Armed Forces.
    To determine the number of eligible employees that may take FMLA 
leave as a result of the expansion of caregiver leave to family members 
of covered veterans, the Department first estimated the number of 
veterans likely to undergo medical treatment for a serious injury or 
illness, and the number of family members who are employed by a covered 
employer and who may be eligible to take FMLA leave to care for them. 
The Department reviewed several summaries of injuries and illnesses 
among military servicemembers to estimate the rate at which injuries 
that are sufficiently severe as to require medical care after 
separation from the military might occur.\29\ A number of data 
limitations make the estimation of serious injury and illness rates 
problematic:
---------------------------------------------------------------------------

    \29\ The most useful of these sources were:
    Dole, R. and D. Shalala. Serve, Support, and Simplify. Report of 
the President's Commission on Care for America's Returning Wounded 
Warriors. July, 2007.
    Fischer, H. United States Military Casualty Statistics: 
Operation Iraqi Freedom and Operation Enduring Freedom. CRS Report 
for Congress. Congressional Research Service, March 25, 2009.
    Tanielian, T. and L.H. Jaycox (eds.). Invisible Wounds: Mental 
Health and Cognitive Care Needs of America's Returning Veterans. 
Research Highlights. RAND Center for Military Health Policy 
Research. 2008.
    U.S. Department of Defense. DOD Military Injury Metrics Working 
Group White Paper. December 2002.
---------------------------------------------------------------------------

    [ssquf] The Department of Defense generally publishes data on the 
number of servicemembers killed or wounded in action, but little about 
non-combat injuries and illnesses.
    [ssquf] Except for the most severe injuries (e.g., amputations, 
severe burns, blindness), little is published about the nature or 
severity of illnesses and injuries.
    After determining the number of servicemembers with serious 
injuries and illnesses separating from the military annually, the 
Department adjusts the estimate to account for servicemembers that were 
covered under the 2008 Final Rule and the percent of veterans likely to 
seek medical care after separation. This baseline number of 
servicemembers with serious injuries or illnesses differs from the 
estimate used in the 2008 Final Rule for several reasons. First, the 
definition of serious injury and illness has expanded to include 
injuries or illnesses that existed prior to the servicemember joining 
the military that were exacerbated by active duty and to reflect the 
fact that injuries such as PTSD and TBI that manifest following 
separation from the military have been badly underreported in the past. 
Second, the analysis relies on improved data sources such as the 
distribution of servicemembers by VASRD rating. No commenters submitted 
data or alternative estimates of the numbers of servicemembers who will 
incur such injuries or illness requiring treatment; the Department 
reached this estimate based on the following information and analysis.
    The Department first estimated the percent of servicemembers that 
might receive an injury or illness requiring care while in the service 
or after separation. In 2001, the Department of Veterans Affairs 
undertook a survey that showed 24 percent of veterans who served during 
the Gulf War era reported having a service-related disability 
rating.\30\ Service-related disability ratings do not require that the 
servicemember is totally disabled; the rating might be less than 30 
percent (or even zero in the case of a service-related injury that 
healed prior to separation) however, the mere fact that a servicemember 
has a rating indicates that a service-related injury occurred.\31\
---------------------------------------------------------------------------

    \30\ U.S. Department of Veterans Affairs. 2001 National Survey 
of Veterans. Accessed at: http://www1.va.gov/VETDATA/docs/SurveysAndStudies/NSV_Final_Report.pdf.
    \31\ Veterans Administration Service Related Disability Rating 
(VASRD). Accessed at: http://myarmybenefits.us.army.mil/Home/Benefit_Library/Federal_Benefits_Page/Veterans_Affairs_Schedule_for_Rating_Disabilities_(VASRD).html.
---------------------------------------------------------------------------

    The Department then examined deployment rates across different time 
periods. Table 5 indicates that servicemembers deployed during the Gulf 
War of 1991 account for about 28 percent of the total active military 
at that time. The same table shows that servicemembers deployed in 
Operations Enduring Freedom and Iraqi Freedom (Iraq (2)) comprise a 
smaller percentage of the active military (roughly 20 percent). 
However, the Department believes this is an underestimate; because the 
second Iraq conflict lasted several years, it is likely that many in 
the active military not deployed at the time of the snapshot were 
deployed sometime during its duration; conversely, the first Iraq war 
was relatively brief, and personnel had a smaller likelihood of 
rotating into the war zone during its duration. Therefore, the 
Department believes that the percent of active military personnel who 
were deployed to Afghanistan or Iraq is higher than the calculations in 
Table 5 show, and that the true percent is similar to the first Iraq 
conflict: approximately 30 percent of active military personnel were 
deployed. The Department also concludes that the percent of veterans 
who received a service-connected disability rating from the first Gulf 
War era is a reasonable proxy for veterans of the period 2003 through 
2007, about 25 percent (rounded up from 24 percent). Thus, the 
Department expects that at least 25 percent of active military 
personnel in the post-9/11 era will separate from the military with a 
disability rating.
    Data provided by the Department of Veterans Affairs (VA) indicates 
that among the population of current veterans with a disability rating, 
41.3 percent have a rating of 50 percent or greater (Table 8). Assuming 
the distribution of disability ratings among servicemembers who will 
separate from the military in years to come is the same as the 
distribution of disability ratings of current veterans, the Department 
estimates that 10 percent (25 percent x 40 percent = 10 percent) of 
separating servicemembers will have a disability rating of 50 percent 
or greater.

                    Table 8--2011 Distribution of Current Veterans by Disability Rating (DR)
----------------------------------------------------------------------------------------------------------------
                                                                                                    Cumulative
                                                                     Number of      Percent of      percent of
                 Degree of disability (percent)                       current         current         current
                                                                  veterans  with  veterans  with  veterans  with
                                                                        DR              DR              DR
----------------------------------------------------------------------------------------------------------------
0...............................................................          11,423             0.3             0.3
10..............................................................         780,978            23.8            24.1
20..............................................................         440,188            13.4            37.5
30..............................................................         373,677            11.4            48.9
40..............................................................         322,635             9.8            58.7
50..............................................................         214,552             6.5            65.3

[[Page 8889]]

 
60..............................................................         267,838             8.2            73.4
70..............................................................         247,636             7.5            81.0
80..............................................................         192,546             5.9            86.8
90..............................................................         112,824             3.4            90.3
100.............................................................         320,059             9.7           100.0
----------------------------------------------------------------------------------------------------------------
Source: Department of Veterans Affairs.

    However, it is possible that a servicemember may not manifest the 
symptoms of a serious injury or illness at the time of his or her 
separation, and therefore, not go through the VA disability rating 
process prior to leaving the service. In 2008, the RAND organization 
published a report entitled Invisible Wounds: Mental Health and 
Cognitive Care Needs of America's Returning Veterans (Tanielian and 
Jaycox, 2008) that summarized the results from a survey of 
servicemembers,\32\ and found that among servicemembers who returned 
from Operation Enduring Freedom and Operation Iraqi Freedom:
---------------------------------------------------------------------------

    \32\ A more concise discussion of the findings is available in a 
RAND research brief: Tanielian, T. et al. 2008 Invisible Wounds: 
Mental Health and Cognitive Care Needs of America's Returning 
Veterans. Pages 1-3. Accessed at: http://www.rand.org/pubs/research_briefs/RB9336.html.
---------------------------------------------------------------------------

     11.2 percent met the criteria for post-traumatic stress 
disorder (PTSD) or depression,
     12.2 percent had likely experienced a traumatic brain 
injury (TBI),
     7.3 percent had experienced both a TBI and either PTSD or 
a TBI and depression, and
     Roughly 50 percent of these servicemembers sought 
treatment for their symptoms within one year of returning from 
overseas.
    Furthermore, symptoms of such injuries may not appear until several 
years after the injury was experienced, have traditionally been badly 
underreported, and are not well understood. Due to the high visibility 
research performed in this area, and recent initiatives undertaken by 
the Department of Veterans Affairs,\33\ it is reasonable to assume a 
much higher percentage of these types of injuries will be diagnosed and 
reported than in previous cohorts of veterans.
---------------------------------------------------------------------------

    \33\ See e.g., DeKosky, S.T., M.D. Ikonomovic, and S. Gandy. 
2010. Traumatic Brain Injury--Football, Warfare, and Long-Term 
Effects. The New England Journal of Medicine. 363:14. September 30.
    U.S. Department of Veterans Affairs. 38 CFR Part 3. Post 
Traumatic Stress Syndrome. Interim Final Rule. Federal Register, 
Vol. 73, No. 210, p. 64208.
---------------------------------------------------------------------------

    Consequently, the Department must also account for veterans who may 
suffer a serious injury or illness that manifested after their 
separation from the military. Evidence from the RAND report indicates 
that approximately 30 percent of servicemembers who were deployed to 
Afghanistan and Iraq experienced a TBI or met the criteria for PTSD or 
depression. Data on deployment show that roughly 30 percent of active 
military personnel were deployed to Afghanistan or Iraq. Assuming that 
such injuries would result in the equivalent of a Veterans Affairs 
Schedule for Rating Disabilities (VASRD) rating of at least 50 percent, 
and did not manifest until after separation from the military, it is 
reasonable to estimate that 10 percent (0.3 x 0.3 = 0.09, then rounding 
up) of these veterans incurred such an injury or illness that 
manifested after separation from the military. The Department added 
this 10 percent of veterans who suffer a post-separation serious injury 
or illness to the 10 percent of military members who separate from the 
military with a VASRD rating. Therefore, the estimated percent of 
veterans likely to have a service-related injury or illness that might 
require treatment after separation is 20 percent.
    In summary, for the purposes of this analysis, the Department 
assumes that 20 percent of servicemembers may separate from the 
military with an injury or illness requiring treatment. This may be an 
overestimate. The Department assumes that of the additional 10 percent 
of servicemembers who experience a serious injury or illness that might 
not manifest until well after the event occurs (e.g., PTSD, TBI, or 
depression), none go through the VA disability rating process. We also 
assume that all eventually seek treatment within the five-year period 
as defined in this Final Rule. Both of these assumptions are very 
conservative, and therefore, likely overestimate the number of 
servicemembers who may suffer a serious injury or illness as defined by 
this rule.
    This estimate suffers from a number of qualifications and 
limitations:
     This injury rate was based on data for military personnel 
that had a high likelihood of experiencing active combat while in the 
military; to the extent that future cohorts experience less combat, the 
injury rate may well be significantly smaller.
     It is not clear that all injuries included in this figure 
will be severe enough to require treatment.
     Even if the injury is severe, it is unclear that the 
servicemember will seek treatment; it has long been known that the 
treatment rate for mental health conditions such as depression amongst 
the general population is less than 100 percent.
     This estimate does not account for other injuries that 
might require treatment; however, the Department could find little data 
on which to base an estimate of such injuries.
     This estimate abstracts from the requirement that 
treatment must occur within five years of separation for the injury to 
be eligible for FMLA caregiver leave. Thus, we implicitly assume 100 
percent will seek treatment within the five-year period as defined in 
this Final Rule.
    The Department used projections of military personnel separations 
for fiscal years 2010 through 2036 from the Department of Veterans 
Affairs as the basis for the average number of personnel (208,000) who 
might newly seek medical care in a given year, see Table 9.\34\ We did 
not model a medical

[[Page 8890]]

care usage pattern for these servicemembers. Because we project this to 
be an average annual ``stream'' of cohorts of separating 
servicemembers, as long as we assume each year's cohort follows the 
same usage pattern, the primary factor governing the number of 
servicemembers requiring treatment is the total number in each cohort 
that will seek treatment within the five year period as defined in this 
Final Rule.\35\ Since not all veterans will seek medical treatment in 
the first year following separation, a true time series representation 
of the number of veterans seeking medical care would show a ``ramp-up'' 
over the first few years until the average annual steady state stream 
comprised of overlapping multiple cohorts of veterans is reached. That 
is, we model the steady state stream of veterans seeking medical care 
as if it starts in year 1; by ignoring the ``ramp up'' we have over-
estimated the number of veterans seeking care and the number of family 
members taking military caregiver leave in that year. If all cohorts of 
separating servicemembers follow the same pattern of care usage, then 
until the steady state is reached, this overestimate of leave usage is 
mathematically equivalent to starting the program four years prior to 
the promulgation date. By using the simplifying assumption of a steady 
state stream of veterans using the program, we have implicitly already 
included demand from prior cohorts in the analysis, including those 
veterans who will benefit from the Final Rule's exclusion of the period 
between the enactment of the FY 2010 NDAA amendments and the effective 
date of this Final Rule in calculating the five year period post-
discharge.
---------------------------------------------------------------------------

    \34\ U.S. Department of Veterans Affairs. 2008. Demographics: 
Veteran Population Model 2007. Table 8S. January. Accessed at: 
http://www1.va.gov/VETDATA/Demographics/Demographics.asp. As a 
check, the FY2010 number of separations are similar to those in the 
U.S. Department of Defense ``Demographics 2009'' report (see tables 
2.66 and 4.68 for active and reserve separations, respectively). 
Note: the average number of separations per year in Table 9 has 
increased from the number reported in the NPRM because the 
Department now includes Coast Guard separations in the calculation.
    \35\ For example, compared to a single cohort separating from 
the military over 5 years, modeling the separation of that same 
cohort over 10 years will result in fewer servicemembers from that 
cohort seeking treatment in any given year. However, modeling 
separation over 10 years will result in servicemembers from more 
cohorts seeking treatment in a given year. Thus, in a steady state, 
the one effect will cancel out the other. Different models of 
separation patterns will, however, result in different numbers of 
treatments prior to reaching the steady state, and the net present 
value of the stream of treatments.

                                              Table 9--Military Separations 2010-2036 by Branch and Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Separations by branch (1,000) \a\
                                                                    ------------------------------------------------------------------------------------
                            Fiscal year                                                                                    Reserve    Coast Guard  Grand
                                                                         Army         Navy      Air Force     Marines     Forces \b\      \c\      total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2010...............................................................         77.8         46.9         37.1         28.9         48.3          4.4  243.4
2011...............................................................         78.4         46.8         37.0         28.8         28.1          4.5  223.6
2012...............................................................         78.8         46.6         36.9         28.7         18.1          4.6  213.7
2013...............................................................         79.6         46.7         37.0         28.7          8.0          4.8  204.8
2014...............................................................         80.0         47.0         37.2         28.8          8.1          4.8  205.7
2015...............................................................         79.5         46.7         36.9         28.6          8.0          4.8  204.5
2016...............................................................         79.2         46.5         36.8         28.5          8.0          4.8  203.8
2017...............................................................         79.6         46.7         37.0         28.6          8.0          4.8  204.8
2018...............................................................         80.1         47.0         37.2         28.8          8.1          4.8  205.9
2019...............................................................         80.2         47.1         37.3         28.8          8.1          4.8  206.3
2020...............................................................         80.2         47.1         37.3         28.8          8.1          4.8  206.2
2021...............................................................         80.3         47.2         37.4         28.8          8.1          4.8  206.6
2022...............................................................         81.0         47.6         37.7         29.0          8.1          4.9  208.3
2023...............................................................         81.0         47.5         37.7         29.0          8.1          4.9  208.3
2024...............................................................         80.4         47.2         37.5         28.8          8.1          4.8  206.8
2025...............................................................         79.5         46.7         37.1         28.4          8.0          4.8  204.4
2026...............................................................         79.6         46.7         37.1         28.5          8.0          4.8  204.7
2027...............................................................         80.0         46.9         37.3         28.6          8.0          4.8  205.5
2028...............................................................         79.9         46.9         37.3         28.5          8.0          4.8  205.3
2029...............................................................         79.5         46.6         37.1         28.4          8.0          4.8  204.3
2030...............................................................         79.9         46.9         37.3         28.5          8.0          4.8  205.5
2031...............................................................         80.1         47.0         37.4         28.6          8.0          4.8  206.0
2032...............................................................         80.0         46.9         37.3         28.5          8.0          4.8  205.5
2033...............................................................         79.9         46.8         37.3         28.4          8.0          4.8  205.2
2034...............................................................         79.9         46.9         37.3         28.5          8.0          4.8  205.4
2035...............................................................         79.9         46.8         37.3         28.4          8.0          4.8  205.2
2036...............................................................         79.9         46.8         37.3         28.4          8.0          4.8  205.2
                                                                    ------------------------------------------------------------------------------------
    Average........................................................  ...........  ...........  ...........  ...........  ...........  ...........  208.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes only separations from the five armed services; excludes separations from the Public Health Service (PHS) and National Oceanic and
  Atmospheric Administration (NOAA).
\b\ Reserve Forces include only those who have had active Federal military service (other than for training) as a result of their membership in the
  reserves or National Guard. Reserve forces with prior active military service in the regular military, are classified according to the branch (Army,
  Navy, Air Force, Marines) in which they served while in the regular military, notwithstanding their subsequent service in the Reserve Forces.
\c\ Coast Guard separations estimated from VETDATA ``Non-Defense'' separations by determining the current proportion of non-defense personnel in the
  Coast Guard (84.8%) versus NOAA and PHS.
Source:  http://www.va.gov/VETDATA/Demographics/Demographics.asp.

    The Department is defining a serious injury or illness of a veteran 
as an injury or illness incurred in the line of duty on active duty (or 
a pre-existing injury or illness aggravated by service in line of duty 
on active duty) that manifests itself before or after the member became 
a veteran and is either: a continuation of a serious injury or illness 
that was incurred or aggravated when the covered veteran was a member 
of the Armed Forces and rendered the servicemember unable to perform 
the duties of the servicemember's office, grade, rank, or rating; a 
physical or

[[Page 8891]]

mental condition for which the covered veteran has received a VASRD of 
50 percent or greater and such VASRD rating is based, in whole or in 
part, on the condition precipitating the need for military caregiver 
leave; a condition that substantially impairs the veteran's ability to 
secure or follow a substantially gainful occupation by reason of a 
disability or disabilities related to military service, or would do so 
absent treatment; an injury, including a psychological injury, on the 
basis of which the covered veteran has been enrolled in the Department 
of Veterans Affairs Program of Comprehensive Assistance for Family 
Caregivers. Assuming an annual cohort of 208,000 personnel separate 
from the military each year, and that about 20 percent of those 
personnel incurred an injury or illness in service that manifests 
before or after the servicemember became a veteran, the Department 
estimates that approximately 42,260 military personnel separating from 
the military (20.3 percent of 208,000) per year might have family 
members who may take FMLA caregiver leave, if the regulatory 
requirements are met. This estimate may be over-inclusive due to data 
limitations on the severity of service-related injuries and illnesses.
    Based on the RAND findings, the Department assumes that about 50 
percent of servicemembers will seek treatment as a veteran (i.e., not 
all the injuries will be severe enough to require treatment beyond 
active service in the military). Thus, the number of injured 
servicemembers separating from the military per year who may seek 
treatment and with family that may be eligible for caregiver leave is 
equal to 50 percent of 42,260, or 21,130 per year.\36\ Using the 
previously described calculations of the joint probabilities that a 
servicemember will have one or more family members eligible for FMLA 
(see Appendix A), the Department estimates that those 21,130 veterans 
and servicemembers will have 26,908 eligible family members who may 
qualify for FMLA and act as caregivers.\37\ The Department assumes that 
at least 26 percent of eligible employees, or an average of 7,000 per 
year, will take FMLA leave to care for a veteran undergoing medical 
treatment for a serious injury or illness. This assumption is based on 
a survey of injured servicemembers concerning the impact of their needs 
on their caregivers. The survey found that about 16 percent of working 
caregivers used ``unpaid leave from their job'' and 10 percent ``cut 
back their hours'' to care for the servicemember.\38\ However, the 
Department is aware that it is not drawing from a more comprehensive 
data source and acknowledges the limitations of its estimate. 
Nevertheless, because the commenters provided no additional data in 
response to the request for information about this issue in the NPRM, 
the Department continues to use the best information available.
---------------------------------------------------------------------------

    \36\ This number accounts for the 14,000 servicemembers whose 
family members are expected to take military caregiver leave while 
the servicemember is still in the military as well as the 
approximately 3,700 participants in the Veterans Affairs Program of 
Comprehensive Assistance for Family Caregivers. For reasons 
discussed above, the Department now estimates that 42,260 
servicemembers are likely to separate having had injuries or 
illnesses that would make them eligible for military caregiver, not 
just the 14,000 servicemembers per year who might require treatment 
while still on active duty (as estimated in the 2008 rulemaking). 
Under the proposed rule, the Department erroneously assumed that it 
had to account for the additional caregiver leave that might have 
occurred while on active duty due to the changed baseline estimate. 
However, although the baseline estimate of eligible servicemembers 
is now larger, this rule makes no change to caregiver leave while 
those servicemembers are on active duty. In this rulemaking the 
Department now only accounts for caregiver leave that occurs after 
separation and therefore assumes 50 percent of separating 
servicemembers will require care, instead of 1.5 times the number as 
it did in the proposed rule. The Department believes that the 
military's stringent screening procedures result in the intake of 
few recruits with pre-existing injuries or illnesses that might be 
aggravated by service. Absent any data on servicemembers with such 
pre-existing conditions, the Department believes its conservative 
assumptions used to estimate the number of eligible caregivers (and 
the rounding up of those estimates) adequately accounts for these 
servicemembers.
    \37\ The Department made one modification to the joint 
probabilities used for caregiver leave. In addition to family 
members such as parents, spouses, and adult children, designated 
``next of kin'' are also eligible to take military caregiver leave 
under FMLA. The Department accounted for this difference by assuming 
all servicemembers have at least one potential caregiver eligible 
for FMLA leave.
    \38\ Christensen et al. Economic Impact on Caregivers of the 
Seriously Wounded, Ill, and Injured. CNA, April 2009. Available at: 
http://www.cna.org/sites/default/files/research/D0019966.A2.pdf.
---------------------------------------------------------------------------

    In the 2008 Final Rule, the Department developed a profile of the 
``typical'' usage of military caregiver leave over the course of a 12-
month period for an eligible employee. Under this profile of leave, the 
typical employee will take a block of four weeks of unforeseeable leave 
upon notification of the serious injury or illness, a second block of 
two weeks of unforeseeable leave following transfer of the covered 
servicemember to a rehabilitation facility, two one-week blocks of 
unforeseeable leave for unanticipated complications, and 40 individual 
days of foreseeable leave to care for the covered servicemember. 73 FR 
68051.
    This profile is based on a typical leave pattern of an eligible 
employee caring for an injured or ill servicemember on active duty; for 
the purpose of this analysis, the profile was adjusted to capture a 
likely leave pattern for employees taking leave to care for a covered 
veteran. In this case, the nature of the serious injury or illness is 
expected to be different from those encountered during active duty. The 
Department assumes an injury to an active duty servicemember that 
results in FMLA caregiver leave is likely to be a sudden, severe 
injury, which necessitates a large block of leave for the employee to 
travel to be at the bedside of the injured servicemember. Conversely, 
ongoing treatment for an existing injury or diagnosis and then 
treatment of an emerging injury or illness (e.g., PTSD, TBI) might call 
for frequent but short periods of leave for the employee to take the 
servicemember to appointments and provide other ongoing support. 
Adjusting the leave profile to account for these differences generates 
a leave pattern such as that summarized in Table 10.

         Table 10--Profile of Military Caregiver Leave--Veterans
------------------------------------------------------------------------
            Reason               Description        Days        Hours
------------------------------------------------------------------------
Diagnosis, therapy, or         1 week                     5           40
 recuperation.                  unforeseeable.
Travel to appointments and     50 days                   50          400
 other errands.                 foreseeable.
                              ------------------------------------------
    Total....................  ...............           55          440
------------------------------------------------------------------------


[[Page 8892]]

    Based on this profile, the Department estimates that 7,000 eligible 
employees will take 385,000 days (3.1 million hours) of FMLA leave 
annually to act as a caregiver for a veteran who is undergoing 
treatment for a serious illness or injury. For comparative purposes, if 
the definition of serious injury or illness was set more stringently to 
include disability ratings of 60 percent or greater, then the 
Department estimates that about 6,400 eligible employees would take 
354,000 days (2.8 million hours) of FMLA leave; if the definition was 
set more inclusively to include disability ratings of 30 percent or 
greater, then 8,800 eligible employees would take 485,000 days (3.9 
million hours) of FMLA leave. See Table 11.

   Table 11--Estimated Military Caregiver Leave Usage Under Different Definitions of Serious Injury or Illness
----------------------------------------------------------------------------------------------------------------
                                      Covered
                                      service-    Number of    Number of     Days of      Hours of      Leave
            Leave type              members  or    eligible      leave      leave per    leave  per  events  per
                                      veterans      family       takers        year     year (mil.)      year
                                      (1,000)      (1,000)      (1,000)      (1,000)                   (1,000)
----------------------------------------------------------------------------------------------------------------
SII VASRD 60%+....................         19.4         24.7          6.4          354          2.8          328
SII VASRD 50%+....................         21.1         26.9          7.0          385          3.1          357
SII VASRD 30%+....................         26.6         33.9          8.8          485          3.9          450
----------------------------------------------------------------------------------------------------------------

2. Airline Flight Crew FMLA Leave
    The changes to the FMLA eligibility requirements for airline flight 
crew employees do not alter the number of covered employers in the 
airline industry but increase the number of pilots, co-pilots, flight 
attendants and flight engineers who are eligible to take FMLA leave, 
and as a result, will likely increase the total number of FMLA leaves 
taken by these employees in the airline industry.\39\ The amendment 
changes eligibility such that an airline flight crew employee meets the 
hours of service requirement if, during the previous 12-month period, 
he or she has worked or been paid for not less than 60 percent of the 
applicable total monthly guarantee (or its equivalent), and worked or 
been paid for not less than 504 hours, not including personal commute 
time, or time spent on vacation, medical, or sick leave. Additionally, 
the rule establishes a bank of 72 days of FMLA leave (156 days for 
military caregiver leave) for flight crew employees to use in full day 
increments, and establishes new recordkeeping requirements for the 
airline industry.
---------------------------------------------------------------------------

    \39\ The FAA defines a flight crew member as ``A pilot, flight 
engineer, or flight navigator assigned to duty in an aircraft during 
flight time.'' Available at: http://www.faa-aircraft-certification.com/faa-definitions.html.
---------------------------------------------------------------------------

    The Department estimated the profile of covered employers in the 
``Air Transportation'' industry, the number of airline flight crew 
employees who would be eligible for FMLA leave, and the number of 
leaves they may take. The profile of covered employers, see Table 12 
below, was developed by estimating the proportion of NAICS code 48 
classified as ``Air Transportation'' (NAICS 481) in each size class 
from the 2006 Statistics of U.S. Businesses at the 6-digit NAICS level. 
This proportion was multiplied by the total number of establishments, 
firms, employment and payroll in NAICS 48 according to the 2008 BLS 
special tabulations. Next, employers with fewer than 50 employees were 
dropped from the profile; as described below, the Department did not 
attempt to make an adjustment for establishments with fewer than 50 
employees that are owned by firms with more than 50 employees in a 75 
mile area for this sub-industry.

                             Table 12--2008 Covered Employers in Air Transportation
----------------------------------------------------------------------------------------------------------------
                                                                              Annual     Estimated    Estimated
     Size class (employees)         Firms        Number of     Employment   payroll ($  revenues ($   net income
                                              establishments                  mil.)        mil.)       ($ mil.)
----------------------------------------------------------------------------------------------------------------
50 to 99.......................          118            184         5,098         $266         $742         $4.2
100 to 499.....................          113            544        16,577          919        2,370         23.3
500+...........................          135          2,204       439,315       24,905       70,922        2,295
                                --------------------------------------------------------------------------------
    Total......................          366          2,932       460,990       26,090       74,033        2,323
----------------------------------------------------------------------------------------------------------------
Source: BLS Special Tabulations, 2008; and Statistics of U.S. Businesses, 2006

    Based on conversations with experts in the airline industry, the 
Department assumes that all potentially eligible airline flight crew 
employees are employed at a covered worksite. In general, flight crew 
members are scheduled for flights from a home base, or domicile. A 
domicile would not only include the airline flight crew employees, but 
the non-flight crew employees as well; therefore, the interviewees 
observed that for most carriers it was very unlikely that airline 
flight crew employees would be employed at a domicile with fewer than 
50 total employees.\40\ Next, the Department determined the total 
number of airline flight crew employees employed in air transportation 
from the BLS Occupational Employment Statistics for 2008; in 2008 there 
were about 162,200 airline flight crew employees. This includes pilots, 
co-pilots, flight engineers, and flight attendants.
---------------------------------------------------------------------------

    \40\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR 
Conference (now A4A), Calvin Franz and Lauren Jankovic, both of ERG. 
Janet Zweber. 2010. Interview with Janet Zweber of U.S. Airways 
Pilots Association, Calvin Franz and Lauren Jankovic, both of ERG.
---------------------------------------------------------------------------

    The next step was to determine the proportion of those airline 
flight crew employees who will be eligible for FMLA leave. Crew members 
who are paid for 50 to 60 hours per month will, over the course of a 
12-month period, be paid for 600 to 720 hours and they will easily meet 
the hours of service required

[[Page 8893]]

for eligibility under the AFCTCA. According to sample data provided by 
the industry, about 80 percent of American Airlines flight attendants 
are paid for 50 or more hours per month, and this is considered 
reasonably representative of industry patterns.\41\ While a similar 
distribution of paid hours for pilots is not available, the FAA 
indicates that most pilots are paid for an average of 75 hours per 
month; based on this observation, the Department assumes that a similar 
proportion of pilots, 80 percent, would reach the hours of service 
required for eligibility. Based on these estimates, about 129,760 
airline flight crew employees may be eligible to take FMLA leave.
---------------------------------------------------------------------------

    \41\ Table ``AA Flight Attendant Block Hours and Paid Hours'' 
provided by Interviewee. Rob DeLucia. 2010. Interview with Rob 
DeLucia of AIR Conference (now A4A), Calvin Franz and Lauren 
Jankovic, both of ERG. Table available at: http://www.aanegotiations.com/documents/AAFACharts_7.8.10.pdf; last 
accessed on July 7, 2012.
---------------------------------------------------------------------------

    Many airlines have already incorporated FMLA-type provisions in 
collective bargaining agreements with pilots and flight attendants. In 
terms of the costs associated with the number of leaves resulting from 
the changes, it is important to consider the proportion of airline 
flight crew employees already taking FMLA-type leave under collective 
bargaining agreements. Based on a review of the current FMLA-type leave 
policies in the labor contracts for 19 air carriers, the Department 
finds that about 20 percent of pilots and 35 to 40 percent of flight 
attendants are covered and eligible for FMLA-type leave policies.\42\ 
Assuming that 80 percent of pilots and 63 percent of flight attendants 
are not currently covered by FMLA-type policies, the Department 
estimates, as outlined in Table 13, that, of the 129,760 airline flight 
crew employees that will be eligible, 90,560 are not already covered by 
an FMLA-type leave policy under a collective bargaining agreement.
---------------------------------------------------------------------------

    \42\ Based on a review of excerpts from the collective 
bargaining agreements of 19 airlines transmitted to the Department 
by Steve Schembs, Association of Flight Attendants--CWA, on January 
19, 2010.
---------------------------------------------------------------------------

    Because there is little information available on the FMLA-type 
leave usage patterns of airline flight crew employees, the Department 
assumes that flight attendants will use FMLA leave at a similar rate to 
the rest of the population. Based on interviews with experts in the 
airline industry, pilots (also co-pilots and flight engineers) tend to 
use less FMLA-type leave due to different demographic needs and the 
availability of other types of paid leave.\43\ The 2008 PRIA 
extrapolated leave usage rates from surveys of FMLA leave usage to 
estimate expected leave use among the general population for 2007; the 
Department further extrapolated this number to estimate an expected 
leave usage rate of 7.9 percent of eligible employees and applied this 
rate to the number of eligible flight attendants not covered by a 
collective bargaining agreement.\44\ Given that pilots use less FMLA-
type leave, the Department used a rate of five percent in its 
calculation of the estimated number of eligible pilots not covered by a 
collective bargaining agreement. Based on these estimates and 
assumptions, just under 6,000 flight attendants, pilots, co-pilots, and 
flight engineers will take new FMLA leaves under the changes. Assuming 
that airline flight crew employees will take approximately the same 
number of leaves per 12-month period as the general population, the 
Department estimates that each individual will take 1.5 leaves, for a 
total of 8,930 leaves.\45\ Table 13 summarizes the estimates developed 
in this section.
---------------------------------------------------------------------------

    \43\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR 
Conference (now A4A), Calvin Franz and Lauren Jankovic, both of ERG. 
Janet Zweber. 2010. Interview with Janet Zweber of U.S. Airways 
Pilots Association, Calvin Franz and Lauren Jankovic, both of ERG.
    \44\ The extrapolation is used because the survey was performed 
relatively soon after FMLA was enacted; over time, as employee 
knowledge of FMLA provisions has grown, presumably so has FMLA 
usage.
    \45\ CONSAD Research Corporation, December 7, 2007

                                 Table 13. Estimated FMLA Usage by Flight Crews
----------------------------------------------------------------------------------------------------------------
                                                                      Eligible crew  Eligible crew,
                                            Number of    Number of   not covered by  not covered by   Number of
               Flight crew                   crew \a\     eligible    CBA FMLA-type   CBA that will    new FMLA
                                                          crew \b\     policy \c\    take leave \d\   leaves \e\
----------------------------------------------------------------------------------------------------------------
Pilots...................................       64,800       51,840          41,470           2,070        3,110
Flight Attendants........................       97,400       77,920          49,090           3,880        5,820
                                          ----------------------------------------------------------------------
    Total................................      162,200      129,760          90,560           5,950        8,930
----------------------------------------------------------------------------------------------------------------
Sources: BLS Occupational Employment Statistics, May 2008, Scheduled Air Transportation; CONSAD Research
  Corporation, December 7, 2007.
\a\ Number of pilots includes: pilots, co-pilots and flight engineers (532011); and commercial pilots (532012)
\b\ Eligibility based on estimated proportion of crew members (80%) meeting hours of service requirement.
\c\ Based on a sample of CBA for flight attendants about 35% to 40% are currently covered by an FMLA-type
  provision such that most are eligible to take leave (we assumed a point estimate of 37% for the calculation);
  for pilots about 20% are currently covered by an FMLA-type provision such that they are eligible to take
  leave.
\d\ Flight attendants take leave at same rate as other industries (7.9%); pilots and other crew use slightly
  less FMLA leave (5%).
\e\ Individuals taking FMLA leave average 1.5 leaves per year.

F. Costs

    This section describes the costs associated with the changes to 
FMLA, including: regulatory familiarization, employer and employee 
notices, certifications, and other costs.
1. Regulatory Familiarization
    In response to the changes to the FMLA, each employer will need to 
review the changes and determine what revisions are necessary to their 
policies, obtain copies of the revised FMLA poster and templates for 
required notices and certifications, and update their handbooks or 
other leave-related materials to incorporate the changes (see General 
Notice below). This is a one-time cost to each employer, calculated as 
two hours at the loaded hourly wage of a Human Resources (HR) staff 
member in the airline industry and one hour in all other industries to 
complete the tasks described above.\46\ Industries

[[Page 8894]]

other than the airline industry will need less time for this task 
because there is no need for them to review the components of the rule 
pertaining to flight crews and they are already familiar with the 
requirements of the FMLA, including the FY 2008 NDAA amendments to the 
FMLA that initially created the military family leave provisions. In 
the 2008 Final Rule, the Department estimated the FY 2008 NDAA 
amendments would involve two hours for regulatory familiarization. 73 
FR 68047. Because the FY 2010 NDAA amendments are simply an expansion 
of provisions with which the employers are already familiar, the 
Department believes one hour is appropriate for that component. The 
Department requested comment on the suitability of the assumption that 
regulatory familiarization will require two hours for the airline 
industry and one hour for all other industries but received few 
comments on this issue and found no data to justify revising these 
assumptions. See the Summary of Public Comments for a more detailed 
discussion of the comments.
---------------------------------------------------------------------------

    \46\ The loaded hourly wage is the regular hourly wage 
multiplied by 1.3 to account for payroll taxes and any employee 
benefits. For this analysis we used a loaded hourly wage of about 
$27 per hour based on a comparison of two occupations: 43-4161 Human 
Resources Assistant (loaded hourly wage $24), and 13-1078 Human 
Resources Training and Labor Relations Specialists (loaded hourly 
wage $36).
---------------------------------------------------------------------------

2. Employer Notices
    Under the FMLA, as described in Sec.  825.300, employers are 
required to provide certain types of notices to employees including 
FMLA eligibility, employee rights and responsibilities, and employee 
usage of leave. The estimated time to complete each notice is based on 
the PRA contained in the 2008 Final Rule. 73 FR 68040.
    a. General Notice. Every covered employer must provide general 
notice of the FMLA provisions to all employees; this notice may be 
provided in employee handbooks or other benefits and leave materials or 
as a one-time notice to new employees. For the purpose of this 
analysis, the cost associated with the changes will be a one-time cost 
to each employer to update the notice provided and is included under 
regulatory familiarization costs above.
    b. Eligibility Notice and Rights and Responsibilities Notice. An 
employer is required to notify an employee of his or her eligibility to 
take FMLA leave when an employee requests FMLA leave or the employer 
becomes aware that an employee's leave may be for an FMLA-qualifying 
reason. The notice must state whether or not the employee is eligible 
and, if not, the reason the employee is not eligible. Along with the 
eligibility notice, the employer must include a discussion of employee 
rights and obligations, that leave may be designated as FMLA, the 
applicable 12-month period for leave, certification requirements, and 
other key details. The cost of these combined notices is calculated as 
10 minutes at the loaded hourly wage of an HR staff member to process 
each notice.
    c. Designation Notice. The employer is required to determine if 
leave taken by the employee is for an FMLA-qualifying reason and will 
be designated and counted as FMLA leave and provide written notice to 
the employee of this determination. Notice must be provided even if the 
employer determines that the leave will not be designated as FMLA, and 
only one notice is required per FMLA reason per 12-month period. The 
cost of this type of notice is calculated as 10 minutes at the loaded 
hourly wage of an HR staff member to process each notice.
3. Certifications
    Under the FMLA, as described in Sec.  825.305, employers are 
allowed to request certification to support an employee's need for FMLA 
leave due to his or her own or a family member's serious health 
condition, the serious injury or illness of a covered servicemember, a 
qualifying exigency, or to verify an employee's fitness for duty after 
an absence due to the employee's own health condition.\47\ In addition, 
an employer, at its own expense and subject to certain limitations, may 
also require an employee to obtain a second and third medical opinion. 
The costs associated with these certifications include: Employer cost 
to request, review, and verify the certification and second and third 
opinions, and employee cost to obtain the certification from the 
designated authority.
---------------------------------------------------------------------------

    \47\ An unknown percent of employers require employees to 
periodically recertify their need for FMLA leave. The Department 
does not have any data on the percent of employers that require 
certification, and believe the percent of employers that require 
recertification is a small percent of those that require 
certification. Therefore the Department has not attempted to 
estimate the number of employers that require recertification or the 
costs associated with it; we expect that these costs are small.
---------------------------------------------------------------------------

    a. Medical Certification. This type of certification may be 
requested of employees who take FMLA leave for their own serious health 
condition or that of a family member and is obtained from the health 
care provider. This is a recurring cost to both the employee and the 
employer for each FMLA leave event that is required to have medical 
certification. The cost to the employee is calculated as the cost of 
the visit to the health care provider completing the certification, 
assumed to be approximately $50 per visit.\48\ The cost to the employer 
is 30 minutes at the loaded hourly wage of an HR staff person to review 
and verify each certification. The changes in this Final Rule will only 
impact the usage of FMLA leave for the employee's own or the employee's 
family member's serious health condition for airline flight crew 
employees; therefore, for the purposes of this analysis, the additional 
costs of the changes will only accrue to airline flight crew employees 
and airline industry employers. (The cost for medical certification for 
military caregiver leave is discussed below.)
---------------------------------------------------------------------------

    \48\ CONSAD, December 2007.
---------------------------------------------------------------------------

    Under the Final Rule the employer may seek a second or third 
opinion for certification of a serious injury or illness of a covered 
servicemember if the original certification was obtained from a health 
care provider other than: A DOD health care provider, a VA health care 
provider, a DOD TRICARE network authorized private health care 
provider, or a DOD non-network TRICARE authorized private health care 
provider. The number of employers able to seek additional opinions on 
certifications under these circumstances is likely very close to zero, 
as most current military members and recently separated veterans rely 
on one of the aforementioned health care providers for care. As a 
result, the Department did not estimate these costs, which are expected 
to be minimal.
    b. Qualifying Exigency. Employees taking FMLA leave for a 
qualifying exigency may be asked to provide a copy of the relevant 
military orders or other documentation, and a copy of Form WH-384 
Certification of Qualifying Exigency to their employers to substantiate 
their need for leave. This is a recurring cost to the employer for each 
FMLA qualifying exigency leave for which the employer requires the 
employee to provide certification. The cost is calculated as 20 minutes 
at the loaded hourly wage of an HR staff person to review and verify 
each certification.
    c. Military Caregiver. Employees taking FMLA military caregiver 
leave to care for a covered servicemember with a qualifying illness or 
injury may be asked to provide medical certification of the condition 
from an authorized health care provider. This is a recurring cost to 
both the employee and the employer for each FMLA military caregiver 
leave event for which the employer requires medical certification. The 
cost to the employee is calculated as the cost of the visit to the 
health care provider

[[Page 8895]]

completing the certification, assumed to be approximately $50 per 
visit.\49\ The cost to the employer is 30 minutes at the loaded hourly 
wage of an HR staff person to review and verify each certification. For 
the purposes of this analysis, these costs accrue to employees taking 
FMLA military caregiver leave to care for a covered veteran with a 
qualifying illness or injury and their employers.
---------------------------------------------------------------------------

    \49\ CONSAD, December 2007.
---------------------------------------------------------------------------

    d. Fitness for Duty. For certain occupations, employers may desire 
certification from a medical professional that an employee is well 
enough to fulfill their duties following an FMLA leave for the 
employee's own serious health condition. Under prescribed 
circumstances, an employer may request a fitness-for-duty 
certification. The cost to the employee is calculated as the cost of 
the visit to the health care provider completing the certification, 
assumed to be approximately $50 per visit.\50\ The cost to the employer 
is 30 minutes at the loaded hourly wage of an HR staff person to review 
and verify each certification. For the purposes of this analysis, the 
additional costs of the changes will only accrue to airline flight crew 
employees and airline industry employers.
---------------------------------------------------------------------------

    \50\ CONSAD, December 2007.
---------------------------------------------------------------------------

4. Other Employer Costs
    The FMLA includes employer recordkeeping requirements but those 
costs are not addressed here. Employers must continue to keep and 
maintain records under the Final Rule as they are required to do so 
under the current regulations. Additionally, while the Final Rule 
implements the statutory amendments that more broadly cover airline 
flight crew employees, the Department expects that employers in the 
airline industry have already been tracking hours to comply with the 
FMLA. Prior to enactment of the AFCTCA, covered airlines were already 
required to comply with FMLA with respect to employees, such as 
ticketing agents, baggage handlers, and administrative personnel, as 
well as some airline flight crew employees. Further, A4A noted that 
prior to the AFCTCA, various air carriers had instituted internal FMLA 
programs, including leave entitlement banks, and therefore had been 
tracking flight crew employees' hours for internal business purposes as 
well. As such, the Department expects the Final Rule will create 
minimal additional recordkeeping burdens on airline employers.
    a. Employee Health Benefits. Employers are required by the FMLA to 
maintain employee health benefits during their absence on FMLA leave. 
This is a recurring cost to each employer that is calculated as the 
cost per hour to cover employee health benefits multiplied by the total 
number of hours of FMLA leave taken.\51\ This cost results from 
additional reasons an employee may take FMLA leave (qualifying 
exigency, military caregiver), and additional employees entitled to 
leave (airline flight crew employees). The Department estimated this 
cost as part of the 2008 Final Rule and is using the same methodology 
here, noting that ``the marginal costs related to workers taking * * * 
military family leave * * * result from the cost of providing health 
insurance during the period the worker is on leave * * * The Department 
believes these * * * costs are reasonable proxies for the opportunity 
cost of the NDAA provisions, since health insurance coverage represents 
the marginal compensation an employer is still required to cover under 
the FMLA when a worker is absent.'' 73 FR 68051. According to the BLS 
``Employer Costs for Employee Compensation Survey'' of June 2008, 
employers spend an average of $2.25 per employee per hour worked on 
health insurance coverage.\52\ For the purpose of this analysis, for 
leaves related to the NDAA the Department used the estimated hours of 
leave taken, for flight crew leaves the Department assumed each leave 
is eight hours in length.
---------------------------------------------------------------------------

    \51\ The Department notes that this methodology overstates the 
cost associated with this provision as not all employees who take 
FMLA leave receive insurance from their employers.
    \52\ BLS Employment Cost Trends, available at: http://www.bls.gov/ncs/ect/. Accessed on July 7, 2012.
---------------------------------------------------------------------------

    b. Replacement Workers. In some businesses, employers are able to 
redistribute work among other employees while an employee is absent on 
FMLA leave but in other cases the employer may need to hire temporary 
replacement workers. This process involves costs resulting from 
recruitment of temporary workers with needed skill sets, training the 
temporary workers, and lost or reduced productivity of these workers. 
The cost to compensate the temporary workers is in most cases offset by 
the amount of wages not paid to the employee absent on FMLA leave.
    In the initial FMLA rulemaking in 1993, the Department drew upon 
available research to suggest that the cost per employer to adjust for 
workers who are on FMLA leave is fairly small. 58 FR 31810. As in 
previous rulemakings, the Department requested information from 
businesses on the impact of different strategies for compensating for 
workers on leave, particularly the extent to which work is 
redistributed among other workers, and the costs of recruiting and 
training temporary workers. With no additional information forthcoming 
from public comments, we will continue to assume that these costs are 
fairly small for the purpose of this analysis. Furthermore, most 
employers subject to this rule change have been implementing the FMLA 
for some time and have already developed internal systems for work 
redistribution and recruitment and training of temporary workers. The 
air transportation industry, however, is an exception to this reasoning 
and employers in this industry may face additional challenges with 
respect to scheduling.
    Due to the nature of the industry, airlines have varied and complex 
approaches to scheduling airline flight crew employees for flights.\53\ 
Based on seniority, these employees may bid on their desired domicile 
(i.e., primary airport), equipment (i.e., type of airplane), and flying 
schedule (e.g., international, shuttle). Generally, the employees can 
bid a ``line of flying'' or a ``block'' of flights or may bid on a 
number of days on reserve. According to our interviewees, approximately 
15 to 20 percent of employees may be on reserve at any point in time 
and this amount fluctuates by airline and demand.\54\ There are 
different types of reserve that are loosely based on the proximity of 
the employee to the airport; an employee on ``short call'' may be 
required to arrive at the domicile within 90 minutes, while an employee 
on ``long call'' may be given nine hours notice to arrive at the 
domicile for a flight.
---------------------------------------------------------------------------

    \53\ This discussion is highly generalized and may not represent 
the practices of a specific airline. The purpose of the discussion 
is to provide context for understanding the impact of FMLA leave on 
overall scheduling practices.
    \54\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR 
Conference (now A4A), Calvin Franz and Lauren Jankovic, both of ERG.
---------------------------------------------------------------------------

    Overall, the scheduling is fairly flexible in order to manage 
schedule changes; for example, ``block holders'' can be rescheduled to 
cover additional flights, flight attendants can engage in ``trip 
trading'' or volunteer for open flying time, and airlines can use 
``dead heading'' to fly in a crew from another airport.
    There are several key limitations to the flexibility of the system; 
the primary one being regulatory limits on flying

[[Page 8896]]

time and equipment. This limitation is the most stringent for pilots 
who have more restrictive limitations on flying time than other flight 
crew members and who may only fly specific types of aircraft. 
Additionally, schedule changes due to events such as severe weather can 
impact scheduling; reserve flight crew members are utilized to make up 
for cancelled and rescheduled flights.
    Based on comments received from A4A and employers in the industry, 
the Department does not expect the AFCTCA to impose a significant cost 
on air transportation employers. The Department believes that the rule 
will increase the number of flight crew leaves classified as, and thus 
protected by, FMLA, but does not have data to quantify the amount of 
any such increase.

