Federal Register, Volume 72 Issue 124 (Thursday, June 28, 2007)

[Federal Register Volume 72, Number 124 (Thursday, June 28, 2007)]
[Proposed Rules]
[Pages 35550-35638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3102]

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Part II

Department of Labor

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Employment Standards Administration

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Wage and Hour Division

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29 CFR Part 825

Family and Medical Leave Act Regulations: A Report on the Department of
Labor's Request for Information; Proposed Rule

Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 /
Proposed Rules

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DEPARTMENT OF LABOR

Employment Standards Administration

Wage and Hour Division

29 CFR Part 825

RIN 1215-AB35

Family and Medical Leave Act Regulations: A Report on the
Department of Labor's Request for Information

AGENCY: Employment Standards Administration, Wage and Hour Division,
Department of Labor.

ACTION: Report on comments from the public.

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SUMMARY: The Department of Labor's Employment Standards Administration/
Wage and Hour Division undertook a review of the Family and Medical
Leave Act (``FMLA'' or the ``Act'') and its regulations, and published
a Request for Information (``RFI'') in the Federal Register on December
1, 2006 (71 FR 69504). The RFI asked the public to assist the
Department by furnishing information about their experiences with the
Act and comments on the effectiveness of the FMLA regulations. More
than 15,000 comments were submitted in response to the RFI. The
following report summarizes comments the Department received from its
RFI.

ADDRESSES: A complete copy of this report is also available at http://www.dol.gov/esa/whd/fmla2007report.htm. It may also be obtained by
writing to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour
Division, Employment Standards Administration, U.S. Department of
Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Richard M. Brennan, Senior Regulatory
Officer, Wage and Hour Division, Employment Standards Administration,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone: (202) 693-0066 (this is not a toll
free number).

SUPPLEMENTARY INFORMATION:

Foreword

No employment law matters more to America's caregiving workforce
than the Family and Medical Leave Act (FMLA) of 1993. Since its
enactment, millions of American workers and their families have
benefited from enhanced opportunities for job-protected leave upon the
birth or adoption of a child, to deal with their own serious illness,
and when needed to care for family members.
After nearly fourteen years administering the law, two Department
of Labor studies (1996, 2001) and several U.S. Supreme Court and lower
court rulings, the Employment Standards Administration's Wage and Hour
Division issued a Request for Information (RFI) on December 1, 2006.
The RFI asked the public to comment on their experiences with, and
observations of, the Department's administration of the law and the
effectiveness of the regulations. More than 15,000 comments were
received in the next few months from workers, family members,
employers, academics, and other interested parties. This input ranged
from personal accounts, legal reviews, industry and academic studies,
surveys, and recommendations for regulatory and statutory changes to
address particular areas of concern.
There is broad consensus that family and medical leave is good for
workers and their families, is in the public interest, and is good
workplace policy. There are differing views on whether every provision
of the law is being administered in accordance with the statute and
with congressional intent. It is also evident from the comments that
the FMLA has produced some unanticipated consequences in the workplace
for both employees and employers.
A report of this kind is a unique step. Normally, the organization
of comments received in response to a Departmental Request for
Information would first be seen accompanying proposed changes to the
rules. There are no proposals for regulatory changes being put forward
by the Department with this Report. Rather, what we hope this Report
does is provide information for a fuller discussion among all
interested parties and policymakers about how some of the key FMLA
regulatory provisions and their interpretations have played out in the
workplace.
Finally, our thanks to the thousands of employees, employers, and
other members of the public who participated in this information
gathering by sharing their views, their research, and, in some cases,
very personal comments. We greatly value those insights.

Victoria A. Lipnic,

Assistant Secretary of Labor, Employment Standards Administration.

June 2007.

Executive Summary

The Family and Medical Leave Act of 1993 (FMLA) opened a new era
for American workers, providing employees with better opportunities to
balance work and family needs. This landmark legislation provided
workers with basic rights to job protection for absences due to the
birth or adoption of a child or for a serious health condition of the
worker or a family member.
For women dealing with difficult pregnancies or deliveries, or
parents celebrating the arrival of a newborn or adopted child, the FMLA
provides the opportunity to participate fully in these significant life
events. For other workers--especially those who struggle with health
problems or who are primary caregivers to ill family members--the FMLA
has made it possible to deal with these serious challenges while
holding on to jobs, health insurance, and some measure of economic
security.

Background: What the Law Covers

The Family and Medical Leave Act of 1993, Public Law 103-3, 107
Stat. 6 (29 U.S.C. 2601 et seq.) (the ``FMLA'' or the ``Act'') was
enacted on February 5, 1993 and became effective on August 5, 1993 for
most covered employers. The FMLA entitles eligible employees of covered
employers to take up to a total of twelve weeks of unpaid leave during
a twelve month period for the birth of a child; for the placement of a
child for adoption or foster care; to care for a newborn or newly-
placed child; to care for a spouse, parent, son or daughter with a
serious health condition; or when the employee is unable to work due to
the employee's own serious health condition. See 29 U.S.C. 2612. The
twelve weeks of leave may be taken in a block, or, under certain
circumstances, intermittently or on a reduced leave schedule. Id. When
taken intermittently, the Department's regulations provide that leave
may be taken in the shortest increment of time the employer's payroll
system uses to account for absences or use of leave, provided it is one
hour or less. 29 CFR 825.203(d).
Employers covered by the law must maintain for the employee any
preexisting group health coverage during the leave period and, once the
leave period has concluded, reinstate the employee to the same or an
equivalent job with equivalent employment benefits, pay, and other
terms and conditions of employment. See 29 U.S.C. 2614. If an employee
believes that his or her FMLA rights have been violated, the employee
may file a complaint with the Department of Labor (``Department'') or
file a private lawsuit in federal or state court. If the employer has
violated an employee's FMLA rights, the employee is entitled to
reimbursement for any monetary loss

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incurred, equitable relief as appropriate, interest, attorneys' fees,
expert witness fees, and court costs. Liquidated damages also may be
awarded. See 29 U.S.C. 2617.

Who the Law Covers

The law generally covers employers with 50 or more employees, and
employees must have worked for the employer for 12 months and have
1,250 hours of service during the previous year to be eligible for
leave. Based on 2005 data, the latest year for which data was available
the time the Request for Information was published, the Department
estimates that:
There were an estimated 94.4 million workers in
establishments covered by the FMLA regulations,
There were about 76.1 million workers in covered
establishments who met the FMLA's requirements for eligibility,\1\ and
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\1\ Recent data submitted to the Department on the size and
scope of the FMLA's reach support these estimates. See Chapter XI of
this Report.
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Between 8.0 percent and 17.1 percent of covered and
eligible workers (or between 6.1 million and 13.0 million workers) took
FMLA leave in 2005.\2\
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\2\ Recent data submitted to the Department support this
estimate as well. See Chapter XI of this Report.
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Nearly one-quarter of all employees who took FMLA leave
took at least some of it intermittently.
Recent information submitted to the Department also suggests that
FMLA awareness was higher in 2005 than in prior years. This information
supports the Department's estimate of increased FMLA usage since prior
studies of FMLA.

Request for Information and Prior FMLA Reports

After nearly fourteen years of experience implementing and
administering the new law, the Department's Employment Standards
Administration/Wage and Hour Division undertook a review of the FMLA
regulations, culminating in the publication of a Request for
Information (``RFI'') on December 1, 2006.\3\ The RFI asked the public
to assist the Department by furnishing information about their
experiences with FMLA and comments on the effectiveness of the current
FMLA regulations. The RFI generated a very heavy public response: More
than 15,000 comments were submitted, many of which were brief emails
with very personal and, in some cases, very moving accounts from
employees who had used family or medical leave; others were highly-
detailed and substantive legal or economic analyses responding to the
specific questions in the RFI and raising other complex issues.\4\
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\3\ 71 FR 69504.
\4\ All comments are available for viewing via the public docket
of the Wage and Hour Division of the Employment Standards
Administration, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210. Many comments are also available on
www.regulations.gov. The names of individual employees have been
redacted from the Report where any personal medical information was
shared.
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Twice before, the Department has published reports about the FMLA
and its use. The statute established a bipartisan Commission on Family
and Medical Leave to study family and medical leave policies. The
Commission surveyed workers and employers in 1995 and issued a report
published by the Department in 1996, ``A Workable Balance: Report to
Congress on Family and Medical Leave Policies.'' In 1999, the
Department contracted with Westat, Inc. to update the employee and
establishment surveys conducted in 1995. The Department published that
report, ``Balancing the Needs of Families and Employers: Family and
Medical Leave Surveys, 2000 Update'' in January 2001.\5\
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\5\ See ``Balancing the Needs of Families and Employers, Family
and Medical Leave Surveys, 2000 Update,'' Westat Inc., January 2001.
See also the description of the 2000 Westat Report in Chapter XI of
this Report. See also 71 FR 69510.
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Never before has the Department looked in such granular detail at
the legal developments surrounding the FMLA and its implementing
regulations, as well as the practical consequences of such in the
workplace. The RFI's questions and subject areas were derived from a
series of stakeholder meetings the Department conducted in 2002-2003, a
number of rulings of the U.S. Supreme Court and other federal courts,
the Department's own experience administering the law, information from
Congressional hearings, and public comments filed with the Office of
Management and Budget (OMB) as described by OMB in their three annual
reports to Congress on the FMLA's costs and benefits.\6\
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\6\ The 2001 report may be found at: www.whitehouse.gov/omb/inforeg/costbenefitreport.pdf, the 2002 report at:
www.whitehouse.gov/omb/inforeg/2002_report_to_congress.pdf, and
the 2004 report at: www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf.
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Unlike the 2000 Westat Report, the Department's Report on the RFI
Comments is not an analysis or comparison of one set of survey data
with another some years later. The RFI was not meant to be a substitute
for survey research about the leave needs of the workforce and leave
policies offered by employers. The record presented here is different
than the previous two Departmental reports because the RFI was a very
different kind of information-gathering tool than the two previous
surveys. Given the differences in data-gathering approaches, the depth
with which the RFI looked at the regulations, and, of course, the self-
selection bias by those who took the time to submit comments to the
RFI, differences in the outcomes should be expected. Care must be taken
to avoid improper comparisons of information collected in the RFI with
data from the two surveys.

General Overview of the Report

Commenters consistently stated that the FMLA is generally working
well--at least with respect to leave related to the birth or adoption
of a child or for indisputably ``serious'' health conditions. Responses
to the RFI substantiate that many employees and employers are not
having noteworthy FMLA-related problems. However, employees often
expressed a desire for a greater leave entitlement, while employers
voiced concern about their ability to manage business operations and
attendance control issues, particularly when unscheduled, intermittent
leave is needed for chronic health conditions. Indeed, the overwhelming
majority of comments submitted in response to the RFI addressed three
primary topics: (1) Gratitude from employees who have used family and
medical leave and descriptions of how it allowed them to balance their
work and family care responsibilities, particularly when they had their
own serious health condition or were needed to care for a family
member; \7\ (2) a desire for expanded benefits--e.g., to provide more
time off, to provide paid benefits, and to cover additional family
members; \8\ and (3) frustration by employers about difficulties in
maintaining necessary staffing levels and controlling attendance
problems in their workplaces as a result of one particular issue--
unscheduled intermittent leave used by employees who have chronic
health conditions.
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\7\ Many of these employee comments stated that there were no
problems with FMLA and there should be no changes to the program.
\8\ Because comments on the need for expanded benefits concern
matters outside the scope of the Department's authority and the
purposes of the RFI, these comments are not covered in any
significant detail in this Report.
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Many employees offered powerful testimonials about the important
role the FMLA has played in allowing them to continue working while
addressing their own medical needs or family caregiving
responsibilities. Chapter I,

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Employee Perspectives: Experiences in the Value of FMLA, is an
important representative example of how meaningful the ability to use
the Family and Medical Leave Act has been for employees. The Department
could have written an entire report based simply on those comments.
But, no regulatory scheme, particularly at the outset, is perfect.
In 1993, the FMLA was a brand-new employment standard and many of the
concepts, particularly those that took effect in the final regulations,
were borrowed from other areas of law or were completely new. Thus, it
should come as no surprise that RFI commenters continued to debate some
of the choices made by the Department as it sought to implement the
statute in a manner consistent with Congressional intent.
As is evident from both the RFI record and from many of the legal
challenges to regulatory provisions over the years, the debate
continues on whether the Department successfully implemented the
statutory requirements and Congressional intent, or struck the right
balance in all places. That debate is reflected in Chapters II-XI. In
many instances, commenters expressed the view that a certain regulation
was ``exactly what Congress intended,'' while others said of the same
regulation that ``it could not possibly be what Congress intended.''
Because of that, in order to provide context to the comments received,
in many chapters legal background is provided and/or the evolution of a
particular regulatory section is retraced through the rulemaking
process. Indeed, many commenters did the same thing. While this is in
some cases done in great detail, without that history it may be
impossible to understand not just what suggestions are being offered,
but why they are being offered. These historical summaries are not
intended to endorse the legitimacy of any particular comment or
suggestion.
As explained in the RFI, some of the issues brought to the
attention of the Department in various forums over the years are beyond
the statutory authority of the Department to address.\9\ Nonetheless,
many commenters provided suggestions for statutory changes to expand
the FMLA. Among others, and in no particular order, were comments on:
providing paid maternity leave, covering the care of additional family
members (e.g., siblings), changing the 75-mile eligibility test,
reducing the coverage threshold below 50 employees, and providing
coverage for part-time workers. Because these comments are beyond the
Department's authority to address, we do not detail them in the
chapters that follow.
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\9\ See 71 FR 69504.
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Finally, this Report is not a catalogue of every comment received
or every suggestion made about every part of the regulations. Nor is it
a catalogue of every organization or group that submitted comments. We
do believe that the comments selected for discussion are representative
and the chapters that follow accurately reflect the record according to
the most important subject matters presented--many of which, but not
all, follow and detail the subjects and questions asked in the RFI. The
chapters are designed to explain the questions asked in the RFI,
provide background on the law where needed, and detail the feedback
about the FMLA and the Department's implementation of it as raised in
comments from employees and employers.
Given the detailed presentations in many of the responses to the
RFI, and when the comments are read and studied in the aggregate,
certain observations about the record stand out. Those observations
follow in this Executive Summary or are found in Chapter XI: ``Data:
FMLA Coverage, Usage, and Economic Impact''. We believe the
observations included in this Report are evident from a plain reading
of the thousands of comments received from both employers and
employees.