G. Regulatory Impacts

    This section draws on the estimates of potentially affected 
employees, and the unit costs discussed above to determine the 
anticipated impact of the final regulations in terms of total cost 
across all industries as well as estimated cost per firm and per 
employee.
1. Projected Regulatory Cost
    The total estimated impact of the Final Rule is $53.9 million in 
the first year with $41.3 million in recurring costs in subsequent 
years. Table 14 summarizes the total estimated costs of the changes to 
the FMLA by cost type (first year, recurring), amendment (flight crew, 
military caregiver), and regulatory requirement (familiarization, 
notices, certifications, benefits).

           Table 14--Summary of Impact of Changes to the FMLA
------------------------------------------------------------------------
                                                Year 1 ($     Year 2 ($
                  Component                       mil.)         mil.)
------------------------------------------------------------------------
Total........................................        $53.9         $41.3
Cost of Each Amendment:
    Any FMLA regulatory revision.............         12.6           0
    Flight Crew Technical Amendment..........          0.4           0.4
    NDAA 2010................................         41.0          41.0
        NDAA Subtotal Qualifying Exigency....         25.8          25.8
        NDAA Subtotal Military Caregiver.....         15.1          15.1
Cost of Each Requirement:
    Regulatory Familiarization...............         12.6           0
    Employer Notices.........................         17.1          17.1
    Certifications...........................          0.4           0.4
    Health Benefits..........................         23.8          23.8
------------------------------------------------------------------------
Note: Columns may not sum due to rounding.

    All covered employers will incur costs of $12.6 million during the 
first year for regulatory familiarization associated with any new FMLA 
revision. Other than the initial regulatory familiarization costs that 
occur only in the first year, all other costs are annual costs; they 
occur in the first year, and in each subsequent year. Covered employers 
in the air transportation industry who are not already providing family 
and medical leave to flight crew employees will incur costs of about 
$372,000 per year to implement the changes. Covered employers of 
workers eligible for military family leave will incur costs of about 
$41 million per year as a result of the changes. Looking at the key 
requirements of the FMLA, most of the costs of the changes will stem 
from generation of employer notices and maintenance of health benefits 
in recurring years.
    To facilitate the public's understanding of the impact of this 
Final Rule, the Department provides some alternative assumptions on the 
utilization of leave and corresponding costs.
    The Department estimates the cost of the FY 2010 NDAA as $41.0 
million, with qualifying exigency leave costing $25.8 million and 
military caregiver leave costing $15.1 million. However, under 
different scenarios, the cost of the FY 2010 NDAA may increase or 
decrease. The cost of qualifying exigency leave will vary between $2.0 
million and $41.9 million in times of low conflict and high conflict 
with 10 days of Rest and Recuperation leave (see Table 7 for leave 
estimates).\55\ As a result, the cost of the FY 2010 NDAA will vary 
from $17.1 million in low conflict times and $57.0 million in high 
conflict times. The cost of qualifying exigency leave will also change 
depending on whether leave taken for Rest and Recuperation is closer to 
five days or to 15 days. In an average conflict scenario, the cost of 
qualifying exigency leave might range from $23.0 million to $31.4 
million, and, thus, the total cost of the FY 2010 NDAA will range from 
$38.2 million to $46.5 million. See Table 15.
---------------------------------------------------------------------------

    \55\ In addition, no deployments take place in 16 of the 48 
years of data examined (33.3 percent), and costs associated with 
qualifying exigency leave for deployment would be zero in those 
years. Low levels of conflict occurred in 18 of 48 years (37.5 
percent) and high levels of conflict took place in 14 of 48 years 
(29.2 percent).
---------------------------------------------------------------------------

    Similarly, if the definition of serious injury or illness was set 
only to include disability ratings of 60 percent or greater (i.e., was 
more stringent), or alternatively to include more ratings of 30 percent 
or greater (i.e., was more inclusive), then the cost of military 
caregiver leave would range from $13.9 million to $19.1 million (see 
Table 11 for leave estimates). As a result, the total cost of the NDAA 
would vary between $39.7 million and $44.9 million. See Table 15.

[[Page 8897]]



 Table 15--Cost of the NDAA Under Different Conflict Scenarios, Amounts of Time for Rest and Recuperation Leave,
                                  and Definitions of Serious Injury or Illness
----------------------------------------------------------------------------------------------------------------
                                      Covered                                                  Costs
                                     service-        Number of       Number of   -------------------------------
           Leave type               members or       eligible      leave  takers
                                     veterans        employees        (1,000)       Leave type     NDAA total ($
                                      (1,000)         (1,000)                     total ($ mil.)       mil.)
----------------------------------------------------------------------------------------------------------------
       Qualifying Exigency
Low Conflict, R&R 10 days.......            15.4            15.0             2.4            $2.0           $17.1
Average Deployment, R&R 10 days.           197.0           192.5            30.8            25.8            41.0
    R&R 5 days..................           197.0           192.5            30.8            23.0            38.2
    R&R 15 Days.................           197.0           192.5            30.8            28.6            43.7
Heavy Conflict, R&R 10 days.....           320.4           313.1            50.1            41.9            57.0
       Military Caregiver
SII VASRD 60%+..................            44.0            56.1            14.6            13.9            39.7
SII VASRD 50%+..................            49.1            62.5            16.3            15.1            41.0
SII VASRD 30%+..................            65.5            83.5            21.7            19.1            44.9
----------------------------------------------------------------------------------------------------------------

    Table 16 provides the total, net present value and average 
annualized projected compliance costs over 10 years. Average annualized 
costs take the entire stream of costs over 10 years, including both 
first-year costs that are only incurred once, and recurring costs that 
are incurred every year, and converts them into a stream of equal 
annual payments with a net present value equal to the original stream 
of time-varying costs at the specified real discount rate.
    Calculating annualized costs allows the examination of an 
appropriate measure of average costs (by accounting for the time-value 
of money) over time without overestimating impacts by focusing on 
initial costs, or underestimating impacts by focusing solely on 
recurring costs. The OMB directs that the streams of costs and benefits 
should be discounted using three and seven percent real discount rates.

                         Table 16--Average Annualized Costs by Amendment and Requirement
----------------------------------------------------------------------------------------------------------------
                                                                                          Annualized \a\
                                                                                 -------------------------------
                            Component                             Ten year total   Real discount   Real discount
                                                                     ($ mil.)       rate 3% ($      rate 7% ($
                                                                                       mil.)           mil.)
----------------------------------------------------------------------------------------------------------------
Total...........................................................            $426           $42.8           $43.0
By Amendment:
    Any FMLA revision...........................................              13             1.4             1.7
    Flight Crew Technical Amendment.............................               4             0.4             0.4
    FY 2010 NDAA................................................             410            41.0            41.0
        Qualifying Exigency.....................................             258            25.8            25.8
        Military Caregiver......................................             151            15.1            15.1
By Requirement:
    Regulatory Familiarization..................................              13             1.4             1.7
    Employer Notices............................................             171            17.1            17.1
    Certifications..............................................               4             0.4             0.4
    Health Benefits.............................................             238            23.8            23.8
----------------------------------------------------------------------------------------------------------------
\a\ Columns may not sum due to rounding.

    The results presented in the table show that the Final Rule is 
projected to cost an average of $43 million per year over 10 years 
using a seven percent real discount rate.
    The military family leave provisions (FY 2010 NDAA) account for 
about 96.2 percent of the rule's total annualized cost. In terms of 
requirements of the rule employer notices and maintenance of health 
benefits each account for about 40 and 56 percent of the total cost, 
respectively.
2. Impacts of Projected Cost on Business Income
    In this section we review the impact of projected regulatory costs 
on business income. To avoid misrepresenting impacts, they are 
presented in four different ways: first-year costs are the largest, 
thus the ratio of first-year costs to income (business and worker) 
represent the most severe impacts that might be incurred in any one 
year; the ratio of recurring costs to income are more typical impacts--
those that can be expected in any year except the first year; finally, 
average annualized costs, as described above, reflect the overall 
average over 10 years. Table 17 presents aggregate projected costs, 
projected costs per firm, and projected costs per firm as a percent of 
firm revenue and payroll. Costs are also disaggregated by amendment and 
regulatory requirement.
    The projected first year costs of the Final Rule are about $142 per 
firm, which is less than one-hundredth of a percent of average annual 
revenues and payroll. For most firms, the military family leave 
provisions account for the largest part of this impact, at $108 per 
firm. With the exception of regulatory familiarization, first year 
costs for employer notices, certifications, and the maintenance of 
health benefits are identical to the amounts incurred in each 
subsequent year. The cost of the flight crew technical amendments may 
be a small portion of overall first year costs, but the impact will be 
concentrated on the air transportation industry. As a result, the cost 
per firm

[[Page 8898]]

is $1,070 ($1,016 for airline flight crew leave plus $54 for regulatory 
familiarization), which is less than one-hundredth of a percent of 
average annual revenues or payroll.
    The impact of recurring costs will be about $109 per firm; the 
military family leave provisions continue to be the driver of the size 
of the impact due to the cost of employer notices and maintenance of 
employee health benefits associated with the requirement.

                               Table 17--Impact of Compliance Costs on Firm Income
----------------------------------------------------------------------------------------------------------------
                                                                        Costs               Projected impacts
                                                             ---------------------------------------------------
                                                                                          Cost per     Cost per
                          Component                            Total cost    Cost per     firm as      firm as
                                                                ($ mil.)     firm \a\    percent of   percent of
                                                                                          revenues     payroll
----------------------------------------------------------------------------------------------------------------
First Year Cost.............................................        $53.9         $142       0.0002       0.0011
By Amendment:
    Any FMLA revision.......................................         12.6           33       0.0001       0.0003
    Flight Crew Technical Amendment.........................          0.4        1,016       0.0004       0.0014
    FY 2010 NDAA............................................         41.0          108       0.0002       0.0008
By Requirement:
    Regulatory Familiarization..............................         12.6           33       0.0001       0.0003
    Employer Notices........................................         17.1           45       0.0001       0.0003
    Certifications..........................................          0.4            1       0.0000       0.0000
    Health Benefits.........................................         23.8           62       0.0001       0.0005
Recurring Cost..............................................         41.3          109       0.0002       0.0008
By Amendment:
    Any FMLA revision.......................................            0            0       0.0000       0.0000
    Flight Crew Technical Amendment.........................          0.4        1,016       0.0004       0.0014
    NDAA 2010...............................................         41.0          108       0.0002       0.0008
By Requirement:
    Regulatory Familiarization..............................            0            0       0.0000       0.0000
    Employer Notices........................................         17.1           45       0.0001       0.0003
    Certifications..........................................          0.4            1       0.0000       0.0000
    Health Benefits.........................................         23.8           62       0.0001       0.0005
7% Real Discount Rate.......................................         43.0          113       0.0002       0.0009
By Amendment:
    Any FMLA revision.......................................          1.7            4       0.0000       0.0000
    Flight Crew Technical Amendment.........................          0.4        1,016       0.0004       0.0014
    NDAA 2010...............................................         41.0          108       0.0002       0.0008
By Requirement:
    Regulatory Familiarization..............................          1.7            4       0.0000       0.0000
    Employer Notices........................................         17.1           45       0.0001       0.0003
    Certifications..........................................          0.4            1       0.0000       0.0000
    Health Benefits.........................................         23.8           62       0.0001       0.0005
----------------------------------------------------------------------------------------------------------------
\a\ Calculated as total cost divided by the number of affected firms. For example, first year cost per firm for
  the flight crew technical amendment is $372,000 divided by 366 firms.

    Table 17 also presents the impact of projected costs on firm and 
worker income for average annualized costs with a seven percent real 
discount rate. The results demonstrate that the overall average 
annualized cost of the rule is $43 million, or about $113 per firm 
($1,016 per firm in the air transportation industry). Total cost per 
firm is approximately two ten-thousandths of one percent of average 
annual firm revenue. However, it is likely that some of these costs 
will be borne by the firm and some by the workers; the exact incidence 
of these impacts will depend on the relative bargaining strength of 
firms and workers, which will vary by industry.

H. Benefits

    The Department anticipates significant benefits resulting from the 
revisions. Employers that have adopted flexible workplace practices 
cite many economic benefits such as reduced worker absenteeism and 
turnover, improvements in their ability to attract and retain workers, 
and other positive changes that translate into increased worker 
productivity. See ``Work-Life Balance and the Economics of Workplace 
Flexibility'' at 16, Executive Office of the President, Council of 
Economic Advisors (March 2010). However, quantifying the benefits is 
challenging. Id. The Department does not attempt to quantify these 
benefits in this analysis, but does, however, describe the expected 
benefits of each major revision in the proceeding section.
1. Military Family Leave
    The benefits stemming from improving access to military family 
leave were described in the 2008 Final Rule as follows:

    [T]he families of servicemembers will no longer have to worry 
about losing their jobs or health insurance due to absences to care 
for a covered seriously injured or ill servicemember or due to a 
qualifying exigency resulting from active duty or call to active 
duty in support of a contingency operation.

73 FR 68069. Based on the preceding analysis, and the availability of 
recent research examining the impacts of service-connected injuries and 
illnesses, the Department also anticipates additional benefits to 
accrue to servicemembers and their families from the FY 2010 NDAA 
amendments.
    Providing job-protected leave for caregivers of covered veterans 
under the military caregiver provision is expected to have several 
benefits, including increased family involvement in recovery, improved 
self-reliance and access to resources for caregivers, and a

[[Page 8899]]

reduction in negative outcomes for covered veterans and their families.
    Recent research suggests that as many as 30 percent of returning 
servicemembers may suffer from symptoms of PTSD, major depression, and/
or TBI. These individuals often suffer from:
    E. Co-morbidities such as anxiety and mood disorders, and substance 
abuse;
    F. increased risk of suicidal ideation and attempts;
    G. higher rates of unhealthy behaviors such as smoking, poor diet, 
and unsafe sex;
    H. higher rates of other health problems and mortality; and
    I. decreased work productivity in the form of missed work days and 
decreased performance at work.\56\
---------------------------------------------------------------------------

    \56\ Tanielian, Terri and Lisa Jaycox. 2008. Invisible wounds of 
war: psychological and cognitive injuries, their consequences, and 
services to assist recovery. RAND. Available at: www.rand.org.
---------------------------------------------------------------------------

    While this study focused on active servicemembers, these disorders 
involve long timeframes for recovery and management of the symptoms, so 
it is reasonable to conclude that these same issues would impact the 
servicemember following separation from service. Furthermore, the 
impact of these disorders, and other serious injuries or illnesses 
incurred by covered servicemembers and veterans, extends to family 
members as well. Common issues include marital discord and increased 
likelihood of divorce, intimate partner violence, poor parenting skills 
and poor child outcomes, and caregiver burden. In ``Economic Impact on 
Caregivers of the Seriously Wounded, Ill, and Injured,'' the authors 
describe the impact on caregivers as follows:

    Family support is critical to patients' successful 
rehabilitation. Especially in a prolonged recovery, it is family 
members who make therapy appointments and ensure they are kept, 
drive the servicemember to these appointments, pick up medications 
and make sure they are taken, provide a wide range of personal care, 
become the impassioned advocates, take care of the kids, pay the 
bills and negotiate with the benefits offices, find suitable housing 
for a family that includes a person with a disability, provide 
emotional support, and, in short, find they have a full-time job--or 
more--for which they never prepared. When family members give up 
jobs to become caregivers, income can drop precipitously.\57\
---------------------------------------------------------------------------

    \57\ Christensen, et. al., April 2009, Economic Impact on 
Caregivers of the Seriously Wounded, Ill, and Injured, CNA, p. 8.
---------------------------------------------------------------------------

    The support provided by caregivers plays a pivotal role in the 
course of the servicemember's recovery, as noted in ``Invisible Wounds 
of War'':

    The likelihood that the condition will trigger a negative 
cascade of consequences over time is greater if the initial symptoms 
of the condition are more severe and the afflicted individual has 
other sources of vulnerability * * * Early interventions are likely 
to pay long-term dividends in improved outcomes for years to come; 
so, it is critical to help servicemembers and veterans seek and 
receive treatment.\58\
---------------------------------------------------------------------------

    \58\ Tanielian and Jaycox, 2008.

    Providing caregivers with job-protected FMLA leave to care for 
their family member who is a covered veteran creates a window of 
opportunity to interrupt the negative cascade of consequences 
experienced by sufferers of PTSD, TBI and depression. Furthermore, 
maintaining the flow of resources and self-sufficiency provided by a 
secure employment situation ensures that the caregivers are able to 
maintain their own mental and physical health during the veteran's 
recovery process.\59\
---------------------------------------------------------------------------

    \59\ Christensen, et. al., 2009, p.9.
---------------------------------------------------------------------------

    At this point, there is not sufficient data to accurately estimate 
the number of servicemembers suffering from these disorders or the 
range of severity of symptoms; as a result, we are unable to quantify 
the benefits of reduced rates of negative outcomes for affected 
veterans and their families. However, in ``Invisible Wounds of War,'' 
RAND developed estimates of costs associated with PTSD, major 
depression, and TBI stemming from the conflicts in Afghanistan and 
Iraq. For example:
    J. Servicemembers diagnosed with PTSD incur costs of $5,000--10,000 
per servicemember during the first two years after returning home.\60\
---------------------------------------------------------------------------

    \60\ RAND, 2008, p. xxiii. Variation due to severity and 
inclusion, or not, of cost of lives lost to suicide. Costs do not 
include costs due to substance abuse, domestic violence, 
homelessness, or family strain.
---------------------------------------------------------------------------

    K. Servicemembers diagnosed with major depression incur costs of 
$15,000--25,000 per servicemember during the first two years after 
returning home.\61\
---------------------------------------------------------------------------

    \61\ RAND, 2008, p. xxiii. Costs associated with co-morbid PTSD 
and depression are approximately $12,000 to 16,000.
---------------------------------------------------------------------------

    L. Servicemembers diagnosed with TBI incur costs of $27,000--32,000 
for a mild case and up to $268,000--408,000 for severe cases.\62\
---------------------------------------------------------------------------

    \62\ RAND, 2008, p. xxiii. Costs presented in 2007 dollars.
---------------------------------------------------------------------------

    The Final Rule will likely reduce these costs, and the costs 
associated with other negative outcomes associated with these 
diagnoses; but, at this point in time we do not have sufficient data to 
estimate the reduction in costs.
2. Airline Industry FMLA Leave
    As a result of the AFCTA, airline flight crew employees will enjoy 
all the benefits of FMLA coverage that have been afforded to employees 
in other industries. Additionally, as discussed in the 2008 Final Rule, 
employers may see reduced ``presenteeism''--the loss of productivity 
due to employees working while injured or ill--and a resultant increase 
in overall productivity, workplace safety, and wellness among 
employees. 73 FR 68071.

IX. Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires 
agencies to evaluate the potential effects of their proposed and final 
rules on small businesses, small organizations and small governmental 
jurisdictions. See 5 U.S.C. 603-604. If the rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, the RFA allows an agency to certify such, in lieu of 
preparing an analysis. See 5 U.S.C. 605.
    The Department certifies that this Final Rule will not have a 
significant economic impact on a substantial number of small entities. 
The FMLA covers private employers of 50 or more employees; employers 
with fewer than 50 employees are exempt. Therefore, changes to the FMLA 
regulations by definition will not impact small businesses with less 
than 50 employees. The Department acknowledges that some small 
employers that are within the SBA definition of small business (50-500 
employees) will still have to comply with the regulation and incur 
costs. However, based on the analysis in section VIII Executive Order 
12866; Executive Order 13563, even if all businesses subject to this 
Final Rule were considered to be small businesses, the economic impact 
would not be significant. As discussed above, the initial and recurring 
annual costs of the rule to all employers will be low. Further, as 
shown in Table 17, the first year cost per firm is estimated to be $142 
and the recurring cost per year per firm is estimated to be $109. 
Therefore, the data and economic implications of the rule do not reveal 
a significant economic impact on any small entities. The Department 
also notes that no comments were received from businesses, small or 
otherwise, regarding the cost of this Final Rule.

Appendix A: Military Family Leave Profile

    In order to estimate the number of individuals who may take leave 
under the qualifying exigency or military caregiver provisions as a 
result of the amendments to the FMLA included in the FY 2010 NDAA, the 
Department estimated (1) The number of active duty

[[Page 8900]]

servicemembers whose family members are entitled to qualifying exigency 
leave and the number of veterans whose family members will be entitled 
to caregiver leave, (2) the age profile of those servicemembers and 
veterans, and (3) the ratio of the number of eligible family members or 
caregivers associated with that age profile. The first estimate is 
described in more detail in the text of the economic analysis. This 
appendix provides an explanation of the method used to develop the age 
profiles and eligible family members.

A. Overview of Approach

    The Department replicated and updated the method used in the 2008 
Final Rule to ensure consistency with previous estimates. In that 
approach, the Department used data from the Defense Manpower Database, 
the Current Population Survey, and the decennial Census of Population 
to estimate the age distribution of servicemembers; the proportion of 
servicemembers in each age category with living parents, a spouse, and 
children (over 18 years of age); \63\ and the proportion of those 
individuals who may be employed by a covered employer. The Department 
used these estimates to determine the likely number of family members 
eligible to take leave for a qualifying exigency or to act as a 
caregiver for a covered veteran.
---------------------------------------------------------------------------

    \63\ Under military caregiver leave a designated next of kin may 
also take leave to care for a covered veteran. We accounted for 
these individuals by assuming that every covered veteran has at 
least one caregiver.
---------------------------------------------------------------------------

    The first step is to apply the age profile of servicemembers to the 
estimated number of servicemembers to distribute the number of 
servicemembers to the age groups. Table A-1 presents the estimated 
proportion of servicemembers by age range estimated for the 2008 Final 
rule. The Department aggregated the age groups for this calculation. 
For example, if the Final Rule was expected to affect 1000 
servicemembers then this age profile would estimate that 469 of them 
would be between the ages of 22 and 30 years old.

                Table A-1--Age Profile of Servicemembers
------------------------------------------------------------------------
                                                              Average
                                                             estimated
                                                           proportion of
        General military servicemember age range             military
                                                              members
                                                             (percent)
------------------------------------------------------------------------
18-21...................................................            19.8
22-30...................................................            46.9
31-40...................................................            24.7
41-50...................................................             8.0
51-59...................................................             0.6
------------------------------------------------------------------------

    The next step is to estimate the number of servicemembers in each 
age group with 0, 1, 2, 3, 4, or 5 eligible family members. Table A-2 
presents the estimated percent of servicemembers with the specified 
number of eligible family members by age range of the servicemember. 
For example, 44.1 percent of servicemembers aged 31-40 have at least 
one eligible family member.

                   Table A-2--Proportion of Servicemembers With ``n'' Eligible Family Members
----------------------------------------------------------------------------------------------------------------
                                                   Number of eligible family members (in percent)
             Age range             -----------------------------------------------------------------------------
                                         0            1            2            3            4            5
----------------------------------------------------------------------------------------------------------------
18-21.............................         29.3         49.5         21.0          0.2          0.0          0.0
22-30.............................         27.4         46.5         23.3          2.8          0.0          0.0
31-40.............................         31.1         44.1         21.1          3.6          0.2          0.2
41-50.............................         37.8         40.4         16.9          4.2          0.7          0.1
51-59.............................         45.3         35.4         14.6          3.9          0.7          0.1
----------------------------------------------------------------------------------------------------------------

    Finally, the number of estimated eligible family members for each 
age group of servicemembers is summed up by multiplying the number of 
servicemembers in each column by the number of eligible family members. 
First, the number of servicemembers in each age range is multiplied by 
the percentage in each cell in that row to determine the number of 
servicemembers with that number of eligible family members. For 
example, if there are 1000 servicemembers aged 18-21 then about 293 of 
them have no eligible family members, about 495 have one eligible 
family member, about 210 have two eligible family members, and two have 
three eligible family members.
    Next, the number of servicemembers in each category is converted to 
the total number of eligible family members and summed across the row 
to determine the total number of family members for that age range. For 
each row the calculation is ( * 0) + ( * 1) + 
( * 2) + ( * 3) + ( * 4) + ( * 5) 
where  represents the number of service members and the 
integers zero through five represent the number of eligible family 
members per servicemembers. The equation is modified slightly for 
estimating the number of eligible caregivers for military caregiver 
leave; we assume that each servicemember has at least one eligible 
caregiver and modify the equation to ( * 1) + ( * 1) 
+ ( * 2) + ( * 3) + ( * 4) + ( * 5) 
to reflect the fact that servicemembers with no available family 
members may designate a next of kin to serve as their caregiver.
    For example, the number of family members eligible for qualifying 
exigency leave for 1000 servicemembers aged 18-21 is equal to (293 * 0) 
+ (495 * 1) + (210 * 2) + (2 * 3) + (0 * 4) + (0 * 5); for 1000 
servicemembers aged 18--21 there are 921 eligible family members. In 
this example, the number of eligible caregivers for military caregiver 
leave is equal to (293 * 1) + (495 * 1) + (210 * 2) + (2 * 3) + (0 * 4) 
+ (0 * 5); for 1000 servicemembers aged 18-21 there are 1,214 eligible 
caregivers. Finally, the total number of eligible family members or 
caregivers is summed across the age groups to estimate the total number 
of eligible family members or caregivers.
    The next two tables present summary tables for a sample calculation 
assuming 5,000 total servicemembers (Table A-3) and veterans (Table A-
4).

[[Page 8901]]



                               Table A-3--Example Calculation of Number of Eligible Family Members for 5000 Servicemembers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Example     ERG's number of servicemen with n  of eligible family members where
                                                distribution                                        n =                                       Number of
  General military service member age range      of service-  ------------------------------------------------------------------------------    family
                                                   members          0            1            2            3            4            5         members
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21........................................           992.0        290.8        490.6        208.3          2.3          0.0          0.0        914.2
22-30........................................         2,343.0        641.6      1,090.3        544.9         66.2          0.0          0.0      2,378.5
31-40........................................         1,236.3        384.2        545.2        261.4         44.3          2.2          0.2      1,210.8
41-50........................................           398.8        150.7        161.0         67.2         16.6          2.9          0.4        359.1
51-59........................................            29.9         13.5         10.6          4.4          1.2          0.2          0.0         23.8
                                              ----------------------------------------------------------------------------------------------------------
    Total....................................           5,000      1,480.8      2,297.6      1,086.2        130.6          5.3          0.7      4,886.5
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                  Table A-4--Example Calculation of Number of Eligible Family Members for 5000 Veterans
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               ERG's number of servicemen with n  of eligible family members where
                                                    Example                                         n =                                       Number of
   General military service member age range     distribution ------------------------------------------------------------------------------    family
                                                  of veterans       0            1            2            3            4            5         members
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21..........................................         992.0        290.8        490.6        208.3          2.3          0.0          0.0      1,205.0
22-30..........................................       2,343.0        641.6      1,090.3        544.9         66.2          0.0          0.0      3,020.1
31-40..........................................       1,236.3        384.2        545.2        261.4         44.3          2.2          0.2      1,595.0
41-50..........................................         398.8        150.7        161.0         67.2         16.6          2.9          0.4        509.8
51-59..........................................          29.9         13.5         10.6          4.4          1.2          0.2          0.0         37.4
                                                --------------------------------------------------------------------------------------------------------
    Total......................................         5,000      1,480.8      2,297.6      1,086.2        130.6          5.3          0.7      6,367.3
--------------------------------------------------------------------------------------------------------------------------------------------------------

    For the NPRM, the Department provided detailed tables illustrating 
the calculation of the number of eligible family members and caregivers 
for the Department's estimates of the number of covered servicemembers 
for qualifying exigency leave, and the number of covered veterans who 
might seek treatment for a serious injury or illness for military 
caregiver leave. For the Final Rule, the Department has streamlined the 
discussion of this method and provides a useful shortcut for developing 
these estimates.
    As long as the distribution of servicemembers with a specified 
number of eligible family members or caregivers remains the same, see 
Table A-2, then the number of eligible family members or caregivers for 
any estimated number of servicemembers can be calculated through the 
use of a ratio instead of performing the full calculation described 
above. The Department calculated the ratio of eligible family members 
or caregivers to covered servicemembers by dividing the estimated 
number of eligible family members by the number of covered 
servicemembers for qualifying exigency leave, and by dividing the 
number of eligible caregivers by the number of veterans for military 
caregiver leave. Per the examples above in Table A-3 and A-4, the 
ratios are:
     0.977 eligible family members per covered servicemember 
for qualifying exigency leave (4.887/5,000).
     1.273 eligible caregivers per veteran for military 
caregiver leave (6,367/5,000).
    Note, these ratios are primarily provided as a tool for those who 
wish to replicate the Department's estimates in this economic analysis; 
over time, the actual distribution of eligible family members per 
servicemember by age group will fluctuate with changes in the 
composition of the military, demographic patterns, and employment with 
covered employers and will necessitate an updated profile.

X. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments as well as on the private sector. Under Section 202(a) of 
UMRA, the Department must generally prepare a written statement, 
including a cost-benefit analysis, for proposed and final regulations 
that ``includes any Federal mandate that may result in the expenditure 
by State, local, and tribal governments, in the aggregate or by the 
private sector'' in excess of $100 million in any one year (equivalent 
to $143 million in 2010 dollars after adjusting for inflation).
    State, local, and tribal government entities are within the scope 
of the regulated community for this regulation. The Department has 
determined that this rule contains a Federal mandate that is unlikely 
to result in expenditures of $143 million or more for State, local, and 
tribal governments, in the aggregate, or the private sector in any one 
year. Total costs to government entities do not exceed $15 million in 
any single year of the rule. See Table 18. Total costs to the private 
sector do not exceed $50 million in the first, most costly year of the 
rule. See Table 18. The total first year cost of this rule is estimated 
at $53.9 million to the private and public sectors combined. Thus, the 
Final Rule is not expected to result in any expenditures of $143 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any one year.

[[Page 8902]]



                                   Table 18--Compliance Costs by Business Size
----------------------------------------------------------------------------------------------------------------
                                                                   First year ($   Recurring ($    Annualized ($
                                                                     mil.) and       mil.) and       mil.) and
                            Industry                                percent of      percent of      percent of
                                                                       total           total           total
----------------------------------------------------------------------------------------------------------------
Small:
    Private.....................................................       $30.2 56%       $23.4 57%       $24.3 57%
     Government.................................................        $7.9 15%        $4.5 11%        $5.0 12%
                                                                 -----------------------------------------------
         Subtotal...............................................       $38.1 71%       $28.0 68%       $29.3 68%
Non Small:
     Private....................................................       $10.1 19%        $9.0 22%        $9.1 21%
     Government.................................................        $5.8 11%        $4.4 11%        $4.6 11%
                                                                 -----------------------------------------------
         Subtotal...............................................       $15.8 29%       $13.4 32%       $13.7 32%
Total:
     Private....................................................       $40.2 75%       $32.4 78%       $33.5 78%
     Government.................................................       $13.7 25%        $8.9 22%        $9.6 22%
                                                                 -----------------------------------------------
         Total..................................................      $53.9 100%      $41.3 100%      $43.0 100%
----------------------------------------------------------------------------------------------------------------

XI. Executive Order 13132, Federalism

    The rule does not have federalism implications as outlined in E.O. 
13132. Although states are covered employers under the FMLA, the rule 
does not have substantial direct effects on the states, on the 
relationship between the Federal government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government.

XII. Executive Order 13175, Indian Tribal Governments

    This rule was reviewed under the terms of E.O. 13175 and determined 
not to have tribal implications. The rule does not have ``substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes.'' As a result, no tribal summary impact 
statement has been prepared.

XIII. Effects on Families

    The undersigned hereby certifies that this rule will not adversely 
affect the well-being of families, as discussed under section 654 of 
the Treasury and General Government Appropriations Act, 1999.

XIV. Executive Order 13045, Protection of Children

    E.O. 13045 applies to any rule that (1) is determined to be 
economically significant as defined in E.O. 12866, and (2) concerns an 
environmental health or safety risk that the promulgating agency has 
reason to believe may have a disproportionate effect on children. This 
rule is not subject to E.O. 13045 because, although it addresses family 
and medical leave provisions of the FMLA including the rights of 
employees to take leave for the birth or adoption of a child and to 
care for a healthy newborn or adopted child, and to take leave to care 
for a son or daughter with a serious health condition, it does not 
concern environmental health or safety risks that may 
disproportionately affect children.

XV. Environmental Impact Assessment

    A review of this rule in accordance with the requirements of the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the regulations of the Council on Environmental Quality, 40 CFR 
1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11, 
indicates that this rule will not have a significant impact on the 
quality of the human environment. There is, thus, no corresponding 
environmental assessment or an environmental impact statement.

XVI. Executive Order 13211, Energy Supply

    This rule is not subject to E.O. 13211. It will not have a 
significant adverse effect on the supply, distribution or use of 
energy.

XVII. Executive Order 12630, Constitutionally Protected Property Rights

    This rule is not subject to E.O. 12630, because it does not involve 
implementation of a policy ``that has takings implications'' or that 
could impose limitations on private property use.

XVIII. Executive Order 12988, Civil Justice Reform Analysis

    This rule was drafted and reviewed in accordance with E.O. 12988 
and will not unduly burden the Federal court system. The proposed rule 
was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) 
written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct and to promote burden reduction.

List of Subjects in 29 CFR Part 825

    Employee benefit plans, Health, Health insurance, Labor management 
relations, Maternal and child health, Teachers.

    Signed at Washington, DC, this 30th day of January 2013.
Mary Beth Maxwell
Acting Deputy Administrator, Wage and Hour Division.

    For the reasons set out in the preamble, the Department of Labor 
amends Chapter V of Title 29, by revising part 825 of the Code of 
Federal Regulations as follows:

PART 825--THE FAMILY AND MEDICAL LEAVE ACT OF 1993

Subpart A--Coverage Under the Family and Medical Leave Act
Sec.
825.100 The Family and Medical Leave Act.
825.101 Purpose of the Act.
825.102 Definitions.
825.103 [Reserved]
825.104 Covered employer.
825.105 Counting employees for determining coverage.
825.106 Joint employer coverage.
825.107 Successor in interest coverage.
825.108 Public agency coverage.
825.109 Federal agency coverage.
825.110 Eligible employee.
825.111 Determining whether 50 employees are employed within 75 
miles.
825.112 Qualifying reasons for leave, general rule.
825.113 Serious health condition.
825.114 Inpatient care.

[[Page 8903]]

825.115 Continuing treatment.
825.116 [Reserved]
825.117 [Reserved]
825.118 [Reserved]
825.119 Leave for treatment of substance abuse.
825.120 Leave for pregnancy or birth.
825.121 Leave for adoption or foster care.
825.122 Definitions of covered servicemember, spouse, parent, son or 
daughter, next of kin of a covered servicemember, adoption, foster 
care, son or daughter on covered active duty or call to covered 
active duty status, son or daughter of a covered servicemember, and 
parent of a covered servicemember.
825.123 Unable to perform the functions of the position.
825.124 Needed to care for a family member or covered servicemember.
825.125 Definition of health care provider.
825.126 Leave because of a qualifying exigency.
825.127 Leave to care for a covered servicemember with a serious 
injury or illness (military caregiver leave).
Subpart B[m,dash]Employee Leave Entitlements Under the Family and 
Medical Leave Act
825.200 Amount of leave.
825.201 Leave to care for a parent.
825.202 Intermittent leave or reduced leave schedule.
825.203 Scheduling of intermittent or reduced schedule leave.
825.204 Transfer of an employee to an alternative position during 
intermittent leave or reduced schedule leave.
825.205 Increments of FMLA leave for intermittent or reduced 
schedule leave.
825.206 Interaction with the FLSA.
825.207 Substitution of paid leave.
825.208 [Reserved]
825.209 Maintenance of employee benefits.
825.210 Employee payment of group health benefit premiums.
825.211 Maintenance of benefits under multi-employer health plans.
825.212 Employee failure to pay health plan premium payments.
825.213 Employer recovery of benefit costs.
825.214 Employee right to reinstatement.
825.215 Equivalent position.
825.216 Limitations on an employee's right to reinstatement.
825.217 Key employee, general rule.
825.218 Substantial and grievous economic injury.
825.219 Rights of a key employee.
825.220 Protection for employees who request leave or otherwise 
assert FMLA rights.
Subpart C--Employee and Employer Rights and Obligations Under the Act
825.300 Employer notice requirements.
825.301 Designation of FMLA leave.
825.302 Employee notice requirements for foreseeable FMLA leave.
825.303 Employee notice requirements for unforeseeable FMLA leave.
825.304 Employee failure to provide notice.
825.305 Certification, general rule.
825.306 Content of medical certification for leave taken because of 
an employee's own serious health condition or the serious health 
condition of a family member.
825.307 Authentication and clarification of medical certification 
for leave taken because of an employee's own serious health 
condition or the serious health condition of a family member; second 
and third opinions
825.308 Recertifications for leave taken because of an employee's 
own serious health condition or the serious health condition of a 
family member.
825.309 Certification for leave taken because of a qualifying 
exigency.
825.310 Certification for leave taken to care for a covered 
servicemember (military caregiver leave).
825.311 Intent to return to work.
825.312 Fitness-for-duty certification.
825.313 Failure to provide certification.
Subpart D--Enforcement Mechanisms
825.400 Enforcement, general rules.
825.401 Filing a complaint with the Federal Government.
825.402 Violations of the posting requirement.
825.403 Appealing the assessment of a penalty for willful violation 
of the posting requirement.
825.404 Consequences for an employer when not paying the penalty 
assessment after a final order is issued.
Subpart E--Recordkeeping Requirements
825.500 Recordkeeping requirements.
Subpart F--Special Rules Applicable to Employees of Schools
825.600 Special rules for school employees, definitions.
825.601 Special rules for school employees, limitations on 
intermittent leave.
825.602 Special rules for school employees, limitations on leave 
near the end of an academic term.
825.603 Special rules for school employees, duration of FMLA leave.
825.604 Special rules for school employees, restoration to ``an 
equivalent position.''
Subpart G--Effect of Other Laws, Employer Practices, and Collective 
Bargaining Agreements on Employee Rights Under FMLA
825.700 Interaction with employer's policies.
825.701 Interaction with State laws.
825.702 Interaction with Federal and State anti-discrimination laws.
Subpart H--Definitions Special Rules Applicable to Airline Flight Crew 
Employees
825.800 Definitions. Special rules for airline flight crew 
employees, general.
825.801 Special rules for airline flight crew employees, hours of 
service requirement.
825.802 Special rules for airline flight crew employees, calculation 
of leave.
825.803 Special rules for airline flight crew employees, 
recordkeeping requirements.