The Department's Observations Regarding the Comments

The Department is pleased to observe that, in the vast majority of
cases, the FMLA is working as intended. For example, the FMLA has
succeeded in allowing working parents to take leave for the birth or
adoption of a child, and in allowing employees to care for family
members with serious health conditions. The FMLA also appears to work
well when employees require block or foreseeable intermittent leave
because of their own truly serious health condition. Absent the
protections of the FMLA, many of these workers might not otherwise be
permitted to be absent from their jobs when they need to be.
At the same time, a central defining theme in the comments involves
an area that may not have been fully anticipated: The prevalence with
which unscheduled intermittent FMLA leave would be taken in certain
workplaces or work settings by individuals who have chronic health
conditions. This is the single most serious area of friction between
employers and employees seeking to use FMLA leave. The Department is
cognizant that certain of its regulatory decisions and interpretations
may have contributed to this situation.
Certain types of industries and worksites and their workers appear
to be more impacted by unscheduled intermittent FMLA leave-taking than
others and there is considerable tension between employers and
employees over the use of this leave. The Department heard, in
particular, from employers, and from the representatives of employees
who work with them, whose business operations have a highly time-
sensitive component, e.g., delivery, transportation, transit,
telecommunications, health care, assembly-line manufacturing, and
public safety sectors.
While many employer comments used the words ``abuse'' and
``misuse'' to describe employee use of unscheduled intermittent leave,
the Department cannot assess from the record how much leave taking is
actual ``abuse'' and how much is legitimate. In some cases, the use of
unscheduled intermittent leave appears to be causing a backlash by
employers who are looking for every means possible (e.g., repeatedly
asking for more information in the medical certifications, especially
in cases of chronic conditions) to reduce absenteeism.
Another area that generated significant comments is the current
medical certification process. The Department recognizes that
communication about medical conditions is essential to the smooth
functioning of the FMLA in workplaces. However, none of the parties
involved with the medical certification process--employers, employees,
and health care providers--are happy with the current system. Employees
are concerned about the time and cost of visits to health care
providers to obtain medical certifications and the potential for
invasion of their privacy. Employers, especially when it comes to
intermittent leave use, seek predictability in attendance and are
frustrated with medical certifications that do not provide meaningful
guidance. Health care providers complain they cannot predict how many
times a flare-up of a particular condition will occur.
Despite much work by the Department, it also appears that many
employees still do not fully understand their rights under the law, or
the procedures they must follow when seeking FMLA leave. For example,
many employees are misinformed about the fact that paid leave can be
substituted for, and run concurrently with, an employee's FMLA leave.
Even

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among employees who possess a general awareness of the law, many do not
know how the FMLA applies to their individual circumstances. In turn,
this failure in understanding may be contributing to some of the
problems identified with the medical certification process, and with
employers' ability to properly designate and administer FMLA leave. It
is clear the Department has more work to do to further educate
employees and employers regarding their rights and responsibilities
under the law.

Summary of Chapters I-XI

Employee Perspective: Experiences in the Value of the FMLA (Chapter I)
Chapter I provides a representative sampling of comments received
by the Department regarding the ``value'' FMLA provides to employees.
In general, employees commented they were very happy to have the
protections afforded by the FMLA. Many commented that the Act prevented
job loss, allowed them to spend time with sick or injured family
members, and, upon returning to work, encouraged a greater sense of
loyalty to their employer. Some pointed out that their employers went
above and beyond what is required by the law. Many employers also
submitted comments that outlined advantages to complying with the FMLA
and offering benefits beyond what the law requires.
The value of the FMLA was particularly noted by employees caring
for both children and parents with serious health conditions; this
observation was supported by employer comments, many of whom noted that
they increasingly receive FMLA leave requests from employees with elder
care responsibilities. Many employees commented that the FMLA would be
more useful if it provided paid leave, if more time off was available,
and if the program covered more types of family members, such as
siblings, grandparents, etc.
Ragsdale Decision/Penalties (Chapter II)
This chapter discusses the impact of the Supreme Court's decision
in Ragsdale v. Wolverine World Wide, Inc. on the FMLA implementing
regulations. Ragsdale invalidated the ``categorical penalty'' in
section 825.700(a) of the regulations, which provides that if an
employer does not designate an employee's leave as FMLA leave, it may
not count that leave against an employee's leave entitlement. Other
courts have struck down similar ``categorical penalty'' rules in
sections 825.110(d) (relating to deeming an employee eligible for
leave) and 825.208(c) (relating to designation of paid leave). Since
Ragsdale, many courts have applied equitable estoppel \10\ principles
when employers either fail to communicate required information or
communicate incorrect information.
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\10\ ``Equitable estoppel'' is a legal bar that prevents one
person from taking advantage of a second person where the second
party is injured by reasonably relying on the misrepresentations (or
silence when there is a duty to speak) of the first person.
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Employers commented that all categorical penalties should be
removed from the regulations and that employers should be permitted to
designate leave as FMLA leave retroactively. Some employers suggested
that any penalty should be tailored to the specific harm suffered by
the employee or suggested situations in which no penalty would be
appropriate. Employees supported the current notice and designation
requirements in the Department's regulations, with many noting that
they suffer hardships when they do not know promptly whether the
employer believes they are entitled to FMLA-protected leave. Some
employee commenters suggested that employers be required to provide
annual notices to employees regarding their FMLA eligibility status and
periodic reports regarding any FMLA leave used. Employers expressed
concerns that without some clarification they are unsure of their
liabilities for failure to follow the notification requirements. Both
groups expressed a need for the Department to clarify the impact of
Ragsdale on the notification requirements in the current regulations.
Serious Health Condition (Chapter III)
The Department received many comments on the regulatory definition
of serious health condition relating to a period of incapacity of more
than three consecutive calendar days and treatment two or more times by
a health care provider (sometimes called the ``objective test'')
contained at 29 CFR 825.114(a)(2)(i) and its interaction with 29 CFR
825.114(c) (which provides examples of conditions that ordinarily are
not covered). Chapter III summarizes these comments. Many of these
comments echoed (or had their origins in) earlier comments to the
record the Department received in 1993 when promulgating its current
regulations.
The Department received many comments from employees and employee
groups who believe that the objective test is a good, clear test that
is serving its intended purpose, consistent with the legislative
history, while a common theme from many employers was that the
regulatory definition of serious health condition is vague and/or
confusing. Moreover, comments from employer groups complained that
there is no real requirement that a health condition be ``serious'' in
the regulatory definition of serious health condition.
Many employee representatives felt section 825.114(c) imposes no
independent limitation on the definition of serious health condition
and therefore need not be changed. Other commenters took the very
opposite tack--that the objective test extinguished Congress' intent to
exclude minor illnesses and that the Department should breathe life
into subsection (c) by making it more of a per se rule, as it was
initially interpreted by Wage and Hour Opinion Letter FMLA-57 (Apr. 7,
1995).
Some employers offered to give meaning to subsection (c) by
changing the period of incapacity in the objective test from
``calendar'' days to ``business'' days. Still other commenters
suggested that the Department maintain the substantive language of both
regulatory sections but explicitly adopt a recent court interpretation
of the regulations that the ``treatment two or more times by a health
care provider'' in section 825.114(a)(2)(i)(A) must occur during the
period of ``more than three days'' incapacity. Some commenters
suggested reconciling the two regulatory provisions by simply
tightening the requirements for qualifying for a serious health
condition under the objective test (e.g., increasing the number of days
of incapacity required).
Unscheduled Intermittent Leave (Chapter IV)
Chapter IV of the Report discusses the use of unscheduled
intermittent leave under FMLA. Based on the comments received,
unscheduled intermittent FMLA leave is crucial to employees with
chronic serious health conditions resulting in sudden, unpredictable
flare-ups. Conversely, it is precisely the use of unscheduled (or
unforeseeable) intermittent leave for chronic conditions that presents
the most serious difficulties for many employers in terms of
scheduling, attendance, productivity, morale, and other concerns. With
respect to employer comments, no other FMLA issue even comes close.
The Act itself does not provide a definition of ``chronic'' serious
health conditions. During the 1993-1995 notice-and-comment rulemaking
phase, the Department filled in this gap, as the regulatory definition
of ``serious health condition'' evolved in response to public comments
urging that this

[[Page 35554]]

definition specifically cover chronic conditions.
Regarding intermittent leave, the Act provides for the taking of
leave in small blocks, or intermittently, but does not specify the
minimum increment. 29 U.S.C. 2612(b)(1). In its regulations, the
Department rejected any minimum limitations on intermittent leave,
citing the statute, and stating a concern that such limits would cause
employees to take leave in greater amounts than necessary, and thus
erode a worker's 12-week leave entitlement. 60 FR 2236. The Department
also predicted initially that incidents of unscheduled intermittent
leave would be unusual. 58 FR 31801.
The Act sets out a clear, 30-day notice requirement for leave that
is foreseeable, but for leave foreseeable less than 30 days in advance,
the Act has a less clear, ``as soon as practicable'' notice
requirement. 29 U.S.C. 2612(e)(2)(B). The Department, through its
interpretive actions, has defined ``as soon as practicable'' to mean
two working days after the need for leave becomes known.\11\
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\11\ See Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999).
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Fourteen years later, the comments indicate that unscheduled
intermittent FMLA leave for chronic conditions has become commonplace
and it is difficult for employers to determine or monitor employees'
incapacity when the chronic condition does not involve any active,
direct treatment or care by a health care provider (i.e., self-
treatment by employees with chronic conditions such as asthma,
diabetes, migraine headaches, and chronic back pain).
Employers expressed frustration about what they perceive to be
employees' ability to avoid promptly alerting their employers of their
need to take unscheduled leave in situations when it is clearly
practicable for them to do so. A common example cited by employers
involves ignoring mandatory shift call-in procedures even when the
employee is fully able to comply, and then later reporting the absence
as FMLA-qualifying after-the-fact. Thus, some employers allege,
employees may use FMLA: (1) As a pretext for tardiness or to leave work
early for reasons unrelated to a serious health condition, (2) to
obtain a preferred shift instead of the one assigned by the employer,
or (3) to convert a full-time position to a permanent part-time one.
These employers believe the Department's regulatory interpretations
have exacerbated this situation.
Other commenters said that when an employer is unable to verify
that an employee's unscheduled absence is in fact caused by a chronic
serious health condition, and the employer cannot seek additional
medical verification of the need for the absence, the employer cannot
distinguish between employees who legitimately need FMLA leave and
employees who misuse the protections of FMLA to excuse an otherwise
unexcused absence from work.
Notice: Employee Rights and Responsibilities (Chapter V)
Chapter V of the Report summarizes comments received regarding the
FMLA rights and responsibilities of employees. The comments to the RFI
indicate that many employees are not knowledgeable about their rights
and responsibilities under the FMLA. Even among employees who possess a
general awareness of the law, many do not know how the FMLA applies to
their individual circumstances. This reported lack of employee
awareness may contribute to frustrations voiced by the employer
community concerning employee notice of the need for FMLA leave.
Employers and their representatives commented on employees not
providing notice of the need for leave in a timely fashion and
receiving notice without sufficient information to make a determination
as to whether or not the leave is FMLA-qualifying.
The Medical Certification and Verification Process (Chapter VI)
The Department received significant comments regarding the FMLA
medical certification process. These comments are discussed in Chapter
VI. Generally speaking, all parties involved in the certification
process--employees, employers and health care providers--believed the
current process needs to be improved.
Many employers commented that they are frustrated with
certifications that do not provide meaningful guidance regarding the
employee's expected use of intermittent leave. They also noted that the
current regulatory framework provides them with limited options for
verifying that employees are using FMLA leave for legitimate reasons.
Employers also stated they want to be able to talk directly with the
employee's health care provider (without using a health care provider
of their own) and feel that greater communication would allow decisions
regarding FMLA coverage to be made more quickly.
Employees commented that employers are not using the existing FMLA
procedures appropriately to challenge medical certifications and are
instead simply refusing to accept certifications without seeking
clarification or a second opinion. Some employees also claimed that
their use of unscheduled intermittent leave for chronic conditions
seems to be causing a backlash among some employers who refuse FMLA
coverage for any absences that exceed what is on the medical
certification. Employees also expressed concern that increased
communication between the employer and their health care providers
could lead to an erosion of their right to medical confidentiality.
Finally, although the certification requirement calls for an
estimate of the expected use of intermittent leave, health care
providers commented that often there is no way they can furnish a
reliable estimate of the frequency or severity of the flare ups and
thus are unable to provide all the information required in the
certification. Based on the comments received, employers, employees and
health care providers almost universally believe the Department's model
certification form WH-380 could be improved.
Interplay Between the FMLA and the Americans with Disabilities Act
(Chapter VII)
A number of commenters discussed the relationship between the FMLA
and the Americans with Disabilities Act (``ADA'').\12\ Although the ADA
also may provide employees with job-protected medical leave, the
legislative history of the FMLA indicates that Congress intended for
``the leave provisions of the [FMLA to be] * ** wholly distinct from
the reasonable accommodation obligations of employers covered under the
[ADA].'' \13\ Nonetheless, the Department borrowed several important
concepts from the ADA when finalizing the FMLA regulations. The
practical realities of the workplace also mean that employee requests
for medical leave often are covered by both statutes, thus requiring
employers to consider carefully the rights and responsibilities imposed
by each statute. Chapter VII summarizes the comments received by the
Department regarding the interplay between FMLA and ADA.
---------------------------------------------------------------------------

\12\ 42 U.S.C. 12101-12117, 12201-12213.
\13\ S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993).
---------------------------------------------------------------------------

Almost uniformly, employers and their representatives urged the
Department to consider implementing more consistent procedures for
handling and approving medical leave requests under the FMLA and ADA.
These commenters argued that, in many instances--but particularly with
respect to obtaining medical information--the ADA and its implementing
regulations provided a ``much better model'' and struck a more
appropriate balance between an employee's right to take