    Authority:  29 U.S.C. 2654.

Subpart A--Coverage Under the Family and Medical Leave Act


Sec.  825.100  The Family and Medical Leave Act.

    (a) The Family and Medical Leave Act of 1993, as amended, (FMLA or 
Act) allows eligible employees of a covered employer to take job-
protected, unpaid leave, or to substitute appropriate paid leave if the 
employee has earned or accrued it, for up to a total of 12 workweeks in 
any 12 months (see Sec.  825.200(b)) because of the birth of a child 
and to care for the newborn child, because of the placement of a child 
with the employee for adoption or foster care, because the employee is 
needed to care for a family member (child, spouse, or parent) with a 
serious health condition, because the employee's own serious health 
condition makes the employee unable to perform the functions of his or 
her job, or because of any qualifying exigency arising out of the fact 
that the employee's spouse, son, daughter, or parent is a military 
member on active duty or call to covered active duty status (or has 
been notified of an impending call or order to covered active duty). In 
addition, eligible employees of a covered employer may take job-
protected, unpaid leave, or substitute appropriate paid leave if the 
employee has earned or accrued it, for up to a total of 26 workweeks in 
a single 12-month period to care for a covered servicemember with a 
serious injury or illness. In certain cases, FMLA leave may be taken on 
an intermittent basis rather than all at once, or the employee may work 
a part-time schedule.
    (b) An employee on FMLA leave is also entitled to have health 
benefits maintained while on leave as if the employee had continued to 
work instead of taking the leave. If an employee was paying all or part 
of the premium payments prior to leave, the employee would continue to 
pay his or her share during the leave period. The employer may recover 
its share only if the employee does not return to work for a reason 
other than the serious health condition of the employee or the 
employee's covered family member, the serious injury or illness of a 
covered servicemember, or another reason beyond the employee's control.
    (c) An employee generally has a right to return to the same 
position or an equivalent position with equivalent pay, benefits, and 
working conditions at the conclusion of the leave. The taking of FMLA 
leave cannot result in the loss of any benefit that accrued prior to 
the start of the leave.
    (d) The employer generally has a right to advance notice from the 
employee. In

[[Page 8904]]

addition, the employer may require an employee to submit certification 
to substantiate that the leave is due to the serious health condition 
of the employee or the employee's covered family member, due to the 
serious injury or illness of a covered servicemember, or because of a 
qualifying exigency. Failure to comply with these requirements may 
result in a delay in the start of FMLA leave. Pursuant to a uniformly 
applied policy, the employer may also require that an employee present 
a certification of fitness to return to work when the absence was 
caused by the employee's serious health condition (see Sec. Sec.  
825.312 and 825.313). The employer may delay restoring the employee to 
employment without such certificate relating to the health condition 
which caused the employee's absence.


Sec.  825.101  Purpose of the Act.

    (a) FMLA is intended to allow employees to balance their work and 
family life by taking reasonable unpaid leave for medical reasons, for 
the birth or adoption of a child, for the care of a child, spouse, or 
parent who has a serious health condition, for the care of a covered 
servicemember with a serious injury or illness, or because of a 
qualifying exigency arising out of the fact that the employee's spouse, 
son, daughter, or parent is a military member on covered active duty or 
call to covered active duty status. The Act is intended to balance the 
demands of the workplace with the needs of families, to promote the 
stability and economic security of families, and to promote national 
interests in preserving family integrity. It was intended that the Act 
accomplish these purposes in a manner that accommodates the legitimate 
interests of employers, and in a manner consistent with the Equal 
Protection Clause of the Fourteenth Amendment in minimizing the 
potential for employment discrimination on the basis of sex, while 
promoting equal employment opportunity for men and women.
    (b) The FMLA was predicated on two fundamental concerns--the needs 
of the American workforce, and the development of high-performance 
organizations. Increasingly, America's children and elderly are 
dependent upon family members who must spend long hours at work. When a 
family emergency arises, requiring workers to attend to seriously-ill 
children or parents, or to newly-born or adopted infants, or even to 
their own serious illness, workers need reassurance that they will not 
be asked to choose between continuing their employment, and meeting 
their personal and family obligations or tending to vital needs at 
home.
    (c) The FMLA is both intended and expected to benefit employers as 
well as their employees. A direct correlation exists between stability 
in the family and productivity in the workplace. FMLA will encourage 
the development of high-performance organizations. When workers can 
count on durable links to their workplace they are able to make their 
own full commitments to their jobs. The record of hearings on family 
and medical leave indicate the powerful productive advantages of stable 
workplace relationships, and the comparatively small costs of 
guaranteeing that those relationships will not be dissolved while 
workers attend to pressing family health obligations or their own 
serious illness.


Sec.  825.102  Definitions.

    For purposes of this part:
    Act or FMLA means the Family and Medical Leave Act of 1993, Public 
Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq., as 
amended).
    ADA means the Americans With Disabilities Act (42 U.S.C. 12101 et 
seq., as amended).
    Administrator means the Administrator of the Wage and Hour 
Division, U.S. Department of Labor, and includes any official of the 
Wage and Hour Division authorized to perform any of the functions of 
the Administrator under this part.
    Airline flight crew employee means an airline flight crewmember or 
flight attendant as those terms are defined in regulations of the 
Federal Aviation Administration. See also Sec.  825.800(a).
    Applicable monthly guarantee means:
    (1) For an airline flight crew employee who is not on reserve 
status (line holder), the minimum number of hours for which an employer 
has agreed to schedule such employee for any given month; and
    (2) For an airline flight crew employee who is on reserve status, 
the number of hours for which an employer has agreed to pay the 
employee for any given month. See also Sec.  825.801(b)(1).
    COBRA means the continuation coverage requirements of Title X of 
the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended 
(Pub. L. 99-272, title X, section 10002; 100 Stat 227; 29 U.S.C. 1161-
1168).
    Commerce and industry or activity affecting commerce mean any 
activity, business, or industry in commerce or in which a labor dispute 
would hinder or obstruct commerce or the free flow of commerce, and 
include ``commerce'' and any ``industry affecting commerce'' as defined 
in sections 501(1) and 501(3) of the Labor Management Relations Act of 
1947, 29 U.S.C. 142(1) and (3).
    Contingency operation means a military operation that:
    (1) Is designated by the Secretary of Defense as an operation in 
which members of the Armed Forces are or may become involved in 
military actions, operations, or hostilities against an enemy of the 
United States or against an opposing military force; or
    (2) Results in the call or order to, or retention on, active duty 
of members of the uniformed services under section 688, 12301(a), 
12302, 12304, 12305, or 12406 of Title 10 of the United States Code, 
chapter 15 of Title 10 of the United States Code, or any other 
provision of law during a war or during a national emergency declared 
by the President or Congress. See also Sec.  825.126(a)(2).
    Continuing treatment by a health care provider means any one of the 
following:
    (1) Incapacity and treatment. A period of incapacity of more than 
three consecutive, full calendar days, and any subsequent treatment or 
period of incapacity relating to the same condition, that also 
involves:
    (i) Treatment two or more times, within 30 days of the first day of 
incapacity, unless extenuating circumstances exist, by a health care 
provider, by a nurse under direct supervision of a health care 
provider, or by a provider of health care services (e.g., physical 
therapist) under orders of, or on referral by, a health care provider; 
or
    (ii) Treatment by a health care provider on at least one occasion, 
which results in a regimen of continuing treatment under the 
supervision of the health care provider.
    (iii) The requirement in paragraphs (i) and (ii) of this definition 
for treatment by a health care provider means an in-person visit to a 
health care provider. The first in-person treatment visit must take 
place within seven days of the first day of incapacity.
    (iv) Whether additional treatment visits or a regimen of continuing 
treatment is necessary within the 30-day period shall be determined by 
the health care provider.
    (v) The term ``extenuating circumstances'' in paragraph (i) means 
circumstances beyond the employee's control that prevent the follow-up 
visit from occurring as planned by the health care provider. Whether a 
given set of circumstances are extenuating depends on the facts. See 
also Sec.  825.115(a)(5).

[[Page 8905]]

    (2) Pregnancy or prenatal care. Any period of incapacity due to 
pregnancy, or for prenatal care. See also Sec.  825.120.
    (3) Chronic conditions. Any period of incapacity or treatment for 
such incapacity due to a chronic serious health condition. A chronic 
serious health condition is one which:
    (i) Requires periodic visits (defined as at least twice a year) for 
treatment by a health care provider, or by a nurse under direct 
supervision of a health care provider;
    (ii) Continues over an extended period of time (including recurring 
episodes of a single underlying condition); and
    (iii) May cause episodic rather than a continuing period of 
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
    (4) Permanent or long-term conditions. A period of incapacity which 
is permanent or long-term due to a condition for which treatment may 
not be effective. The employee or family member must be under the 
continuing supervision of, but need not be receiving active treatment 
by, a health care provider. Examples include Alzheimer's, a severe 
stroke, or the terminal stages of a disease.
    (5) Conditions requiring multiple treatments. Any period of absence 
to receive multiple treatments (including any period of recovery 
therefrom) by a health care provider or by a provider of health care 
services under orders of, or on referral by, a health care provider, 
for:
    (i) Restorative surgery after an accident or other injury; or
    (ii) A condition that would likely result in a period of incapacity 
of more than three consecutive full calendar days in the absence of 
medical intervention or treatment, such as cancer (chemotherapy, 
radiation, etc.), severe arthritis (physical therapy), kidney disease 
(dialysis).
    (6) Absences attributable to incapacity under paragraphs (2) or (3) 
of this definition qualify for FMLA leave even though the employee or 
the covered family member does not receive treatment from a health care 
provider during the absence, and even if the absence does not last more 
than three consecutive full calendar days. For example, an employee 
with asthma may be unable to report for work due to the onset of an 
asthma attack or because the employee's health care provider has 
advised the employee to stay home when the pollen count exceeds a 
certain level. An employee who is pregnant may be unable to report to 
work because of severe morning sickness.
    Covered active duty or call to covered active duty status means:
    (1) In the case of a member of the Regular Armed Forces, duty 
during the deployment of the member with the Armed Forces to a foreign 
country; and,
    (2) In the case of a member of the Reserve components of the Armed 
Forces, duty during the deployment of the member with the Armed Forces 
to a foreign country under a Federal call or order to active duty in 
support of a contingency operation pursuant to: Section 688 of Title 10 
of the United States Code, which authorizes ordering to active duty 
retired members of the Regular Armed Forces and members of the retired 
Reserve who retired after completing at least 20 years of active 
service; Section 12301(a) of Title 10 of the United States Code, which 
authorizes ordering all reserve component members to active duty in the 
case of war or national emergency; Section 12302 of Title 10 of the 
United States Code, which authorizes ordering any unit or unassigned 
member of the Ready Reserve to active duty; Section 12304 of Title 10 
of the United States Code, which authorizes ordering any unit or 
unassigned member of the Selected Reserve and certain members of the 
Individual Ready Reserve to active duty; Section 12305 of Title 10 of 
the United States Code, which authorizes the suspension of promotion, 
retirement or separation rules for certain Reserve components; Section 
12406 of Title 10 of the United States Code, which authorizes calling 
the National Guard into Federal service in certain circumstances; 
chapter 15 of Title 10 of the United States Code, which authorizes 
calling the National Guard and state military into Federal service in 
the case of insurrections and national emergencies; or any other 
provision of law during a war or during a national emergency declared 
by the President or Congress so long as it is in support of a 
contingency operation. See 10 U.S.C. 101(a)(13)(B). See also Sec.  
825.126(a).
    Covered servicemember means:
    (1) A current member of the Armed Forces, including a member of the 
National Guard or Reserves, who is undergoing medical treatment, 
recuperation, or therapy, is otherwise in outpatient status, or is 
otherwise on the temporary disability retired list, for a serious 
injury or illness, or
    (2) A covered veteran who is undergoing medical treatment, 
recuperation, or therapy for a serious injury or illness.
    Covered veteran means an individual who was a member of the Armed 
Forces (including a member of the National Guard or Reserves), and was 
discharged or released under conditions other than dishonorable at any 
time during the five-year period prior to the first date the eligible 
employee takes FMLA leave to care for the covered veteran. See Sec.  
825.127(b)(2).
    Eligible employee means:
    (1) An employee who has been employed for a total of at least 12 
months by the employer on the date on which any FMLA leave is to 
commence, except that an employer need not consider any period of 
previous employment that occurred more than seven years before the date 
of the most recent hiring of the employee, unless:
    (i) The break in service is occasioned by the fulfillment of the 
employee's Uniformed Services Employment and Reemployment Rights Act 
(USERRA), 38 U.S.C. 4301, et seq., covered service obligation (the 
period of absence from work due to or necessitated by USERRA-covered 
service must be also counted in determining whether the employee has 
been employed for at least 12 months by the employer, but this section 
does not provide any greater entitlement to the employee than would be 
available under the USERRA; or
    (ii) A written agreement, including a collective bargaining 
agreement, exists concerning the employer's intention to rehire the 
employee after the break in service (e.g., for purposes of the employee 
furthering his or her education or for childrearing purposes); and
    (2) Who, on the date on which any FMLA leave is to commence, has 
met the hours of service requirement by having been employed for at 
least 1,250 hours of service with such employer during the previous 12-
month period, or for an airline flight crew employee, in the previous 
12 months, having worked or been paid for not less than 60 percent of 
the applicable total monthly guarantee and having worked or been paid 
for not less than 504 hours, not counting personal commute time, or 
vacation, medical or sick leave (see Sec.  825.801(b)), except that:
    (i) An employee returning from fulfilling his or her USERRA-covered 
service obligation shall be credited with the hours of service that 
would have been performed but for the period of absence from work due 
to or necessitated by USERRA-covered service in determining whether the 
employee met the hours of service requirement (accordingly, a person 
reemployed following absence from work due to or necessitated by 
USERRA-covered service has the hours that would have been worked for 
the employer (or, for an airline flight crew employee, would have been 
worked for or paid by the employer) added to any hours actually worked 
(or, for an airline

[[Page 8906]]

flight crew employee, actually worked or paid) during the previous 12-
month period to meet the hours of service requirement); and
    (ii) To determine the hours that would have been worked (or, for an 
airline flight crew employee, would have been worked or paid) during 
the period of absence from work due to or necessitated by USERRA-
covered service, the employee's pre-service work schedule can generally 
be used for calculations; and
    (3) Who is employed in any State of the United States, the District 
of Columbia or any Territories or possession of the United States.
    (4) Excludes any Federal officer or employee covered under 
subchapter V of chapter 63 of title 5, United States Code.
    (5) Excludes any employee of the United States House of 
Representatives or the United States Senate covered by the 
Congressional Accountability Act of 1995, 2 U.S.C. 1301.
    (6) Excludes any employee who is employed at a worksite at which 
the employer employs fewer than 50 employees if the total number of 
employees employed by that employer within 75 miles of that worksite is 
also fewer than 50.
    (7) Excludes any employee employed in any country other than the 
United States or any Territory or possession of the United States.
    Employ means to suffer or permit to work.
    Employee has the meaning given the same term as defined in section 
3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows:
    (1) The term employee means any individual employed by an employer;
    (2) In the case of an individual employed by a public agency, 
employee means--
    (i) Any individual employed by the Government of the United 
States--
    (A) As a civilian in the military departments (as defined in 
section 102 of Title 5, United States Code),
    (B) In any executive agency (as defined in section 105 of Title 5, 
United States Code), excluding any Federal officer or employee covered 
under subchapter V of chapter 63 of Title 5, United States Code,
    (C) In any unit of the legislative or judicial branch of the 
Government which has positions in the competitive service, excluding 
any employee of the United States House of Representatives or the 
United States Senate who is covered by the Congressional Accountability 
Act of 1995,
    (D) In a nonappropriated fund instrumentality under the 
jurisdiction of the Armed Forces, or
    (ii) Any individual employed by the United States Postal Service or 
the Postal Regulatory Commission; and
    (iii) Any individual employed by a State, political subdivision of 
a State, or an interstate governmental agency, other than such an 
individual--
    (A) Who is not subject to the civil service laws of the State, 
political subdivision, or agency which employs the employee; and
    (B) Who--
    (1) Holds a public elective office of that State, political 
subdivision, or agency,
    (2) Is selected by the holder of such an office to be a member of 
his personal staff,
    (3) Is appointed by such an officeholder to serve on a policymaking 
level,
    (4) Is an immediate adviser to such an officeholder with respect to 
the constitutional or legal powers of the office of such officeholder, 
or
    (5) Is an employee in the legislative branch or legislative body of 
that State, political subdivision, or agency and is not employed by the 
legislative library of such State, political subdivision, or agency.
    Employee employed in an instructional capacity. See the definition 
of Teacher in this section.
    Employer means any person engaged in commerce or in an industry or 
activity affecting commerce who employs 50 or more employees for each 
working day during each of 20 or more calendar workweeks in the current 
or preceding calendar year, and includes--
    (1) Any person who acts, directly or indirectly, in the interest of 
an employer to any of the employees of such employer;
    (2) Any successor in interest of an employer; and
    (3) Any public agency.
    Employment benefits means all benefits provided or made available 
to employees by an employer, including group life insurance, health 
insurance, disability insurance, sick leave, annual leave, educational 
benefits, and pensions, regardless of whether such benefits are 
provided by a practice or written policy of an employer or through an 
employee benefit plan as defined in section 3(3) of the Employee 
Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term 
does not include non-employment related obligations paid by employees 
through voluntary deductions such as supplemental insurance coverage. 
See also Sec.  825.209(a).
    FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.).
    Group health plan means any plan of, or contributed to by, an 
employer (including a self-insured plan) to provide health care 
(directly or otherwise) to the employer's employees, former employees, 
or the families of such employees or former employees. For purposes of 
FMLA the term group health plan shall not include an insurance program 
providing health coverage under which employees purchase individual 
policies from insurers provided that:
    (1) No contributions are made by the employer;
    (2) Participation in the program is completely voluntary for 
employees;
    (3) The sole functions of the employer with respect to the program 
are, without endorsing the program, to permit the insurer to publicize 
the program to employees, to collect premiums through payroll 
deductions and to remit them to the insurer;
    (4) The employer receives no consideration in the form of cash or 
otherwise in connection with the program, other than reasonable 
compensation, excluding any profit, for administrative services 
actually rendered in connection with payroll deduction; and,
    (5) The premium charged with respect to such coverage does not 
increase in the event the employment relationship terminates.
    Health care provider means:
    (1) The Act defines health care provider as:
    (i) A doctor of medicine or osteopathy who is authorized to 
practice medicine or surgery (as appropriate) by the State in which the 
doctor practices; or
    (ii) Any other person determined by the Secretary to be capable of 
providing health care services.
    (2) Others ``capable of providing health care services'' include 
only:
    (i) Podiatrists, dentists, clinical psychologists, optometrists, 
and chiropractors (limited to treatment consisting of manual 
manipulation of the spine to correct a subluxation as demonstrated by 
X-ray to exist) authorized to practice in the State and performing 
within the scope of their practice as defined under State law;
    (ii) Nurse practitioners, nurse-midwives, clinical social workers 
and physician assistants who are authorized to practice under State law 
and who are performing within the scope of their practice as defined 
under State law;
    (iii) Christian Science Practitioners listed with the First Church 
of Christ, Scientist in Boston, Massachusetts. Where an employee or 
family member is

[[Page 8907]]

receiving treatment from a Christian Science practitioner, an employee 
may not object to any requirement from an employer that the employee or 
family member submit to examination (though not treatment) to obtain a 
second or third certification from a health care provider other than a 
Christian Science practitioner except as otherwise provided under 
applicable State or local law or collective bargaining agreement.
    (iv) Any health care provider from whom an employer or the 
employer's group health plan's benefits manager will accept 
certification of the existence of a serious health condition to 
substantiate a claim for benefits; and
    (v) A health care provider listed above who practices in a country 
other than the United States, who is authorized to practice in 
accordance with the law of that country, and who is performing within 
the scope of his or her practice as defined under such law.
    (3) The phrase ``authorized to practice in the State'' as used in 
this section means that the provider must be authorized to diagnose and 
treat physical or mental health conditions.
    Incapable of self-care means that the individual requires active 
assistance or supervision to provide daily self-care in several of the 
``activities of daily living'' (ADLs) or ``instrumental activities of 
daily living'' (IADLs). Activities of daily living include adaptive 
activities such as caring appropriately for one's grooming and hygiene, 
bathing, dressing and eating. Instrumental activities of daily living 
include cooking, cleaning, shopping, taking public transportation, 
paying bills, maintaining a residence, using telephones and 
directories, using a post office, etc.
    Instructional employee: See the definition of Teacher in this 
section.
    Intermittent leave means leave taken in separate periods of time 
due to a single illness or injury, rather than for one continuous 
period of time, and may include leave of periods from an hour or more 
to several weeks. Examples of intermittent leave would include leave 
taken on an occasional basis for medical appointments, or leave taken 
several days at a time spread over a period of six months, such as for 
chemotherapy.
    Invitational travel authorization (ITA) or Invitational travel 
order (ITO) are orders issued by the Armed Forces to a family member to 
join an injured or ill servicemember at his or her bedside. See also 
Sec.  825.310(e).
    Key employee means a salaried FMLA-eligible employee who is among 
the highest paid 10 percent of all the employees employed by the 
employer within 75 miles of the employee's worksite. See also Sec.  
825.217.
    Mental disability: See the definition of Physical or mental 
disability in this section.
    Military caregiver leave means leave taken to care for a covered 
servicemember with a serious injury or illness under the Family and 
Medical Leave Act of 1993. See also Sec.  825.127.
    Next of kin of a covered servicemember means the nearest blood 
relative other than the covered servicemember's spouse, parent, son, or 
daughter, in the following order of priority: blood relatives who have 
been granted legal custody of the covered servicemember by court decree 
or statutory provisions, brothers and sisters, grandparents, aunts and 
uncles, and first cousins, unless the covered servicemember has 
specifically designated in writing another blood relative as his or her 
nearest blood relative for purposes of military caregiver leave under 
the FMLA. When no such designation is made, and there are multiple 
family members with the same level of relationship to the covered 
servicemember, all such family members shall be considered the covered 
servicemember's next of kin and may take FMLA leave to provide care to 
the covered servicemember, either consecutively or simultaneously. When 
such designation has been made, the designated individual shall be 
deemed to be the covered servicemember's only next of kin. See also 
Sec.  825.127(d)(3).
    Outpatient status means, with respect to a covered servicemember 
who is a current member of the Armed Forces, the status of a member of 
the Armed Forces assigned to either a military medical treatment 
facility as an outpatient; or a unit established for the purpose of 
providing command and control of members of the Armed Forces receiving 
medical care as outpatients. See also Sec.  825.127(b)(1).
    Parent means a biological, adoptive, step or foster father or 
mother, or any other individual who stood in loco parentis to the 
employee when the employee was a son or daughter as defined below. This 
term does not include parents ``in law.''
    Parent of a covered servicemember means a covered servicemember's 
biological, adoptive, step or foster father or mother, or any other 
individual who stood in loco parentis to the covered servicemember. 
This term does not include parents ``in law.'' See also Sec.  
825.127(d)(2).
    Person means an individual, partnership, association, corporation, 
business trust, legal representative, or any organized group of 
persons, and includes a public agency for purposes of this part.
    Physical or mental disability means a physical or mental impairment 
that substantially limits one or more of the major life activities of 
an individual. Regulations at 29 CFR part 1630, issued by the Equal 
Employment Opportunity Commission under the Americans with Disabilities 
Act (ADA), 42 U.S.C. 12101 et seq., as amended, define these terms.
    Public agency means the government of the United States; the 
government of a State or political subdivision thereof; any agency of 
the United States (including the United States Postal Service and 
Postal Regulatory Commission), a State, or a political subdivision of a 
State, or any interstate governmental agency. Under section 101(5)(B) 
of the Act, a public agency is considered to be a ``person'' engaged in 
commerce or in an industry or activity affecting commerce within the 
meaning of the Act.
    Reduced leave schedule means a leave schedule that reduces the 
usual number of hours per workweek, or hours per workday, of an 
employee.
    Reserve components of the Armed Forces, for purposes of qualifying 
exigency leave, include the Army National Guard of the United States, 
Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of 
the United States, Air Force Reserve, and Coast Guard Reserve, and 
retired members of the Regular Armed Forces or Reserves who are called 
up in support of a contingency operation. See also Sec.  
825.126(a)(2)(i).
    Secretary means the Secretary of Labor or authorized 
representative.
    Serious health condition means an illness, injury, impairment or 
physical or mental condition that involves inpatient care as defined in 
Sec.  825.114 or continuing treatment by a health care provider as 
defined in Sec.  825.115. Conditions for which cosmetic treatments are 
administered (such as most treatments for acne or plastic surgery) are 
not serious health conditions unless inpatient hospital care is 
required or unless complications develop. Restorative dental or plastic 
surgery after an injury or removal of cancerous growths are serious 
health conditions provided all the other conditions of this regulation 
are met. Mental illness or allergies may be serious health conditions, 
but only if all the conditions of Sec.  825.113 are met.
    Serious injury or illness means: (1) In the case of a current 
member of the Armed Forces, including a member of the National Guard or 
Reserves, an injury or illness that was incurred by the covered 
servicemember in the line

[[Page 8908]]

of duty on active duty in the Armed Forces or that existed before the 
beginning of the member's active duty and was aggravated by service in 
the line of duty on active duty in the Armed Forces and that may render 
the servicemember medically unfit to perform the duties of the member's 
office, grade, rank, or rating; and
    (2) In the case of a covered veteran, an injury or illness that was 
incurred by the member in the line of duty on active duty in the Armed 
Forces (or existed before the beginning of the member's active duty and 
was aggravated by service in the line of duty on active duty in the 
Armed Forces) and manifested itself before or after the member became a 
veteran, and is:
    (i) A continuation of a serious injury or illness that was incurred 
or aggravated when the covered veteran was a member of the Armed Forces 
and rendered the servicemember unable to perform the duties of the 
servicemember's office, grade, rank, or rating; or
    (ii) A physical or mental condition for which the covered veteran 
has received a U.S. Department of Veterans Affairs Service-Related 
Disability Rating (VASRD) of 50 percent or greater, and such VASRD 
rating is based, in whole or in part, on the condition precipitating 
the need for military caregiver leave; or
    (iii) A physical or mental condition that substantially impairs the 
covered veteran's ability to secure or follow a substantially gainful 
occupation by reason of a disability or disabilities related to 
military service, or would do so absent treatment; or
    (iv) An injury, including a psychological injury, on the basis of 
which the covered veteran has been enrolled in the Department of 
Veterans Affairs Program of Comprehensive Assistance for Family 
Caregivers. See also Sec.  825.127(c).
    Son or daughter means a biological, adopted, or foster child, a 
stepchild, a legal ward, or a child of a person standing in loco 
parentis, who is either under age 18, or age 18 or older and 
``incapable of self-care because of a mental or physical disability'' 
at the time that FMLA leave is to commence.
    Son or daughter of a covered servicemember means a covered 
servicemember's biological, adopted, or foster child, stepchild, legal 
ward, or a child for whom the covered servicemember stood in loco 
parentis, and who is of any age. See also Sec.  825.127(d)(1).
    Son or daughter on covered active duty or call to covered active 
duty status means the employee's biological, adopted, or foster child, 
stepchild, legal ward, or a child for whom the employee stood in loco 
parentis, who is on covered active duty or call to covered active duty 
status, and who is of any age. See also Sec.  825.126(a)(5).
    Spouse means a husband or wife as defined or recognized under State 
law for purposes of marriage in the State where the employee resides, 
including common law marriage in States where it is recognized.
    State means any State of the United States or the District of 
Columbia or any Territory or possession of the United States.
    Teacher (or employee employed in an instructional capacity, or 
instructional employee) means an employee employed principally in an 
instructional capacity by an educational agency or school whose 
principal function is to teach and instruct students in a class, a 
small group, or an individual setting, and includes athletic coaches, 
driving instructors, and special education assistants such as signers 
for the hearing impaired. The term does not include teacher assistants 
or aides who do not have as their principal function actual teaching or 
instructing, nor auxiliary personnel such as counselors, psychologists, 
curriculum specialists, cafeteria workers, maintenance workers, bus 
drivers, or other primarily noninstructional employees.
    TRICARE is the health care program serving active duty 
servicemembers, National Guard and Reserve members, retirees, their 
families, survivors, and certain former spouses worldwide.


Sec.  825.103  [Reserved]


Sec.  825.104  Covered employer.

    (a) An employer covered by FMLA is any person engaged in commerce 
or in any industry or activity affecting commerce, who employs 50 or 
more employees for each working day during each of 20 or more calendar 
workweeks in the current or preceding calendar year. Employers covered 
by FMLA also include any person acting, directly or indirectly, in the 
interest of a covered employer to any of the employees of the employer, 
any successor in interest of a covered employer, and any public agency. 
Public agencies are covered employers without regard to the number of 
employees employed. Public as well as private elementary and secondary 
schools are also covered employers without regard to the number of 
employees employed. See Sec.  825.600.
    (b) The terms commerce and industry affecting commerce are defined 
in accordance with section 501(1) and (3) of the Labor Management 
Relations Act of 1947 (LMRA) (29 U.S.C. 142 (1) and (3)), as set forth 
in the definitions at Sec.  825.800 of this part. For purposes of the 
FMLA, employers who meet the 50-employee coverage test are deemed to be 
engaged in commerce or in an industry or activity affecting commerce.
    (c) Normally the legal entity which employs the employee is the 
employer under FMLA. Applying this principle, a corporation is a single 
employer rather than its separate establishments or divisions.
    (1) Where one corporation has an ownership interest in another 
corporation, it is a separate employer unless it meets the joint 
employment test discussed in Sec.  825.106, or the integrated employer 
test contained in paragraph (c)(2) of this section.
    (2) Separate entities will be deemed to be parts of a single 
employer for purposes of FMLA if they meet the integrated employer 
test. Where this test is met, the employees of all entities making up 
the integrated employer will be counted in determining employer 
coverage and employee eligibility. A determination of whether or not 
separate entities are an integrated employer is not determined by the 
application of any single criterion, but rather the entire relationship 
is to be reviewed in its totality. Factors considered in determining 
whether two or more entities are an integrated employer include:
    (i) Common management;
    (ii) Interrelation between operations;
    (iii) Centralized control of labor relations; and
    (iv) Degree of common ownership/financial control.
    (d) An employer includes any person who acts directly or indirectly 
in the interest of an employer to any of the employer's employees. The 
definition of employer in section 3(d) of the Fair Labor Standards Act 
(FLSA), 29 U.S.C. 203(d), similarly includes any person acting directly 
or indirectly in the interest of an employer in relation to an 
employee. As under the FLSA, individuals such as corporate officers 
``acting in the interest of an employer'' are individually liable for 
any violations of the requirements of FMLA.


Sec.  825.105  Counting employees for determining coverage.

    (a) The definition of employ for purposes of FMLA is taken from the 
Fair Labor Standards Act, Sec.  3(g), 29 U.S.C. 203(g). The courts have 
made it clear that the employment relationship under the FLSA is 
broader than the traditional common law concept of master and servant. 
The difference between the employment relationship under the FLSA and 
that under the common law

[[Page 8909]]

arises from the fact that the term ``employ'' as defined in the Act 
includes ``to suffer or permit to work.'' The courts have indicated 
that, while ``to permit'' requires a more positive action than ``to 
suffer,'' both terms imply much less positive action than required by 
the common law. Mere knowledge by an employer of work done for the 
employer by another is sufficient to create the employment relationship 
under the Act. The courts have said that there is no definition that 
solves all problems as to the limitations of the employer-employee 
relationship under the Act; and that determination of the relation 
cannot be based on isolated factors or upon a single characteristic or 
technical concepts, but depends ``upon the circumstances of the whole 
activity'' including the underlying ``economic reality.'' In general an 
employee, as distinguished from an independent contractor who is 
engaged in a business of his/her own, is one who ``follows the usual 
path of an employee'' and is dependent on the business which he/she 
serves.
    (b) Any employee whose name appears on the employer's payroll will 
be considered employed each working day of the calendar week, and must 
be counted whether or not any compensation is received for the week. 
However, the FMLA applies only to employees who are employed within any 
State of the United States, the District of Columbia or any Territory 
or possession of the United States. Employees who are employed outside 
these areas are not counted for purposes of determining employer 
coverage or employee eligibility.
    (c) Employees on paid or unpaid leave, including FMLA leave, leaves 
of absence, disciplinary suspension, etc., are counted as long as the 
employer has a reasonable expectation that the employee will later 
return to active employment. If there is no employer/employee 
relationship (as when an employee is laid off, whether temporarily or 
permanently) such individual is not counted. Part-time employees, like 
full-time employees, are considered to be employed each working day of 
the calendar week, as long as they are maintained on the payroll.
    (d) An employee who does not begin to work for an employer until 
after the first working day of a calendar week, or who terminates 
employment before the last working day of a calendar week, is not 
considered employed on each working day of that calendar week.
    (e) A private employer is covered if it maintained 50 or more 
employees on the payroll during 20 or more calendar workweeks (not 
necessarily consecutive workweeks) in either the current or the 
preceding calendar year.
    (f) Once a private employer meets the 50 employees/20 workweeks 
threshold, the employer remains covered until it reaches a future point 
where it no longer has employed 50 employees for 20 (nonconsecutive) 
workweeks in the current and preceding calendar year. For example, if 
an employer who met the 50 employees/20 workweeks test in the calendar 
year as of September 1, 2008, subsequently dropped below 50 employees 
before the end of 2008 and continued to employ fewer than 50 employees 
in all workweeks throughout calendar year 2009, the employer would 
continue to be covered throughout calendar year 2009 because it met the 
coverage criteria for 20 workweeks of the preceding (i.e., 2008) 
calendar year.


Sec.  825.106  Joint employer coverage.

    (a) Where two or more businesses exercise some control over the 
work or working conditions of the employee, the businesses may be joint 
employers under FMLA. Joint employers may be separate and distinct 
entities with separate owners, managers, and facilities. Where the 
employee performs work which simultaneously benefits two or more 
employers, or works for two or more employers at different times during 
the workweek, a joint employment relationship generally will be 
considered to exist in situations such as:
    (1) Where there is an arrangement between employers to share an 
employee's services or to interchange employees;
    (2) Where one employer acts directly or indirectly in the interest 
of the other employer in relation to the employee; or,
    (3) Where the employers are not completely disassociated with 
respect to the employee's employment and may be deemed to share control 
of the employee, directly or indirectly, because one employer controls, 
is controlled by, or is under common control with the other employer.
    (b)(1) A determination of whether or not a joint employment 
relationship exists is not determined by the application of any single 
criterion, but rather the entire relationship is to be viewed in its 
totality. For example, joint employment will ordinarily be found to 
exist when a temporary placement agency supplies employees to a second 
employer.
    (2) A type of company that is often called a Professional Employer 
Organization (PEO) contracts with client employers to perform 
administrative functions such as payroll, benefits, regulatory 
paperwork, and updating employment policies. The determination of 
whether a PEO is a joint employer also turns on the economic realities 
of the situation and must be based upon all the facts and 
circumstances. A PEO does not enter into a joint employment 
relationship with the employees of its client companies when it merely 
performs such administrative functions. On the other hand, if in a 
particular fact situation, a PEO has the right to hire, fire, assign, 
or direct and control the client's employees, or benefits from the work 
that the employees perform, such rights may lead to a determination 
that the PEO would be a joint employer with the client employer, 
depending upon all the facts and circumstances.
    (c) In joint employment relationships, only the primary employer is 
responsible for giving required notices to its employees, providing 
FMLA leave, and maintenance of health benefits. Factors considered in 
determining which is the primary employer include authority/
responsibility to hire and fire, assign/place the employee, make 
payroll, and provide employment benefits. For employees of temporary 
placement agencies, for example, the placement agency most commonly 
would be the primary employer. Where a PEO is a joint employer, the 
client employer most commonly would be the primary employer.
    (d) Employees jointly employed by two employers must be counted by 
both employers, whether or not maintained on one of the employer's 
payroll, in determining employer coverage and employee eligibility. For 
example, an employer who jointly employs 15 workers from a temporary 
placement agency and 40 permanent workers is covered by FMLA. (A 
special rule applies to employees jointly employed who physically work 
at a facility of the secondary employer for a period of at least one 
year. See Sec.  825.111(a)(3).) An employee on leave who is working for 
a secondary employer is considered employed by the secondary employer, 
and must be counted for coverage and eligibility purposes, as long as 
the employer has a reasonable expectation that that employee will 
return to employment with that employer. In those cases in which a PEO 
is determined to be a joint employer of a client employer's employees, 
the client employer would only be required to count employees of the 
PEO (or employees of other clients of the PEO) if the client employer 
jointly employed those employees.

[[Page 8910]]

    (e) Job restoration is the primary responsibility of the primary 
employer. The secondary employer is responsible for accepting the 
employee returning from FMLA leave in place of the replacement employee 
if the secondary employer continues to utilize an employee from the 
temporary placement agency, and the agency chooses to place the 
employee with the secondary employer. A secondary employer is also 
responsible for compliance with the prohibited acts provisions with 
respect to its jointly employed employees, whether or not the secondary 
employer is covered by FMLA. See Sec.  825.220(a). The prohibited acts 
include prohibitions against interfering with an employee's attempt to 
exercise rights under the Act, or discharging or discriminating against 
an employee for opposing a practice which is unlawful under FMLA. A 
covered secondary employer will be responsible for compliance with all 
the provisions of the FMLA with respect to its regular, permanent 
workforce.


Sec.  825.107  Successor in interest coverage.

    (a) For purposes of FMLA, in determining whether an employer is 
covered because it is a ``successor in interest'' to a covered 
employer, the factors used under Title VII of the Civil Rights Act and 
the Vietnam Era Veterans' Adjustment Act will be considered. However, 
unlike Title VII, whether the successor has notice of the employee's 
claim is not a consideration. Notice may be relevant, however, in 
determining successor liability for violations of the predecessor. The 
factors to be considered include:
    (1) Substantial continuity of the same business operations;
    (2) Use of the same plant;
    (3) Continuity of the work force;
    (4) Similarity of jobs and working conditions;
    (5) Similarity of supervisory personnel;
    (6) Similarity in machinery, equipment, and production methods;
    (7) Similarity of products or services; and
    (8) The ability of the predecessor to provide relief.
    (b) A determination of whether or not a successor in interest 
exists is not determined by the application of any single criterion, 
but rather the entire circumstances are to be viewed in their totality.
    (c) When an employer is a successor in interest, employees' 
entitlements are the same as if the employment by the predecessor and 
successor were continuous employment by a single employer. For example, 
the successor, whether or not it meets FMLA coverage criteria, must 
grant leave for eligible employees who had provided appropriate notice 
to the predecessor, or continue leave begun while employed by the 
predecessor, including maintenance of group health benefits during the 
leave and job restoration at the conclusion of the leave. A successor 
which meets FMLA's coverage criteria must count periods of employment 
and hours of service with the predecessor for purposes of determining 
employee eligibility for FMLA leave.


Sec.  825.108  Public agency coverage.

    (a) An employer under FMLA includes any public agency, as defined 
in section 3(x) of the Fair Labor Standards Act, 29 U.S.C. 203(x). 
Section 3(x) of the FLSA defines public agency as the government of the 
United States; the government of a State or political subdivision of a 
State; or an agency of the United States, a State, or a political 
subdivision of a State, or any interstate governmental agency. State is 
further defined in Section 3(c) of the FLSA to include any State of the 
United States, the District of Columbia, or any Territory or possession 
of the United States.
    (b) The determination of whether an entity is a public agency, as 
distinguished from a private employer, is determined by whether the 
agency has taxing authority, or whether the chief administrative 
officer or board, etc., is elected by the voters-at-large or their 
appointment is subject to approval by an elected official.
    (c)(1) A State or a political subdivision of a State constitutes a 
single public agency and, therefore, a single employer for purposes of 
determining employee eligibility. For example, a State is a single 
employer; a county is a single employer; a city or town is a single 
employer. Whether two agencies of the same State or local government 
constitute the same public agency can only be determined on a case-by-
case basis. One factor that would support a conclusion that two 
agencies are separate is whether they are treated separately for 
statistical purposes in the Census of Governments issued by the Bureau 
of the Census, U.S. Department of Commerce.
    (2) The Census Bureau takes a census of governments at five-year 
intervals. Volume I, Government Organization, contains the official 
counts of the number of State and local governments. It includes 
tabulations of governments by State, type of government, size, and 
county location. Also produced is a universe list of governmental 
units, classified according to type of government. Copies of Volume I, 
Government Organization, and subsequent volumes are available from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402, U.S. Department of Commerce District Offices, or 
can be found in Regional and selective depository libraries, or online 
at http://www.census.gov/govs/www/index.html. For a list of all 
depository libraries, write to the Government Printing Office, 710 N. 
Capitol St. NW., Washington, DC 20402.
    (d) All public agencies are covered by the FMLA regardless of the 
number of employees; they are not subject to the coverage threshold of 
50 employees carried on the payroll each day for 20 or more weeks in a 
year. However, employees of public agencies must meet all of the 
requirements of eligibility, including the requirement that the 
employer (e.g., State) employ 50 employees at the worksite or within 75 
miles.


Sec.  825.109  Federal agency coverage.