[[Page 35555]]

reasonable leave for medical reasons and the legitimate interests of
employers. Many of these commenters cited their own experience in
administering the ADA as support for the idea that additional limits
imposed by the FMLA were unnecessary, particularly because both
statutes require employers to review similar types of medical
information and make determinations about an employee's ability to work
based on that information. These commenters also noted that, in many
instances, the same human resources person reviews an employee's
absences under both statutes, thus further blurring the line between
what an employer could permissibly do under each statute.
Other commenters, including unions and other employee groups,
argued that the differences between the two statutory schemes were a
direct result of the distinctively different purposes of each law.
These commenters noted that the ADA is intended to ensure that
qualified individuals with disabilities are provided with equal
opportunity to work, while the FMLA's purpose is to provide reasonable
leave from work for eligible employees. These commenters generally
opposed implementing procedures they viewed as placing additional
limits on the availability of FMLA leave, or increasing requirements
under the FMLA medical certification process.
Transfer to an Alternative Position (Chapter VIII)
The RFI did not specifically ask any questions about an employer's
ability to transfer an employee to an ``alternative position'' but the
Department received many comments on this topic. These comments are
discussed in Chapter VIII of the Report. Under the FMLA, an employer
may transfer an employee to an ``alternative position'' with equivalent
pay and benefits when the employee needs to take intermittent or
reduced schedule leave ``that is foreseeable based on planned medical
treatment[.]'' 29 U.S.C. 2612(b)(2). Section 825.204 of the regulations
explains more fully when an employer may transfer an employee to an
alternative position in order to accommodate foreseeable intermittent
leave or a reduced leave schedule.
A significant number of employer commenters questioned why the
regulations only permit an employer to transfer an employee when the
employee's need for leave is foreseeable based on planned medical
treatment as opposed to a chronic need for unforeseeable (unscheduled)
leave. Many commenters saw no practical basis for differentiating
between foreseeable and unforeseeable need for leave in this context.
In fact, many employers reported that the underlying rationale for the
transfer provision--to provide ``greater staffing flexibility'' while
maintaining the employee's same pay and benefits--is best served where
the employee's need for leave is unforeseeable.
Substitution of Paid Leave (Chapter IX)
Chapter IX of the Report summarizes comments regarding the
substitution of paid leave for unpaid FMLA leave. Under the statute,
employees may substitute accrued paid leave for FMLA leave under
certain circumstances. If employees forego the option to substitute
paid leave, employers may then require such substitution.\14\ The
legislative history indicates that Congress had two purposes in
providing for the substitution of accrued paid leave for unpaid FMLA
leave. First, Congress sought to clarify that where employers provided
paid leave for FMLA-covered reasons, they were only required to provide
a total of 12 weeks of FMLA-protected leave including the period of
paid leave (i.e., employees could not stack 12 weeks of unpaid FMLA
leave on top of any accrued paid leave provided by the employer). The
second purpose of substitution of paid leave was to mitigate the
financial impact of income loss to the employee due to family or
medical leave.
---------------------------------------------------------------------------

\14\ 29 U.S.C. 2612(d).
---------------------------------------------------------------------------

A major concern of the employer commenters was that when employees
substitute paid vacation or personal leave for unpaid FMLA leave, they
are able to circumvent certain aspects of employers' existing paid
leave policies, such as notification requirements, minimum increments
of leave, seniority, or time of year restrictions. These commenters
stated that employees substituting such paid leave for unpaid FMLA
leave are, therefore, treated more favorably than those employees who
use their accrued leave for other reasons. Employee commenters noted
that the ability to substitute paid leave is a critical factor in their
ability to utilize their FMLA entitlements, because many employees
simply cannot afford to take unpaid leave.
The comments also identified a number of other issues affected by
substitution of paid leave. For example, employers questioned the
wisdom of the regulation forbidding substitution if employees are
receiving payments from a benefit plan such as workers' compensation or
short-term disability plans. On the other hand, employees commented
that they are improperly required by employers to substitute paid
leave, despite contrary language in existing collective bargaining
agreements providing employees with the right to decide when to use
their leave.
Joint Employment (Chapter X)
Chapter X of the Report discusses comments regarding employer
coverage under FMLA in cases in which a company utilizes the services
of a Professional Employer Organization (PEO). Unlike a staffing or
placement agency, PEOs generally are service providers that handle
payroll and other human resource work for the employer and which, under
the current regulations, may qualify in some circumstances as a primary
employer in a joint employment arrangement.
The comments indicated that PEOs generally are not responsible for
employment decisions like hiring, firing, supervision, etc. All of the
comments in this area supported the view that the primary ``employer''
in these cases should be the client company that actually hires and
uses the employees who are provided benefit services by the PEO. Thus,
according to these comments, the client company, and not the PEO,
should be responsible for the placement of employees returning from
FMLA leave.
Data: FMLA Coverage, Usage, and Economic Impact (Chapter XI)
The Department received a significant number of comments on the
usage and impact of the FMLA, including a variety of national surveys
and numerous data on FMLA leave from individual companies or government
and quasi-government agencies. This information, when supplemented by
the data from the 2000 Westat Report (and despite its limitations),
provides considerable insight and a far more detailed picture of the
workings of the FMLA, and the impact of intermittent leave, in
particular. Chapter XI of this Report provides a full discussion of the
data received.
Several themes arose out of the data comments submitted in response
to the RFI:
The benefits of FMLA leave include retaining valuable
human capital; having more productive employees at work; lower long-run
health care costs; lower turnover costs; lower presenteeism costs; and
lower public assistance costs.
There are unquantifiable impacts on both sides. On the
benefit side, the value of FMLA leave is often immeasurable. On the
cost side, there

[[Page 35556]]

can be a negative impact on customers and the public when workers do
not show up for their shifts on time.
A significant number of workers, especially for some
facilities or workgroups, have medical certifications on file for
chronic health conditions, and the number is increasing.
Unscheduled intermittent FMLA leave causes staffing
problems for employers requiring them to overstaff some positions and
use mandatory overtime to cover other positions. Both of these increase
costs and prices.
The lack of employee notification can cause some positions
to go temporarily understaffed resulting in service or production
delays. This not only increases costs in the short run but also may
potentially impact future business.
Unscheduled intermittent FMLA leave can adversely impact
the workplace in a variety of ways, including missed holidays and time-
off for other employees, lower morale, and added stress that can result
in health problems.
Further, it appears that the Department's intermittent FMLA leave
estimates presented in the RFI--that about 1.5 million workers took
intermittent FMLA leave in 2005, and that about 700,000 of these
workers took unscheduled intermittent FMLA leave--may be too low.
While the percentage of FMLA covered and eligible workers who take
FMLA leave may appear to be low relative to the total workforce and the
percentage who take unscheduled intermittent leave may appear to be
even smaller, the record shows that these workers can have a
significant impact on the operations of their employers and their
workplaces for a variety of reasons. First, as a number of commenters
pointed out, these workers can repeatedly take unscheduled intermittent
leave, over nine hours per week, and still not exhaust their allocation
of FMLA leave for the year (generally, 12 weeks x 40 hours/week = 480
hours). Second, the record reveals that workplaces with time-sensitive
operations, such as assembly-line manufacturing, transportation,
transit, and public health and safety occupations can be
disproportionably impacted by just a few employees who repeatedly take
unscheduled intermittent leave. Third, the comments indicate that if
the morale or health of workers covering for the absent employees on
FMLA leave begins to suffer, either because they believe the absent
workers are misusing unscheduled intermittent leave or from the stress
caused by an increased workload, these workers may in turn seek and
need their own FMLA certifications causing a ripple effect in
attendance and productivity.
Finally, the data indicate that if unscheduled intermittent FMLA
leave is taken, most employers will be able to resolve these infrequent
low cost events on a case-by-case basis by using the existing workforce
(or possibly bringing in temporary help) to cover for the absent
worker, and likely will view unscheduled intermittent FMLA leave as an
expected cost of business. On the other hand, for those establishments
and workgroups with a high probability (rate) of unscheduled
intermittent leave and where the cost of such leave is high, the
comments suggest that none of the measures that are typically used to
reduce the risk and costs associated with unscheduled intermittent FMLA
leave appear to work very well. These establishments, whose risk
management systems (e.g., absence control policies, overstaffing,
mandatory overtime) appear to be overwhelmed, are likely the employers
reporting that intermittent FMLA leave has a moderate to large negative
impact on their productivity and profits (1.8 to 12.7 percent of
establishments according to the 2000 Westat Report). In addition, many
of the traditional methods used to encourage good attendance or control
absenteeism (e.g., perfect attendance awards or no fault attendance
polices) may not be used if they interfere with FMLA protected leave.
These employers may try to make it more difficult for their workers to
take unscheduled intermittent FMLA leave by repeatedly questioning the
medical certifications or asking for recertifications--creating tension
in the workplace.

Conclusion

In those sections of the FMLA dealing with leave for the birth of a
child, for the adoption of a child, and associated with health
conditions that require blocks of leave and are undeniably ``serious''
(e.g., cancer, Alzheimer's, heart attack), the law appears to be
working as anticipated and intended, and working very successfully.
When addressing these areas, there is near unanimity in the comments--
FMLA leave is a valuable benefit to the employee, improves employee
morale, improves the lives of America's families, and, as a result,
benefits employers. These aspects of the FMLA are fully supported by
workers and their employers.
But to the extent that the use of FMLA leave has continued to
increase in unanticipated ways, primarily in the area of intermittent
leave taken as self-treatment for chronic serious health conditions,
the Department has heard significant concerns. These unanticipated
facets of the FMLA are the source of considerable friction in the
following areas:
How serious is ``serious''?
What does ``intermittent'' leave mean and how long should
it go on?
What are the rules surrounding unforeseeable leave?
How much information can an employer require before
approving leave?
What are an employee's responsibilities under the Act?
What workplace rules may an employer actually enforce?
How has other legislation, including the ADA and HIPAA,
affected the FMLA?
Absent the protections of the FMLA, many workers with chronic
conditions might not otherwise be permitted to be absent from their
jobs. This is unquestionably a valuable right. But it is precisely the
use of FMLA leave by a subset of these workers--those seeking
unscheduled intermittent leave for a chronic condition--that appears to
present the most serious difficulties for many employers in terms of
scheduling, attendance, productivity, morale, and other concerns. As
was clear from the record, these comments are not inconsistent with
each other. These things are true at the same time.
The success of the FMLA depends on smooth communication among all
parties. To the extent that employees and employers become more
adversarial in their dealings with each other over the use of FMLA
leave, it may become harder for workers to take leave when they need it
most.
The Department hopes that this Report will further the discussion
of these important issues and is grateful to all who participated in
this information-gathering process.

I. Employee Perspective: Experiences in the Value of the FMLA

The chapters that follow in this Report deal in large part with the
substantive comments from individual employers and employees, law
firms, and groups representing employers and employees, assessing what
works or does not work particularly well with specific regulatory
sections of the FMLA. Because of that, it is easy to lose perspective
about the overall value of the workplace protections provided by the
Act. That value is best shown in the comments submitted by individual
employees and, in some instances their employers or representatives.
While it would be impossible for the Department

[[Page 35557]]

to catalog every comment it received in response to the Request for
Information (``RFI'') about the value of the FMLA, this chapter
provides a representative collection of comments recounting those
personal experiences.\1\ These comments also include some examples of
best practices of employers in carrying out the FMLA--practices that
often create or strengthen good relationships between employers and
employees. These comments reflect the belief stated in the regulations
that a ``direct correlation exists between stability in the family and
productivity in the workplace'' and demonstrate that the underlying
intent of the Act ``to allow employees to balance their work and family
life by taking reasonable unpaid leave'' for certain qualifying family
and medical reasons is being fulfilled. 29 CFR 825.101.
---------------------------------------------------------------------------

\1\ The Request for Information can be found at 71 FR 69,508
(December 1, 2006).
---------------------------------------------------------------------------

Many employees were grateful that the Act existed and that they
were able to utilize the leave entitlement in a time of need. Some
employees specifically commented that the Act helped them during
difficult periods of caring for loved ones who were ill. For example,
one employee wrote that she used FMLA leave twice, once to care for a
seriously ill child and again ``when my husband was injured in
Afghanistan and needed assistance in his recovery[.]'' An Employee
Comment, Doc. 2666, at 1.\2\ She noted that ``without this [FMLA]
protection, I probably would have lost my job and all its benefits[.]''
Id. Another employee said he could not have cared for his ill wife
without FMLA. An Employee Comment, Doc. FL18, at 1. ``My wife * * * has
a medical condition that is covered by the FMLA. I have used
intermittent FMLA leave to take her to the doctor whose office is
located approximately 4 hours away by car from where we live. I have
been doing this on average once a month for approximately 3 years. I
would not be able to do this without the FMLA.'' Id.
---------------------------------------------------------------------------

\2\ The names of individual employees have been redacted from
the Report where any personal or medical information was provided.
---------------------------------------------------------------------------