    (a) Most employees of the government of the United States, if they 
are covered by the FMLA, are covered under Title II of the FMLA 
(incorporated in Title V, Chapter 63, Subchapter 5 of the United States 
Code) which is administered by the U.S. Office of Personnel Management 
(OPM). OPM has separate regulations at 5 CFR Part 630, Subpart L. 
Employees of the Government Printing Office are covered by Title II. 
While employees of the Government Accountability Office and the Library 
of Congress are covered by Title I of the FMLA, the Comptroller General 
of the United States and the Librarian of Congress, respectively, have 
responsibility for the administration of the FMLA with respect to these 
employees. Other legislative branch employees, such as employees of the 
Senate and House of Representatives, are covered by the Congressional 
Accountability Act of 1995, 2 U.S.C. 1301.
    (b) The Federal Executive Branch employees within the jurisdiction 
of these regulations include:
    (1) Employees of the Postal Service;
    (2) Employees of the Postal Regulatory Commission;
    (3) A part-time employee who does not have an established regular 
tour of duty during the administrative workweek; and,
    (4) An employee serving under an intermittent appointment or 
temporary appointment with a time limitation of one year or less.
    (c) Employees of other Federal executive agencies are also covered 
by

[[Page 8911]]

these regulations if they are not covered by Title II of FMLA.
    (d) Employees of the judicial branch of the United States are 
covered by these regulations only if they are employed in a unit which 
has employees in the competitive service. For example, employees of the 
U.S. Tax Court are covered by these regulations.
    (e) For employees covered by these regulations, the U.S. Government 
constitutes a single employer for purposes of determining employee 
eligibility. These employees must meet all of the requirements for 
eligibility, including the requirement that the Federal Government 
employ 50 employees at the worksite or within 75 miles.


Sec.  825.110  Eligible employee.

    (a) An eligible employee is an employee of a covered employer who:
    (1) Has been employed by the employer for at least 12 months, and
    (2) Has been employed for at least 1,250 hours of service during 
the 12-month period immediately preceding the commencement of the leave 
(see Sec.  825.801 for special hours of service requirements for 
airline flight crew employees), and
    (3) Is employed at a worksite where 50 or more employees are 
employed by the employer within 75 miles of that worksite. See Sec.  
825.105(b) regarding employees who work outside the U.S.
    (b) The 12 months an employee must have been employed by the 
employer need not be consecutive months, provided
    (1) Subject to the exceptions provided in paragraph (b)(2) of this 
section, employment periods prior to a break in service of seven years 
or more need not be counted in determining whether the employee has 
been employed by the employer for at least 12 months.
    (2) Employment periods preceding a break in service of more than 
seven years must be counted in determining whether the employee has 
been employed by the employer for at least 12 months where:
    (i) The employee's break in service is occasioned by the 
fulfillment of his or her Uniformed Services Employment and 
Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., covered 
service obligation. The period of absence from work due to or 
necessitated by USERRA-covered service must be also counted in 
determining whether the employee has been employed for at least 12 
months by the employer. However, this section does not provide any 
greater entitlement to the employee than would be available under the 
USERRA; or
    (ii) A written agreement, including a collective bargaining 
agreement, exists concerning the employer's intention to rehire the 
employee after the break in service (e.g., for purposes of the employee 
furthering his or her education or for childrearing purposes).
    (3) If an employee is maintained on the payroll for any part of a 
week, including any periods of paid or unpaid leave (sick, vacation) 
during which other benefits or compensation are provided by the 
employer (e.g., workers' compensation, group health plan benefits, 
etc.), the week counts as a week of employment. For purposes of 
determining whether intermittent/occasional/casual employment qualifies 
as at least 12 months, 52 weeks is deemed to be equal to 12 months.
    (4) Nothing in this section prevents employers from considering 
employment prior to a continuous break in service of more than seven 
years when determining whether an employee has met the 12-month 
employment requirement. However, if an employer chooses to recognize 
such prior employment, the employer must do so uniformly, with respect 
to all employees with similar breaks in service.
    (c)(1) Except as provided in paragraph (c)(2) of this section and 
in Sec.  825.801 containing the special hours of service requirement 
for airline flight crew employees, whether an employee has worked the 
minimum 1,250 hours of service is determined according to the 
principles established under the Fair Labor Standards Act (FLSA) for 
determining compensable hours of work. See 29 CFR part 785. The 
determining factor is the number of hours an employee has worked for 
the employer within the meaning of the FLSA. The determination is not 
limited by methods of recordkeeping, or by compensation agreements that 
do not accurately reflect all of the hours an employee has worked for 
or been in service to the employer. Any accurate accounting of actual 
hours worked under FLSA's principles may be used.
    (2) An employee returning from USERRA-covered service shall be 
credited with the hours of service that would have been performed but 
for the period of absence from work due to or necessitated by USERRA-
covered service in determining the employee's eligibility for FMLA-
qualifying leave. Accordingly, a person reemployed following USERRA-
covered service has the hours that would have been worked for the 
employer added to any hours actually worked during the previous 12-
month period to meet the hours of service requirement. In order to 
determine the hours that would have been worked during the period of 
absence from work due to or necessitated by USERRA-covered service, the 
employee's pre-service work schedule can generally be used for 
calculations. See Sec.  825.801(c) for special rules applicable to 
airline flight crew employees.
    (3) In the event an employer does not maintain an accurate record 
of hours worked by an employee, including for employees who are exempt 
from FLSA's requirement that a record be kept of their hours worked 
(e.g., bona fide executive, administrative, and professional employees 
as defined in FLSA Regulations, 29 CFR part 541), the employer has the 
burden of showing that the employee has not worked the requisite hours. 
An employer must be able to clearly demonstrate, for example, that 
full-time teachers (see Sec.  825.102 for definition) of an elementary 
or secondary school system, or institution of higher education, or 
other educational establishment or institution (who often work outside 
the classroom or at their homes) did not work 1,250 hours during the 
previous 12 months in order to claim that the teachers are not eligible 
for FMLA leave. See Sec.  825.801(d) for special rules applicable to 
airline flight crew employees.
    (d) The determination of whether an employee meets the hours of 
service requirement and has been employed by the employer for a total 
of at least 12 months must be made as of the date the FMLA leave is to 
start. An employee may be on non-FMLA leave at the time he or she meets 
the 12-month eligibility requirement, and in that event, any portion of 
the leave taken for an FMLA-qualifying reason after the employee meets 
the eligibility requirement would be FMLA leave. See Sec.  825.300(b) 
for rules governing the content of the eligibility notice given to 
employees.
    (e) Whether 50 employees are employed within 75 miles to ascertain 
an employee's eligibility for FMLA benefits is determined when the 
employee gives notice of the need for leave. Whether the leave is to be 
taken at one time or on an intermittent or reduced leave schedule 
basis, once an employee is determined eligible in response to that 
notice of the need for leave, the employee's eligibility is not 
affected by any subsequent change in the number of employees employed 
at or within 75 miles of the employee's worksite, for that specific 
notice of the need for leave. Similarly, an employer may not terminate 
employee leave that has already started if the employee count drops 
below 50. For example, if an employer employs 60 employees in August, 
but expects that the number of

[[Page 8912]]

employees will drop to 40 in December, the employer must grant FMLA 
benefits to an otherwise eligible employee who gives notice of the need 
for leave in August for a period of leave to begin in December.


Sec.  825.111  Determining whether 50 employees are employed within 75 
miles.

    (a) Generally, a worksite can refer to either a single location or 
a group of contiguous locations. Structures which form a campus or 
industrial park, or separate facilities in proximity with one another, 
may be considered a single site of employment. On the other hand, there 
may be several single sites of employment within a single building, 
such as an office building, if separate employers conduct activities 
within the building. For example, an office building with 50 different 
businesses as tenants will contain 50 sites of employment. The offices 
of each employer will be considered separate sites of employment for 
purposes of FMLA. An employee's worksite under FMLA will ordinarily be 
the site the employee reports to or, if none, from which the employee's 
work is assigned.
    (1) Separate buildings or areas which are not directly connected or 
in immediate proximity are a single worksite if they are in reasonable 
geographic proximity, are used for the same purpose, and share the same 
staff and equipment. For example, if an employer manages a number of 
warehouses in a metropolitan area but regularly shifts or rotates the 
same employees from one building to another, the multiple warehouses 
would be a single worksite.
    (2) For employees with no fixed worksite, e.g., construction 
workers, transportation workers (e.g., truck drivers, seamen, pilots), 
salespersons, etc., the worksite is the site to which they are assigned 
as their home base, from which their work is assigned, or to which they 
report. For example, if a construction company headquartered in New 
Jersey opened a construction site in Ohio, and set up a mobile trailer 
on the construction site as the company's on-site office, the 
construction site in Ohio would be the worksite for any employees hired 
locally who report to the mobile trailer/company office daily for work 
assignments, etc. If that construction company also sent personnel such 
as job superintendents, foremen, engineers, an office manager, etc., 
from New Jersey to the job site in Ohio, those workers sent from New 
Jersey continue to have the headquarters in New Jersey as their 
worksite. The workers who have New Jersey as their worksite would not 
be counted in determining eligibility of employees whose home base is 
the Ohio worksite, but would be counted in determining eligibility of 
employees whose home base is New Jersey. For transportation employees, 
their worksite is the terminal to which they are assigned, report for 
work, depart, and return after completion of a work assignment. For 
example, an airline pilot may work for an airline with headquarters in 
New York, but the pilot regularly reports for duty and originates or 
begins flights from the company's facilities located in an airport in 
Chicago and returns to Chicago at the completion of one or more flights 
to go off duty. The pilot's worksite is the facility in Chicago. An 
employee's personal residence is not a worksite in the case of 
employees, such as salespersons, who travel a sales territory and who 
generally leave to work and return from work to their personal 
residence, or employees who work at home, as under the concept of 
flexiplace or telecommuting. Rather, their worksite is the office to 
which they report and from which assignments are made.
    (3) For purposes of determining that employee's eligibility, when 
an employee is jointly employed by two or more employers (see Sec.  
825.106), the employee's worksite is the primary employer's office from 
which the employee is assigned or reports, unless the employee has 
physically worked for at least one year at a facility of a secondary 
employer, in which case the employee's worksite is that location. The 
employee is also counted by the secondary employer to determine 
eligibility for the secondary employer's full-time or permanent 
employees.
    (b) The 75-mile distance is measured by surface miles, using 
surface transportation over public streets, roads, highways and 
waterways, by the shortest route from the facility where the employee 
needing leave is employed. Absent available surface transportation 
between worksites, the distance is measured by using the most 
frequently utilized mode of transportation (e.g., airline miles).
    (c) The determination of how many employees are employed within 75 
miles of the worksite of an employee is based on the number of 
employees maintained on the payroll. Employees of educational 
institutions who are employed permanently or who are under contract are 
maintained on the payroll during any portion of the year when school is 
not in session. See Sec.  825.105(c).


Sec.  825.112  Qualifying reasons for leave, general rule.

    (a) Circumstances qualifying for leave. Employers covered by FMLA 
are required to grant leave to eligible employees:
    (1) For birth of a son or daughter, and to care for the newborn 
child (see Sec.  825.120);
    (2) For placement with the employee of a son or daughter for 
adoption or foster care (see Sec.  825.121);
    (3) To care for the employee's spouse, son, daughter, or parent 
with a serious health condition (see Sec. Sec.  825.113 and 825.122);
    (4) Because of a serious health condition that makes the employee 
unable to perform the functions of the employee's job (see Sec. Sec.  
825.113 and 825.123);
    (5) Because of any qualifying exigency arising out of the fact that 
the employee's spouse, son, daughter, or parent is a military member on 
covered active duty (or has been notified of an impending call or order 
to covered active duty status (see Sec. Sec.  825.122 and 825.126); and
    (6) To care for a covered servicemember with a serious injury or 
illness if the employee is the spouse, son, daughter, parent, or next 
of kin of the covered servicemember. See Sec. Sec.  825.122 and 
825.127.
    (b) Equal application. The right to take leave under FMLA applies 
equally to male and female employees. A father, as well as a mother, 
can take family leave for the birth, placement for adoption, or foster 
care of a child.
    (c) Active employee. In situations where the employer/employee 
relationship has been interrupted, such as an employee who has been on 
layoff, the employee must be recalled or otherwise be re-employed 
before being eligible for FMLA leave. Under such circumstances, an 
eligible employee is immediately entitled to further FMLA leave for a 
qualifying reason.


Sec.  825.113  Serious health condition.

    (a) For purposes of FMLA, serious health condition entitling an 
employee to FMLA leave means an illness, injury, impairment or physical 
or mental condition that involves inpatient care as defined in Sec.  
825.114 or continuing treatment by a health care provider as defined in 
Sec.  825.115.
    (b) The term incapacity means inability to work, attend school or 
perform other regular daily activities due to the serious health 
condition, treatment therefore, or recovery therefrom.
    (c) The term treatment includes (but is not limited to) 
examinations to

[[Page 8913]]

determine if a serious health condition exists and evaluations of the 
condition. Treatment does not include routine physical examinations, 
eye examinations, or dental examinations. A regimen of continuing 
treatment includes, for example, a course of prescription medication 
(e.g., an antibiotic) or therapy requiring special equipment to resolve 
or alleviate the health condition (e.g., oxygen). A regimen of 
continuing treatment that includes the taking of over-the-counter 
medications such as aspirin, antihistamines, or salves; or bed-rest, 
drinking fluids, exercise, and other similar activities that can be 
initiated without a visit to a health care provider, is not, by itself, 
sufficient to constitute a regimen of continuing treatment for purposes 
of FMLA leave.
    (d) Conditions for which cosmetic treatments are administered (such 
as most treatments for acne or plastic surgery) are not serious health 
conditions unless inpatient hospital care is required or unless 
complications develop. Ordinarily, unless complications arise, the 
common cold, the flu, ear aches, upset stomach, minor ulcers, headaches 
other than migraine, routine dental or orthodontia problems, 
periodontal disease, etc., are examples of conditions that do not meet 
the definition of a serious health condition and do not qualify for 
FMLA leave. Restorative dental or plastic surgery after an injury or 
removal of cancerous growths are serious health conditions provided all 
the other conditions of this regulation are met. Mental illness or 
allergies may be serious health conditions, but only if all the 
conditions of this section are met.


Sec.  825.114  Inpatient care.

    Inpatient care means an overnight stay in a hospital, hospice, or 
residential medical care facility, including any period of incapacity 
as defined in Sec.  825.113(b), or any subsequent treatment in 
connection with such inpatient care.


Sec.  825.115  Continuing treatment.

    A serious health condition involving continuing treatment by a 
health care provider includes any one or more of the following:
    (a) Incapacity and treatment. A period of incapacity of more than 
three consecutive, full calendar days, and any subsequent treatment or 
period of incapacity relating to the same condition, that also 
involves:
    (1) Treatment two or more times, within 30 days of the first day of 
incapacity, unless extenuating circumstances exist, by a health care 
provider, by a nurse under direct supervision of a health care 
provider, or by a provider of health care services (e.g., physical 
therapist) under orders of, or on referral by, a health care provider; 
or
    (2) Treatment by a health care provider on at least one occasion, 
which results in a regimen of continuing treatment under the 
supervision of the health care provider.
    (3) The requirement in paragraphs (a)(1) and (2) of this section 
for treatment by a health care provider means an in-person visit to a 
health care provider. The first (or only) in-person treatment visit 
must take place within seven days of the first day of incapacity.
    (4) Whether additional treatment visits or a regimen of continuing 
treatment is necessary within the 30-day period shall be determined by 
the health care provider.
    (5) The term extenuating circumstances in paragraph (a)(1) of this 
section means circumstances beyond the employee's control that prevent 
the follow-up visit from occurring as planned by the health care 
provider. Whether a given set of circumstances are extenuating depends 
on the facts. For example, extenuating circumstances exist if a health 
care provider determines that a second in-person visit is needed within 
the 30-day period, but the health care provider does not have any 
available appointments during that time period.
    (b) Pregnancy or prenatal care. Any period of incapacity due to 
pregnancy, or for prenatal care. See also Sec.  825.120.
    (c) Chronic conditions. Any period of incapacity or treatment for 
such incapacity due to a chronic serious health condition. A chronic 
serious health condition is one which:
    (1) Requires periodic visits (defined as at least twice a year) for 
treatment by a health care provider, or by a nurse under direct 
supervision of a health care provider;
    (2) Continues over an extended period of time (including recurring 
episodes of a single underlying condition); and
    (3) May cause episodic rather than a continuing period of 
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
    (d) Permanent or long-term conditions. A period of incapacity which 
is permanent or long-term due to a condition for which treatment may 
not be effective. The employee or family member must be under the 
continuing supervision of, but need not be receiving active treatment 
by, a health care provider. Examples include Alzheimer's, a severe 
stroke, or the terminal stages of a disease.
    (e) Conditions requiring multiple treatments. Any period of absence 
to receive multiple treatments (including any period of recovery 
therefrom) by a health care provider or by a provider of health care 
services under orders of, or on referral by, a health care provider, 
for:
    (1) Restorative surgery after an accident or other injury; or
    (2) A condition that would likely result in a period of incapacity 
of more than three consecutive, full calendar days in the absence of 
medical intervention or treatment, such as cancer (chemotherapy, 
radiation, etc.), severe arthritis (physical therapy), or kidney 
disease (dialysis).
    (f) Absences attributable to incapacity under paragraph (b) or (c) 
of this section qualify for FMLA leave even though the employee or the 
covered family member does not receive treatment from a health care 
provider during the absence, and even if the absence does not last more 
than three consecutive, full calendar days. For example, an employee 
with asthma may be unable to report for work due to the onset of an 
asthma attack or because the employee's health care provider has 
advised the employee to stay home when the pollen count exceeds a 
certain level. An employee who is pregnant may be unable to report to 
work because of severe morning sickness.


Sec.  825.116  [Reserved]


Sec.  825.117  [Reserved]


Sec.  825.118  [Reserved]


Sec.  825.119  Leave for treatment of substance abuse.

    (a) Substance abuse may be a serious health condition if the 
conditions of Sec. Sec.  825.113 through 825.115 are met. However, FMLA 
leave may only be taken for treatment for substance abuse by a health 
care provider or by a provider of health care services on referral by a 
health care provider. On the other hand, absence because of the 
employee's use of the substance, rather than for treatment, does not 
qualify for FMLA leave.
    (b) Treatment for substance abuse does not prevent an employer from 
taking employment action against an employee. The employer may not take 
action against the employee because the employee has exercised his or 
her right to take FMLA leave for treatment. However, if the employer 
has an established policy, applied in a non-discriminatory manner that 
has been communicated to all employees, that provides under certain 
circumstances an employee may be terminated for

[[Page 8914]]

substance abuse, pursuant to that policy the employee may be terminated 
whether or not the employee is presently taking FMLA leave. An employee 
may also take FMLA leave to care for a covered family member who is 
receiving treatment for substance abuse. The employer may not take 
action against an employee who is providing care for a covered family 
member receiving treatment for substance abuse.


Sec.  825.120  Leave for pregnancy or birth.

    (a) General rules. Eligible employees are entitled to FMLA leave 
for pregnancy or birth of a child as follows:
    (1) Both the mother and father are entitled to FMLA leave for the 
birth of their child.
    (2) Both the mother and father are entitled to FMLA leave to be 
with the healthy newborn child (i.e., bonding time) during the 12-month 
period beginning on the date of birth. An employee's entitlement to 
FMLA leave for a birth expires at the end of the 12-month period 
beginning on the date of the birth. If state law allows, or the 
employer permits, bonding leave to be taken beyond this period, such 
leave will not qualify as FMLA leave. See Sec.  825.701 regarding non-
FMLA leave which may be available under applicable State laws. Under 
this section, both the mother and father are entitled to FMLA leave 
even if the newborn does not have a serious health condition.
    (3) A husband and wife who are eligible for FMLA leave and are 
employed by the same covered employer may be limited to a combined 
total of 12 weeks of leave during any 12-month period if the leave is 
taken for birth of the employee's son or daughter or to care for the 
child after birth, for placement of a son or daughter with the employee 
for adoption or foster care or to care for the child after placement, 
or to care for the employee's parent with a serious health condition. 
This limitation on the total weeks of leave applies to leave taken for 
the reasons specified as long as a husband and wife are employed by the 
same employer. It would apply, for example, even though the spouses are 
employed at two different worksites of an employer located more than 75 
miles from each other, or by two different operating divisions of the 
same company. On the other hand, if one spouse is ineligible for FMLA 
leave, the other spouse would be entitled to a full 12 weeks of FMLA 
leave. Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for either the birth of a child, for 
placement for adoption or foster care, or to care for a parent, the 
husband and wife would each be entitled to the difference between the 
amount he or she has taken individually and 12 weeks for FMLA leave for 
other purposes. For example, if each spouse took six weeks of leave to 
care for a healthy, newborn child, each could use an additional six 
weeks due to his or her own serious health condition or to care for a 
child with a serious health condition. Note, too, that many State 
pregnancy disability laws specify a period of disability either before 
or after the birth of a child; such periods would also be considered 
FMLA leave for a serious health condition of the mother, and would not 
be subject to the combined limit.
    (4) The mother is entitled to FMLA leave for incapacity due to 
pregnancy, for prenatal care, or for her own serious health condition 
following the birth of the child. Circumstances may require that FMLA 
leave begin before the actual date of birth of a child. An expectant 
mother may take FMLA leave before the birth of the child for prenatal 
care or if her condition makes her unable to work. The mother is 
entitled to leave for incapacity due to pregnancy even though she does 
not receive treatment from a health care provider during the absence, 
and even if the absence does not last for more than three consecutive 
calendar days. For example, a pregnant employee may be unable to report 
to work because of severe morning sickness.
    (5) The husband is entitled to FMLA leave if needed to care for his 
pregnant spouse who is incapacitated or if needed to care for her 
during her prenatal care, or if needed to care for the spouse following 
the birth of a child if the spouse has a serious health condition. See 
Sec.  825.124.
    (6) Both the mother and father are entitled to FMLA leave if needed 
to care for a child with a serious health condition if the requirements 
of Sec. Sec.  825.113 through 825.115 and 825.122(d) are met. Thus, a 
husband and wife may each take 12 weeks of FMLA leave if needed to care 
for their newborn child with a serious health condition, even if both 
are employed by the same employer, provided they have not exhausted 
their entitlements during the applicable 12-month FMLA leave period.
    (b) Intermittent and reduced schedule leave. An eligible employee 
may use intermittent or reduced schedule leave after the birth to be 
with a healthy newborn child only if the employer agrees. For example, 
an employer and employee may agree to a part-time work schedule after 
the birth. If the employer agrees to permit intermittent or reduced 
schedule leave for the birth of a child, the employer may require the 
employee to transfer temporarily, during the period the intermittent or 
reduced leave schedule is required, to an available alternative 
position for which the employee is qualified and which better 
accommodates recurring periods of leave than does the employee's 
regular position. Transfer to an alternative position may require 
compliance with any applicable collective bargaining agreement, Federal 
law (such as the Americans with Disabilities Act), and State law. 
Transfer to an alternative position may include altering an existing 
job to better accommodate the employee's need for intermittent or 
reduced leave. The employer's agreement is not required for 
intermittent leave required by the serious health condition of the 
mother or newborn child. See Sec. Sec.  825.202--825.205 for general 
rules governing the use of intermittent and reduced schedule leave. See 
Sec.  825.121 for rules governing leave for adoption or foster care. 
See Sec.  825.601 for special rules applicable to instructional 
employees of schools. See Sec.  825.802 for special rules applicable to 
airline flight crew employees.


Sec.  825.121  Leave for adoption or foster care.

    (a) General rules. Eligible employees are entitled to FMLA leave 
for placement with the employee of a son or daughter for adoption or 
foster care as follows:
    (1) Employees may take FMLA leave before the actual placement or 
adoption of a child if an absence from work is required for the 
placement for adoption or foster care to proceed. For example, the 
employee may be required to attend counseling sessions, appear in 
court, consult with his or her attorney or the doctor(s) representing 
the birth parent, submit to a physical examination, or travel to 
another country to complete an adoption. The source of an adopted child 
(e.g., whether from a licensed placement agency or otherwise) is not a 
factor in determining eligibility for leave for this purpose.
    (2) An employee's entitlement to leave for adoption or foster care 
expires at the end of the 12-month period beginning on the date of the 
placement. If state law allows, or the employer permits, leave for 
adoption or foster care to be taken beyond this period, such leave will 
not qualify as FMLA leave. See Sec.  825.701 regarding non-FMLA leave 
which may be available under applicable State laws. Under this section, 
the employee is entitled to

[[Page 8915]]

FMLA leave even if the adopted or foster child does not have a serious 
health condition.
    (3) A husband and wife who are eligible for FMLA leave and are 
employed by the same covered employer may be limited to a combined 
total of 12 weeks of leave during any 12-month period if the leave is 
taken for the placement of the employee's son or daughter or to care 
for the child after placement, for the birth of the employee's son or 
daughter or to care for the child after birth, or to care for the 
employee's parent with a serious health condition. This limitation on 
the total weeks of leave applies to leave taken for the reasons 
specified as long as a husband and wife are employed by the same 
employer. It would apply, for example, even though the spouses are 
employed at two different worksites of an employer located more than 75 
miles from each other, or by two different operating divisions of the 
same company. On the other hand, if one spouse is ineligible for FMLA 
leave, the other spouse would be entitled to a full 12 weeks of FMLA 
leave. Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for either the birth of a child, for 
placement for adoption or foster care, or to care for a parent, the 
husband and wife would each be entitled to the difference between the 
amount he or she has taken individually and 12 weeks for FMLA leave for 
other purposes. For example, if each spouse took six weeks of leave to 
care for a healthy, newly placed child, each could use an additional 
six weeks due to his or her own serious health condition or to care for 
a child with a serious health condition.
    (4) An eligible employee is entitled to FMLA leave in order to care 
for an adopted or foster child with a serious health condition if the 
requirements of Sec. Sec.  825.113 through 825.115 and 825.122(d) are 
met. Thus, a husband and wife may each take 12 weeks of FMLA leave if 
needed to care for an adopted or foster child with a serious health 
condition, even if both are employed by the same employer, provided 
they have not exhausted their entitlements during the applicable 12-
month FMLA leave period.
    (b) Use of intermittent and reduced schedule leave. An eligible 
employee may use intermittent or reduced schedule leave after the 
placement of a healthy child for adoption or foster care only if the 
employer agrees. Thus, for example, the employer and employee may agree 
to a part-time work schedule after the placement for bonding purposes. 
If the employer agrees to permit intermittent or reduced schedule leave 
for the placement for adoption or foster care, the employer may require 
the employee to transfer temporarily, during the period the 
intermittent or reduced leave schedule is required, to an available 
alternative position for which the employee is qualified and which 
better accommodates recurring periods of leave than does the employee's 
regular position. Transfer to an alternative position may require 
compliance with any applicable collective bargaining agreement, federal 
law (such as the Americans with Disabilities Act), and State law. 
Transfer to an alternative position may include altering an existing 
job to better accommodate the employee's need for intermittent or 
reduced leave. The employer's agreement is not required for 
intermittent leave required by the serious health condition of the 
adopted or foster child. See Sec. Sec.  825.202-825.205 for general 
rules governing the use of intermittent and reduced schedule leave. See 
Sec.  825.120 for general rules governing leave for pregnancy and birth 
of a child. See Sec.  825.601 for special rules applicable to 
instructional employees of schools. See Sec.  825.802 for special rules 
applicable to airline flight crew employees.


Sec.  825.122  Definitions of covered servicemember, spouse, parent, 
son or daughter, next of kin of a covered servicemember, adoption, 
foster care, son or daughter on covered active duty or call to covered 
active duty status, son or daughter of a covered servicemember, and 
parent of a covered servicemember.

    (a) Covered servicemember means: (1) A current member of the Armed 
Forces, including a member of the National Guard or Reserves, who is 
undergoing medical treatment, recuperation or therapy, is otherwise in 
outpatient status, or is otherwise on the temporary disability retired 
list, for a serious injury or illness; or
    (2) A covered veteran who is undergoing medical treatment, 
recuperation, or therapy for a serious injury or illness. Covered 
veteran means an individual who was a member of the Armed Forces 
(including a member of the National Guard or Reserves), and was 
discharged or released under conditions other than dishonorable at any 
time during the five-year period prior to the first date the eligible 
employee takes FMLA leave to care for the covered veteran. See Sec.  
825.127(b)(2).
    (b) Spouse. Spouse means a husband or wife as defined or recognized 
under State law for purposes of marriage in the State where the 
employee resides, including common law marriage in States where it is 
recognized.
    (c) Parent. Parent means a biological, adoptive, step or foster 
father or mother, or any other individual who stood in loco parentis to 
the employee when the employee was a son or daughter as defined in 
paragraph (d) of this section. This term does not include parents ``in 
law.''
    (d) Son or daughter. For purposes of FMLA leave taken for birth or 
adoption, or to care for a family member with a serious health 
condition, son or daughter means a biological, adopted, or foster 
child, a stepchild, a legal ward, or a child of a person standing in 
loco parentis, who is either under age 18, or age 18 or older and 
``incapable of self-care because of a mental or physical disability'' 
at the time that FMLA leave is to commence.
    (1) Incapable of self-care means that the individual requires 
active assistance or supervision to provide daily self-care in three or 
more of the activities of daily living (ADLs) or instrumental 
activities of daily living (IADLs). Activities of daily living include 
adaptive activities such as caring appropriately for one's grooming and 
hygiene, bathing, dressing and eating. Instrumental activities of daily 
living include cooking, cleaning, shopping, taking public 
transportation, paying bills, maintaining a residence, using telephones 
and directories, using a post office, etc.
    (2) Physical or mental disability means a physical or mental 
impairment that substantially limits one or more of the major life 
activities of an individual. Regulations at 29 CFR 1630.2(h), (i), and 
(j), issued by the Equal Employment Opportunity Commission under the 
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define 
these terms.
    (3) Persons who are ``in loco parentis'' include those with day-to-
day responsibilities to care for and financially support a child, or, 
in the case of an employee, who had such responsibility for the 
employee when the employee was a child. A biological or legal 
relationship is not necessary.
    (e) Next of kin of a covered servicemember means the nearest blood 
relative other than the covered servicemember's spouse, parent, son, or 
daughter, in the following order of priority: blood relatives who have 
been granted legal custody of the covered servicemember by court decree 
or statutory provisions, brothers and sisters, grandparents, aunts and 
uncles, and first cousins, unless the covered servicemember has 
specifically designated in writing another blood relative as his or her 
nearest blood relative for purposes of military caregiver leave under 
the FMLA. When

[[Page 8916]]

no such designation is made, and there are multiple family members with 
the same level of relationship to the covered servicemember, all such 
family members shall be considered the covered servicemember's next of 
kin and may take FMLA leave to provide care to the covered 
servicemember, either consecutively or simultaneously. When such 
designation has been made, the designated individual shall be deemed to 
be the covered servicemember's only next of kin. See Sec.  
825.127(d)(3).
    (f) Adoption means legally and permanently assuming the 
responsibility of raising a child as one's own. The source of an 
adopted child (e.g., whether from a licensed placement agency or 
otherwise) is not a factor in determining eligibility for FMLA leave. 
See Sec.  825.121 for rules governing leave for adoption.
    (g) Foster care means 24-hour care for children in substitution 
for, and away from, their parents or guardian. Such placement is made 
by or with the agreement of the State as a result of a voluntary 
agreement between the parent or guardian that the child be removed from 
the home, or pursuant to a judicial determination of the necessity for 
foster care, and involves agreement between the State and foster family 
that the foster family will take care of the child. Although foster 
care may be with relatives of the child, State action is involved in 
the removal of the child from parental custody. See Sec.  825.121 for 
rules governing leave for foster care.
    (h) Son or daughter on covered active duty or call to covered 
active duty status means the employee's biological, adopted, or foster 
child, stepchild, legal ward, or a child for whom the employee stood in 
loco parentis, who is on covered active duty or call to covered active 
duty status, and who is of any age. See Sec.  825.126(a)(5).
    (i) Son or daughter of a covered servicemember means the covered 
servicemember's biological, adopted, or foster child, stepchild, legal 
ward, or a child for whom the covered servicemember stood in loco 
parentis, and who is of any age. See Sec.  825.127(d)(1).
    (j) Parent of a covered servicemember means a covered 
servicemember's biological, adoptive, step or foster father or mother, 
or any other individual who stood in loco parentis to the covered 
servicemember. This term does not include parents ``in law.'' See Sec.  
825.127(d)(2).
    (k) Documenting relationships. For purposes of confirmation of 
family relationship, the employer may require the employee giving 
notice of the need for leave to provide reasonable documentation or 
statement of family relationship. This documentation may take the form 
of a simple statement from the employee, or a child's birth 
certificate, a court document, etc. The employer is entitled to examine 
documentation such as a birth certificate, etc., but the employee is 
entitled to the return of the official document submitted for this 
purpose.


Sec.  825.123  Unable to perform the functions of the position.

    (a) Definition. An employee is unable to perform the functions of 
the position where the health care provider finds that the employee is 
unable to work at all or is unable to perform any one of the essential 
functions of the employee's position within the meaning of the 
Americans with Disabilities Act (ADA), as amended, 42 U.S.C. 12101 et 
seq., and the regulations at 29 CFR 1630.2(n). An employee who must be 
absent from work to receive medical treatment for a serious health 
condition is considered to be unable to perform the essential functions 
of the position during the absence for treatment.
    (b) Statement of functions. An employer has the option, in 
requiring certification from a health care provider, to provide a 
statement of the essential functions of the employee's position for the 
health care provider to review. A sufficient medical certification must 
specify what functions of the employee's position the employee is 
unable to perform so that the employer can then determine whether the 
employee is unable to perform one or more essential functions of the 
employee's position. For purposes of FMLA, the essential functions of 
the employee's position are to be determined with reference to the 
position the employee held at the time notice is given or leave 
commenced, whichever is earlier. See Sec.  825.306.


Sec.  825.124  Needed to care for a family member or covered 
servicemember.

    (a) The medical certification provision that an employee is needed 
to care for a family member or covered servicemember encompasses both 
physical and psychological care. It includes situations where, for 
example, because of a serious health condition, the family member is 
unable to care for his or her own basic medical, hygienic, or 
nutritional needs or safety, or is unable to transport himself or 
herself to the doctor. The term also includes providing psychological 
comfort and reassurance which would be beneficial to a child, spouse or 
parent with a serious health condition who is receiving inpatient or 
home care.
    (b) The term also includes situations where the employee may be 
needed to substitute for others who normally care for the family member 
or covered servicemember, or to make arrangements for changes in care, 
such as transfer to a nursing home. The employee need not be the only 
individual or family member available to care for the family member or 
covered servicemember.
    (c) An employee's intermittent leave or a reduced leave schedule 
necessary to care for a family member or covered servicemember includes 
not only a situation where the condition of the family member or 
covered servicemember itself is intermittent, but also where the 
employee is only needed intermittently--such as where other care is 
normally available, or care responsibilities are shared with another 
member of the family or a third party. See Sec. Sec.  825.202-825.205 
for rules governing the use of intermittent or reduced schedule leave.


Sec.  825.125  Definition of health care provider.

    (a) The Act defines health care provider as:
    (1) A doctor of medicine or osteopathy who is authorized to 
practice medicine or surgery (as appropriate) by the State in which the 
doctor practices; or
    (2) Any other person determined by the Secretary to be capable of 
providing health care services.
    (b) Others capable of providing health care services include only:
    (1) Podiatrists, dentists, clinical psychologists, optometrists, 
and chiropractors (limited to treatment consisting of manual 
manipulation of the spine to correct a subluxation as demonstrated by 
X-ray to exist) authorized to practice in the State and performing 
within the scope of their practice as defined under State law;
    (2) Nurse practitioners, nurse-midwives, clinical social workers 
and physician assistants who are authorized to practice under State law 
and who are performing within the scope of their practice as defined 
under State law;
    (3) Christian Science Practitioners listed with the First Church of 
Christ, Scientist in Boston, Massachusetts. Where an employee or family 
member is receiving treatment from a Christian Science practitioner, an 
employee may not object to any requirement from an employer that the 
employee or family member submit to examination (though not treatment) 
to obtain a second or third certification from a health care

[[Page 8917]]

provider other than a Christian Science practitioner except as 
otherwise provided under applicable State or local law or collective 
bargaining agreement;
    (4) Any health care provider from whom an employer or the 
employer's group health plan's benefits manager will accept 
certification of the existence of a serious health condition to 
substantiate a claim for benefits; and
    (5) A health care provider listed above who practices in a country 
other than the United States, who is authorized to practice in 
accordance with the law of that country, and who is performing within 
the scope of his or her practice as defined under such law.
    (c) The phrase authorized to practice in the State as used in this 
section means that the provider must be authorized to diagnose and 
treat physical or mental health conditions.


Sec.  825.126  Leave because of a qualifying exigency.

    (a) Eligible employees may take FMLA leave for a qualifying 
exigency while the employee's spouse, son, daughter, or parent (the 
military member or member) is on covered active duty or call to covered 
active duty status (or has been notified of an impending call or order 
to covered active duty).
    (1) Covered active duty or call to covered active duty status in 
the case of a member of the Regular Armed Forces means duty during the 
deployment of the member with the Armed Forces to a foreign country. 
The active duty orders of a member of the Regular components of the 
Armed Forces will generally specify if the member is deployed to a 
foreign country.
    (2) Covered active duty or call to covered active duty status in 
the case of a member of the Reserve components of the Armed Forces 
means duty during the deployment of the member with the Armed Forces to 
a foreign country under a Federal call or order to active duty in 
support of a contingency operation pursuant to: Section 688 of Title 10 
of the United States Code, which authorizes ordering to active duty 
retired members of the Regular Armed Forces and members of the retired 
Reserve who retired after completing at least 20 years of active 
service; Section 12301(a) of Title 10 of the United States Code, which 
authorizes ordering all reserve component members to active duty in the 
case of war or national emergency; Section 12302 of Title 10 of the 
United States Code, which authorizes ordering any unit or unassigned 
member of the Ready Reserve to active duty; Section 12304 of Title 10 
of the United States Code, which authorizes ordering any unit or 
unassigned member of the Selected Reserve and certain members of the 
Individual Ready Reserve to active duty; Section 12305 of Title 10 of 
the United States Code, which authorizes the suspension of promotion, 
retirement or separation rules for certain Reserve components; Section 
12406 of Title 10 of the United States Code, which authorizes calling 
the National Guard into Federal service in certain circumstances; 
chapter 15 of Title 10 of the United States Code, which authorizes 
calling the National Guard and state military into Federal service in 
the case of insurrections and national emergencies; or any other 
provision of law during a war or during a national emergency declared 
by the President or Congress so long as it is in support of a 
contingency operation. See 10 U.S.C. 101(a)(13)(B).
    (i) For purposes of covered active duty or call to covered active 
duty status, the Reserve components of the Armed Forces include the 
Army National Guard of the United States, Army Reserve, Navy Reserve, 
Marine Corps Reserve, Air National Guard of the United States, Air 
Force Reserve and Coast Guard Reserve, and retired members of the 
Regular Armed Forces or Reserves who are called up in support of a 
contingency operation pursuant to one of the provisions of law 
identified in paragraph (a)(2).
    (ii) The active duty orders of a member of the Reserve components 
will generally specify if the military member is serving in support of 
a contingency operation by citation to the relevant section of Title 10 
of the United States Code and/or by reference to the specific name of 
the contingency operation and will specify that the deployment is to a 
foreign country.
    (3) Deployment of the member with the Armed Forces to a foreign 
country means deployment to areas outside of the United States, the 
District of Columbia, or any Territory or possession of the United 
States, including international waters.
    (4) A call to covered active duty for purposes of leave taken 
because of a qualifying exigency refers to a Federal call to active 
duty. State calls to active duty are not covered unless under order of 
the President of the United States pursuant to one of the provisions of 
law identified in paragraph (a)(2) of this section.
    (5) Son or daughter on covered active duty or call to covered 
active duty status means the employee's biological, adopted, or foster 
child, stepchild, legal ward, or a child for whom the employee stood in 
loco parentis, who is on covered active duty or call to covered active 
duty status, and who is of any age.
    (b) An eligible employee may take FMLA leave for one or more of the 
following qualifying exigencies:
    (1) Short-notice deployment. (i) To address any issue that arises 
from the fact that the military member is notified of an impending call 
or order to covered active duty seven or less calendar days prior to 
the date of deployment;
    (ii) Leave taken for this purpose can be used for a period of seven 
calendar days beginning on the date the military member is notified of 
an impending call or order to covered active duty;
    (2) Military events and related activities. (i) To attend any 
official ceremony, program, or event sponsored by the military that is 
related to the covered active duty or call to covered active duty 
status of the military member; and
    (ii) To attend family support or assistance programs and 
informational briefings sponsored or promoted by the military, military 
service organizations, or the American Red Cross that are related to 
the covered active duty or call to covered active duty status of the 
military member;
    (3) Childcare and school activities. For the purposes of leave for 
childcare and school activities listed in (i) through (iv) of this 
paragraph, a child of the military member must be the military member's 
biological, adopted, or foster child, stepchild, legal ward, or child 
for whom the military member stands in loco parentis, who is either 
under 18 years of age or 18 years of age or older and incapable of 
self-care because of a mental or physical disability at the time that 
FMLA leave is to commence. As with all instances of qualifying exigency 
leave, the military member must be the spouse, son, daughter, or parent 
of the employee requesting qualifying exigency leave.
    (i) To arrange for alternative childcare for a child of the 
military member when the covered active duty or call to covered active 
duty status of the military member necessitates a change in the 
existing childcare arrangement;
    (ii) To provide childcare for a child of the military member on an 
urgent, immediate need basis (but not on a routine, regular, or 
everyday basis) when the need to provide such care arises from the 
covered active duty or call to covered active duty status of the 
military member;
    (iii) To enroll in or transfer to a new school or day care facility 
a child of the military member when enrollment or transfer is 
necessitated by the covered active duty or call to covered active duty 
status of the military member; and

[[Page 8918]]

    (iv) To attend meetings with staff at a school or a daycare 
facility, such as meetings with school officials regarding disciplinary 
measures, parent-teacher conferences, or meetings with school 
counselors, for a child of the military member, when such meetings are 
necessary due to circumstances arising from the covered active duty or 
call to covered active duty status of the military member;
    (4) Financial and legal arrangements. (i) To make or update 
financial or legal arrangements to address the military member's 
absence while on covered active duty or call to covered active duty 
status, such as preparing and executing financial and healthcare powers 
of attorney, transferring bank account signature authority, enrolling 
in the Defense Enrollment Eligibility Reporting System (DEERS), 
obtaining military identification cards, or preparing or updating a 
will or living trust; and
    (ii) To act as the military member's representative before a 
federal, state, or local agency for purposes of obtaining, arranging, 
or appealing military service benefits while the military member is on 
covered active duty or call to covered active duty status, and for a 
period of 90 days following the termination of the military member's 
covered active duty status;
    (5) Counseling. To attend counseling provided by someone other than 
a health care provider, for oneself, for the military member, or for 
the biological, adopted, or foster child, a stepchild, or a legal ward 
of the military member, or a child for whom the military member stands 
in loco parentis, who is either under age 18, or age 18 or older and 
incapable of self-care because of a mental or physical disability at 
the time that FMLA leave is to commence, provided that the need for 
counseling arises from the covered active duty or call to covered 
active duty status of the military member;
    (6) Rest and Recuperation. (i) To spend time with the military 
member who is on short-term, temporary, Rest and Recuperation leave 
during the period of deployment;
    (ii) Leave taken for this purpose can be used for a period of 15 
calendar days beginning on the date the military member commences each 
instance of Rest and Recuperation leave;
    (7) Post-deployment activities. (i) To attend arrival ceremonies, 
reintegration briefings and events, and any other official ceremony or 
program sponsored by the military for a period of 90 days following the 
termination of the military member's covered active duty status; and
    (ii) To address issues that arise from the death of the military 
member while on covered active duty status, such as meeting and 
recovering the body of the military member, making funeral 
arrangements, and attending funeral services;
    (8) Parental care. For purposes of leave for parental care listed 
in (i) through (iv) of this paragraph, the parent of the military 
member must be incapable of self-care and must be the military member's 
biological, adoptive, step, or foster father or mother, or any other 
individual who stood in loco parentis to the military member when the 
member was under 18 years of age. A parent who is incapable of self-
care means that the parent requires active assistance or supervision to 
provide daily self-care in three or more of the activities of daily 
living or instrumental activities of daily living. Activities of daily 
living include adaptive activities such as caring appropriately for 
one's grooming and hygiene, bathing, dressing, and eating. Instrumental 
activities of daily living include cooking, cleaning, shopping, taking 
public transportation, paying bills, maintaining a residence, using 
telephones and directories, using a post office, etc. As with all 
instances of qualifying exigency leave, the military member must be the 
spouse, son, daughter, or parent of the employee requesting qualifying 
exigency leave.
    (i) To arrange for alternative care for a parent of the military 
member when the parent is incapable of self-care and the covered active 
duty or call to covered active duty status of the military member 
necessitates a change in the existing care arrangement for the parent;
    (ii) To provide care for a parent of the military member on an 
urgent, immediate need basis (but not on a routine, regular, or 
everyday basis) when the parent is incapable of self-care and the need 
to provide such care arises from the covered active duty or call to 
covered active duty status of the military member;
    (iii) To admit to or transfer to a care facility a parent of the 
military member when admittance or transfer is necessitated by the 
covered active duty or call to covered active duty status of the 
military member; and
    (iv) To attend meetings with staff at a care facility, such as 
meetings with hospice or social service providers for a parent of the 
military member, when such meetings are necessary due to circumstances 
arising from the covered active duty or call to covered active duty 
status of the military member but not for routine or regular meetings;
    (9) Additional activities. To address other events which arise out 
of the military member's covered active duty or call to covered active 
duty status provided that the employer and employee agree that such 
leave shall qualify as an exigency, and agree to both the timing and 
duration of such leave.


Sec.  825.127  Leave to care for a covered servicemember with a serious 
injury or illness (military caregiver leave).

    (a) Eligible employees are entitled to FMLA leave to care for a 
covered servicemember with a serious illness or injury.
    (b) Covered servicemember means:
    (1) A current member of the Armed Forces, including a member of the 
National Guard or Reserves, who is undergoing medical treatment, 
recuperation, or therapy, is otherwise in outpatient status; or is 
otherwise on the temporary disability retired list, for a serious 
injury or illness. Outpatient status means the status of a member of 
the Armed Forces assigned to either a military medical treatment 
facility as an outpatient or a unit established for the purpose of 
providing command and control of members of the Armed Forces receiving 
medical care as outpatients.
    (2) A covered veteran who is undergoing medical treatment, 
recuperation or therapy for a serious injury or illness. Covered 
veteran means an individual who was a member of the Armed Forces 
(including a member of the National Guard or Reserves), and was 
discharged or released under conditions other than dishonorable at any 
time during the five-year period prior to the first date the eligible 
employee takes FMLA leave to care for the covered veteran. An eligible 
employee must commence leave to care for a covered veteran within five 
years of the veteran's active duty service, but the single 12-month 
period described in paragraph (e)(1) of this section may extend beyond 
the five-year period.
    (i) For an individual who was a member of the Armed Forces 
(including a member of the National Guard or Reserves) and who was 
discharged or released under conditions other than dishonorable prior 
to the effective date of this Final Rule, the period between October 
28, 2009 and the effective date of this Final Rule shall not count 
towards the determination of the five-year period for covered veteran 
status.
    (c) A serious injury or illness means:
    (1) In the case of a current member of the Armed Forces, including 
a member of the National Guard or Reserves, means an injury or illness 
that was incurred by the covered servicemember in the line of duty on 
active duty in the

[[Page 8919]]

Armed Forces or that existed before the beginning of the member's 
active duty and was aggravated by service in the line of duty on active 
duty in the Armed Forces, and that may render the member medically 
unfit to perform the duties of the member's office, grade, rank or 
rating; and,
    (2) In the case of a covered veteran, means an injury or illness 
that was incurred by the member in the line of duty on active duty in 
the Armed Forces (or existed before the beginning of the member's 
active duty and was aggravated by service in the line of duty on active 
duty in the Armed Forces) and manifested itself before or after the 
member became a veteran, and is:
    (i) a continuation of a serious injury or illness that was incurred 
or aggravated when the covered veteran was a member of the Armed Forces 
and rendered the servicemember unable to perform the duties of the 
servicemember's office, grade, rank, or rating; or
    (ii) a physical or mental condition for which the covered veteran 
has received a U.S. Department of Veterans Affairs Service-Related 
Disability Rating (VASRD) of 50 percent or greater, and such VASRD 
rating is based, in whole or in part, on the condition precipitating 
the need for military caregiver leave; or
    (iii) a physical or mental condition that substantially impairs the 
covered veteran's ability to secure or follow a substantially gainful 
occupation by reason of a disability or disabilities related to 
military service, or would do so absent treatment; or
    (iv) an injury, including a psychological injury, on the basis of 
which the covered veteran has been enrolled in the Department of 
Veterans Affairs Program of Comprehensive Assistance for Family 
Caregivers.
    (d) In order to care for a covered servicemember, an eligible 
employee must be the spouse, son, daughter, or parent, or next of kin 
of a covered servicemember.
    (1) Son or daughter of a covered servicemember means the covered 
servicemember's biological, adopted, or foster child, stepchild, legal 
ward, or a child for whom the covered servicemember stood in loco 
parentis, and who is of any age.
    (2) Parent of a covered servicemember means a covered 
servicemember's biological, adoptive, step or foster father or mother, 
or any other individual who stood in loco parentis to the covered 
servicemember. This term does not include parents ``in law.''
    (3) Next of kin of a covered servicemember means the nearest blood 
relative, other than the covered servicemember's spouse, parent, son, 
or daughter, in the following order of priority: blood relatives who 
have been granted legal custody of the servicemember by court decree or 
statutory provisions, brothers and sisters, grandparents, aunts and 
uncles, and first cousins, unless the covered servicemember has 
specifically designated in writing another blood relative as his or her 
nearest blood relative for purposes of military caregiver leave under 
the FMLA. When no such designation is made, and there are multiple 
family members with the same level of relationship to the covered 
servicemember, all such family members shall be considered the covered 
servicemember's next of kin and may take FMLA leave to provide care to 
the covered servicemember, either consecutively or simultaneously. When 
such designation has been made, the designated individual shall be 
deemed to be the covered servicemember's only next of kin. For example, 
if a covered servicemember has three siblings and has not designated a 
blood relative to provide care, all three siblings would be considered 
the covered servicemember's next of kin. Alternatively, where a covered 
servicemember has a sibling(s) and designates a cousin as his or her 
next of kin for FMLA purposes, then only the designated cousin is 
eligible as the covered servicemember's next of kin. An employer is 
permitted to require an employee to provide confirmation of covered 
family relationship to the covered servicemember pursuant to Sec.  
825.122(k).
    (e) An eligible employee is entitled to 26 workweeks of leave to 
care for a covered servicemember with a serious injury or illness 
during a single 12-month period.
    (1) The single 12-month period described in paragraph (e) of this 
section begins on the first day the eligible employee takes FMLA leave 
to care for a covered servicemember and ends 12 months after that date, 
regardless of the method used by the employer to determine the 
employee's 12 workweeks of leave entitlement for other FMLA-qualifying 
reasons. If an eligible employee does not take all of his or her 26 
workweeks of leave entitlement to care for a covered servicemember 
during this single 12-month period, the remaining part of his or her 26 
workweeks of leave entitlement to care for the covered servicemember is 
forfeited.
    (2) The leave entitlement described in paragraph (e) of this 
section is to be applied on a per-covered-servicemember, per-injury 
basis such that an eligible employee may be entitled to take more than 
one period of 26 workweeks of leave if the leave is to care for 
different covered servicemembers or to care for the same servicemember 
with a subsequent serious injury or illness, except that no more than 
26 workweeks of leave may be taken within any single 12-month period. 
An eligible employee may take more than one period of 26 workweeks of 
leave to care for a covered servicemember with more than one serious 
injury or illness only when the serious injury or illness is a 
subsequent serious injury or illness. When an eligible employee takes 
leave to care for more than one covered servicemember or for a 
subsequent serious injury or illness of the same covered servicemember, 
and the single 12-month periods corresponding to the different military 
caregiver leave entitlements overlap, the employee is limited to taking 
no more than 26 workweeks of leave in each single 12-month period.
    (3) An eligible employee is entitled to a combined total of 26 
workweeks of leave for any FMLA-qualifying reason during the single 12-
month period described in paragraph (e) of this section, provided that 
the employee is entitled to no more than 12 workweeks of leave for one 
or more of the following: because of the birth of a son or daughter of 
the employee and in order to care for such son or daughter; because of 
the placement of a son or daughter with the employee for adoption or 
foster care; in order to care for the spouse, son, daughter, or parent 
with a serious health condition; because of the employee's own serious 
health condition; or because of a qualifying exigency. Thus, for 
example, an eligible employee may, during the single 12-month period, 
take 16 workweeks of FMLA leave to care for a covered servicemember and 
10 workweeks of FMLA leave to care for a newborn child. However, the 
employee may not take more than 12 weeks of FMLA leave to care for the 
newborn child during the single 12-month period, even if the employee 
takes fewer than 14 workweeks of FMLA leave to care for a covered 
servicemember.
    (4) In all circumstances, including for leave taken to care for a 
covered servicemember, the employer is responsible for designating 
leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the 
designation to the employee as provided in Sec.  825.300. In the case 
of leave that qualifies as both leave to care for a covered 
servicemember and leave to care for a family member with a serious 
health condition during the single 12-month

[[Page 8920]]

period described in paragraph (e) of this section, the employer must 
designate such leave as leave to care for a covered servicemember in 
the first instance. Leave that qualifies as both leave to care for a 
covered servicemember and leave taken to care for a family member with 
a serious health condition during the single 12-month period described 
in paragraph (e) of this section must not be designated and counted as 
both leave to care for a covered servicemember and leave to care for a 
family member with a serious health condition. As is the case with 
leave taken for other qualifying reasons, employers may retroactively 
designate leave as leave to care for a covered servicemember pursuant 
to Sec.  825.301(d).
    (f) A husband and wife who are eligible for FMLA leave and are 
employed by the same covered employer may be limited to a combined 
total of 26 workweeks of leave during the single 12-month period 
described in paragraph (e) of this section if the leave is taken for 
birth of the employee's son or daughter or to care for the child after 
birth, for placement of a son or daughter with the employee for 
adoption or foster care, or to care for the child after placement, to 
care for the employee's parent with a serious health condition, or to 
care for a covered servicemember with a serious injury or illness. This 
limitation on the total weeks of leave applies to leave taken for the 
reasons specified as long as a husband and wife are employed by the 
same employer. It would apply, for example, even though the spouses are 
employed at two different worksites of an employer located more than 75 
miles from each other, or by two different operating divisions of the 
same company. On the other hand, if one spouse is ineligible for FMLA 
leave, the other spouse would be entitled to a full 26 workweeks of 
FMLA leave.

Subpart B--Employee Leave Entitlements Under the Family and Medical 
Leave Act


Sec.  825.200  Amount of leave.

    (a) Except in the case of leave to care for a covered servicemember 
with a serious injury or illness, an eligible employee's FMLA leave 
entitlement is limited to a total of 12 workweeks of leave during any 
12-month period for any one, or more, of the following reasons:
    (1) The birth of the employee's son or daughter, and to care for 
the newborn child;
    (2) The placement with the employee of a son or daughter for 
adoption or foster care, and to care for the newly placed child;
    (3) To care for the employee's spouse, son, daughter, or parent 
with a serious health condition;
    (4) Because of a serious health condition that makes the employee 
unable to perform one or more of the essential functions of his or her 
job; and,
    (5) Because of any qualifying exigency arising out of the fact that 
the employee's spouse, son, daughter, or parent is a military member on 
covered active duty status (or has been notified of an impending call 
or order to covered active duty).
    (b) An employer is permitted to choose any one of the following 
methods for determining the 12-month period in which the 12 weeks of 
leave entitlement described in paragraph (a) of this section occurs:
    (1) The calendar year;
    (2) Any fixed 12-month leave year, such as a fiscal year, a year 
required by State law, or a year starting on an employee's anniversary 
date;
    (3) The 12-month period measured forward from the date any 
employee's first FMLA leave under paragraph (a) begins; or,
    (4) A ``rolling'' 12-month period measured backward from the date 
an employee uses any FMLA leave as described in paragraph (a).
    (c) Under methods in paragraphs (b)(1) and (b)(2) of this section 
an employee would be entitled to up to 12 weeks of FMLA leave at any 
time in the fixed 12-month period selected. An employee could, 
therefore, take 12 weeks of leave at the end of the year and 12 weeks 
at the beginning of the following year. Under the method in paragraph 
(b)(3) of this section, an employee would be entitled to 12 weeks of 
leave during the year beginning on the first date FMLA leave is taken; 
the next 12-month period would begin the first time FMLA leave is taken 
after completion of any previous 12-month period. Under the method in 
paragraph (b)(4) of this section, the ``rolling'' 12-month period, each 
time an employee takes FMLA leave the remaining leave entitlement would 
be any balance of the 12 weeks which has not been used during the 
immediately preceding 12 months. For example, if an employee has taken 
eight weeks of leave during the past 12 months, an additional four 
weeks of leave could be taken. If an employee used four weeks beginning 
February 1, 2008, four weeks beginning June 1, 2008, and four weeks 
beginning December 1, 2008, the employee would not be entitled to any 
additional leave until February 1, 2009. However, beginning on February 
1, 2009, the employee would again be eligible to take FMLA leave, 
recouping the right to take the leave in the same manner and amounts in 
which it was used in the previous year. Thus, the employee would recoup 
(and be entitled to use) one additional day of FMLA leave each day for 
four weeks, commencing February 1, 2009. The employee would also begin 
to recoup additional days beginning on June 1, 2009, and additional 
days beginning on December 1, 2009. Accordingly, employers using the 
rolling 12-month period may need to calculate whether the employee is 
entitled to take FMLA leave each time that leave is requested, and 
employees taking FMLA leave on such a basis may fall in and out of FMLA 
protection based on their FMLA usage in the prior 12 months. For 
example, in the example above, if the employee needs six weeks of leave 
for a serious health condition commencing February 1, 2009, only the 
first four weeks of the leave would be FMLA protected.
    (d)(1) Employers will be allowed to choose any one of the 
alternatives in paragraph (b) of this section for the leave 
entitlements described in paragraph (a) of this section provided the 
alternative chosen is applied consistently and uniformly to all 
employees. An employer wishing to change to another alternative is 
required to give at least 60 days notice to all employees, and the 
transition must take place in such a way that the employees retain the 
full benefit of 12 weeks of leave under whichever method affords the 
greatest benefit to the employee. Under no circumstances may a new 
method be implemented in order to avoid the Act's leave requirements.
    (2) An exception to this required uniformity would apply in the 
case of a multi-State employer who has eligible employees in a State 
which has a family and medical leave statute. The State may require a 
single method of determining the period during which use of the leave 
entitlement is measured. This method may conflict with the method 
chosen by the employer to determine any 12 months for purposes of the 
Federal statute. The employer may comply with the State provision for 
all employees employed within that State, and uniformly use another 
method provided by this regulation for the leave entitlements described 
in paragraph (a) for all other employees.
    (e) If an employer fails to select one of the options in paragraph 
(b) of this section for measuring the 12-month period for the leave 
entitlements described in paragraph (a), the option that provides the 
most beneficial

[[Page 8921]]

outcome for the employee will be used. The employer may subsequently 
select an option only by providing the 60-day notice to all employees 
of the option the employer intends to implement. During the running of 
the 60-day period any other employee who needs FMLA leave may use the 
option providing the most beneficial outcome to that employee. At the 
conclusion of the 60-day period the employer may implement the selected 
option.
    (f) An eligible employee's FMLA leave entitlement is limited to a 
total of 26 workweeks of leave during a single 12-month period to care 
for a covered servicemember with a serious injury or illness. An 
employer shall determine the single 12-month period in which the 26-
weeks-of-leave-entitlement described in this paragraph occurs using the 
12-month period measured forward from the date an employee's first FMLA 
leave to care for the covered servicemember begins. See Sec.  
825.127(e)(1).
    (g) During the single 12-month period described in paragraph (f), 
an eligible employee's FMLA leave entitlement is limited to a combined 
total of 26 workweeks of FMLA leave for any qualifying reason. See 
Sec.  825.127(e)(3).
    (h) For purposes of determining the amount of leave used by an 
employee, the fact that a holiday may occur within the week taken as 
FMLA leave has no effect; the week is counted as a week of FMLA leave. 
However, if an employee is using FMLA leave in increments of less than 
one week, the holiday will not count against the employee's FMLA 
entitlement unless the employee was otherwise scheduled and expected to 
work during the holiday. Similarly, if for some reason the employer's 
business activity has temporarily ceased and employees generally are 
not expected to report for work for one or more weeks (e.g., a school 
closing two weeks for the Christmas/New Year holiday or the summer 
vacation or an employer closing the plant for retooling or repairs), 
the days the employer's activities have ceased do not count against the 
employee's FMLA leave entitlement. Methods for determining an 
employee's 12-week leave entitlement are also described in Sec.  
825.205. See Sec.  825.802 for special calculation of leave rules 
applicable to airline flight crew employees.


Sec.  825.201  Leave to care for a parent.

    (a) General rule. An eligible employee is entitled to FMLA leave if 
needed to care for the employee's parent with a serious health 
condition. Care for parents-in-law is not covered by the FMLA. See 
Sec.  825.122(c) for definition of parent.
    (b) Same employer limitation. A husband and wife who are eligible 
for FMLA leave and are employed by the same covered employer may be 
limited to a combined total of 12 weeks of leave during any 12-month 
period if the leave is taken to care for the employee's parent with a 
serious health condition, for the birth of the employee's son or 
daughter or to care for the child after the birth, or for placement of 
a son or daughter with the employee for adoption or foster care or to 
care for the child after placement. This limitation on the total weeks 
of leave applies to leave taken for the reasons specified as long as a 
husband and wife are employed by the same employer. It would apply, for 
example, even though the spouses are employed at two different 
worksites of an employer located more than 75 miles from each other, or 
by two different operating divisions of the same company. On the other 
hand, if one spouse is ineligible for FMLA leave, the other spouse 
would be entitled to a full 12 weeks of FMLA leave. Where the husband 
and wife both use a portion of the total 12-week FMLA leave entitlement 
for either the birth of a child, for placement for adoption or foster 
care, or to care for a parent, the husband and wife would each be 
entitled to the difference between the amount he or she has taken 
individually and 12 weeks for FMLA leave for other purposes. For 
example, if each spouse took six weeks of leave to care for a parent, 
each could use an additional six weeks due to his or her own serious 
health condition or to care for a child with a serious health 
condition. See also Sec.  825.127(d).


Sec.  825.202  Intermittent leave or reduced leave schedule.

    (a) Definition. FMLA leave may be taken intermittently or on a 
reduced leave schedule under certain circumstances. Intermittent leave 
is FMLA leave taken in separate blocks of time due to a single 
qualifying reason. A reduced leave schedule is a leave schedule that 
reduces an employee's usual number of working hours per workweek, or 
hours per workday. A reduced leave schedule is a change in the 
employee's schedule for a period of time, normally from full-time to 
part-time.
    (b) Medical necessity. For intermittent leave or leave on a reduced 
leave schedule taken because of one's own serious health condition, to 
care for a spouse, parent, son, or daughter with a serious health 
condition, or to care for a covered servicemember with a serious injury 
or illness, there must be a medical need for leave and it must be that 
such medical need can be best accommodated through an intermittent or 
reduced leave schedule. The treatment regimen and other information 
described in the certification of a serious health condition and in the 
certification of a serious injury or illness, if required by the 
employer, addresses the medical necessity of intermittent leave or 
leave on a reduced leave schedule. See Sec. Sec.  825.306, 825.310. 
Leave may be taken intermittently or on a reduced leave schedule when 
medically necessary for planned and/or unanticipated medical treatment 
of a serious health condition or of a covered servicemember's serious 
injury or illness, or for recovery from treatment or recovery from a 
serious health condition or a covered servicemember's serious injury or 
illness. It may also be taken to provide care or psychological comfort 
to a covered family member with a serious health condition or a covered 
servicemember with a serious injury or illness.
    (1) Intermittent leave may be taken for a serious health condition 
of a spouse, parent, son, or daughter, for the employee's own serious 
health condition, or a serious injury or illness of a covered 
servicemember which requires treatment by a health care provider 
periodically, rather than for one continuous period of time, and may 
include leave of periods from an hour or more to several weeks. 
Examples of intermittent leave would include leave taken on an 
occasional basis for medical appointments, or leave taken several days 
at a time spread over a period of six months, such as for chemotherapy. 
A pregnant employee may take leave intermittently for prenatal 
examinations or for her own condition, such as for periods of severe 
morning sickness. An example of an employee taking leave on a reduced 
leave schedule is an employee who is recovering from a serious health 
condition and is not strong enough to work a full-time schedule.
    (2) Intermittent or reduced schedule leave may be taken for 
absences where the employee or family member is incapacitated or unable 
to perform the essential functions of the position because of a chronic 
serious health condition or a serious injury or illness of a covered 
servicemember, even if he or she does not receive treatment by a health 
care provider. See Sec. Sec.  825.113 and 825.127.
    (c) Birth or placement. When leave is taken after the birth of a 
healthy child or placement of a healthy child for adoption or foster 
care, an employee may take leave intermittently or on a

[[Page 8922]]

reduced leave schedule only if the employer agrees. Such a schedule 
reduction might occur, for example, where an employee, with the 
employer's agreement, works part-time after the birth of a child, or 
takes leave in several segments. The employer's agreement is not 
required, however, for leave during which the mother has a serious 
health condition in connection with the birth of her child or if the 
newborn child has a serious health condition. See Sec.  825.204 for 
rules governing transfer to an alternative position that better 
accommodates intermittent leave. See also Sec.  825.120 (pregnancy) and 
Sec.  825.121 (adoption and foster care).
    (d) Qualifying exigency. Leave due to a qualifying exigency may be 
taken on an intermittent or reduced leave schedule basis.


Sec.  825.203  Scheduling of intermittent or reduced schedule leave.

    Eligible employees may take FMLA leave on an intermittent or 
reduced schedule basis when medically necessary due to the serious 
health condition of a covered family member or the employee or the 
serious injury or illness of a covered servicemember. See Sec.  
825.202. Eligible employees may also take FMLA leave on an intermittent 
or reduced schedule basis when necessary because of a qualifying 
exigency. If an employee needs leave intermittently or on a reduced 
leave schedule for planned medical treatment, then the employee must 
make a reasonable effort to schedule the treatment so as not to disrupt 
unduly the employer's operations.


Sec.  825.204  Transfer of an employee to an alternative position 
during intermittent leave or reduced schedule leave.

    (a) Transfer or reassignment. If an employee needs intermittent 
leave or leave on a reduced leave schedule that is foreseeable based on 
planned medical treatment for the employee, a family member, or a 
covered servicemember, including during a period of recovery from one's 
own serious health condition, a serious health condition of a spouse, 
parent, son, or daughter, or a serious injury or illness of a covered 
servicemember, or if the employer agrees to permit intermittent or 
reduced schedule leave for the birth of a child or for placement of a 
child for adoption or foster care, the employer may require the 
employee to transfer temporarily, during the period that the 
intermittent or reduced leave schedule is required, to an available 
alternative position for which the employee is qualified and which 
better accommodates recurring periods of leave than does the employee's 
regular position. See Sec.  825.601 for special rules applicable to 
instructional employees of schools.
    (b) Compliance. Transfer to an alternative position may require 
compliance with any applicable collective bargaining agreement, Federal 
law (such as the Americans with Disabilities Act), and State law. 
Transfer to an alternative position may include altering an existing 
job to better accommodate the employee's need for intermittent or 
reduced schedule leave.
    (c) Equivalent pay and benefits. The alternative position must have 
equivalent pay and benefits. An alternative position for these purposes 
does not have to have equivalent duties. The employer may increase the 
pay and benefits of an existing alternative position, so as to make 
them equivalent to the pay and benefits of the employee's regular job. 
The employer may also transfer the employee to a part-time job with the 
same hourly rate of pay and benefits, provided the employee is not 
required to take more leave than is medically necessary. For example, 
an employee desiring to take leave in increments of four hours per day 
could be transferred to a half-time job, or could remain in the 
employee's same job on a part-time schedule, paying the same hourly 
rate as the employee's previous job and enjoying the same benefits. The 
employer may not eliminate benefits which otherwise would not be 
provided to part-time employees; however, an employer may 
proportionately reduce benefits such as vacation leave where an 
employer's normal practice is to base such benefits on the number of 
hours worked.
    (d) Employer limitations. An employer may not transfer the employee 
to an alternative position in order to discourage the employee from 
taking leave or otherwise work a hardship on the employee. For example, 
a white collar employee may not be assigned to perform laborer's work; 
an employee working the day shift may not be reassigned to the 
graveyard shift; an employee working in the headquarters facility may 
not be reassigned to a branch a significant distance away from the 
employee's normal job location. Any such attempt on the part of the 
employer to make such a transfer will be held to be contrary to the 
prohibited acts of the FMLA.
    (e) Reinstatement of employee. When an employee who is taking leave 
intermittently or on a reduced leave schedule and has been transferred 
to an alternative position no longer needs to continue on leave and is 
able to return to full-time work, the employee must be placed in the 
same or equivalent job as the job he or she left when the leave 
commenced. An employee may not be required to take more leave than 
necessary to address the circumstance that precipitated the need for 
leave.


Sec.  825.205  Increments of FMLA leave for intermittent or reduced 
schedule leave.

    (a) Minimum increment. (1) When an employee takes FMLA leave on an 
intermittent or reduced leave schedule basis, the employer must account 
for the leave using an increment no greater than the shortest period of 
time that the employer uses to account for use of other forms of leave 
provided that it is not greater than one hour and provided further that 
an employee's FMLA leave entitlement may not be reduced by more than 
the amount of leave actually taken. An employer may not require an 
employee to take more leave than is necessary to address the 
circumstances that precipitated the need for the leave, provided that 
the leave is counted using the shortest increment of leave used to 
account for any other type of leave. See also Sec.  825.205(a)(2) for 
the physical impossibility exception, Sec. Sec.  825.600 and 825.601 
for special rules applicable to employees of schools, and Sec.  825.802 
for special rules applicable to airline flight crew employees. If an 
employer uses different increments to account for different types of 
leave, the employer must account for FMLA leave in the smallest 
increment used to account for any other type of leave. For example, if 
an employer accounts for the use of annual leave in increments of one 
hour and the use of sick leave in increments of one-half hour, then 
FMLA leave use must be accounted for using increments no larger than 
one-half hour. If an employer accounts for use of leave in varying 
increments at different times of the day or shift, the employer may 
also account for FMLA leave in varying increments, provided that the 
increment used for FMLA leave is no greater than the smallest increment 
used for any other type of leave during the period in which the FMLA 
leave is taken. If an employer accounts for other forms of leave use in 
increments greater than one hour, the employer must account for FMLA 
leave use in increments no greater than one hour. An employer may 
account for FMLA leave in shorter increments than used for other forms 
of leave. For example, an employer that accounts for other forms of 
leave in one hour increments may account for FMLA leave in a shorter 
increment when the employee arrives at work several minutes late, and 
the employer wants the employee to begin work immediately. Such 
accounting for FMLA leave will not alter the increment

[[Page 8923]]

considered to be the shortest period used to account for other forms of 
leave or the use of FMLA leave in other circumstances. In all cases, 
employees may not be charged FMLA leave for periods during which they 
are working.
    (2) Where it is physically impossible for an employee using 
intermittent leave or working a reduced leave schedule to commence or 
end work mid-way through a shift, such as where a flight attendant or a 
railroad conductor is scheduled to work aboard an airplane or train, or 
a laboratory employee is unable to enter or leave a sealed ``clean 
room'' during a certain period of time and no equivalent position is 
available, the entire period that the employee is forced to be absent 
is designated as FMLA leave and counts against the employee's FMLA 
entitlement. The period of the physical impossibility is limited to the 
period during which the employer is unable to permit the employee to 
work prior to a period of FMLA leave or return the employee to the same 
or equivalent position due to the physical impossibility after a period 
of FMLA leave. See Sec.  825.214.
    (b) Calculation of leave. (1) When an employee takes leave on an 
intermittent or reduced leave schedule, only the amount of leave 
actually taken may be counted toward the employee's leave entitlement. 
The actual workweek is the basis of leave entitlement. Therefore, if an 
employee who would otherwise work 40 hours a week takes off eight 
hours, the employee would use one-fifth (\1/5\) of a week of FMLA 
leave. Similarly, if a full-time employee who would otherwise work 
eight hour days works four-hour days under a reduced leave schedule, 
the employee would use one-half (\1/2\) week of FMLA leave. Where an 
employee works a part-time schedule or variable hours, the amount of 
FMLA leave that an employee uses is determined on a pro rata or 
proportional basis. If an employee who would otherwise work 30 hours 
per week, but works only 20 hours a week under a reduced leave 
schedule, the employee's 10 hours of leave would constitute one-third 
(\1/3\) of a week of FMLA leave for each week the employee works the 
reduced leave schedule. An employer may convert these fractions to 
their hourly equivalent so long as the conversion equitably reflects 
the employee's total normally scheduled hours. An employee does not 
accrue FMLA-protected leave at any particular hourly rate. An eligible 
employee is entitled to up to a total of 12 workweeks of leave, or 26 
workweeks in the case of military caregiver leave, and the total number 
of hours contained in those workweeks is necessarily dependent on the 
specific hours the employee would have worked but for the use of leave. 
See also Sec. Sec.  825.601 and 825.602, special rules for schools and 
Sec.  825.802, special rules for airline flight crew employees.
    (2) If an employer has made a permanent or long-term change in the 
employee's schedule (for reasons other than FMLA, and prior to the 
notice of need for FMLA leave), the hours worked under the new schedule 
are to be used for making this calculation.
    (3) If an employee's schedule varies from week to week to such an 
extent that an employer is unable to determine with any certainty how 
many hours the employee would otherwise have worked (but for the taking 
of FMLA leave), a weekly average of the hours scheduled over the 12 
months prior to the beginning of the leave period (including any hours 
for which the employee took leave of any type) would be used for 
calculating the employee's leave entitlement.
    (c) Overtime. If an employee would normally be required to work 
overtime, but is unable to do so because of a FMLA-qualifying reason 
that limits the employee's ability to work overtime, the hours which 
the employee would have been required to work may be counted against 
the employee's FMLA entitlement. In such a case, the employee is using 
intermittent or reduced schedule leave. For example, if an employee 
would normally be required to work for 48 hours in a particular week, 
but due to a serious health condition the employee is unable to work 
more than 40 hours that week, the employee would utilize eight hours of 
FMLA-protected leave out of the 48-hour workweek, or one-sixth (\1/6\) 
of a week of FMLA leave. Voluntary overtime hours that an employee does 
not work due to an FMLA-qualifying reason may not be counted against 
the employee's FMLA leave entitlement.


Sec.  825.206  Interaction with the FLSA.

    (a) Leave taken under FMLA may be unpaid. If an employee is 
otherwise exempt from minimum wage and overtime requirements of the 
Fair Labor Standards Act (FLSA) as a salaried executive, 
administrative, professional, or computer employee (under regulations 
issued by the Secretary, 29 CFR part 541), providing unpaid FMLA-
qualifying leave to such an employee will not cause the employee to 
lose the FLSA exemption. See 29 CFR 541.602(b)(7). This means that 
under regulations currently in effect, where an employee meets the 
specified duties test, is paid on a salary basis, and is paid a salary 
of at least the amount specified in the regulations, the employer may 
make deductions from the employee's salary for any hours taken as 
intermittent or reduced FMLA leave within a workweek, without affecting 
the exempt status of the employee. The fact that an employer provides 
FMLA leave, whether paid or unpaid, and maintains records required by 
this part regarding FMLA leave, will not be relevant to the 
determination whether an employee is exempt within the meaning of 29 
CFR part 541.
    (b) For an employee paid in accordance with the fluctuating 
workweek method of payment for overtime (see 29 CFR 778.114), the 
employer, during the period in which intermittent or reduced schedule 
FMLA leave is scheduled to be taken, may compensate an employee on an 
hourly basis and pay only for the hours the employee works, including 
time and one-half the employee's regular rate for overtime hours. The 
change to payment on an hourly basis would include the entire period 
during which the employee is taking intermittent leave, including weeks 
in which no leave is taken. The hourly rate shall be determined by 
dividing the employee's weekly salary by the employee's normal or 
average schedule of hours worked during weeks in which FMLA leave is 
not being taken. If an employer chooses to follow this exception from 
the fluctuating workweek method of payment, the employer must do so 
uniformly, with respect to all employees paid on a fluctuating workweek 
basis for whom FMLA leave is taken on an intermittent or reduced leave 
schedule basis. If an employer does not elect to convert the employee's 
compensation to hourly pay, no deduction may be taken for FMLA leave 
absences. Once the need for intermittent or reduced scheduled leave is 
over, the employee may be restored to payment on a fluctuating workweek 
basis.
    (c) This special exception to the salary basis requirements of the 
FLSA exemption or fluctuating workweek payment requirements applies 
only to employees of covered employers who are eligible for FMLA leave, 
and to leave which qualifies as FMLA leave. Hourly or other deductions 
which are not in accordance with 29 CFR part 541 or 29 CFR 778.114 may 
not be taken, for example, from the salary of an employee who works for 
an employer with fewer than 50 employees, or where the employee has not 
worked long enough to be eligible for FMLA leave without potentially 
affecting the employee's eligibility for exemption. Nor may deductions 
which are not permitted by 29 CFR part 541 or 29 CFR 778.114 be taken 
from such an employee's salary

[[Page 8924]]

for any leave which does not qualify as FMLA leave, for example, 
deductions from an employee's pay for leave required under State law or 
under an employer's policy or practice for a reason which does not 
qualify as FMLA leave, e.g., leave to care for a grandparent or for a 
medical condition which does not qualify as a serious health condition 
or serious injury or illness; or for leave which is more generous than 
provided by FMLA. Employers may comply with State law or the employer's 
own policy/practice under these circumstances and maintain the 
employee's eligibility for exemption or for the fluctuating workweek 
method of pay by not taking hourly deductions from the employee's pay, 
in accordance with FLSA requirements, or may take such deductions, 
treating the employee as an hourly employee and pay overtime premium 
pay for hours worked over 40 in a workweek.


Sec.  825.207  Substitution of paid leave.

    (a) Generally, FMLA leave is unpaid leave. However, under the 
circumstances described in this section, FMLA permits an eligible 
employee to choose to substitute accrued paid leave for FMLA leave. If 
an employee does not choose to substitute accrued paid leave, the 
employer may require the employee to substitute accrued paid leave for 
unpaid FMLA leave. The term substitute means that the paid leave 
provided by the employer, and accrued pursuant to established policies 
of the employer, will run concurrently with the unpaid FMLA leave. 
Accordingly, the employee receives pay pursuant to the employer's 
applicable paid leave policy during the period of otherwise unpaid FMLA 
leave. An employee's ability to substitute accrued paid leave is 
determined by the terms and conditions of the employer's normal leave 
policy. When an employee chooses, or an employer requires, substitution 
of accrued paid leave, the employer must inform the employee that the 
employee must satisfy any procedural requirements of the paid leave 
policy only in connection with the receipt of such payment. See Sec.  
825.300(c). If an employee does not comply with the additional 
requirements in an employer's paid leave policy, the employee is not 
entitled to substitute accrued paid leave, but the employee remains 
entitled to take unpaid FMLA leave. Employers may not discriminate 
against employees on FMLA leave in the administration of their paid 
leave policies.
    (b) If neither the employee nor the employer elects to substitute 
paid leave for unpaid FMLA leave under the above conditions and 
circumstances, the employee will remain entitled to all the paid leave 
which is earned or accrued under the terms of the employer's plan.
    (c) If an employee uses paid leave under circumstances which do not 
qualify as FMLA leave, the leave will not count against the employee's 
FMLA leave entitlement. For example, paid sick leave used for a medical 
condition which is not a serious health condition or serious injury or 
illness does not count against the employee's FMLA leave entitlement.
    (d) Leave taken pursuant to a disability leave plan would be 
considered FMLA leave for a serious health condition and counted in the 
leave entitlement permitted under FMLA if it meets the criteria set 
forth above in Sec. Sec.  825.112 through 825.115. In such cases, the 
employer may designate the leave as FMLA leave and count the leave 
against the employee's FMLA leave entitlement. Because leave pursuant 
to a disability benefit plan is not unpaid, the provision for 
substitution of the employee's accrued paid leave is inapplicable, and 
neither the employee nor the employer may require the substitution of 
paid leave. However, employers and employees may agree, where state law 
permits, to have paid leave supplement the disability plan benefits, 
such as in the case where a plan only provides replacement income for 
two-thirds of an employee's salary.
    (e) The Act provides that a serious health condition may result 
from injury to the employee on or off the job. If the employer 
designates the leave as FMLA leave in accordance with Sec.  825.300(d), 
the leave counts against the employee's FMLA leave entitlement. Because 
the workers' compensation absence is not unpaid, the provision for 
substitution of the employee's accrued paid leave is not applicable, 
and neither the employee nor the employer may require the substitution 
of paid leave. However, employers and employees may agree, where state 
law permits, to have paid leave supplement workers' compensation 
benefits, such as in the case where workers' compensation only provides 
replacement income for two-thirds of an employee's salary. If the 
health care provider treating the employee for the workers' 
compensation injury certifies the employee is able to return to a light 
duty job but is unable to return to the same or equivalent job, the 
employee may decline the employer's offer of a light duty job. As a 
result the employee may lose workers' compensation payments, but is 
entitled to remain on unpaid FMLA leave until the employee's FMLA leave 
entitlement is exhausted. As of the date workers' compensation benefits 
cease, the substitution provision becomes applicable and either the 
employee may elect or the employer may require the use of accrued paid 
leave. See also Sec. Sec.  825.210(f), 825.216(d), 825.220(d), 
825.307(a) and 825.702(d)(1) and (2) regarding the relationship between 
workers' compensation absences and FMLA leave.
    (f) Section 7(o) of the Fair Labor Standards Act (FLSA) permits 
public employers under prescribed circumstances to substitute 
compensatory time off accrued at one and one-half hours for each 
overtime hour worked in lieu of paying cash to an employee when the 
employee works overtime hours as prescribed by the Act. This section of 
the FLSA limits the number of hours of compensatory time an employee 
may accumulate depending upon whether the employee works in fire 
protection or law enforcement (480 hours) or elsewhere for a public 
agency (240 hours). In addition, under the FLSA, an employer always has 
the right to cash out an employee's compensatory time or to require the 
employee to use the time. Therefore, if an employee requests and is 
permitted to use accrued compensatory time to receive pay for time 
taken off for an FMLA reason, or if the employer requires such use 
pursuant to the FLSA, the time taken may be counted against the 
employee's FMLA leave entitlement.


Sec.  825.208  [Reserved]


Sec.  825.209  Maintenance of employee benefits.

    (a) During any FMLA leave, an employer must maintain the employee's 
coverage under any group health plan (as defined in the Internal 
Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as 
coverage would have been provided if the employee had been continuously 
employed during the entire leave period. All employers covered by FMLA, 
including public agencies, are subject to the Act's requirements to 
maintain health coverage. The definition of group health plan is set 
forth in Sec.  825.800. For purposes of FMLA, the term group health 
plan shall not include an insurance program providing health coverage 
under which employees purchase individual policies from insurers 
provided that:
    (1) No contributions are made by the employer;
    (2) Participation in the program is completely voluntary for 
employees;
    (3) The sole functions of the employer with respect to the program 
are, without

[[Page 8925]]

endorsing the program, to permit the insurer to publicize the program 
to employees, to collect premiums through payroll deductions and to 
remit them to the insurer;
    (4) The employer receives no consideration in the form of cash or 
otherwise in connection with the program, other than reasonable 
compensation, excluding any profit, for administrative services 
actually rendered in connection with payroll deduction; and,
    (5) The premium charged with respect to such coverage does not 
increase in the event the employment relationship terminates.
    (b) The same group health plan benefits provided to an employee 
prior to taking FMLA leave must be maintained during the FMLA leave. 
For example, if family member coverage is provided to an employee, 
family member coverage must be maintained during the FMLA leave. 
Similarly, benefit coverage during FMLA leave for medical care, 
surgical care, hospital care, dental care, eye care, mental health 
counseling, substance abuse treatment, etc., must be maintained during 
leave if provided in an employer's group health plan, including a 
supplement to a group health plan, whether or not provided through a 
flexible spending account or other component of a cafeteria plan.
    (c) If an employer provides a new health plan or benefits or 
changes health benefits or plans while an employee is on FMLA leave, 
the employee is entitled to the new or changed plan/benefits to the 
same extent as if the employee were not on leave. For example, if an 
employer changes a group health plan so that dental care becomes 
covered under the plan, an employee on FMLA leave must be given the 
same opportunity as other employees to receive (or obtain) the dental 
care coverage. Any other plan changes (e.g., in coverage, premiums, 
deductibles, etc.) which apply to all employees of the workforce would 
also apply to an employee on FMLA leave.
    (d) Notice of any opportunity to change plans or benefits must also 
be given to an employee on FMLA leave. If the group health plan permits 
an employee to change from single to family coverage upon the birth of 
a child or otherwise add new family members, such a change in benefits 
must be made available while an employee is on FMLA leave. If the 
employee requests the changed coverage it must be provided by the 
employer.
    (e) An employee may choose not to retain group health plan coverage 
during FMLA leave. However, when an employee returns from leave, the 
employee is entitled to be reinstated on the same terms as prior to 
taking the leave, including family or dependent coverages, without any 
qualifying period, physical examination, exclusion of pre-existing 
conditions, etc. See Sec.  825.212(c).
    (f) Except as required by the Consolidated Omnibus Budget 
Reconciliation Act of 1986 (COBRA) and for key employees (as discussed 
below), an employer's obligation to maintain health benefits during 
leave (and to restore the employee to the same or equivalent 
employment) under FMLA ceases if and when the employment relationship 
would have terminated if the employee had not taken FMLA leave (e.g., 
if the employee's position is eliminated as part of a nondiscriminatory 
reduction in force and the employee would not have been transferred to 
another position); an employee informs the employer of his or her 
intent not to return from leave (including before starting the leave if 
the employer is so informed before the leave starts); or the employee 
fails to return from leave or continues on leave after exhausting his 
or her FMLA leave entitlement in the 12-month period.
    (g) If a key employee (see Sec.  825.218) does not return from 
leave when notified by the employer that substantial or grievous 
economic injury will result from his or her reinstatement, the 
employee's entitlement to group health plan benefits continues unless 
and until the employee advises the employer that the employee does not 
desire restoration to employment at the end of the leave period, or the 
FMLA leave entitlement is exhausted, or reinstatement is actually 
denied.
    (h) An employee's entitlement to benefits other than group health 
benefits during a period of FMLA leave (e.g., holiday pay) is to be 
determined by the employer's established policy for providing such 
benefits when the employee is on other forms of leave (paid or unpaid, 
as appropriate).