One employee, whose comment echoed the sentiment that the FMLA
allows employees to balance their work obligations with the need to
care for their loved ones, appreciated how his family benefited from
FMLA leave. ``Presently, my sister is having to care for our ailing
mother while holding down a job. The Family and Medical Leave Act is
very important to her as well as her family in her continued effort to
care for our mother in her final days.'' An Employee Comment, Doc. FL9,
at 1. Another employee said, ``I * * * recently returned from taking a
two week FML[A leave] to care for my elderly stepfather after open
heart surgery. My family and I were appreciative that because of the
FML[A] I was able to request time to assist with his care and
recuperation at home. We all have no doubt that my time was invaluable
with his improvement once home.'' An Employee Comment, Doc. 139, at 1.
Other commenters also noted the value of FMLA when they needed
leave because of their own serious health conditions. For example, one
employee said, ``As a cancer survivor myself, I cannot imagine how much
more difficult those days of treatments and frequent doctor
appointments would've been without FMLA. I did my best to be at work as
much as possible, but chemotherapy and radiation not only sap the body
of energy, but also take hours every day and every week in treatment
rooms.'' An Employee Comment, Doc. 5798, at 1. Another employee, who
used FMLA leave on several occasions for her own serious health
condition, stated that she was ``very thankful for the existence of the
Family and Medical Leave Act (FMLA). As a two-time survivor of breast
cancer, I have taken FMLA leave both on a continuous and an
intermittent basis--continuous leave to recover from my surgeries
(therapeutic and reconstructive) and intermittent for doctors
appointments, radiation therapy, and chemotherapy treatments.'' An
Employee Comment, Doc. 234, at 1. Other employees specifically pointed
out the value of the FMLA in allowing them to focus completely on
recovery. For example, a correctional officer commented, ``I was out of
work for a short period of time due to a serious medical condition that
was treatable. FMLA gives the employee the ability to tend to these
concerns with their full attention, to recuperate without sacrificing
their career [or] their livelihood.'' An Employee Comment, Doc. FL87,
at 1.
Several employees commented specifically about the value of
intermittent leave under the FMLA. A railroad employee of thirty-six
years said he uses intermittent leave to care for his wife, who suffers
from Multiple Sclerosis (``MS''). An Employee Comment, Doc. FL115, at
1. Acknowledging the sporadic need for leave, the commenter said,
``Since MS is an incurable disease without a schedule or any way of
knowing when an episode is going to [occur], I cannot always foresee
when I am needed at home. The only time I know I am needed is when [my
wife] has an appointment with her doctor. This is subject to change if
she is unable to go to the doctor due to weakness.'' Id. Similarly, an
AT&T employee commented that intermittent leave under the Act makes it
possible for her to care for her mother, who has Alzheimer's disease.
``I only take an hour here and there as needed. I try to work doctor
appointments and other things around my work schedule. However, it is
impossible to always do that. FMLA has been a life saver for me. Had I
not had FMLA for this reason I don't know what I would do.'' An
Employee Comment, Doc. 10046A, at 1.
Many employees commented that the Act helped save their jobs. For
example, one employee, who commented that her child's health condition
sometimes keeps her out of work for several days at a time, said,
``FMLA has tremendously helped my family. I have a child born w/
[asthma], allergies & other medical issues. And, there are times I'm
out of work for days[. I]f I didn't have FMLA I would have been fired
[a long] time ago. I've been able to maintain my employment and keep my
household from having to need assistance from the commonwealth.'' An
Employee Comment, Doc. 229, at 1. Another employee said, ``I returned
home after three months [of FMLA leave] to be told I no longer had a
job. I was told it would be unfair of me to expect my coworkers to
cover for me so they were forced to hire a new employee * * * When I
asked the manager about the previous assurances that my job would be
held until I returned I wasn't given a direct answer. I invoked the
FMLA and was able to keep my job.'' An Employee Comment, Doc. 61, at 1.
A teacher stated, ``Without [the FMLA], I couldn't have cared for both
of my parents at different times in their lives and kept my job * * *
Because of the act I was able to keep my parents out of nursing homes
and still keep my job to support them later. This is the best thing you
can do for working families around our country.'' An Employee Comment,
Doc. 1181, at 1.
Similarly, an employee with a chronic serious health condition
commented, ``I can get sick at any time and need brain surgery. This
can put me out of commission for a month or two. FMLA gives me the
peace of mind that I cannot be fired after I have been in a job for a
year. I cannot stress how monumental that assurance is.'' An Employee
Comment, Doc. 159, at 1. Another employee said, ``Without the
availability of FMLA I'm not certain of what would have happened to my
family when my husband was diagnosed with ALS 5

[[Page 35558]]

years ago. Thankfully it was there, so I could be with him as he was
dying.'' An Employee Comment, Doc. 4332, at 1. A union steward, using
FMLA leave for his own serious health condition, commented that ``FMLA
not only allows me to take time off for * * * therapy/medical
appointments but also allows [me] to take time off as needed when I
have sporadic episodes in which the medicine does not work, needs to be
fine tuned or changed which is essential to my well-being.'' An
Employee Comment, Doc. 4619, at 1. He further commented, ``Without FMLA
I would have been fired long ago[.] * * * FMLA saved my job and I also
believe saved my life, and to this day gives me a sense of security
against any discipline or termination based on my legitimate medical
needs.'' Id.
The FMLA appears to be particularly valued by employees caring for
both children and parents with serious health conditions. A telephone
company employee providing care for her asthmatic son and for her 84-
year-old mother commented: ``I am part of what is known as the
``Sandwich Generation''[.] * * * I have had several occasions to use
FMLA[.] * * * Without FMLA protection I would have lost my job.'' An
Employee Comment, Doc. R133, at 1. Another employee described taking
leave for a three-month period for the birth of her child, then needing
leave intermittently to care for her father ``for a few days after each
hospitalization'' for his chronic heart disease. An Employee Comment,
Doc. 6311, at 1. According to this commenter, ``Knowing that I was
protected meant I didn't have to choose between my Father's health and
my job.'' Id. at 1.
In a similar vein, one commenter who administers FMLA leave for her
employer noted, ``What I am seeing with increasing regularity are FMLA
requests for employees to care for an elderly parent who is ill and not
able to afford a caregiver to attend to his/her needs. These are
usually for intermittent leaves that will allow the employee to
chauffer their parent to the doctor [or] attend to their parent post
surgery. As our working population ages, [the need for leave related
to] caring for elderly parent(s) will increase.'' Doreen Stratton, Doc.
696 at 1. An employee agreed: ``There are multiple factors putting
stress on the American family, making the FMLA a good thing for
families with children. Also, millions of baby-boomers are getting old,
many of them without adequate retirement funds--so we will be seeing
more family caregivers, not fewer.'' An Employee Comment, Doc. 5473, at
1. As these comments show, the importance of the FMLA is growing for
this key group of employees and their employers. As one commenter put
it, ``In most families, since both parents have to work to support
themselves and their children and perhaps their older parents, the more
a company provides pay and good will towards a family['s] caretaking
abilities, the more that employee will be loyal to the company.'' An
Employee Comment, Doc. 5521, at 1.
In addition to these individual employee and employer comments, the
American Federation of Labor and Congress of Industrial Organizations
(``AFL-CIO'') conducted an ``online survey among members of Working
America, the Federation's community-based affiliate in response to the
RFI. Within a period of two weeks, over 1,660 members responded.'' Doc.
R329A, at 6. As a result of their survey, several hundred personal
experiences were included in an Appendix to the AFL-CIO's comment--a
sampling of which is provided here:
``My daughter was mauled by a dog. I had to take 2 months
of leave (permitted under FMLA). Had FMLA not been in place, I would
have lost my job for sure.''
``FMLA has made a big difference to me. I have a chronic
health condition along with being a single mother and have my aging
mother living with me. I can't imagine not being able to use this so
that I know that my job will still be there whether I have a
[reoccurrence] of my health condition or like when my 4 year old broke
his leg.''
``My step mother had a debilitating stroke. Since I work
in social services, I was [the] best person in the family to assist her
with setting up her benefits. My direct supervisor did not like it, but
my request could not be denied. Human Resources was more than helpful
in telling me how much vacation and sick time I had accrued. It was
required that I use that up while I was on FMLA. I was paid for all but
a week and a half of my leave. Without FMLA, I could not have taken the
5 weeks off work.''
When my mother was diagnosed with lung cancer, my brother
and I decided I would be the one to take her to all her appointments
and therapy. I would have lost my job or had to leave it without FMLA.
It was difficult for the people I worked with because it put a strain
on the office, however, they were, for the most part, emotionally
supportive as well.''
``My mother was diagnosed with cancer and she had a stroke
that left her paralyzed and wheelchair bound. With the help of the
FMLA, I was able to take her to her appointments and tell the doctors
what was going on with her since I was her primary caregiver. I was
able to be with her when she took her last breath and was grateful for
the time I was able to [spend] with her until her death.''