Sec.  825.210  Employee payment of group health benefit premiums.

    (a) Group health plan benefits must be maintained on the same basis 
as coverage would have been provided if the employee had been 
continuously employed during the FMLA leave period. Therefore, any 
share of group health plan premiums which had been paid by the employee 
prior to FMLA leave must continue to be paid by the employee during the 
FMLA leave period. If premiums are raised or lowered, the employee 
would be required to pay the new premium rates. Maintenance of health 
insurance policies which are not a part of the employer's group health 
plan, as described in Sec.  825.209(a), are the sole responsibility of 
the employee. The employee and the insurer should make necessary 
arrangements for payment of premiums during periods of unpaid FMLA 
leave.
    (b) If the FMLA leave is substituted paid leave, the employee's 
share of premiums must be paid by the method normally used during any 
paid leave, presumably as a payroll deduction.
    (c) If FMLA leave is unpaid, the employer has a number of options 
for obtaining payment from the employee. The employer may require that 
payment be made to the employer or to the insurance carrier, but no 
additional charge may be added to the employee's premium payment for 
administrative expenses. The employer may require employees to pay 
their share of premium payments in any of the following ways:
    (1) Payment would be due at the same time as it would be made if by 
payroll deduction;
    (2) Payment would be due on the same schedule as payments are made 
under COBRA;
    (3) Payment would be prepaid pursuant to a cafeteria plan at the 
employee's option;
    (4) The employer's existing rules for payment by employees on leave 
without pay would be followed, provided that such rules do not require 
prepayment (i.e., prior to the commencement of the leave) of the 
premiums that will become due during a period of unpaid FMLA leave or 
payment of higher premiums than if the employee had continued to work 
instead of taking leave; or,
    (5) Another system voluntarily agreed to between the employer and 
the employee, which may include prepayment of premiums (e.g., through 
increased payroll deductions when the need for the FMLA leave is 
foreseeable).
    (d) The employer must provide the employee with advance written 
notice of the terms and conditions under which these payments must be 
made. See Sec.  825.300(c).
    (e) An employer may not require more of an employee using unpaid 
FMLA leave than the employer requires of other employees on leave 
without pay.
    (f) An employee who is receiving payments as a result of a workers' 
compensation injury must make arrangements with the employer for 
payment of group health plan benefits when simultaneously taking FMLA 
leave. See Sec.  825.207(e).

[[Page 8926]]

Sec.  825.211  Maintenance of benefits under multi-employer health 
plans.

    (a) A multi-employer health plan is a plan to which more than one 
employer is required to contribute, and which is maintained pursuant to 
one or more collective bargaining agreements between employee 
organization(s) and the employers.
    (b) An employer under a multi-employer plan must continue to make 
contributions on behalf of an employee using FMLA leave as though the 
employee had been continuously employed, unless the plan contains an 
explicit FMLA provision for maintaining coverage such as through pooled 
contributions by all employers party to the plan.
    (c) During the duration of an employee's FMLA leave, coverage by 
the group health plan, and benefits provided pursuant to the plan, must 
be maintained at the level of coverage and benefits which were 
applicable to the employee at the time FMLA leave commenced.
    (d) An employee using FMLA leave cannot be required to use banked 
hours or pay a greater premium than the employee would have been 
required to pay if the employee had been continuously employed.
    (e) As provided in Sec.  825.209(f) of this part, group health plan 
coverage must be maintained for an employee on FMLA leave until:
    (1) The employee's FMLA leave entitlement is exhausted;
    (2) The employer can show that the employee would have been laid 
off and the employment relationship terminated; or,
    (3) The employee provides unequivocal notice of intent not to 
return to work.


Sec.  825.212  Employee failure to pay health plan premium payments.

    (a)(1) In the absence of an established employer policy providing a 
longer grace period, an employer's obligations to maintain health 
insurance coverage cease under FMLA if an employee's premium payment is 
more than 30 days late. In order to drop the coverage for an employee 
whose premium payment is late, the employer must provide written notice 
to the employee that the payment has not been received. Such notice 
must be mailed to the employee at least 15 days before coverage is to 
cease, advising that coverage will be dropped on a specified date at 
least 15 days after the date of the letter unless the payment has been 
received by that date. If the employer has established policies 
regarding other forms of unpaid leave that provide for the employer to 
cease coverage retroactively to the date the unpaid premium payment was 
due, the employer may drop the employee from coverage retroactively in 
accordance with that policy, provided the 15-day notice was given. In 
the absence of such a policy, coverage for the employee may be 
terminated at the end of the 30-day grace period, where the required 
15-day notice has been provided.
    (2) An employer has no obligation regarding the maintenance of a 
health insurance policy which is not a group health plan. See Sec.  
825.209(a).
    (3) All other obligations of an employer under FMLA would continue; 
for example, the employer continues to have an obligation to reinstate 
an employee upon return from leave.
    (b) The employer may recover the employee's share of any premium 
payments missed by the employee for any FMLA leave period during which 
the employer maintains health coverage by paying the employee's share 
after the premium payment is missed.
    (c) If coverage lapses because an employee has not made required 
premium payments, upon the employee's return from FMLA leave the 
employer must still restore the employee to coverage/benefits 
equivalent to those the employee would have had if leave had not been 
taken and the premium payment(s) had not been missed, including family 
or dependent coverage. See Sec.  825.215(d)(1)-(5). In such case, an 
employee may not be required to meet any qualification requirements 
imposed by the plan, including any new preexisting condition waiting 
period, to wait for an open season, or to pass a medical examination to 
obtain reinstatement of coverage. If an employer terminates an 
employee's insurance in accordance with this section and fails to 
restore the employee's health insurance as required by this section 
upon the employee's return, the employer may be liable for benefits 
lost by reason of the violation, for other actual monetary losses 
sustained as a direct result of the violation, and for appropriate 
equitable relief tailored to the harm suffered.


Sec.  825.213  Employer recovery of benefit costs.

    (a) In addition to the circumstances discussed in Sec.  825.212(b), 
an employer may recover its share of health plan premiums during a 
period of unpaid FMLA leave from an employee if the employee fails to 
return to work after the employee's FMLA leave entitlement has been 
exhausted or expires, unless the reason the employee does not return is 
due to:
    (1) The continuation, recurrence, or onset of either a serious 
health condition of the employee or the employee's family member, or a 
serious injury or illness of a covered servicemember, which would 
otherwise entitle the employee to leave under FMLA; or
    (2) Other circumstances beyond the employee's control. Examples of 
other circumstances beyond the employee's control are necessarily 
broad. They include such situations as where a parent chooses to stay 
home with a newborn child who has a serious health condition; an 
employee's spouse is unexpectedly transferred to a job location more 
than 75 miles from the employee's worksite; a relative or individual 
other than a covered family member has a serious health condition and 
the employee is needed to provide care; the employee is laid off while 
on leave; or, the employee is a key employee who decides not to return 
to work upon being notified of the employer's intention to deny 
restoration because of substantial and grievous economic injury to the 
employer's operations and is not reinstated by the employer. Other 
circumstances beyond the employee's control would not include a 
situation where an employee desires to remain with a parent in a 
distant city even though the parent no longer requires the employee's 
care, or a parent chooses not to return to work to stay home with a 
well, newborn child.
    (3) When an employee fails to return to work because of the 
continuation, recurrence, or onset of either a serious health condition 
of the employee or employee's family member, or a serious injury or 
illness of a covered servicemember, thereby precluding the employer 
from recovering its (share of) health benefit premium payments made on 
the employee's behalf during a period of unpaid FMLA leave, the 
employer may require medical certification of the employee's or the 
family member's serious health condition or the covered servicemember's 
serious injury or illness. Such certification is not required unless 
requested by the employer. The cost of the certification shall be borne 
by the employee, and the employee is not entitled to be paid for the 
time or travel costs spent in acquiring the certification. The employee 
is required to provide medical certification in a timely manner which, 
for purposes of this section, is within 30 days from the date of the 
employer's request. For purposes of medical certification, the employee 
may use the optional DOL forms developed for these

[[Page 8927]]

purposes. See Sec. Sec.  825.306(b), 825.310(c)-(d). If the employer 
requests medical certification and the employee does not provide such 
certification in a timely manner (within 30 days), or the reason for 
not returning to work does not meet the test of other circumstances 
beyond the employee's control, the employer may recover 100 percent of 
the health benefit premiums it paid during the period of unpaid FMLA 
leave.
    (b) Under some circumstances an employer may elect to maintain 
other benefits, e.g., life insurance, disability insurance, etc., by 
paying the employee's (share of) premiums during periods of unpaid FMLA 
leave. For example, to ensure the employer can meet its 
responsibilities to provide equivalent benefits to the employee upon 
return from unpaid FMLA leave, it may be necessary that premiums be 
paid continuously to avoid a lapse of coverage. If the employer elects 
to maintain such benefits during the leave, at the conclusion of leave, 
the employer is entitled to recover only the costs incurred for paying 
the employee's share of any premiums whether or not the employee 
returns to work.
    (c) An employee who returns to work for at least 30 calendar days 
is considered to have returned to work. An employee who transfers 
directly from taking FMLA leave to retirement, or who retires during 
the first 30 days after the employee returns to work, is deemed to have 
returned to work.
    (d) When an employee elects or an employer requires paid leave to 
be substituted for FMLA leave, the employer may not recover its (share 
of) health insurance or other non-health benefit premiums for any 
period of FMLA leave covered by paid leave. Because paid leave provided 
under a plan covering temporary disabilities (including workers' 
compensation) is not unpaid, recovery of health insurance premiums does 
not apply to such paid leave.
    (e) The amount that self-insured employers may recover is limited 
to only the employer's share of allowable premiums as would be 
calculated under COBRA, excluding the two percent fee for 
administrative costs.
    (f) When an employee fails to return to work, any health and non-
health benefit premiums which this section of the regulations permits 
an employer to recover are a debt owed by the non-returning employee to 
the employer. The existence of this debt caused by the employee's 
failure to return to work does not alter the employer's 
responsibilities for health benefit coverage and, under a self-
insurance plan, payment of claims incurred during the period of FMLA 
leave. To the extent recovery is allowed, the employer may recover the 
costs through deduction from any sums due to the employee (e.g., unpaid 
wages, vacation pay, profit sharing, etc.), provided such deductions do 
not otherwise violate applicable Federal or State wage payment or other 
laws. Alternatively, the employer may initiate legal action against the 
employee to recover such costs.


Sec.  825.214  Employee right to reinstatement.

    General rule. On return from FMLA leave, an employee is entitled to 
be returned to the same position the employee held when leave 
commenced, or to an equivalent position with equivalent benefits, pay, 
and other terms and conditions of employment. An employee is entitled 
to such reinstatement even if the employee has been replaced or his or 
her position has been restructured to accommodate the employee's 
absence. See also Sec.  825.106(e) for the obligations of joint 
employers.


Sec.  825.215  Equivalent position.

    (a) Equivalent position. An equivalent position is one that is 
virtually identical to the employee's former position in terms of pay, 
benefits and working conditions, including privileges, perquisites and 
status. It must involve the same or substantially similar duties and 
responsibilities, which must entail substantially equivalent skill, 
effort, responsibility, and authority.
    (b) Conditions to qualify. If an employee is no longer qualified 
for the position because of the employee's inability to attend a 
necessary course, renew a license, fly a minimum number of hours, etc., 
as a result of the leave, the employee shall be given a reasonable 
opportunity to fulfill those conditions upon return to work.
    (c) Equivalent pay. (1) An employee is entitled to any 
unconditional pay increases which may have occurred during the FMLA 
leave period, such as cost of living increases. Pay increases 
conditioned upon seniority, length of service, or work performed must 
be granted in accordance with the employer's policy or practice with 
respect to other employees on an equivalent leave status for a reason 
that does not qualify as FMLA leave. An employee is entitled to be 
restored to a position with the same or equivalent pay premiums, such 
as a shift differential. If an employee departed from a position 
averaging ten hours of overtime (and corresponding overtime pay) each 
week, an employee is ordinarily entitled to such a position on return 
from FMLA leave.
    (2) Equivalent pay includes any bonus or payment, whether it is 
discretionary or non-discretionary, made to employees consistent with 
the provisions of paragraph (c)(1) of this section. However, if a bonus 
or other payment is based on the achievement of a specified goal such 
as hours worked, products sold or perfect attendance, and the employee 
has not met the goal due to FMLA leave, then the payment may be denied, 
unless otherwise paid to employees on an equivalent leave status for a 
reason that does not qualify as FMLA leave. For example, if an employee 
who used paid vacation leave for a non-FMLA purpose would receive the 
payment, then the employee who used paid vacation leave for an FMLA-
protected purpose also must receive the payment.
    (d) Equivalent benefits. Benefits include all benefits provided or 
made available to employees by an employer, including group life 
insurance, health insurance, disability insurance, sick leave, annual 
leave, educational benefits, and pensions, regardless of whether such 
benefits are provided by a practice or written policy of an employer 
through an employee benefit plan as defined in Section 3(3) of the 
Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3).
    (1) At the end of an employee's FMLA leave, benefits must be 
resumed in the same manner and at the same levels as provided when the 
leave began, and subject to any changes in benefit levels that may have 
taken place during the period of FMLA leave affecting the entire 
workforce, unless otherwise elected by the employee. Upon return from 
FMLA leave, an employee cannot be required to requalify for any 
benefits the employee enjoyed before FMLA leave began (including family 
or dependent coverages). For example, if an employee was covered by a 
life insurance policy before taking leave but is not covered or 
coverage lapses during the period of unpaid FMLA leave, the employee 
cannot be required to meet any qualifications, such as taking a 
physical examination, in order to requalify for life insurance upon 
return from leave. Accordingly, some employers may find it necessary to 
modify life insurance and other benefits programs in order to restore 
employees to equivalent benefits upon return from FMLA leave, make 
arrangements for continued payment of costs to maintain such benefits 
during unpaid FMLA leave, or pay these costs subject to recovery from 
the employee on return from leave. See Sec.  825.213(b).
    (2) An employee may, but is not entitled to, accrue any additional

[[Page 8928]]

benefits or seniority during unpaid FMLA leave. Benefits accrued at the 
time leave began, however, (e.g., paid vacation, sick or personal leave 
to the extent not substituted for FMLA leave) must be available to an 
employee upon return from leave.
    (3) If, while on unpaid FMLA leave, an employee desires to continue 
life insurance, disability insurance, or other types of benefits for 
which he or she typically pays, the employer is required to follow 
established policies or practices for continuing such benefits for 
other instances of leave without pay. If the employer has no 
established policy, the employee and the employer are encouraged to 
agree upon arrangements before FMLA leave begins.
    (4) With respect to pension and other retirement plans, any period 
of unpaid FMLA leave shall not be treated as or counted toward a break 
in service for purposes of vesting and eligibility to participate. 
Also, if the plan requires an employee to be employed on a specific 
date in order to be credited with a year of service for vesting, 
contributions or participation purposes, an employee on unpaid FMLA 
leave on that date shall be deemed to have been employed on that date. 
However, unpaid FMLA leave periods need not be treated as credited 
service for purposes of benefit accrual, vesting and eligibility to 
participate.
    (5) Employees on unpaid FMLA leave are to be treated as if they 
continued to work for purposes of changes to benefit plans. They are 
entitled to changes in benefits plans, except those which may be 
dependent upon seniority or accrual during the leave period, 
immediately upon return from leave or to the same extent they would 
have qualified if no leave had been taken. For example, if the benefit 
plan is predicated on a pre-established number of hours worked each 
year and the employee does not have sufficient hours as a result of 
taking unpaid FMLA leave, the benefit is lost. (In this regard, Sec.  
825.209 addresses health benefits.)
    (e) Equivalent terms and conditions of employment. An equivalent 
position must have substantially similar duties, conditions, 
responsibilities, privileges and status as the employee's original 
position.
    (1) The employee must be reinstated to the same or a geographically 
proximate worksite (i.e., one that does not involve a significant 
increase in commuting time or distance) from where the employee had 
previously been employed. If the employee's original worksite has been 
closed, the employee is entitled to the same rights as if the employee 
had not been on leave when the worksite closed. For example, if an 
employer transfers all employees from a closed worksite to a new 
worksite in a different city, the employee on leave is also entitled to 
transfer under the same conditions as if he or she had continued to be 
employed.
    (2) The employee is ordinarily entitled to return to the same shift 
or the same or an equivalent work schedule.
    (3) The employee must have the same or an equivalent opportunity 
for bonuses, profit-sharing, and other similar discretionary and non-
discretionary payments.
    (4) FMLA does not prohibit an employer from accommodating an 
employee's request to be restored to a different shift, schedule, or 
position which better suits the employee's personal needs on return 
from leave, or to offer a promotion to a better position. However, an 
employee cannot be induced by the employer to accept a different 
position against the employee's wishes.
    (f) De minimis exception. The requirement that an employee be 
restored to the same or equivalent job with the same or equivalent pay, 
benefits, and terms and conditions of employment does not extend to de 
minimis, intangible, or unmeasurable aspects of the job.


Sec.  825.216  Limitations on an employee's right to reinstatement.

    (a) An employee has no greater right to reinstatement or to other 
benefits and conditions of employment than if the employee had been 
continuously employed during the FMLA leave period. An employer must be 
able to show that an employee would not otherwise have been employed at 
the time reinstatement is requested in order to deny restoration to 
employment. For example:
    (1) If an employee is laid off during the course of taking FMLA 
leave and employment is terminated, the employer's responsibility to 
continue FMLA leave, maintain group health plan benefits and restore 
the employee cease at the time the employee is laid off, provided the 
employer has no continuing obligations under a collective bargaining 
agreement or otherwise. An employer would have the burden of proving 
that an employee would have been laid off during the FMLA leave period 
and, therefore, would not be entitled to restoration. Restoration to a 
job slated for lay-off when the employee's original position is not 
would not meet the requirements of an equivalent position.
    (2) If a shift has been eliminated, or overtime has been decreased, 
an employee would not be entitled to return to work that shift or the 
original overtime hours upon restoration. However, if a position on, 
for example, a night shift has been filled by another employee, the 
employee is entitled to return to the same shift on which employed 
before taking FMLA leave.
    (3) If an employee was hired for a specific term or only to perform 
work on a discrete project, the employer has no obligation to restore 
the employee if the employment term or project is over and the employer 
would not otherwise have continued to employ the employee. On the other 
hand, if an employee was hired to perform work on a contract, and after 
that contract period the contract was awarded to another contractor, 
the successor contractor may be required to restore the employee if it 
is a successor employer. See Sec.  825.107.
    (b) In addition to the circumstances explained above, an employer 
may deny job restoration to salaried eligible employees (key employees, 
as defined in Sec.  825.217(c)), if such denial is necessary to prevent 
substantial and grievous economic injury to the operations of the 
employer; or may delay restoration to an employee who fails to provide 
a fitness-for-duty certificate to return to work under the conditions 
described in Sec.  825.312.
    (c) If the employee is unable to perform an essential function of 
the position because of a physical or mental condition, including the 
continuation of a serious health condition or an injury or illness also 
covered by workers' compensation, the employee has no right to 
restoration to another position under the FMLA. The employer's 
obligations may, however, be governed by the Americans with 
Disabilities Act (ADA), as amended. See Sec.  825.702, state leave 
laws, or workers' compensation laws.
    (d) An employee who fraudulently obtains FMLA leave from an 
employer is not protected by FMLA's job restoration or maintenance of 
health benefits provisions.
    (e) If the employer has a uniformly-applied policy governing 
outside or supplemental employment, such a policy may continue to apply 
to an employee while on FMLA leave. An employer which does not have 
such a policy may not deny benefits to which an employee is entitled 
under FMLA on this basis unless the FMLA leave was fraudulently 
obtained as in paragraph (d) of this section.


Sec.  825.217  Key employee, general rule.

    (a) A key employee is a salaried FMLA-eligible employee who is 
among the highest paid 10 percent of all the

[[Page 8929]]

employees employed by the employer within 75 miles of the employee's 
worksite.
    (b) The term salaried means paid on a salary basis, as defined in 
29 CFR 541.602. This is the Department of Labor regulation defining 
employees who may qualify as exempt from the minimum wage and overtime 
requirements of the FLSA as executive, administrative, professional, 
and computer employees.
    (c) A key employee must be among the highest paid 10 percent of all 
the employees--both salaried and non-salaried, eligible and 
ineligible--who are employed by the employer within 75 miles of the 
worksite.
    (1) In determining which employees are among the highest paid 10 
percent, year-to-date earnings are divided by weeks worked by the 
employee (including weeks in which paid leave was taken). Earnings 
include wages, premium pay, incentive pay, and non-discretionary and 
discretionary bonuses. Earnings do not include incentives whose value 
is determined at some future date, e.g., stock options, or benefits or 
perquisites.
    (2) The determination of whether a salaried employee is among the 
highest paid 10 percent shall be made at the time the employee gives 
notice of the need for leave. No more than 10 percent of the employer's 
employees within 75 miles of the worksite may be key employees.


Sec.  825.218  Substantial and grievous economic injury.

    (a) In order to deny restoration to a key employee, an employer 
must determine that the restoration of the employee to employment will 
cause substantial and grievous economic injury to the operations of the 
employer, not whether the absence of the employee will cause such 
substantial and grievous injury.
    (b) An employer may take into account its ability to replace on a 
temporary basis (or temporarily do without) the employee on FMLA leave. 
If permanent replacement is unavoidable, the cost of then reinstating 
the employee can be considered in evaluating whether substantial and 
grievous economic injury will occur from restoration; in other words, 
the effect on the operations of the company of reinstating the employee 
in an equivalent position.
    (c) A precise test cannot be set for the level of hardship or 
injury to the employer which must be sustained. If the reinstatement of 
a key employee threatens the economic viability of the firm, that would 
constitute substantial and grievous economic injury. A lesser injury 
which causes substantial, long-term economic injury would also be 
sufficient. Minor inconveniences and costs that the employer would 
experience in the normal course of doing business would certainly not 
constitute substantial and grievous economic injury.
    (d) FMLA's substantial and grievous economic injury standard is 
different from and more stringent than the undue hardship test under 
the ADA. See also Sec.  825.702.


Sec.  825.219  Rights of a key employee.

    (a) An employer who believes that reinstatement may be denied to a 
key employee, must give written notice to the employee at the time the 
employee gives notice of the need for FMLA leave (or when FMLA leave 
commences, if earlier) that he or she qualifies as a key employee. At 
the same time, the employer must also fully inform the employee of the 
potential consequences with respect to reinstatement and maintenance of 
health benefits if the employer should determine that substantial and 
grievous economic injury to the employer's operations will result if 
the employee is reinstated from FMLA leave. If such notice cannot be 
given immediately because of the need to determine whether the employee 
is a key employee, it shall be given as soon as practicable after being 
notified of a need for leave (or the commencement of leave, if 
earlier). It is expected that in most circumstances there will be no 
desire that an employee be denied restoration after FMLA leave and, 
therefore, there would be no need to provide such notice. However, an 
employer who fails to provide such timely notice will lose its right to 
deny restoration even if substantial and grievous economic injury will 
result from reinstatement.
    (b) As soon as an employer makes a good faith determination, based 
on the facts available, that substantial and grievous economic injury 
to its operations will result if a key employee who has given notice of 
the need for FMLA leave or is using FMLA leave is reinstated, the 
employer shall notify the employee in writing of its determination, 
that it cannot deny FMLA leave, and that it intends to deny restoration 
to employment on completion of the FMLA leave. It is anticipated that 
an employer will ordinarily be able to give such notice prior to the 
employee starting leave. The employer must serve this notice either in 
person or by certified mail. This notice must explain the basis for the 
employer's finding that substantial and grievous economic injury will 
result, and, if leave has commenced, must provide the employee a 
reasonable time in which to return to work, taking into account the 
circumstances, such as the length of the leave and the urgency of the 
need for the employee to return.
    (c) If an employee on leave does not return to work in response to 
the employer's notification of intent to deny restoration, the employee 
continues to be entitled to maintenance of health benefits and the 
employer may not recover its cost of health benefit premiums. A key 
employee's rights under FMLA continue unless and until the employee 
either gives notice that he or she no longer wishes to return to work, 
or the employer actually denies reinstatement at the conclusion of the 
leave period.
    (d) After notice to an employee has been given that substantial and 
grievous economic injury will result if the employee is reinstated to 
employment, an employee is still entitled to request reinstatement at 
the end of the leave period even if the employee did not return to work 
in response to the employer's notice. The employer must then again 
determine whether there will be substantial and grievous economic 
injury from reinstatement, based on the facts at that time. If it is 
determined that substantial and grievous economic injury will result, 
the employer shall notify the employee in writing (in person or by 
certified mail) of the denial of restoration.


Sec.  825.220  Protection for employees who request leave or otherwise 
assert FMLA rights.

    (a) The FMLA prohibits interference with an employee's rights under 
the law, and with legal proceedings or inquiries relating to an 
employee's rights. More specifically, the law contains the following 
employee protections:
    (1) An employer is prohibited from interfering with, restraining, 
or denying the exercise of (or attempts to exercise) any rights 
provided by the Act.
    (2) An employer is prohibited from discharging or in any other way 
discriminating against any person (whether or not an employee) for 
opposing or complaining about any unlawful practice under the Act.
    (3) All persons (whether or not employers) are prohibited from 
discharging or in any other way discriminating against any person 
(whether or not an employee) because that person has--
    (i) Filed any charge, or has instituted (or caused to be 
instituted) any proceeding under or related to this Act;

[[Page 8930]]

    (ii) Given, or is about to give, any information in connection with 
an inquiry or proceeding relating to a right under this Act;
    (iii) Testified, or is about to testify, in any inquiry or 
proceeding relating to a right under this Act.
    (b) Any violations of the Act or of these regulations constitute 
interfering with, restraining, or denying the exercise of rights 
provided by the Act. An employer may be liable for compensation and 
benefits lost by reason of the violation, for other actual monetary 
losses sustained as a direct result of the violation, and for 
appropriate equitable or other relief, including employment, 
reinstatement, promotion, or any other relief tailored to the harm 
suffered. See Sec.  825.400(c). Interfering with the exercise of an 
employee's rights would include, for example, not only refusing to 
authorize FMLA leave, but discouraging an employee from using such 
leave. It would also include manipulation by a covered employer to 
avoid responsibilities under FMLA, for example:
    (1) Transferring employees from one worksite to another for the 
purpose of reducing worksites, or to keep worksites, below the 50-
employee threshold for employee eligibility under the Act;
    (2) Changing the essential functions of the job in order to 
preclude the taking of leave;
    (3) Reducing hours available to work in order to avoid employee 
eligibility.
    (c) The Act's prohibition against interference prohibits an 
employer from discriminating or retaliating against an employee or 
prospective employee for having exercised or attempted to exercise FMLA 
rights. For example, if an employee on leave without pay would 
otherwise be entitled to full benefits (other than health benefits), 
the same benefits would be required to be provided to an employee on 
unpaid FMLA leave. By the same token, employers cannot use the taking 
of FMLA leave as a negative factor in employment actions, such as 
hiring, promotions or disciplinary actions; nor can FMLA leave be 
counted under no fault attendance policies. See Sec.  825.215.
    (d) Employees cannot waive, nor may employers induce employees to 
waive, their prospective rights under FMLA. For example, employees (or 
their collective bargaining representatives) cannot trade off the right 
to take FMLA leave against some other benefit offered by the employer. 
This does not prevent the settlement or release of FMLA claims by 
employees based on past employer conduct without the approval of the 
Department of Labor or a court. Nor does it prevent an employee's 
voluntary and uncoerced acceptance (not as a condition of employment) 
of a light duty assignment while recovering from a serious health 
condition. See Sec.  825.702(d). An employee's acceptance of such light 
duty assignment does not constitute a waiver of the employee's 
prospective rights, including the right to be restored to the same 
position the employee held at the time the employee's FMLA leave 
commenced or to an equivalent position. The employee's right to 
restoration, however, ceases at the end of the applicable 12-month FMLA 
leave year.
    (e) Individuals, and not merely employees, are protected from 
retaliation for opposing (e.g., filing a complaint about) any practice 
which is unlawful under the Act. They are similarly protected if they 
oppose any practice which they reasonably believe to be a violation of 
the Act or regulations.

Subpart C--Employee and Employer Rights and Obligations Under the 
Act


Sec.  825.300  Employer notice requirements.

    (a) General notice. (1) Every employer covered by the FMLA is 
required to post and keep posted on its premises, in conspicuous places 
where employees are employed, a notice explaining the Act's provisions 
and providing information concerning the procedures for filing 
complaints of violations of the Act with the Wage and Hour Division. 
The notice must be posted prominently where it can be readily seen by 
employees and applicants for employment. The poster and the text must 
be large enough to be easily read and contain fully legible text. 
Electronic posting is sufficient to meet this posting requirement as 
long as it otherwise meets the requirements of this section. An 
employer that willfully violates the posting requirement may be 
assessed a civil money penalty by the Wage and Hour Division not to 
exceed $110 for each separate offense.
    (2) Covered employers must post this general notice even if no 
employees are eligible for FMLA leave.
    (3) If an FMLA-covered employer has any eligible employees, it 
shall also provide this general notice to each employee by including 
the notice in employee handbooks or other written guidance to employees 
concerning employee benefits or leave rights, if such written materials 
exist, or by distributing a copy of the general notice to each new 
employee upon hiring. In either case, distribution may be accomplished 
electronically.
    (4) To meet the requirements of paragraph (a)(3) of this section, 
employers may duplicate the text of the Department's prototype notice 
(WHD Publication 1420) or may use another format so long as the 
information provided includes, at a minimum, all of the information 
contained in that notice. Where an employer's workforce is comprised of 
a significant portion of workers who are not literate in English, the 
employer shall provide the general notice in a language in which the 
employees are literate. Prototypes are available from the nearest 
office of the Wage and Hour Division or on the Internet at www.dol.gov/whd. Employers furnishing FMLA notices to sensory-impaired individuals 
must also comply with all applicable requirements under Federal or 
State law.
    (b) Eligibility notice. (1) When an employee requests FMLA leave, 
or when the employer acquires knowledge that an employee's leave may be 
for an FMLA-qualifying reason, the employer must notify the employee of 
the employee's eligibility to take FMLA leave within five business 
days, absent extenuating circumstances. See Sec.  825.110 for 
definition of an eligible employee and Sec.  825.801 for special hours 
of service eligibility requirements for airline flight crews. Employee 
eligibility is determined (and notice must be provided) at the 
commencement of the first instance of leave for each FMLA-qualifying 
reason in the applicable 12-month period. See Sec. Sec.  825.127(c) and 
825.200(b). All FMLA absences for the same qualifying reason are 
considered a single leave and employee eligibility as to that reason 
for leave does not change during the applicable 12-month period.
    (2) The eligibility notice must state whether the employee is 
eligible for FMLA leave as defined in Sec.  825.110. If the employee is 
not eligible for FMLA leave, the notice must state at least one reason 
why the employee is not eligible, including as applicable the number of 
months the employee has been employed by the employer, the hours of 
service with the employer during the 12-month period, and whether the 
employee is employed at a worksite where 50 or more employees are 
employed by the employer within 75 miles of that worksite. Notification 
of eligibility may be oral or in writing; employers may use optional 
Form WH-381 (Notice of Eligibility and Rights and Responsibility) to 
provide such notification to employees. Prototypes are available from 
the nearest office of the Wage and Hour Division or on the Internet at 
www.dol.gov/whd. The employer is obligated to translate this

[[Page 8931]]

notice in any situation in which it is obligated to do so in Sec.  
825.300(a)(4).
    (3) If, at the time an employee provides notice of a subsequent 
need for FMLA leave during the applicable 12-month period due to a 
different FMLA-qualifying reason, and the employee's eligibility status 
has not changed, no additional eligibility notice is required. If, 
however, the employee's eligibility status has changed (e.g., if the 
employee has not met the hours of service requirement in the 12 months 
preceding the commencement of leave for the subsequent qualifying 
reason or the size of the workforce at the worksite has dropped below 
50 employees), the employer must notify the employee of the change in 
eligibility status within five business days, absent extenuating 
circumstances.
    (c) Rights and responsibilities notice. (1) Employers shall provide 
written notice detailing the specific expectations and obligations of 
the employee and explaining any consequences of a failure to meet these 
obligations. The employer is obligated to translate this notice in any 
situation in which it is obligated to do so in Sec.  825.300(a)(4). 
This notice shall be provided to the employee each time the eligibility 
notice is provided pursuant to paragraph (b) of this section. If leave 
has already begun, the notice should be mailed to the employee's 
address of record. Such specific notice must include, as appropriate:
    (i) That the leave may be designated and counted against the 
employee's annual FMLA leave entitlement if qualifying (see Sec. Sec.  
825.300(c) and 825.301) and the applicable 12-month period for FMLA 
entitlement (see Sec. Sec.  825.127(c), 825.200(b), (f), and (g));
    (ii) Any requirements for the employee to furnish certification of 
a serious health condition, serious injury or illness, or qualifying 
exigency arising out of covered active duty or call to covered active 
duty status, and the consequences of failing to do so (see Sec. Sec.  
825.305, 825.309, 825.310, 825.313);
    (iii) The employee's right to substitute paid leave, whether the 
employer will require the substitution of paid leave, the conditions 
related to any substitution, and the employee's entitlement to take 
unpaid FMLA leave if the employee does not meet the conditions for paid 
leave (see Sec.  825.207);
    (iv) Any requirement for the employee to make any premium payments 
to maintain health benefits and the arrangements for making such 
payments (see Sec.  825.210), and the possible consequences of failure 
to make such payments on a timely basis (i.e., the circumstances under 
which coverage may lapse);
    (v) The employee's status as a key employee and the potential 
consequence that restoration may be denied following FMLA leave, 
explaining the conditions required for such denial (see Sec.  825.218);
    (vi) The employee's rights to maintenance of benefits during the 
FMLA leave and restoration to the same or an equivalent job upon return 
from FMLA leave (see Sec. Sec.  825.214 and 825.604); and
    (vii) The employee's potential liability for payment of health 
insurance premiums paid by the employer during the employee's unpaid 
FMLA leave if the employee fails to return to work after taking FMLA 
leave (see Sec.  825.213).
    (2) The notice of rights and responsibilities may include other 
information--e.g., whether the employer will require periodic reports 
of the employee's status and intent to return to work--but is not 
required to do so.
    (3) The notice of rights and responsibilities may be accompanied by 
any required certification form.
    (4) If the specific information provided by the notice of rights 
and responsibilities changes, the employer shall, within five business 
days of receipt of the employee's first notice of need for leave 
subsequent to any change, provide written notice referencing the prior 
notice and setting forth any of the information in the notice of rights 
and responsibilities that has changed. For example, if the initial 
leave period was paid leave and the subsequent leave period would be 
unpaid leave, the employer may need to give notice of the arrangements 
for making premium payments.
    (5) Employers are also expected to responsively answer questions 
from employees concerning their rights and responsibilities under the 
FMLA.
    (6) A prototype notice of rights and responsibilities may be 
obtained from local offices of the Wage and Hour Division or from the 
Internet at www.dol.gov/whd. Employers may adapt the prototype notice 
as appropriate to meet these notice requirements. The notice of rights 
and responsibilities may be distributed electronically so long as it 
otherwise meets the requirements of this section.
    (d) Designation notice. (1) The employer is responsible in all 
circumstances for designating leave as FMLA-qualifying, and for giving 
notice of the designation to the employee as provided in this section. 
When the employer has enough information to determine whether the leave 
is being taken for a FMLA-qualifying reason (e.g., after receiving a 
certification), the employer must notify the employee whether the leave 
will be designated and will be counted as FMLA leave within five 
business days absent extenuating circumstances. Only one notice of 
designation is required for each FMLA-qualifying reason per applicable 
12-month period, regardless of whether the leave taken due to the 
qualifying reason will be a continuous block of leave or intermittent 
or reduced schedule leave. If the employer determines that the leave 
will not be designated as FMLA-qualifying (e.g., if the leave is not 
for a reason covered by FMLA or the FMLA leave entitlement has been 
exhausted), the employer must notify the employee of that 
determination. If the employer requires paid leave to be substituted 
for unpaid FMLA leave, or that paid leave taken under an existing leave 
plan be counted as FMLA leave, the employer must inform the employee of 
this designation at the time of designating the FMLA leave.
    (2) If the employer has sufficient information to designate the 
leave as FMLA leave immediately after receiving notice of the 
employee's need for leave, the employer may provide the employee with 
the designation notice at that time.
    (3) If the employer will require the employee to present a fitness-
for-duty certification to be restored to employment, the employer must 
provide notice of such requirement with the designation notice. If the 
employer will require that the fitness-for-duty certification address 
the employee's ability to perform the essential functions of the 
employee's position, the employer must so indicate in the designation 
notice, and must include a list of the essential functions of the 
employee's position. See Sec.  825.312. If the employer handbook or 
other written documents (if any) describing the employer's leave 
policies clearly provide that a fitness-for-duty certification will be 
required in specific circumstances (e.g., by stating that fitness-for-
duty certification will be required in all cases of back injuries for 
employees in a certain occupation), the employer is not required to 
provide written notice of the requirement with the designation notice, 
but must provide oral notice no later than with the designation notice.
    (4) The designation notice must be in writing. A prototype 
designation notice may be obtained from local offices of the Wage and 
Hour Division or from the Internet at www.dol.gov/whd. If the leave is 
not designated as FMLA leave because it does not meet the requirements 
of the Act, the notice to

[[Page 8932]]

the employee that the leave is not designated as FMLA leave may be in 
the form of a simple written statement.
    (5) If the information provided by the employer to the employee in 
the designation notice changes (e.g., the employee exhausts the FMLA 
leave entitlement), the employer shall provide, within five business 
days of receipt of the employee's first notice of need for leave 
subsequent to any change, written notice of the change.
    (6) The employer must notify the employee of the amount of leave 
counted against the employee's FMLA leave entitlement. If the amount of 
leave needed is known at the time the employer designates the leave as 
FMLA-qualifying, the employer must notify the employee of the number of 
hours, days, or weeks that will be counted against the employee's FMLA 
leave entitlement in the designation notice. If it is not possible to 
provide the hours, days, or weeks that will be counted against the 
employee's FMLA leave entitlement (such as in the case of unforeseeable 
intermittent leave), then the employer must provide notice of the 
amount of leave counted against the employee's FMLA leave entitlement 
upon the request by the employee, but no more often than once in a 30-
day period and only if leave was taken in that period. The notice of 
the amount of leave counted against the employee's FMLA entitlement may 
be oral or in writing. If such notice is oral, it shall be confirmed in 
writing, no later than the following payday (unless the payday is less 
than one week after the oral notice, in which case the notice must be 
no later than the subsequent payday). Such written notice may be in any 
form, including a notation on the employee's pay stub.
    (e) Consequences of failing to provide notice. Failure to follow 
the notice requirements set forth in this section may constitute an 
interference with, restraint, or denial of the exercise of an 
employee's FMLA rights. An employer may be liable for compensation and 
benefits lost by reason of the violation, for other actual monetary 
losses sustained as a direct result of the violation, and for 
appropriate equitable or other relief, including employment, 
reinstatement, promotion, or any other relief tailored to the harm 
suffered See Sec.  825.400(c).


Sec.  825.301  Designation of FMLA leave.

    (a) Employer responsibilities. The employer's decision to designate 
leave as FMLA-qualifying must be based only on information received 
from the employee or the employee's spokesperson (e.g., if the employee 
is incapacitated, the employee's spouse, adult child, parent, doctor, 
etc., may provide notice to the employer of the need to take FMLA 
leave). In any circumstance where the employer does not have sufficient 
information about the reason for an employee's use of leave, the 
employer should inquire further of the employee or the spokesperson to 
ascertain whether leave is potentially FMLA-qualifying. Once the 
employer has acquired knowledge that the leave is being taken for a 
FMLA-qualifying reason, the employer must notify the employee as 
provided in Sec.  825.300(d).
    (b) Employee responsibilities. An employee giving notice of the 
need for FMLA leave does not need to expressly assert rights under the 
Act or even mention the FMLA to meet his or her obligation to provide 
notice, though the employee would need to state a qualifying reason for 
the needed leave and otherwise satisfy the notice requirements set 
forth in Sec.  825.302 or Sec.  825.303 depending on whether the need 
for leave is foreseeable or unforeseeable. An employee giving notice of 
the need for FMLA leave must explain the reasons for the needed leave 
so as to allow the employer to determine whether the leave qualifies 
under the Act. If the employee fails to explain the reasons, leave may 
be denied. In many cases, in explaining the reasons for a request to 
use leave, especially when the need for the leave was unexpected or 
unforeseen, an employee will provide sufficient information for the 
employer to designate the leave as FMLA leave. An employee using 
accrued paid leave may in some cases not spontaneously explain the 
reasons or their plans for using their accrued leave. However, if an 
employee requesting to use paid leave for a FMLA-qualifying reason does 
not explain the reason for the leave and the employer denies the 
employee's request, the employee will need to provide sufficient 
information to establish a FMLA-qualifying reason for the needed leave 
so that the employer is aware that the leave may not be denied and may 
designate that the paid leave be appropriately counted against 
(substituted for) the employee's FMLA leave entitlement. Similarly, an 
employee using accrued paid vacation leave who seeks an extension of 
unpaid leave for a FMLA-qualifying reason will need to state the 
reason. If this is due to an event which occurred during the period of 
paid leave, the employer may count the leave used after the FMLA-
qualifying reason against the employee's FMLA leave entitlement.
    (c) Disputes. If there is a dispute between an employer and an 
employee as to whether leave qualifies as FMLA leave, it should be 
resolved through discussions between the employee and the employer. 
Such discussions and the decision must be documented.
    (d) Retroactive designation. If an employer does not designate 
leave as required by Sec.  825.300, the employer may retroactively 
designate leave as FMLA leave with appropriate notice to the employee 
as required by Sec.  825.300 provided that the employer's failure to 
timely designate leave does not cause harm or injury to the employee. 
In all cases where leave would qualify for FMLA protections, an 
employer and an employee can mutually agree that leave be retroactively 
designated as FMLA leave.
    (e) Remedies. If an employer's failure to timely designate leave in 
accordance with Sec.  825.300 causes the employee to suffer harm, it 
may constitute an interference with, restraint of, or denial of the 
exercise of an employee's FMLA rights. An employer may be liable for 
compensation and benefits lost by reason of the violation, for other 
actual monetary losses sustained as a direct result of the violation, 
and for appropriate equitable or other relief, including employment, 
reinstatement, promotion, or any other relief tailored to the harm 
suffered. See Sec.  825.400(c). For example, if an employer that was 
put on notice that an employee needed FMLA leave failed to designate 
the leave properly, but the employee's own serious health condition 
prevented him or her from returning to work during that time period 
regardless of the designation, an employee may not be able to show that 
the employee suffered harm as a result of the employer's actions. 
However, if an employee took leave to provide care for a son or 
daughter with a serious health condition believing it would not count 
toward his or her FMLA entitlement, and the employee planned to later 
use that FMLA leave to provide care for a spouse who would need 
assistance when recovering from surgery planned for a later date, the 
employee may be able to show that harm has occurred as a result of the 
employer's failure to designate properly. The employee might establish 
this by showing that he or she would have arranged for an alternative 
caregiver for the seriously ill son or daughter if the leave had been 
designated timely.


Sec.  825.302  Employee notice requirements for foreseeable FMLA leave.

    (a) Timing of notice. An employee must provide the employer at 
least 30 days advance notice before FMLA leave is to begin if the need 
for the leave is foreseeable based on an expected birth,

[[Page 8933]]

placement for adoption or foster care, planned medical treatment for a 
serious health condition of the employee or of a family member, or the 
planned medical treatment for a serious injury or illness of a covered 
servicemember. If 30 days notice is not practicable, such as because of 
a lack of knowledge of approximately when leave will be required to 
begin, a change in circumstances, or a medical emergency, notice must 
be given as soon as practicable. For example, an employee's health 
condition may require leave to commence earlier than anticipated before 
the birth of a child. Similarly, little opportunity for notice may be 
given before placement for adoption. For foreseeable leave due to a 
qualifying exigency notice must be provided as soon as practicable, 
regardless of how far in advance such leave is foreseeable. Whether 
FMLA leave is to be continuous or is to be taken intermittently or on a 
reduced schedule basis, notice need only be given one time, but the 
employee shall advise the employer as soon as practicable if dates of 
scheduled leave change or are extended, or were initially unknown. In 
those cases where the employee is required to provide at least 30 days 
notice of foreseeable leave and does not do so, the employee shall 
explain the reasons why such notice was not practicable upon a request 
from the employer for such information.
    (b) As soon as practicable means as soon as both possible and 
practical, taking into account all of the facts and circumstances in 
the individual case. When an employee becomes aware of a need for FMLA 
leave less than 30 days in advance, it should be practicable for the 
employee to provide notice of the need for leave either the same day or 
the next business day. In all cases, however, the determination of when 
an employee could practicably provide notice must take into account the 
individual facts and circumstances.
    (c) Content of notice. An employee shall provide at least verbal 
notice sufficient to make the employer aware that the employee needs 
FMLA-qualifying leave, and the anticipated timing and duration of the 
leave. Depending on the situation, such information may include that a 
condition renders the employee unable to perform the functions of the 
job; that the employee is pregnant or has been hospitalized overnight; 
whether the employee or the employee's family member is under the 
continuing care of a health care provider; if the leave is due to a 
qualifying exigency, that a military member is on covered active duty 
or call to covered active duty status (or has been notified of an 
impending call or order to covered active duty), and that the requested 
leave is for one of the reasons listed in Sec.  825.126(b); if the 
leave is for a family member, that the condition renders the family 
member unable to perform daily activities, or that the family member is 
a covered servicemember with a serious injury or illness; and the 
anticipated duration of the absence, if known. When an employee seeks 
leave for the first time for a FMLA-qualifying reason, the employee 
need not expressly assert rights under the FMLA or even mention the 
FMLA. When an employee seeks leave due to a FMLA-qualifying reason, for 
which the employer has previously provided FMLA-protected leave, the 
employee must specifically reference the qualifying reason for leave or 
the need for FMLA leave. In all cases, the employer should inquire 
further of the employee if it is necessary to have more information 
about whether FMLA leave is being sought by the employee, and obtain 
the necessary details of the leave to be taken. In the case of medical 
conditions, the employer may find it necessary to inquire further to 
determine if the leave is because of a serious health condition and may 
request medical certification to support the need for such leave. See 
Sec.  825.305. An employer may also request certification to support 
the need for leave for a qualifying exigency or for military caregiver 
leave. See Sec. Sec.  825.309, 825.310). When an employee has been 
previously certified for leave due to more than one FMLA-qualifying 
reason, the employer may need to inquire further to determine for which 
qualifying reason the leave is needed. An employee has an obligation to 
respond to an employer's questions designed to determine whether an 
absence is potentially FMLA-qualifying. Failure to respond to 
reasonable employer inquiries regarding the leave request may result in 
denial of FMLA protection if the employer is unable to determine 
whether the leave is FMLA-qualifying.
    (d) Complying with employer policy. An employer may require an 
employee to comply with the employer's usual and customary notice and 
procedural requirements for requesting leave, absent unusual 
circumstances. For example, an employer may require that written notice 
set forth the reasons for the requested leave, the anticipated duration 
of the leave, and the anticipated start of the leave. An employee also 
may be required by an employer's policy to contact a specific 
individual. Unusual circumstances would include situations such as when 
an employee is unable to comply with the employer's policy that 
requests for leave should be made by contacting a specific number 
because on the day the employee needs to provide notice of his or her 
need for FMLA leave there is no one to answer the call-in number and 
the voice mail box is full. Where an employee does not comply with the 
employer's usual notice and procedural requirements, and no unusual 
circumstances justify the failure to comply, FMLA-protected leave may 
be delayed or denied. However, FMLA-protected leave may not be delayed 
or denied where the employer's policy requires notice to be given 
sooner than set forth in paragraph (a) of this section and the employee 
provides timely notice as set forth in paragraph (a) of this section.
    (e) Scheduling planned medical treatment. When planning medical 
treatment, the employee must consult with the employer and make a 
reasonable effort to schedule the treatment so as not to disrupt unduly 
the employer's operations, subject to the approval of the health care 
provider. Employees are ordinarily expected to consult with their 
employers prior to the scheduling of treatment in order to work out a 
treatment schedule which best suits the needs of both the employer and 
the employee. For example, if an employee who provides notice of the 
need to take FMLA leave on an intermittent basis for planned medical 
treatment neglects to consult with the employer to make a reasonable 
effort to arrange the schedule of treatments so as not to unduly 
disrupt the employer's operations, the employer may initiate 
discussions with the employee and require the employee to attempt to 
make such arrangements, subject to the approval of the health care 
provider. See Sec. Sec.  825.203 and 825.205.
    (f) Intermittent leave or leave on a reduced leave schedule must be 
medically necessary due to a serious health condition or a serious 
injury or illness. An employee shall advise the employer, upon request, 
of the reasons why the intermittent/reduced leave schedule is necessary 
and of the schedule for treatment, if applicable. The employee and 
employer shall attempt to work out a schedule for such leave that meets 
the employee's needs without unduly disrupting the employer's 
operations, subject to the approval of the health care provider.
    (g) An employer may waive employees' FMLA notice requirements. See 
Sec.  825.304.

[[Page 8934]]

Sec.  825.303  Employee notice requirements for unforeseeable FMLA 
leave.

    (a) Timing of notice. When the approximate timing of the need for 
leave is not foreseeable, an employee must provide notice to the 
employer as soon as practicable under the facts and circumstances of 
the particular case. It generally should be practicable for the 
employee to provide notice of leave that is unforeseeable within the 
time prescribed by the employer's usual and customary notice 
requirements applicable to such leave. See Sec.  825.303(c). Notice may 
be given by the employee's spokesperson (e.g., spouse, adult family 
member, or other responsible party) if the employee is unable to do so 
personally. For example, if an employee's child has a severe asthma 
attack and the employee takes the child to the emergency room, the 
employee would not be required to leave his or her child in order to 
report the absence while the child is receiving emergency treatment. 
However, if the child's asthma attack required only the use of an 
inhaler at home followed by a period of rest, the employee would be 
expected to call the employer promptly after ensuring the child has 
used the inhaler.
    (b) Content of notice. An employee shall provide sufficient 
information for an employer to reasonably determine whether the FMLA 
may apply to the leave request. Depending on the situation, such 
information may include that a condition renders the employee unable to 
perform the functions of the job; that the employee is pregnant or has 
been hospitalized overnight; whether the employee or the employee's 
family member is under the continuing care of a health care provider; 
if the leave is due to a qualifying exigency, that a military member is 
on covered active duty or call to covered active duty status (or has 
been notified of an impending call or order to covered active duty), 
that the requested leave is for one of the reasons listed in Sec.  
825.126(b), and the anticipated duration of the absence; or if the 
leave is for a family member that the condition renders the family 
member unable to perform daily activities or that the family member is 
a covered servicemember with a serious injury or illness; and the 
anticipated duration of the absence, if known. When an employee seeks 
leave for the first time for a FMLA-qualifying reason, the employee 
need not expressly assert rights under the FMLA or even mention the 
FMLA. When an employee seeks leave due to a qualifying reason, for 
which the employer has previously provided the employee FMLA-protected 
leave, the employee must specifically reference either the qualifying 
reason for leave or the need for FMLA leave. Calling in ``sick'' 
without providing more information will not be considered sufficient 
notice to trigger an employer's obligations under the Act. The employer 
will be expected to obtain any additional required information through 
informal means. An employee has an obligation to respond to an 
employer's questions designed to determine whether an absence is 
potentially FMLA-qualifying. Failure to respond to reasonable employer 
inquiries regarding the leave request may result in denial of FMLA 
protection if the employer is unable to determine whether the leave is 
FMLA-qualifying.
    (c) Complying with employer policy. When the need for leave is not 
foreseeable, an employee must comply with the employer's usual and 
customary notice and procedural requirements for requesting leave, 
absent unusual circumstances. For example, an employer may require 
employees to call a designated number or a specific individual to 
request leave. However, if an employee requires emergency medical 
treatment, he or she would not be required to follow the call-in 
procedure until his or her condition is stabilized and he or she has 
access to, and is able to use, a phone. Similarly, in the case of an 
emergency requiring leave because of a FMLA-qualifying reason, written 
advance notice pursuant to an employer's internal rules and procedures 
may not be required when FMLA leave is involved. If an employee does 
not comply with the employer's usual notice and procedural 
requirements, and no unusual circumstances justify the failure to 
comply, FMLA-protected leave may be delayed or denied.


Sec.  825.304  Employee failure to provide notice.

    (a) Proper notice required. In all cases, in order for the onset of 
an employee's FMLA leave to be delayed due to lack of required notice, 
it must be clear that the employee had actual notice of the FMLA notice 
requirements. This condition would be satisfied by the employer's 
proper posting of the required notice at the worksite where the 
employee is employed and the employer's provision of the required 
notice in either an employee handbook or employee distribution, as 
required by Sec.  825.300.
    (b) Foreseeable leave--30 days. When the need for FMLA leave is 
foreseeable at least 30 days in advance and an employee fails to give 
timely advance notice with no reasonable excuse, the employer may delay 
FMLA coverage until 30 days after the date the employee provides 
notice. The need for leave and the approximate date leave would be 
taken must have been clearly foreseeable to the employee 30 days in 
advance of the leave. For example, knowledge that an employee would 
receive a telephone call about the availability of a child for adoption 
at some unknown point in the future would not be sufficient to 
establish the leave was clearly foreseeable 30 days in advance.
    (c) Foreseeable leave--less than 30 days. When the need for FMLA 
leave is foreseeable fewer than 30 days in advance and an employee 
fails to give notice as soon as practicable under the particular facts 
and circumstances, the extent to which an employer may delay FMLA 
coverage for leave depends on the facts of the particular case. For 
example, if an employee reasonably should have given the employer two 
weeks notice but instead only provided one week notice, then the 
employer may delay FMLA-protected leave for one week (thus, if the 
employer elects to delay FMLA coverage and the employee nonetheless 
takes leave one week after providing the notice (i.e., a week before 
the two week notice period has been met) the leave will not be FMLA-
protected).
    (d) Unforeseeable leave. When the need for FMLA leave is 
unforeseeable and an employee fails to give notice in accordance with 
Sec.  825.303, the extent to which an employer may delay FMLA coverage 
for leave depends on the facts of the particular case. For example, if 
it would have been practicable for an employee to have given the 
employer notice of the need for leave very soon after the need arises 
consistent with the employer's policy, but instead the employee 
provided notice two days after the leave began, then the employer may 
delay FMLA coverage of the leave by two days.
    (e) Waiver of notice. An employer may waive employees' FMLA notice 
obligations or the employer's own internal rules on leave notice 
requirements. If an employer does not waive the employee's obligations 
under its internal leave rules, the employer may take appropriate 
action under its internal rules and procedures for failure to follow 
its usual and customary notification rules, absent unusual 
circumstances, as long as the actions are taken in a manner that does 
not discriminate against employees taking FMLA leave and the rules are 
not inconsistent with Sec.  825.303(a).

[[Page 8935]]

Sec.  825.305  Certification, general rule.

    (a) General. An employer may require that an employee's leave to 
care for the employee's covered family member with a serious health 
condition, or due to the employee's own serious health condition that 
makes the employee unable to perform one or more of the essential 
functions of the employee's position, be supported by a certification 
issued by the health care provider of the employee or the employee's 
family member. An employer may also require that an employee's leave 
because of a qualifying exigency or to care for a covered servicemember 
with a serious injury or illness be supported by a certification, as 
described in Sec. Sec.  825.309 and 825.310, respectively. An employer 
must give notice of a requirement for certification each time a 
certification is required; such notice must be written notice whenever 
required by Sec.  825.300(c). An employer's oral request to an employee 
to furnish any subsequent certification is sufficient.
    (b) Timing. In most cases, the employer should request that an 
employee furnish certification at the time the employee gives notice of 
the need for leave or within five business days thereafter, or, in the 
case of unforeseen leave, within five business days after the leave 
commences. The employer may request certification at some later date if 
the employer later has reason to question the appropriateness of the 
leave or its duration. The employee must provide the requested 
certification to the employer within 15 calendar days after the 
employer's request, unless it is not practicable under the particular 
circumstances to do so despite the employee's diligent, good faith 
efforts or the employer provides more than 15 calendar days to return 
the requested certification.
    (c) Complete and sufficient certification. The employee must 
provide a complete and sufficient certification to the employer if 
required by the employer in accordance with Sec. Sec.  825.306, 
825.309, and 825.310. The employer shall advise an employee whenever 
the employer finds a certification incomplete or insufficient, and 
shall state in writing what additional information is necessary to make 
the certification complete and sufficient. A certification is 
considered incomplete if the employer receives a certification, but one 
or more of the applicable entries have not been completed. A 
certification is considered insufficient if the employer receives a 
complete certification, but the information provided is vague, 
ambiguous, or non-responsive. The employer must provide the employee 
with seven calendar days (unless not practicable under the particular 
circumstances despite the employee's diligent good faith efforts) to 
cure any such deficiency. If the deficiencies specified by the employer 
are not cured in the resubmitted certification, the employer may deny 
the taking of FMLA leave, in accordance with Sec.  825.313. A 
certification that is not returned to the employer is not considered 
incomplete or insufficient, but constitutes a failure to provide 
certification.
    (d) Consequences. At the time the employer requests certification, 
the employer must also advise an employee of the anticipated 
consequences of an employee's failure to provide adequate 
certification. If the employee fails to provide the employer with a 
complete and sufficient certification, despite the opportunity to cure 
the certification as provided in paragraph (c) of this section, or 
fails to provide any certification, the employer may deny the taking of 
FMLA leave, in accordance with Sec.  825.313. It is the employee's 
responsibility either to furnish a complete and sufficient 
certification or to furnish the health care provider providing the 
certification with any necessary authorization from the employee or the 
employee's family member in order for the health care provider to 
release a complete and sufficient certification to the employer to 
support the employee's FMLA request. This provision will apply in any 
case where an employer requests a certification permitted by these 
regulations, whether it is the initial certification, a 
recertification, a second or third opinion, or a fitness for duty 
certificate, including any clarifications necessary to determine if 
such certifications are authentic and sufficient. See Sec. Sec.  
825.306, 825.307, 825.308, and 825.312.
    (e) Annual medical certification. Where the employee's need for 
leave due to the employee's own serious health condition, or the 
serious health condition of the employee's covered family member, lasts 
beyond a single leave year (as defined in Sec.  825.200), the employer 
may require the employee to provide a new medical certification in each 
subsequent leave year. Such new medical certifications are subject to 
the provisions for authentication and clarification set forth in Sec.  
825.307, including second and third opinions.


Sec.  825.306  Content of medical certification for leave taken because 
of an employee's own serious health condition or the serious health 
condition of a family member.

    (a) Required information. When leave is taken because of an 
employee's own serious health condition, or the serious health 
condition of a family member, an employer may require an employee to 
obtain a medical certification from a health care provider that sets 
forth the following information:
    (1) The name, address, telephone number, and fax number of the 
health care provider and type of medical practice/specialization;
    (2) The approximate date on which the serious health condition 
commenced, and its probable duration;
    (3) A statement or description of appropriate medical facts 
regarding the patient's health condition for which FMLA leave is 
requested. The medical facts must be sufficient to support the need for 
leave. Such medical facts may include information on symptoms, 
diagnosis, hospitalization, doctor visits, whether medication has been 
prescribed, any referrals for evaluation or treatment (physical 
therapy, for example), or any other regimen of continuing treatment;
    (4) If the employee is the patient, information sufficient to 
establish that the employee cannot perform the essential functions of 
the employee's job as well as the nature of any other work 
restrictions, and the likely duration of such inability (see Sec.  
825.123(b) and (c));
    (5) If the patient is a covered family member with a serious health 
condition, information sufficient to establish that the family member 
is in need of care, as described in Sec.  825.124, and an estimate of 
the frequency and duration of the leave required to care for the family 
member;
    (6) If an employee requests leave on an intermittent or reduced 
schedule basis for planned medical treatment of the employee's or a 
covered family member's serious health condition, information 
sufficient to establish the medical necessity for such intermittent or 
reduced schedule leave and an estimate of the dates and duration of 
such treatments and any periods of recovery;
    (7) If an employee requests leave on an intermittent or reduced 
schedule basis for the employee's serious health condition, including 
pregnancy, that may result in unforeseeable episodes of incapacity, 
information sufficient to establish the medical necessity for such 
intermittent or reduced schedule leave and an estimate of the frequency 
and duration of the episodes of incapacity; and

[[Page 8936]]

    (8) If an employee requests leave on an intermittent or reduced 
schedule basis to care for a covered family member with a serious 
health condition, a statement that such leave is medically necessary to 
care for the family member, as described in Sec. Sec.  825.124 and 
825.203(b), which can include assisting in the family member's 
recovery, and an estimate of the frequency and duration of the required 
leave.
    (b) DOL has developed two optional forms (Form WH-380E and Form WH-
380F, as revised) for use in obtaining medical certification, including 
second and third opinions, from health care providers that meets FMLA's 
certification requirements. Optional form WH-380E is for use when the 
employee's need for leave is due to the employee's own serious health 
condition. Optional form WH-380F is for use when the employee needs 
leave to care for a family member with a serious health condition. 
These optional forms reflect certification requirements so as to permit 
the health care provider to furnish appropriate medical information. 
Form WH-380-E and WH-380-F, as revised, or another form containing the 
same basic information, may be used by the employer; however, no 
information may be required beyond that specified in Sec. Sec.  
825.306, 825.307, and 825.308. In all instances the information on the 
form must relate only to the serious health condition for which the 
current need for leave exists. Prototype forms WH-380-E and WH-380-F 
may be obtained from local offices of the Wage and Hour Division or 
from the Internet at www.dol.gov/whd.
    (c) If an employee is on FMLA leave running concurrently with a 
workers' compensation absence, and the provisions of the workers' 
compensation statute permit the employer or the employer's 
representative to request additional information from the employee's 
workers' compensation health care provider, the FMLA does not prevent 
the employer from following the workers' compensation provisions and 
information received under those provisions may be considered in 
determining the employee's entitlement to FMLA-protected leave. 
Similarly, an employer may request additional information in accordance 
with a paid leave policy or disability plan that requires greater 
information to qualify for payments or benefits, provided that the 
employer informs the employee that the additional information only 
needs to be provided in connection with receipt of such payments or 
benefits. Any information received pursuant to such policy or plan may 
be considered in determining the employee's entitlement to FMLA-
protected leave. If the employee fails to provide the information 
required for receipt of such payments or benefits, such failure will 
not affect the employee's entitlement to take unpaid FMLA leave. See 
Sec.  825.207(a).
    (d) If an employee's serious health condition may also be a 
disability within the meaning of the Americans with Disabilities Act 
(ADA), as amended, the FMLA does not prevent the employer from 
following the procedures for requesting medical information under the 
ADA. Any information received pursuant to these procedures may be 
considered in determining the employee's entitlement to FMLA-protected 
leave.
    (e) While an employee may choose to comply with the certification 
requirement by providing the employer with an authorization, release, 
or waiver allowing the employer to communicate directly with the health 
care provider of the employee or his or her covered family member, the 
employee may not be required to provide such an authorization, release, 
or waiver. In all instances in which certification is requested, it is 
the employee's responsibility to provide the employer with complete and 
sufficient certification and failure to do so may result in the denial 
of FMLA leave. See Sec.  825.305(d).


Sec.  825.307  Authentication and clarification of medical 
certification for leave taken because of an employee's own serious 
health condition or the serious health condition of a family member; 
second and third opinions.

    (a) Clarification and authentication. If an employee submits a 
complete and sufficient certification signed by the health care 
provider, the employer may not request additional information from the 
health care provider. However, the employer may contact the health care 
provider for purposes of clarification and authentication of the 
medical certification (whether initial certification or 
recertification) after the employer has given the employee an 
opportunity to cure any deficiencies as set forth in Sec.  825.305(c). 
To make such contact, the employer must use a health care provider, a 
human resources professional, a leave administrator, or a management 
official. Under no circumstances, however, may the employee's direct 
supervisor contact the employee's health care provider. For purposes of 
these regulations, authentication means providing the health care 
provider with a copy of the certification and requesting verification 
that the information contained on the certification form was completed 
and/or authorized by the health care provider who signed the document; 
no additional medical information may be requested. Clarification means 
contacting the health care provider to understand the handwriting on 
the medical certification or to understand the meaning of a response. 
Employers may not ask health care providers for additional information 
beyond that required by the certification form. The requirements of the 
Health Insurance Portability and Accountability Act (HIPAA) Privacy 
Rule (see 45 CFR parts 160 and 164), which governs the privacy of 
individually-identifiable health information created or held by HIPAA-
covered entities, must be satisfied when individually-identifiable 
health information of an employee is shared with an employer by a 
HIPAA-covered health care provider. If an employee chooses not to 
provide the employer with authorization allowing the employer to 
clarify the certification with the health care provider, and does not 
otherwise clarify the certification, the employer may deny the taking 
of FMLA leave if the certification is unclear. See Sec.  825.305(d). It 
is the employee's responsibility to provide the employer with a 
complete and sufficient certification and to clarify the certification 
if necessary.
    (b) Second opinion. (1) An employer who has reason to doubt the 
validity of a medical certification may require the employee to obtain 
a second opinion at the employer's expense. Pending receipt of the 
second (or third) medical opinion, the employee is provisionally 
entitled to the benefits of the Act, including maintenance of group 
health benefits. If the certifications do not ultimately establish the 
employee's entitlement to FMLA leave, the leave shall not be designated 
as FMLA leave and may be treated as paid or unpaid leave under the 
employer's established leave policies. In addition, the consequences 
set forth in Sec.  825.305(d) will apply if the employee or the 
employee's family member fails to authorize his or her health care 
provider to release all relevant medical information pertaining to the 
serious health condition at issue if requested by the health care 
provider designated to provide a second opinion in order to render a 
sufficient and complete second opinion.
    (2) The employer is permitted to designate the health care provider 
to furnish the second opinion, but the selected health care provider 
may not be employed on a regular basis by the employer. The employer 
may not regularly contract with or otherwise

[[Page 8937]]

regularly utilize the services of the health care provider furnishing 
the second opinion unless the employer is located in an area where 
access to health care is extremely limited (e.g., a rural area where no 
more than one or two doctors practice in the relevant specialty in the 
vicinity).
    (c) Third opinion. If the opinions of the employee's and the 
employer's designated health care providers differ, the employer may 
require the employee to obtain certification from a third health care 
provider, again at the employer's expense. This third opinion shall be 
final and binding. The third health care provider must be designated or 
approved jointly by the employer and the employee. The employer and the 
employee must each act in good faith to attempt to reach agreement on 
whom to select for the third opinion provider. If the employer does not 
attempt in good faith to reach agreement, the employer will be bound by 
the first certification. If the employee does not attempt in good faith 
to reach agreement, the employee will be bound by the second 
certification. For example, an employee who refuses to agree to see a 
doctor in the specialty in question may be failing to act in good 
faith. On the other hand, an employer that refuses to agree to any 
doctor on a list of specialists in the appropriate field provided by 
the employee and whom the employee has not previously consulted may be 
failing to act in good faith. In addition, the consequences set forth 
in Sec.  825.305(d) will apply if the employee or the employee's family 
member fails to authorize his or her health care provider to release 
all relevant medical information pertaining to the serious health 
condition at issue if requested by the health care provider designated 
to provide a third opinion in order to render a sufficient and complete 
third opinion.
    (d) Copies of opinions. The employer is required to provide the 
employee with a copy of the second and third medical opinions, where 
applicable, upon request by the employee. Requested copies are to be 
provided within five business days unless extenuating circumstances 
prevent such action.
    (e) Travel expenses. If the employer requires the employee to 
obtain either a second or third opinion the employer must reimburse an 
employee or family member for any reasonable ``out of pocket'' travel 
expenses incurred to obtain the second and third medical opinions. The 
employer may not require the employee or family member to travel 
outside normal commuting distance for purposes of obtaining the second 
or third medical opinions except in very unusual circumstances.
    (f) Medical certification abroad. In circumstances in which the 
employee or a family member is visiting in another country, or a family 
member resides in another country, and a serious health condition 
develops, the employer shall accept a medical certification as well as 
second and third opinions from a health care provider who practices in 
that country. Where a certification by a foreign health care provider 
is in a language other than English, the employee must provide the 
employer with a written translation of the certification upon request.


Sec.  825.308  Recertifications for leave taken because of an 
employee's own serious health condition or the serious health condition 
of a family member.

    (a) 30-day rule. An employer may request recertification no more 
often than every 30 days and only in connection with an absence by the 
employee, unless paragraphs (b) or (c) of this section apply.
    (b) More than 30 days. If the medical certification indicates that 
the minimum duration of the condition is more than 30 days, an employer 
must wait until that minimum duration expires before requesting a 
recertification, unless paragraph (c) of this section applies. For 
example, if the medical certification states that an employee will be 
unable to work, whether continuously or on an intermittent basis, for 
40 days, the employer must wait 40 days before requesting a 
recertification. In all cases, an employer may request a 
recertification of a medical condition every six months in connection 
with an absence by the employee. Accordingly, even if the medical 
certification indicates that the employee will need intermittent or 
reduced schedule leave for a period in excess of six months (e.g., for 
a lifetime condition), the employer would be permitted to request 
recertification every six months in connection with an absence.
    (c) Less than 30 days. An employer may request recertification in 
less than 30 days if:
    (1) The employee requests an extension of leave;
    (2) Circumstances described by the previous certification have 
changed significantly (e.g., the duration or frequency of the absence, 
the nature or severity of the illness, complications). For example, if 
a medical certification stated that an employee would need leave for 
one to two days when the employee suffered a migraine headache and the 
employee's absences for his or her last two migraines lasted four days 
each, then the increased duration of absence might constitute a 
significant change in circumstances allowing the employer to request a 
recertification in less than 30 days. Likewise, if an employee had a 
pattern of using unscheduled FMLA leave for migraines in conjunction 
with his or her scheduled days off, then the timing of the absences 
also might constitute a significant change in circumstances sufficient 
for an employer to request a recertification more frequently than every 
30 days; or
    (3) The employer receives information that casts doubt upon the 
employee's stated reason for the absence or the continuing validity of 
the certification. For example, if an employee is on FMLA leave for 
four weeks due to the employee's knee surgery, including recuperation, 
and the employee plays in company softball league games during the 
employee's third week of FMLA leave, such information might be 
sufficient to cast doubt upon the continuing validity of the 
certification allowing the employer to request a recertification in 
less than 30 days.
    (d) Timing. The employee must provide the requested recertification 
to the employer within the time frame requested by the employer (which 
must allow at least 15 calendar days after the employer's request), 
unless it is not practicable under the particular circumstances to do 
so despite the employee`s diligent, good faith efforts.
    (e) Content. The employer may ask for the same information when 
obtaining recertification as that permitted for the original 
certification as set forth in Sec.  825.306. The employee has the same 
obligations to participate and cooperate (including providing a 
complete and sufficient certification or adequate authorization to the 
health care provider) in the recertification process as in the initial 
certification process. See Sec.  825.305(d). As part of the information 
allowed to be obtained on recertification for leave taken because of a 
serious health condition, the employer may provide the health care 
provider with a record of the employee's absence pattern and ask the 
health care provider if the serious health condition and need for leave 
is consistent with such a pattern.
    (f) Any recertification requested by the employer shall be at the 
employee's expense unless the employer provides otherwise. No second or 
third opinion on recertification may be required.


Sec.  825.309  Certification for leave taken because of a qualifying 
exigency.

    (a) Active Duty Orders. The first time an employee requests leave 
because of

[[Page 8938]]

a qualifying exigency arising out of the covered active duty or call to 
covered active duty status (or notification of an impending call or 
order to covered active duty)of a military member (see Sec.  
825.126(a)), an employer may require the employee to provide a copy of 
the military member's active duty orders or other documentation issued 
by the military which indicates that the military member is on covered 
active duty or call to covered active duty status, and the dates of the 
military member's covered active duty service. This information need 
only be provided to the employer once. A copy of new active duty orders 
or other documentation issued by the military may be required by the 
employer if the need for leave because of a qualifying exigency arises 
out of a different covered active duty or call to covered active duty 
status (or notification of an impending call or order to covered active 
duty) of the same or a different military member;
    (b) Required information. An employer may require that leave for 
any qualifying exigency specified in Sec.  825.126 be supported by a 
certification from the employee that sets forth the following 
information:
    (1) A statement or description, signed by the employee, of 
appropriate facts regarding the qualifying exigency for which FMLA 
leave is requested. The facts must be sufficient to support the need 
for leave. Such facts should include information on the type of 
qualifying exigency for which leave is requested and any available 
written documentation which supports the request for leave; such 
documentation, for example, may include a copy of a meeting 
announcement for informational briefings sponsored by the military, a 
document confirming an appointment with a counselor or school official, 
or a copy of a bill for services for the handling of legal or financial 
affairs;
    (2) The approximate date on which the qualifying exigency commenced 
or will commence;
    (3) If an employee requests leave because of a qualifying exigency 
for a single, continuous period of time, the beginning and end dates 
for such absence;
    (4) If an employee requests leave because of a qualifying exigency 
on an intermittent or reduced schedule basis, an estimate of the 
frequency and duration of the qualifying exigency;
    (5) If the qualifying exigency involves meeting with a third party, 
appropriate contact information for the individual or entity with whom 
the employee is meeting (such as the name, title, organization, 
address, telephone number, fax number, and email address) and a brief 
description of the purpose of the meeting; and
    (6) If the qualifying exigency involves Rest and Recuperation 
leave, a copy of the military member's Rest and Recuperation orders, or 
other documentation issued by the military which indicates that the 
military member has been granted Rest and Recuperation leave, and the 
dates of the military member's Rest and Recuperation leave.
    (c) DOL has developed an optional form (Form WH-384) for employees' 
use in obtaining a certification that meets FMLA's certification 
requirements. Form WH-384 may be obtained from local offices of the 
Wage and Hour Division or from the Internet at www.dol.gov/whd. This 
optional form reflects certification requirements so as to permit the 
employee to furnish appropriate information to support his or her 
request for leave because of a qualifying exigency. Form WH-384, or 
another form containing the same basic information, may be used by the 
employer; however, no information may be required beyond that specified 
in this section.
    (d) Verification. If an employee submits a complete and sufficient 
certification to support his or her request for leave because of a 
qualifying exigency, the employer may not request additional 
information from the employee. However, if the qualifying exigency 
involves meeting with a third party, the employer may contact the 
individual or entity with whom the employee is meeting for purposes of 
verifying a meeting or appointment schedule and the nature of the 
meeting between the employee and the specified individual or entity. 
The employee's permission is not required in order to verify meetings 
or appointments with third parties, but no additional information may 
be requested by the employer. An employer also may contact an 
appropriate unit of the Department of Defense to request verification 
that a military member is on covered active duty or call to covered 
active duty status (or has been notified of an impending call or order 
to covered active duty); no additional information may be requested and 
the employee's permission is not required.


Sec.  825.310  Certification for leave taken to care for a covered 
servicemember (military caregiver leave).

    (a) Required information from health care provider. When leave is 
taken to care for a covered servicemember with a serious injury or 
illness, an employer may require an employee to obtain a certification 
completed by an authorized health care provider of the covered 
servicemember. For purposes of leave taken to care for a covered 
servicemember, any one of the following health care providers may 
complete such a certification:
    (1) A United States Department of Defense (``DOD'') health care 
provider;
    (2) A United States Department of Veterans Affairs (``VA'') health 
care provider;
    (3) A DOD TRICARE network authorized private health care provider;
    (4) A DOD non-network TRICARE authorized private health care 
provider; or
    (5) Any health care provider as defined in Sec.  825.125.
    (b) If the authorized health care provider is unable to make 
certain military-related determinations outlined below, the authorized 
health care provider may rely on determinations from an authorized DOD 
representative (such as a DOD Recovery Care Coordinator) or an 
authorized VA representative. An employer may request that the health 
care provider provide the following information:
    (1) The name, address, and appropriate contact information 
(telephone number, fax number, and/or email address) of the health care 
provider, the type of medical practice, the medical specialty, and 
whether the health care provider is one of the following:
    (i) A DOD health care provider;
    (ii) A VA health care provider;
    (iii) A DOD TRICARE network authorized private health care 
provider;
    (iv) A DOD non-network TRICARE authorized private health care 
provider; or
    (v) A health care provider as defined in Sec.  825.125.
    (2) Whether the covered servicemember's injury or illness was 
incurred in the line of duty on active duty or, if not, whether the 
covered servicemember's injury or illness existed before the beginning 
of the servicemember's active duty and was aggravated by service in the 
line of duty on active duty;
    (3) The approximate date on which the serious injury or illness 
commenced, or was aggravated, and its probable duration;
    (4) A statement or description of appropriate medical facts 
regarding the covered servicemember's health condition for which FMLA 
leave is requested. The medical facts must be sufficient to support the 
need for leave.
    (i) In the case of a current member of the Armed Forces, such 
medical facts

[[Page 8939]]

must include information on whether the injury or illness may render 
the covered servicemember medically unfit to perform the duties of the 
servicemember's office, grade, rank, or rating and whether the member 
is receiving medical treatment, recuperation, or therapy.
    (ii) In the case of a covered veteran, such medical facts must 
include:
    (A) Information on whether the veteran is receiving medical 
treatment, recuperation, or therapy for an injury or illness that is 
the continuation of an injury or illness that was incurred or 
aggravated when the covered veteran was a member of the Armed Forces 
and rendered the servicemember medically unfit to perform the duties of 
the servicemember's office, grade, rank, or rating; or
    (B) Information on whether the veteran is receiving medical 
treatment, recuperation, or therapy for an injury or illness that is a 
physical or mental condition for which the covered veteran has received 
a U.S. Department of Veterans Affairs Service-Related Disability Rating 
(VASRD) of 50 percent or greater, and that such VASRD rating is based, 
in whole or in part, on the condition precipitating the need for 
military caregiver leave; or
    (C) Information on whether the veteran is receiving medical 
treatment, recuperation, or therapy for an injury or illness that is a 
physical or mental condition that substantially impairs the covered 
veteran's ability to secure or follow a substantially gainful 
occupation by reason of a disability or disabilities related to 
military service, or would do so absent treatment; or
    (D) Documentation of enrollment in the Department of Veterans 
Affairs Program of Comprehensive Assistance for Family Caregivers.
    (5) Information sufficient to establish that the covered 
servicemember is in need of care, as described in Sec.  825.124, and 
whether the covered servicemember will need care for a single 
continuous period of time, including any time for treatment and 
recovery, and an estimate as to the beginning and ending dates for this 
period of time;
    (6) If an employee requests leave on an intermittent or reduced 
schedule basis for planned medical treatment appointments for the 
covered servicemember, whether there is a medical necessity for the 
covered servicemember to have such periodic care and an estimate of the 
treatment schedule of such appointments;
    (7) If an employee requests leave on an intermittent or reduced 
schedule basis to care for a covered servicemember other than for 
planned medical treatment (e.g., episodic flare-ups of a medical 
condition), whether there is a medical necessity for the covered 
servicemember to have such periodic care, which can include assisting 
in the covered servicemember's recovery, and an estimate of the 
frequency and duration of the periodic care.
    (c) Required information from employee and/or covered 
servicemember. In addition to the information that may be requested 
under Sec.  825.310(b), an employer may also request that such 
certification set forth the following information provided by an 
employee and/or covered servicemember:
    (1) The name and address of the employer of the employee requesting 
leave to care for a covered servicemember, the name of the employee 
requesting such leave, and the name of the covered servicemember for 
whom the employee is requesting leave to care;
    (2) The relationship of the employee to the covered servicemember 
for whom the employee is requesting leave to care;
    (3) Whether the covered servicemember is a current member of the 
Armed Forces, the National Guard or Reserves, and the covered 
servicemember's military branch, rank, and current unit assignment;
    (4) Whether the covered servicemember is assigned to a military 
medical facility as an outpatient or to a unit established for the 
purpose of providing command and control of members of the Armed Forces 
receiving medical care as outpatients (such as a medical hold or 
warrior transition unit), and the name of the medical treatment 
facility or unit;
    (5) Whether the covered servicemember is on the temporary 
disability retired list;
    (6) Whether the covered servicemember is a veteran, the date of 
separation from military service, and whether the separation was other 
than dishonorable. The employer may require the employee to provide 
documentation issued by the military which indicates that the covered 
servicemember is a veteran, the date of separation, and that the 
separation is other than dishonorable. Where an employer requires such 
documentation, an employee may provide a copy of the veteran's 
Certificate of Release or Discharge from Active Duty issued by the U.S. 
Department of Defense (DD Form 214) or other proof of veteran status. 
See Sec.  825.127(c)(2).
    (7) A description of the care to be provided to the covered 
servicemember and an estimate of the leave needed to provide the care.
    (d) DOL has developed optional forms (WH-385, WH-385-V) for 
employees' use in obtaining certification that meets FMLA's 
certification requirements, which may be obtained from local offices of 
the Wage and Hour Division or on the Internet at www.dol.gov/whd. These 
optional forms reflect certification requirements so as to permit the 
employee to furnish appropriate information to support his or her 
request for leave to care for a covered servicemember with a serious 
injury or illness. WH-385, WH-385-V, or another form containing the 
same basic information, may be used by the employer; however, no 
information may be required beyond that specified in this section. In 
all instances the information on the certification must relate only to 
the serious injury or illness for which the current need for leave 
exists. An employer may seek authentication and/or clarification of the 
certification under Sec.  825.307. Second and third opinions under 
Sec.  825.307 are not permitted for leave to care for a covered 
servicemember when the certification has been completed by one of the 
types of health care providers identified in Sec.  825.310(a)(1)-(4). 
However, second and third opinions under Sec.  825.307 are permitted 
when the certification has been completed by a health care provider as 
defined in Sec.  825.125 that is not one of the types identified in 
Sec.  825.310(a)(1)-(4). Additionally, recertifications under Sec.  
825.308 are not permitted for leave to care for a covered 
servicemember. An employer may require an employee to provide 
confirmation of covered family relationship to the seriously injured or 
ill servicemember pursuant to Sec.  825.122(k) of the FMLA.
    (e) An employer requiring an employee to submit a certification for 
leave to care for a covered servicemember must accept as sufficient 
certification, in lieu of the Department's optional certification forms 
(WH-385) or an employer's own certification form, invitational travel 
orders (ITOs) or invitational travel authorizations (ITAs) issued to 
any family member to join an injured or ill servicemember at his or her 
bedside. An ITO or ITA is sufficient certification for the duration of 
time specified in the ITO or ITA. During that time period, an eligible 
employee may take leave to care for the covered servicemember in a 
continuous block of time or on an intermittent basis. An eligible 
employee who provides an ITO or ITA to support his or her request for 
leave may not be required to provide any additional or separate 
certification

[[Page 8940]]

that leave taken on an intermittent basis during the period of time 
specified in the ITO or ITA is medically necessary. An ITO or ITA is 
sufficient certification for an employee entitled to take FMLA leave to 
care for a covered servicemember regardless of whether the employee is 
named in the order or authorization.
    (1) If an employee will need leave to care for a covered 
servicemember beyond the expiration date specified in an ITO or ITA, an 
employer may request that the employee have one of the authorized 
health care providers listed under Sec.  825.310(a) complete the DOL 
optional certification form (WH-385) or an employer's own form, as 
requisite certification for the remainder of the employee's necessary 
leave period.
    (2) An employer may seek authentication and clarification of the 
ITO or ITA under Sec.  825.307. An employer may not utilize the second 
or third opinion process outlined in Sec.  825.307 or the 
recertification process under Sec.  825.308 during the period of time 
in which leave is supported by an ITO or ITA.
    (3) An employer may require an employee to provide confirmation of 
covered family relationship to the seriously injured or ill 
servicemember pursuant to Sec.  825.122(k) when an employee supports 
his or her request for FMLA leave with a copy of an ITO or ITA.
    (f) An employer requiring an employee to submit a certification for 
leave to care for a covered servicemember must accept as sufficient 
certification of the servicemember's serious injury or illness 
documentation indicating the servicemember's enrollment in the 
Department of Veterans Affairs Program of Comprehensive Assistance for 
Family Caregivers. Such documentation is sufficient certification of 
the servicemember's serious injury or illness to support the employee's 
request for military caregiver leave regardless of whether the employee 
is the named caregiver in the enrollment documentation.
    (1) An employer may seek authentication and clarification of the 
documentation indicating the servicemember's enrollment in the 
Department of Veterans Affairs Program of Comprehensive Assistance for 
Family Caregivers under Sec.  825.307. An employer may not utilize the 
second or third opinion process outlined in Sec.  825.307 or the 
recertification process under Sec.  825.308 when the servicemember's 
serious injury or illness is shown by documentation of enrollment in 
this program.
    (2) An employer may require an employee to provide confirmation of 
covered family relationship to the seriously injured or ill 
servicemember pursuant to Sec.  825.122(k) when an employee supports 
his or her request for FMLA leave with a copy of such enrollment 
documentation. An employer may also require an employee to provide 
documentation, such as a veteran's Form DD-214, showing that the 
discharge was other than dishonorable and the date of the veteran's 
discharge.
    (g) Where medical certification is requested by an employer, an 
employee may not be held liable for administrative delays in the 
issuance of military documents, despite the employee's diligent, good-
faith efforts to obtain such documents. See Sec.  825.305(b). In all 
instances in which certification is requested, it is the employee's 
responsibility to provide the employer with complete and sufficient 
certification and failure to do so may result in the denial of FMLA 
leave. See Sec.  825.305(d).


Sec.  825.311  Intent to return to work.

    (a) An employer may require an employee on FMLA leave to report 
periodically on the employee's status and intent to return to work. The 
employer's policy regarding such reports may not be discriminatory and 
must take into account all of the relevant facts and circumstances 
related to the individual employee's leave situation.
    (b) If an employee gives unequivocal notice of intent not to return 
to work, the employer's obligations under FMLA to maintain health 
benefits (subject to COBRA requirements) and to restore the employee 
cease. However, these obligations continue if an employee indicates he 
or she may be unable to return to work but expresses a continuing 
desire to do so.
    (c) It may be necessary for an employee to take more leave than 
originally anticipated. Conversely, an employee may discover after 
beginning leave that the circumstances have changed and the amount of 
leave originally anticipated is no longer necessary. An employee may 
not be required to take more FMLA leave than necessary to resolve the 
circumstance that precipitated the need for leave. In both of these 
situations, the employer may require that the employee provide the 
employer reasonable notice (i.e., within two business days) of the 
changed circumstances where foreseeable. The employer may also obtain 
information on such changed circumstances through requested status 
reports.


Sec.  825.312  Fitness-for-duty certification.

    (a) As a condition of restoring an employee whose FMLA leave was 
occasioned by the employee's own serious health condition that made the 
employee unable to perform the employee's job, an employer may have a 
uniformly-applied policy or practice that requires all similarly-
situated employees (i.e., same occupation, same serious health 
condition) who take leave for such conditions to obtain and present 
certification from the employee's health care provider that the 
employee is able to resume work. The employee has the same obligations 
to participate and cooperate (including providing a complete and 
sufficient certification or providing sufficient authorization to the 
health care provider to provide the information directly to the 
employer) in the fitness-for-duty certification process as in the 
initial certification process. See Sec.  825.305(d).
    (b) An employer may seek a fitness-for-duty certification only with 
regard to the particular health condition that caused the employee's 
need for FMLA leave. The certification from the employee's health care 
provider must certify that the employee is able to resume work. 
Additionally, an employer may require that the certification 
specifically address the employee's ability to perform the essential 
functions of the employee's job. In order to require such a 
certification, an employer must provide an employee with a list of the 
essential functions of the employee's job no later than with the 
designation notice required by Sec.  825.300(d), and must indicate in 
the designation notice that the certification must address the 
employee's ability to perform those essential functions. If the 
employer satisfies these requirements, the employee's health care 
provider must certify that the employee can perform the identified 
essential functions of his or her job. Following the procedures set 
forth in Sec.  825.307(a), the employer may contact the employee's 
health care provider for purposes of clarifying and authenticating the 
fitness-for-duty certification. Clarification may be requested only for 
the serious health condition for which FMLA leave was taken. The 
employer may not delay the employee's return to work while contact with 
the health care provider is being made. No second or third opinions on 
a fitness-for-duty certification may be required.
    (c) The cost of the certification shall be borne by the employee, 
and the employee is not entitled to be paid for

[[Page 8941]]

the time or travel costs spent in acquiring the certification.
    (d) The designation notice required in Sec.  825.300(d) shall 
advise the employee if the employer will require a fitness-for-duty 
certification to return to work and whether that fitness-for-duty 
certification must address the employee's ability to perform the 
essential functions of the employee's job.
    (e) An employer may delay restoration to employment until an 
employee submits a required fitness-for-duty certification unless the 
employer has failed to provide the notice required in paragraph (d) of 
this section. If an employer provides the notice required, an employee 
who does not provide a fitness-for-duty certification or request 
additional FMLA leave is no longer entitled to reinstatement under the 
FMLA. See Sec.  825.313(d).
    (f) An employer is not entitled to a certification of fitness to 
return to duty for each absence taken on an intermittent or reduced 
leave schedule. However, an employer is entitled to a certification of 
fitness to return to duty for such absences up to once every 30 days if 
reasonable safety concerns exist regarding the employee's ability to 
perform his or her duties, based on the serious health condition for 
which the employee took such leave. If an employer chooses to require a 
fitness-for-duty certification under such circumstances, the employer 
shall inform the employee at the same time it issues the designation 
notice that for each subsequent instance of intermittent or reduced 
schedule leave, the employee will be required to submit a fitness-for-
duty certification unless one has already been submitted within the 
past 30 days. Alternatively, an employer can set a different interval 
for requiring a fitness-for-duty certification as long as it does not 
exceed once every 30 days and as long as the employer advises the 
employee of the requirement in advance of the employee taking the 
intermittent or reduced schedule leave. The employer may not terminate 
the employment of the employee while awaiting such a certification of 
fitness to return to duty for an intermittent or reduced schedule leave 
absence. Reasonable safety concerns means a reasonable belief of 
significant risk of harm to the individual employee or others. In 
determining whether reasonable safety concerns exist, an employer 
should consider the nature and severity of the potential harm and the 
likelihood that potential harm will occur.
    (g) If State or local law or the terms of a collective bargaining 
agreement govern an employee's return to work, those provisions shall 
be applied.
    (h) Requirements under the Americans with Disabilities Act (ADA), 
as amended, apply. After an employee returns from FMLA leave, the ADA 
requires any medical examination at an employer's expense by the 
employer's health care provider be job-related and consistent with 
business necessity. For example, an attorney could not be required to 
submit to a medical examination or inquiry just because her leg had 
been amputated. The essential functions of an attorney's job do not 
require use of both legs; therefore such an inquiry would not be job 
related. An employer may require a warehouse laborer, whose back 
impairment affects the ability to lift, to be examined by an 
orthopedist, but may not require this employee to submit to an HIV test 
where the test is not related to either the essential functions of his 
or her job or to his/her impairment. If an employee's serious health 
condition may also be a disability within the meaning of the ADA, the 
FMLA does not prevent the employer from following the procedures for 
requesting medical information under the ADA.


Sec.  825.313  Failure to provide certification.

    (a) Foreseeable leave. In the case of foreseeable leave, if an 
employee fails to provide certification in a timely manner as required 
by Sec.  825.305, then an employer may deny FMLA coverage until the 
required certification is provided. For example, if an employee has 15 
days to provide a certification and does not provide the certification 
for 45 days without sufficient reason for the delay, the employer can 
deny FMLA protections for the 30-day period following the expiration of 
the 15-day time period, if the employee takes leave during such period.
    (b) Unforeseeable leave. In the case of unforeseeable leave, an 
employer may deny FMLA coverage for the requested leave if the employee 
fails to provide a certification within 15 calendar days from receipt 
of the request for certification unless not practicable due to 
extenuating circumstances. For example, in the case of a medical 
emergency, it may not be practicable for an employee to provide the 
required certification within 15 calendar days. Absent such extenuating 
circumstances, if the employee fails to timely return the 
certification, the employer can deny FMLA protections for the leave 
following the expiration of the 15-day time period until a sufficient 
certification is provided. If the employee never produces the 
certification, the leave is not FMLA leave.
    (c) Recertification. An employee must provide recertification 
within the time requested by the employer (which must allow at least 15 
calendar days after the request) or as soon as practicable under the 
particular facts and circumstances. If an employee fails to provide a 
recertification within a reasonable time under the particular facts and 
circumstances, then the employer may deny continuation of the FMLA 
leave protections until the employee produces a sufficient 
recertification. If the employee never produces the recertification, 
the leave is not FMLA leave. Recertification does not apply to leave 
taken for a qualifying exigency or to care for a covered servicemember.
    (d) Fitness-for-duty certification. When requested by the employer 
pursuant to a uniformly applied policy for similarly-situated 
employees, the employee must provide medical certification, at the time 
the employee seeks reinstatement at the end of FMLA leave taken for the 
employee's serious health condition, that the employee is fit for duty 
and able to return to work (see Sec.  825.312(a)) if the employer has 
provided the required notice (see Sec.  825.300(e)); the employer may 
delay restoration until the certification is provided. Unless the 
employee provides either a fitness-for-duty certification or a new 
medical certification for a serious health condition at the time FMLA 
leave is concluded, the employee may be terminated. See also Sec.  
825.213(a)(3).

Subpart D--Enforcement Mechanisms


Sec.  825.400  Enforcement, general rules.

    (a) The employee has the choice of:
    (1) Filing, or having another person file on his or her behalf, a 
complaint with the Secretary of Labor, or
    (2) Filing a private lawsuit pursuant to section 107 of FMLA.
    (b) If the employee files a private lawsuit, it must be filed 
within two years after the last action which the employee contends was 
in violation of the Act, or three years if the violation was willful.
    (c) If an employer has violated one or more provisions of FMLA, and 
if justified by the facts of a particular case, an employee may receive 
one or more of the following: wages, employment benefits, or other 
compensation denied or lost to such employee by reason of the 
violation; or, where no such tangible loss has occurred, such as when 
FMLA leave was unlawfully denied, any actual monetary loss sustained by 
the employee as a direct result of the violation, such as the cost of 
providing

[[Page 8942]]

care, up to a sum equal to 26 weeks of wages for the employee in a case 
involving leave to care for a covered servicemember or 12 weeks of 
wages for the employee in a case involving leave for any other FMLA 
qualifying reason. In addition, the employee may be entitled to 
interest on such sum, calculated at the prevailing rate. An amount 
equaling the preceding sums may also be awarded as liquidated damages 
unless such amount is reduced by the court because the violation was in 
good faith and the employer had reasonable grounds for believing the 
employer had not violated the Act. When appropriate, the employee may 
also obtain appropriate equitable relief, such as employment, 
reinstatement and promotion. When the employer is found in violation, 
the employee may recover a reasonable attorney's fee, reasonable expert 
witness fees, and other costs of the action from the employer in 
addition to any judgment awarded by the court.


Sec.  825.401  Filing a complaint with the Federal Government.

    (a) A complaint may be filed in person, by mail or by telephone, 
with the Wage and Hour Division, Employment Standards Administration, 
U.S. Department of Labor. A complaint may be filed at any local office 
of the Wage and Hour Division; the address and telephone number of 
local offices may be found in telephone directories or on the 
Department's Web site.
    (b) A complaint filed with the Secretary of Labor should be filed 
within a reasonable time of when the employee discovers that his or her 
FMLA rights have been violated. In no event may a complaint be filed 
more than two years after the action which is alleged to be a violation 
of FMLA occurred, or three years in the case of a willful violation.
    (c) No particular form of complaint is required, except that a 
complaint must be reduced to writing and should include a full 
statement of the acts and/or omissions, with pertinent dates, which are 
believed to constitute the violation.


Sec.  825.402  Violations of the posting requirement.

    Section 825.300 describes the requirements for covered employers to 
post a notice for employees that explains the Act's provisions. If a 
representative of the Department of Labor determines that an employer 
has committed a willful violation of this posting requirement, and that 
the imposition of a civil money penalty for such violation is 
appropriate, the representative may issue and serve a notice of penalty 
on such employer in person or by certified mail. Where service by 
certified mail is not accepted, notice shall be deemed received on the 
date of attempted delivery. Where service is not accepted, the notice 
may be served by regular mail.


Sec.  825.403  Appealing the assessment of a penalty for willful 
violation of the posting requirement.

    (a) An employer may obtain a review of the assessment of penalty 
from the Wage and Hour Regional Administrator for the region in which 
the alleged violation(s) occurred. If the employer does not seek such a 
review or fails to do so in a timely manner, the notice of the penalty 
constitutes the final ruling of the Secretary of Labor.
    (b) To obtain review, an employer may file a petition with the Wage 
and Hour Regional Administrator for the region in which the alleged 
violations occurred. No particular form of petition for review is 
required, except that the petition must be in writing, should contain 
the legal and factual bases for the petition, and must be mailed to the 
Regional Administrator within 15 days of receipt of the notice of 
penalty. The employer may request an oral hearing which may be 
conducted by telephone.
    (c) The decision of the Regional Administrator constitutes the 
final order of the Secretary.


Sec.  825.404  Consequences for an employer when not paying the penalty 
assessment after a final order is issued.

    The Regional Administrator may seek to recover the unpaid penalty 
pursuant to the Debt Collection Act (DCA), 31 U.S.C. 3711 et seq., and, 
in addition to seeking recovery of the unpaid final order, may seek 
interest and penalties as provided under the DCA. The final order may 
also be referred to the Solicitor of Labor for collection. The 
Secretary may file suit in any court of competent jurisdiction to 
recover the monies due as a result of the unpaid final order, interest, 
and penalties.

Subpart E--Recordkeeping Requirements


Sec.  825.500  Recordkeeping requirements.

    (a) FMLA provides that covered employers shall make, keep, and 
preserve records pertaining to their obligations under the Act in 
accordance with the recordkeeping requirements of section 11(c) of the 
Fair Labor Standards Act (FLSA) and in accordance with these 
regulations. FMLA also restricts the authority of the Department of 
Labor to require any employer or plan, fund, or program to submit books 
or records more than once during any 12-month period unless the 
Department has reasonable cause to believe a violation of FMLA exists 
or the Department is investigating a complaint. These regulations 
establish no requirement for the submission of any records unless 
specifically requested by a Departmental official.
    (b) No particular order or form of records is required. These 
regulations establish no requirement that any employer revise its 
computerized payroll or personnel records systems to comply. However, 
employers must keep the records specified by these regulations for no 
less than three years and make them available for inspection, copying, 
and transcription by representatives of the Department of Labor upon 
request. The records may be maintained and preserved on microfilm or 
other basic source document of an automated data processing memory 
provided that adequate projection or viewing equipment is available, 
that the reproductions are clear and identifiable by date or pay 
period, and that extensions or transcriptions of the information 
required herein can be and are made available upon request. Records 
kept in computer form must be made available for transcription or 
copying.
    (c) Covered employers who have eligible employees must maintain 
records that must disclose the following:
    (1) Basic payroll and identifying employee data, including name, 
address, and occupation; rate or basis of pay and terms of 
compensation; daily and weekly hours worked per pay period; additions 
to or deductions from wages; and total compensation paid.
    (2) Dates FMLA leave is taken by FMLA eligible employees (e.g., 
available from time records, requests for leave, etc., if so 
designated). Leave must be designated in records as FMLA leave; leave 
so designated may not include leave required under State law or an 
employer plan which is not also covered by FMLA.
    (3) If FMLA leave is taken by eligible employees in increments of 
less than one full day, the hours of the leave.
    (4) Copies of employee notices of leave furnished to the employer 
under FMLA, if in writing, and copies of all written notices given to 
employees as required under FMLA and these regulations See Sec.  
825.300(b)-(c). Copies may be maintained in employee personnel files.
    (5) Any documents (including written and electronic records) 
describing employee benefits or employer policies and practices 
regarding the taking of paid and unpaid leaves.

[[Page 8943]]

    (6) Premium payments of employee benefits.
    (7) Records of any dispute between the employer and an eligible 
employee regarding designation of leave as FMLA leave, including any 
written statement from the employer or employee of the reasons for the 
designation and for the disagreement.
    (d) Covered employers with no eligible employees must maintain the 
records set forth in paragraph (c)(1) of this section.
    (e) Covered employers in a joint employment situation (see Sec.  
825.106) must keep all the records required by paragraph (c) of this 
section with respect to any primary employees, and must keep the 
records required by paragraph (c)(1) with respect to any secondary 
employees.
    (f) If FMLA-eligible employees are not subject to FLSA's 
recordkeeping regulations for purposes of minimum wage or overtime 
compliance (i.e., not covered by or exempt from FLSA), an employer need 
not keep a record of actual hours worked (as otherwise required under 
FLSA, 29 CFR 516.2(a)(7)), provided that:
    (1) Eligibility for FMLA leave is presumed for any employee who has 
been employed for at least 12 months; and
    (2) With respect to employees who take FMLA leave intermittently or 
on a reduced leave schedule, the employer and employee agree on the 
employee's normal schedule or average hours worked each week and reduce 
their agreement to a written record maintained in accordance with 
paragraph (b) of this section.
    (g) Records and documents relating to certifications, 
recertifications or medical histories of employees or employees' family 
members, created for purposes of FMLA, shall be maintained as 
confidential medical records in separate files/records from the usual 
personnel files. If the Genetic Information Nondiscrimination Act of 
2008 (GINA) is applicable, records and documents created for purposes 
of FMLA containing family medical history or genetic information as 
defined in GINA shall be maintained in accordance with the 
confidentiality requirements of Title II of GINA (see 29 CFR 1635.9), 
which permit such information to be disclosed consistent with the 
requirements of FMLA. If the ADA, as amended, is also applicable, such 
records shall be maintained in conformance with ADA confidentiality 
requirements (see 29 CFR 1630.14(c)(1)), except that:
    (1) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of an employee and necessary 
accommodations;
    (2) First aid and safety personnel may be informed (when 
appropriate) if the employee's physical or medical condition might 
require emergency treatment; and
    (3) Government officials investigating compliance with FMLA (or 
other pertinent law) shall be provided relevant information upon 
request.
    (h) Special rules regarding recordkeeping apply to employers of 
airline flight crew employees. See Sec.  825.803.

Subpart F--Special Rules Applicable to Employees of Schools


Sec.  825.600  Special rules for school employees, definitions.

    (a) Certain special rules apply to employees of local educational 
agencies, including public school boards and elementary and secondary 
schools under their jurisdiction, and private elementary and secondary 
schools. The special rules do not apply to other kinds of educational 
institutions, such as colleges and universities, trade schools, and 
preschools.
    (b) Educational institutions are covered by FMLA (and these special 
rules) and the Act's 50-employee coverage test does not apply. The 
usual requirements for employees to be eligible do apply, however, 
including employment at a worksite where at least 50 employees are 
employed within 75 miles. For example, employees of a rural school 
would not be eligible for FMLA leave if the school has fewer than 50 
employees and there are no other schools under the jurisdiction of the 
same employer (usually, a school board) within 75 miles.
    (c) The special rules affect the taking of intermittent leave or 
leave on a reduced leave schedule, or leave near the end of an academic 
term (semester), by instructional employees. Instructional employees 
are those whose principal function is to teach and instruct students in 
a class, a small group, or an individual setting. This term includes 
not only teachers, but also athletic coaches, driving instructors, and 
special education assistants such as signers for the hearing impaired. 
It does not include, and the special rules do not apply to, teacher 
assistants or aides who do not have as their principal job actual 
teaching or instructing, nor does it include auxiliary personnel such 
as counselors, psychologists, or curriculum specialists. It also does 
not include cafeteria workers, maintenance workers, or bus drivers.
    (d) Special rules which apply to restoration to an equivalent 
position apply to all employees of local educational agencies.


Sec.  825.601  Special rules for school employees, limitations on 
intermittent leave.

    (a) Leave taken for a period that ends with the school year and 
begins the next semester is leave taken consecutively rather than 
intermittently. The period during the summer vacation when the employee 
would not have been required to report for duty is not counted against 
the employee's FMLA leave entitlement. An instructional employee who is 
on FMLA leave at the end of the school year must be provided with any 
benefits over the summer vacation that employees would normally receive 
if they had been working at the end of the school year.
    (1) If an eligible instructional employee needs intermittent leave 
or leave on a reduced leave schedule to care for a family member with a 
serious health condition, to care for a covered servicemember, or for 
the employee's own serious health condition, which is foreseeable based 
on planned medical treatment, and the employee would be on leave for 
more than 20 percent of the total number of working days over the 
period the leave would extend, the employer may require the employee to 
choose either to:
    (i) Take leave for a period or periods of a particular duration, 
not greater than the duration of the planned treatment; or
    (ii) Transfer temporarily to an available alternative position for 
which the employee is qualified, which has equivalent pay and benefits 
and which better accommodates recurring periods of leave than does the 
employee's regular position.
    (2) These rules apply only to a leave involving more than 20 
percent of the working days during the period over which the leave 
extends. For example, if an instructional employee who normally works 
five days each week needs to take two days of FMLA leave per week over 
a period of several weeks, the special rules would apply. Employees 
taking leave which constitutes 20 percent or less of the working days 
during the leave period would not be subject to transfer to an 
alternative position. Periods of a particular duration means a block, 
or blocks, of time beginning no earlier than the first day for which 
leave is needed and ending no later than the last day on which leave is 
needed, and may include one uninterrupted period of leave.

[[Page 8944]]

    (b) If an instructional employee does not give required notice of 
foreseeable FMLA leave (see Sec.  825.302) to be taken intermittently 
or on a reduced leave schedule, the employer may require the employee 
to take leave of a particular duration, or to transfer temporarily to 
an alternative position. Alternatively, the employer may require the 
employee to delay the taking of leave until the notice provision is 
met.


Sec.  825.602  Special rules for school employees, limitations on leave 
near the end of an academic term.

    (a) There are also different rules for instructional employees who 
begin leave more than five weeks before the end of a term, less than 
five weeks before the end of a term, and less than three weeks before 
the end of a term. Regular rules apply except in circumstances when:
    (1) An instructional employee begins leave more than five weeks 
before the end of a term. The employer may require the employee to 
continue taking leave until the end of the term if --
    (i) The leave will last at least three weeks, and
    (ii) The employee would return to work during the three-week period 
before the end of the term.
    (2) The employee begins leave during the five-week period before 
the end of a term because of the birth of a son or daughter; the 
placement of a son or daughter for adoption or foster care; to care for 
a spouse, son, daughter, or parent with a serious health condition; or 
to care for a covered servicemember. The employer may require the 
employee to continue taking leave until the end of the term if--
    (i) The leave will last more than two weeks, and
    (ii) The employee would return to work during the two-week period 
before the end of the term.
    (3) The employee begins leave during the three-week period before 
the end of a term because of the birth of a son or daughter; the 
placement of a son or daughter for adoption or foster care; to care for 
a spouse, son, daughter, or parent with a serious health condition; or 
to care for a covered servicemember. The employer may require the 
employee to continue taking leave until the end of the term if the 
leave will last more than five working days.
    (b) For purposes of these provisions, academic term means the 
school semester, which typically ends near the end of the calendar year 
and the end of spring each school year. In no case may a school have 
more than two academic terms or semesters each year for purposes of 
FMLA. An example of leave falling within these provisions would be 
where an employee plans two weeks of leave to care for a family member 
which will begin three weeks before the end of the term. In that 
situation, the employer could require the employee to stay out on leave 
until the end of the term.


Sec.  825.603  Special rules for school employees, duration of FMLA 
leave.

    (a) If an employee chooses to take leave for periods of a 
particular duration in the case of intermittent or reduced schedule 
leave, the entire period of leave taken will count as FMLA leave.
    (b) In the case of an employee who is required to take leave until 
the end of an academic term, only the period of leave until the 
employee is ready and able to return to work shall be charged against 
the employee's FMLA leave entitlement. The employer has the option not 
to require the employee to stay on leave until the end of the school 
term. Therefore, any additional leave required by the employer to the 
end of the school term is not counted as FMLA leave; however, the 
employer shall be required to maintain the employee's group health 
insurance and restore the employee to the same or equivalent job 
including other benefits at the conclusion of the leave.


Sec.  825.604  Special rules for school employees, restoration to an 
equivalent position.

    The determination of how an employee is to be restored to an 
equivalent position upon return from FMLA leave will be made on the 
basis of ``established school board policies and practices, private 
school policies and practices, and collective bargaining agreements.'' 
The ``established policies'' and collective bargaining agreements used 
as a basis for restoration must be in writing, must be made known to 
the employee prior to the taking of FMLA leave, and must clearly 
explain the employee's restoration rights upon return from leave. Any 
established policy which is used as the basis for restoration of an 
employee to an equivalent position must provide substantially the same 
protections as provided in the Act for reinstated employees. See Sec.  
825.215. In other words, the policy or collective bargaining agreement 
must provide for restoration to an equivalent position with equivalent 
employment benefits, pay, and other terms and conditions of employment. 
For example, an employee may not be restored to a position requiring 
additional licensure or certification.

Subpart G--Effect of Other Laws, Employer Practices, and Collective 
Bargaining Agreements on Employee Rights Under FMLA


Sec.  825.700  Interaction with employer's policies.

    (a) An employer must observe any employment benefit program or plan 
that provides greater family or medical leave rights to employees than 
the rights established by the FMLA. Conversely, the rights established 
by the Act may not be diminished by any employment benefit program or 
plan. For example, a provision of a CBA which provides for 
reinstatement to a position that is not equivalent because of seniority 
(e.g., provides lesser pay) is superseded by FMLA. If an employer 
provides greater unpaid family leave rights than are afforded by FMLA, 
the employer is not required to extend additional rights afforded by 
FMLA, such as maintenance of health benefits (other than through 
COBRA), to the additional leave period not covered by FMLA.
    (b) Nothing in this Act prevents an employer from amending existing 
leave and employee benefit programs, provided they comply with FMLA. 
However, nothing in the Act is intended to discourage employers from 
adopting or retaining more generous leave policies.


Sec.  825.701  Interaction with State laws.

    (a) Nothing in FMLA supersedes any provision of State or local law 
that provides greater family or medical leave rights than those 
provided by FMLA. The Department of Labor will not, however, enforce 
State family or medical leave laws, and States may not enforce the 
FMLA. Employees are not required to designate whether the leave they 
are taking is FMLA leave or leave under State law, and an employer must 
comply with the appropriate (applicable) provisions of both. An 
employer covered by one law and not the other has to comply only with 
the law under which it is covered. Similarly, an employee eligible 
under only one law must receive benefits in accordance with that law. 
If leave qualifies for FMLA leave and leave under State law, the leave 
used counts against the employee's entitlement under both laws. 
Examples of the interaction between FMLA and State laws include:
    (1) If State law provides 16 weeks of leave entitlement over two 
years, an employee needing leave due to his or her own serious health 
condition would be entitled to take 16 weeks one year under State law 
and 12 weeks the next year under FMLA. Health benefits

[[Page 8945]]

maintenance under FMLA would be applicable only to the first 12 weeks 
of leave entitlement each year. If the employee took 12 weeks the first 
year, the employee would be entitled to a maximum of 12 weeks the 
second year under FMLA (not 16 weeks). An employee would not be 
entitled to 28 weeks in one year.
    (2) If State law provides half-pay for employees temporarily 
disabled because of pregnancy for six weeks, the employee would be 
entitled to an additional six weeks of unpaid FMLA leave (or accrued 
paid leave).
    (3) If State law provides six weeks of leave, which may include 
leave to care for a seriously-ill grandparent or a ``spouse 
equivalent,'' and leave was used for that purpose, the employee is 
still entitled to his or her full FMLA leave entitlement, as the leave 
used was provided for a purpose not covered by FMLA. If FMLA leave is 
used first for a purpose also provided under State law, and State leave 
has thereby been exhausted, the employer would not be required to 
provide additional leave to care for the grandparent or ``spouse 
equivalent.''
    (4) If State law prohibits mandatory leave beyond the actual period 
of pregnancy disability, an instructional employee of an educational 
agency subject to special FMLA rules may not be required to remain on 
leave until the end of the academic term, as permitted by FMLA under 
certain circumstances. See Subpart F of this part.
    (b) [Reserved]


Sec.  825.702  Interaction with Federal and State anti-discrimination 
laws.

    (a) Nothing in FMLA modifies or affects any Federal or State law 
prohibiting discrimination on the basis of race, religion, color, 
national origin, sex, age, or disability (e.g., Title VII of the Civil 
Rights Act of 1964, as amended by the Pregnancy Discrimination Act). 
FMLA's legislative history explains that FMLA is ``not intended to 
modify or affect the Rehabilitation Act of 1973, as amended, the 
regulations concerning employment which have been promulgated pursuant 
to that statute, or the Americans with Disabilities Act of 1990 [as 
amended] or the regulations issued under that act. Thus, the leave 
provisions of the [FMLA] are wholly distinct from the reasonable 
accommodation obligations of employers covered under the [ADA], 
employers who receive Federal financial assistance, employers who 
contract with the Federal government, or the Federal government itself. 
The purpose of the FMLA is to make leave available to eligible 
employees and employers within its coverage, and not to limit already 
existing rights and protection.'' S. Rep. No. 103-3, at 38 (1993). An 
employer must therefore provide leave under whichever statutory 
provision provides the greater rights to employees. When an employer 
violates both FMLA and a discrimination law, an employee may be able to 
recover under either or both statutes (double relief may not be awarded 
for the same loss; when remedies coincide a claimant may be allowed to 
utilize whichever avenue of relief is desired. Laffey v. Northwest 
Airlines, Inc., 567 F.2d 429, 445 (D.C. Cir. 1976), cert. denied, 434 
U.S. 1086 (1978).
    (b) If an employee is a qualified individual with a disability 
within the meaning of the ADA, the employer must make reasonable 
accommodations, etc., barring undue hardship, in accordance with the 
ADA. At the same time, the employer must afford an employee his or her 
FMLA rights. ADA's ``disability'' and FMLA's ``serious health 
condition'' are different concepts, and must be analyzed separately. 
FMLA entitles eligible employees to 12 weeks of leave in any 12-month 
period due to their own serious health condition, whereas the ADA 
allows an indeterminate amount of leave, barring undue hardship, as a 
reasonable accommodation. FMLA requires employers to maintain 
employees' group health plan coverage during FMLA leave on the same 
conditions as coverage would have been provided if the employee had 
been continuously employed during the leave period, whereas ADA does 
not require maintenance of health insurance unless other employees 
receive health insurance during leave under the same circumstances.
    (c)(1) A reasonable accommodation under the ADA might be 
accomplished by providing an individual with a disability with a part-
time job with no health benefits, assuming the employer did not 
ordinarily provide health insurance for part-time employees. However, 
FMLA would permit an employee to work a reduced leave schedule until 
the equivalent of 12 workweeks of leave were used, with group health 
benefits maintained during this period. FMLA permits an employer to 
temporarily transfer an employee who is taking leave intermittently or 
on a reduced leave schedule for planned medical treatment to an 
alternative position, whereas the ADA allows an accommodation of 
reassignment to an equivalent, vacant position only if the employee 
cannot perform the essential functions of the employee's present 
position and an accommodation is not possible in the employee's present 
position, or an accommodation in the employee's present position would 
cause an undue hardship. The examples in the following paragraphs of 
this section demonstrate how the two laws would interact with respect 
to a qualified individual with a disability.
    (2) A qualified individual with a disability who is also an 
eligible employee entitled to FMLA leave requests 10 weeks of medical 
leave as a reasonable accommodation, which the employer grants because 
it is not an undue hardship. The employer advises the employee that the 
10 weeks of leave is also being designated as FMLA leave and will count 
towards the employee's FMLA leave entitlement. This designation does 
not prevent the parties from also treating the leave as a reasonable 
accommodation and reinstating the employee into the same job, as 
required by the ADA, rather than an equivalent position under FMLA, if 
that is the greater right available to the employee. At the same time, 
the employee would be entitled under FMLA to have the employer maintain 
group health plan coverage during the leave, as that requirement 
provides the greater right to the employee.
    (3) If the same employee needed to work part-time (a reduced leave 
schedule) after returning to his or her same job, the employee would 
still be entitled under FMLA to have group health plan coverage 
maintained for the remainder of the two-week equivalent of FMLA leave 
entitlement, notwithstanding an employer policy that part-time 
employees do not receive health insurance. This employee would be 
entitled under the ADA to reasonable accommodations to enable the 
employee to perform the essential functions of the part-time position. 
In addition, because the employee is working a part-time schedule as a 
reasonable accommodation, the FMLA's provision for temporary assignment 
to a different alternative position would not apply. Once the employee 
has exhausted his or her remaining FMLA leave entitlement while working 
the reduced (part-time) schedule, if the employee is a qualified 
individual with a disability, and if the employee is unable to return 
to the same full-time position at that time, the employee might 
continue to work part-time as a reasonable accommodation, barring undue 
hardship; the employee would then be entitled to only those employment 
benefits ordinarily provided by the employer to part-time employees.
    (4) At the end of the FMLA leave entitlement, an employer is 
required under FMLA to reinstate the employee

[[Page 8946]]

in the same or an equivalent position, with equivalent pay and 
benefits, to that which the employee held when leave commenced. The 
employer's FMLA obligations would be satisfied if the employer offered 
the employee an equivalent full-time position. If the employee were 
unable to perform the essential functions of that equivalent position 
even with reasonable accommodation, because of a disability, the ADA 
may require the employer to make a reasonable accommodation at that 
time by allowing the employee to work part-time or by reassigning the 
employee to a vacant position, barring undue hardship.
    (d)(1) If FMLA entitles an employee to leave, an employer may not, 
in lieu of FMLA leave entitlement, require an employee to take a job 
with a reasonable accommodation. However, ADA may require that an 
employer offer an employee the opportunity to take such a position. An 
employer may not change the essential functions of the job in order to 
deny FMLA leave. See Sec.  825.220(b).
    (2) An employee may be on a workers' compensation absence due to an 
on-the-job injury or illness which also qualifies as a serious health 
condition under FMLA. The workers' compensation absence and FMLA leave 
may run concurrently (subject to proper notice and designation by the 
employer). At some point the health care provider providing medical 
care pursuant to the workers' compensation injury may certify the 
employee is able to return to work in a light duty position. If the 
employer offers such a position, the employee is permitted but not 
required to accept the position. See Sec.  825.220(d). As a result, the 
employee may no longer qualify for payments from the workers' 
compensation benefit plan, but the employee is entitled to continue on 
unpaid FMLA leave either until the employee is able to return to the 
same or equivalent job the employee left or until the 12-week FMLA 
leave entitlement is exhausted. See Sec.  825.207(e). If the employee 
returning from the workers' compensation injury is a qualified 
individual with a disability, he or she will have rights under the ADA.
    (e) If an employer requires certifications of an employee's fitness 
for duty to return to work, as permitted by FMLA under a uniform 
policy, it must comply with the ADA requirement that a fitness for duty 
physical be job-related and consistent with business necessity.
    (f) Under Title VII of the Civil Rights Act of 1964, as amended by 
the Pregnancy Discrimination Act, an employer should provide the same 
benefits for women who are pregnant as the employer provides to other 
employees with short-term disabilities. Because Title VII does not 
require employees to be employed for a certain period of time to be 
protected, an employee employed for less than 12 months by the employer 
(and, therefore, not an eligible employee under FMLA) may not be denied 
maternity leave if the employer normally provides short-term disability 
benefits to employees with the same tenure who are experiencing other 
short-term disabilities.
    (g) Under the Uniformed Services Employment and Reemployment Rights 
Act (USERRA), 38 U.S.C. 4301, et seq., veterans are entitled to receive 
all rights and benefits of employment that they would have obtained if 
they had been continuously employed. Therefore, under USERRA, a 
returning servicemember would be eligible for FMLA leave if the months 
and hours that he or she would have worked (or, for airline flight crew 
employees, would have worked or been paid) for the civilian employer 
during the period of absence due to or necessitated by USERRA-covered 
service, combined with the months employed and the hours actually 
worked (or, for airline flight crew employees, actually worked or 
paid), meet the FMLA eligibility threshold of 12 months of employment 
and the hours of service requirement. See Sec. Sec.  825.110(b)(2)(i) 
and (c)(2) and 825802(c).
    (h) For further information on Federal antidiscrimination laws, 
including Title VII and the ADA, individuals are encouraged to contact 
the nearest office of the U.S. Equal Employment Opportunity Commission.

Subpart H--Special Rules Applicable to Airline Flight Crew 
Employees


Sec.  825.800  Special rules for airline flight crew employees, 
general.

    (a) Certain special rules apply only to airline flight crew 
employees as defined in Sec.  825.102. These special rules affect the 
hours of service requirement for determining the eligibility of airline 
flight crew employees, the calculation of leave for those employees, 
and the recordkeeping requirements for employers of those employees, 
and are issued pursuant to the Airline Flight Crew Technical 
Corrections Act (AFCTCA), Public Law 111-119.
    (b) Except as otherwise provided in this subpart, FMLA leave for 
airline flight crew employees is subject to the requirements of the 
FMLA as set forth in Part 825, Subparts A through E, and G.


Sec.  825.801  Special rules for airline flight crew employees, hours 
of service requirement.

    (a) An airline flight crew employee's eligibility for FMLA leave is 
to be determined in accordance with Sec.  825.110 except that whether 
an airline flight crew employee meets the hours of service requirement 
is to be determined as provided below.
    (b) Except as provided in paragraph (c) of this section, whether an 
airline flight crew employee meets the hours of service requirement is 
determined by assessing the number of hours the employee has worked or 
been paid over the previous 12 months. An airline flight crew employee 
will meet the hours of service requirement during the previous 12-month 
period if he or she has worked or been paid for not less than 60 
percent of the employee's applicable monthly guarantee and has worked 
or been paid for not less than 504 hours.
    (1) The applicable monthly guarantee for an airline flight crew 
employee who is not on reserve status is the minimum number of hours 
for which an employer has agreed to schedule such employee for any 
given month. The applicable monthly guarantee for an airline flight 
crew employee who is on reserve status is the number of hours for which 
an employer has agreed to pay the employee for any given month.
    (2) The hours an airline flight crew employee has worked for 
purposes of the hours of service requirement is the employee's duty 
hours during the previous 12-month period. The hours an airline flight 
crew employee has been paid is the number of hours for which an 
employee received wages during the previous 12-month period. The 504 
hours do not include personal commute time or time spent on vacation, 
medical, or sick leave.
    (c) An airline flight crew employee returning from USERRA-covered 
service shall be credited with the hours of service that would have 
been performed but for the period of absence from work due to or 
necessitated by USERRA-covered service in determining the employee's 
eligibility for FMLA-qualifying leave. Accordingly, an airline flight 
crew employee re-employed following USERRA-covered service has the 
hours that would have been worked for or paid by the employer added to 
any hours actually worked or paid during the previous 12-month period 
to meet the hours of service requirement. In order to determine the 
hours that would have been worked or paid during the period of absence 
from work due to or necessitated by USERRA-covered service, the 
employee's pre-service work

[[Page 8947]]

schedule can generally be used for calculations.
    (d) In the event an employer of airline flight crew employees does 
not maintain an accurate record of hours worked or hours paid, the 
employer has the burden of showing that the employee has not worked or 
been paid for the requisite hours. Specifically, an employer must be 
able to clearly demonstrate that an airline flight crew employee has 
not worked or been paid for 60 percent of his or her applicable monthly 
guarantee or for 504 hours during the previous 12 months in order to 
claim that the airline flight crew employee is not eligible for FMLA 
leave.


Sec.  825.802  Special rules for airline flight crew employees, 
calculation of leave.

    (a) Amount of leave. (1) An eligible airline flight crew employee 
is entitled to 72 days of FMLA leave during any 12-month period for 
one, or more, of the FMLA-qualifying reasons set forth in Sec. Sec.  
825.112(a)(1)-(5). This entitlement is based on a uniform six-day 
workweek for all airline flight crew employees, regardless of time 
actually worked or paid, multiplied by the statutory 12-workweek 
entitlement for FMLA leave. For example, if an employee took six weeks 
of leave for an FMLA-qualifying reason, the employee would use 36 days 
(6 days x 6 weeks) of the employee's 72-day entitlement.
    (2) An eligible airline flight crew employee is entitled to 156 
days of military caregiver leave during a single 12-month period to 
care for a covered servicemember with a serious injury or illness under 
Sec.  825.112(a)(6). This entitlement is based on a uniform six-day 
workweek for all airline flight crew employees, regardless of time 
actually worked or paid, multiplied by the statutory 26-workweek 
entitlement for military caregiver leave.
    (b) Increments of FMLA leave for intermittent or reduced schedule 
leave. When an airline flight crew employee takes FMLA leave on an 
intermittent or reduced schedule basis, the employer must account for 
the leave using an increment no greater than one day. For example, if 
an airline flight crew employee needs to take FMLA leave for a two-hour 
physical therapy appointment, the employer may require the employee to 
use a full day of FMLA leave. The entire amount of leave actually taken 
(in this example, one day) is designated as FMLA leave and counts 
against the employee's FMLA entitlement.
    (c) Application of Sec.  825.205. The rules governing calculation 
of intermittent or reduced schedule FMLA leave set forth in Sec.  
825.205 do not apply to airline flight crew employees except that 
airline flight crew employees are subject to Sec.  825.205(a)(2), the 
physical impossibility provision.


Sec.  825.803  Special rules for airline flight crew employees, 
recordkeeping requirements.

    (a) Employers of eligible airline flight crew employees shall make, 
keep, and preserve records in accordance with the requirements of 
Subpart E of this Part (Sec.  825.500).
    (b) Covered employers of airline flight crew employees are required 
to maintain certain additional records ``on file with the Secretary.'' 
To comply with this requirement, those employers shall maintain:
    (1) Records and documents containing information specifying the 
applicable monthly guarantee with respect to each category of employee 
to whom such guarantee applies, including copies of any relevant 
collective bargaining agreements or employer policy documents; and
    (2) Records of hours worked and hours paid, as those terms are 
defined in Sec.  825.801(b)(2).

[FR Doc. 2013-02383 Filed 2-5-13; 8:45 am]
BILLING CODE 4510-27-P