Id. at 46-59.
Similarly, the Communications Workers of America submitted several
hundred examples of their members' personal experiences with FMLA ``to
illustrate the continued importance of the FMLA[.]'' Doc. R346A, at 16.
A representative sample of those experiences follows:
``A Cingular employee with a good work record has Lupus
which causes periodic flare-ups that prevent her from working and
require weekly therapy and regular doctor visits. FMLA has allowed her
to remain stress-free * * * because she does not need to worry about
losing her job.''
``A Pacific Bell Telephone employee with chronic lower
back pain that prevents sitting or walking when it flairs up has been
able to take FMLA leave when these symptoms occur without facing
discipline for absence issues. As a result, this employee remains a
productive and committed employee.''
``A [Communications Workers of America] member reports
that in 1995 his late wife was diagnosed with colon cancer. After she
was operated on, she needed extensive chemotherapy. His employer
allowed him to substitute paid leave for unpaid FMLA leave whenever he
needed to go with his wife to chemotherapy treatments since she was
unable to drive herself to or from these appointments. This made a big
difference especially because some of the medical care was not covered
by the employee's insurance.''
``An employee of AT&T has used FMLA leave to care for her
husband, her son, her elderly mother and for her own serious health
condition. She reports that she learned about the availability of FMLA
leave from her union and the union representatives were very helpful to
her in trying to understand complicated FMLA application forms and
other related documents sent to her in connection with these leaves.''
``An employee of AT&T used FMLA leave five years ago when
her father developed a brain tumor that ultimately took his life. She
states that `it was devastating to our family, but I am so grateful
that, with the FMLA I was able to help care for him in our home and was
by his side when he passed. This is how life and death should be.
Losing the protections of FMLA would force us to have strangers care
for our [loved] ones in their time of need.' ''

[[Page 35559]]

Id. at 16-42.
Numerous employees commented that requesting and using FMLA leave
was a positive experience because their employers were helpful and
straightforward in providing such leave. Several of these employees
commented that their employers initially suggested they request FMLA
leave and helped them through the process. See, e.g., Employee
Comments, Doc. 4734, at 1 (``My employer did not give me any difficulty
in using my sick/personal time[.] * * * I spoke to my Human Resources
person and she suggested I apply [for FMLA leave].''); Doc. 874, at 1
(an employee who needed leave to care for her mother in a different
state ``first heard of FMLA when I contacted my HR office about my
dilemma, and I was so amazed and relieved that such a worker-centric
law actually existed! With the help of FMLA, I was able to spend a
month in Michigan helping my Mom--away from my job--without having to
worry that I would be fired.'').
Other employees observed that their employers put them at ease when
they requested FMLA leave. Specifically, an employee recalled when her
child became ill with a brain tumor that her ``company was very
understanding about granting me [FMLA] leave. I felt very safe and
secure knowing that I could take leave and still have my job when I
returned.'' An Employee Comment, Doc. 95, at 1. Similarly, an employee
said she was ``[s]o thankful when my employer informed me of this law
because it gave my mom peace of mind knowing that I would be available
for her when she needed me.'' An Employee Comment, Doc. 4773, at 1.
Often employees were thankful because their employers were
sympathetic to their family needs while on FMLA leave. The National
Association of Working Women provided the example of ``a 41-year-old
single mother in Aurora, Colorado. The FMLA allows her to take off
whenever her 11-year-old son * * * has an attack caused by his chronic
asthma. `When he does get sick, I have to be up practically 24 hours,'
[the mother] says, praising her employer, Kaiser Permanente, and her
supervisor for understanding her situation.'' Doc. 10210A, at 1. One
employee said her employer's sympathy during FMLA leave prevented her
from looking for new work: ``Thanks to the FMLA, I was able to take
three months off work with full salary in order to take care of [my
husband] when he was reduced to a state of complete dependency. * * * I
was secure in the knowledge that I could come right back to my job, and
I developed a keen sense of loyalty to my employer which has more than
once prevented me from looking for work elsewhere.'' An Employee
Comment, Doc. R62, at 1. Finally, one employee stated she did not find
requesting FMLA leave to be ``cumbersome or unreasonable'' because her
Human Resources department was ``very helpful with the entire
process.'' An Employee Comment, Doc. 4720, at 1. Further, she noted
that ``the process and leave itself [was a Godsend] as caring for our
Mother was very, very stressful[.]'' Id.
Many comments recounted employer policies that go above and beyond
what is required under the Act. See, e.g., An Employee Comment, Doc.
5069, at 1 (employer ``gives paid medical leave based on how much time
is medically necessary.''); Jill Ratner, President, The Rose Foundation
for Communities and the Environment, Doc. 4877, at 1 (A non-profit
foundation that provides ``one week of paid family leave (in addition
to two weeks of paid sick leave) to all employees'' commented that
``providing family leave is critical to recruiting and retaining
qualified staff, and to maintaining staff morale and effectiveness.'');
An Employee Comment, Doc. 1106, at 1 (``Altogether, I was away from
work for about two months or so. My employer, Monsanto, was very
generous with me. In addition to granting the time off and guaranteeing
I would still have my job when I returned, they paid sick leave during
this period.''); An Employee Comment, Doc. 70, at 1 (The employer of an
employee who had been employed for less than one full year when she
needed FMLA leave to care for her sick mother ``essentially applied the
FMLA rules anyway; they let me use all my vacation time and then gave
me unpaid leave. I cannot tell you what a difference that made.'');
National Employment Lawyers Association, Doc. 10265A, at 3 (An attorney
association commented that one of her clients suffered from chronic
fatigue syndrome, which shortened her work day by 1 to 2 hours, but
``her employer was very cooperative with her efforts to continue
working by allowing her to use her FMLA [leave] in these short blocks
of time and wasn't even really counting whether she was using up her
FMLA leave.'').
A professor commented that her college provided leave periods in
addition to FMLA leave, lasting the length of a full school term. An
Employee Comment, Doc. R79A, at 1. ``I also underwent surgery, several
cycles of adjuvant chemotherapy, and a series of medical tests for the
management of my cancer and am currently considered to be cancer-free
and doing well. These treatments were possible, not only because of my
excellent medical coverage as a full-time university employee, but
because I could take a one-term medical leave in the fall and still
receive paychecks[.]'' Id.
Some employers also noted that making it easier on employees to use
FMLA leave was a positive experience from their perspective. One
employer commented:

If I have an employee with a child or family member with a
serious illness, and this employee is unable to be with that family
member when needed, they are distracted at work and their
productivity suffers. In contrast, if they are allowed time to take
care of that family member, their productivity increases. They know
what they have to accomplish and--sometimes by working at home, or
working extra hours, or skipping lunch, or working exceptionally
hard--they get it done. And in the end I have an extremely loyal
employee.

Marie Alexander, President & CEO, Quova, Inc., Doc. 5291, at 1. A
public sector employer commented that administering FMLA leave was ``no
more difficult to navigate than any other labor oriented legislation.
In fact, I find it very straightforward, and it has been a literal
lifesaver for some of our people.'' Kevin Lowry, Nassau County
Probation, Doc. 86, at 1. The commenter went on to say, ``In the long
run, most people will appreciate the extra protection offered by the
employer during a difficult time and will return as more motivated
employees once the crisis has passed.'' Id. The benefit to employers of
providing FMLA leave to employees was also the topic of another
employer's comment: ``As a supervisor, FMLA allowed me to keep a good
employee while she cared for her terminally ill husband. After he
passed away, she came back to work and has continued to contribute to
[the company] in an extremely valuable way.'' Chris Yoder, Doc. 922, at
1.
Some employees also noted that, upon returning from FMLA leave,
they felt more productive at work and more loyal to their employer. One
employee said, ``My mentor allowed me to use my own sick leave and
vacation and then to hold my position without pay until after my mother
passed and I was able to return to work. The course of my mother's
illness was quick, and I was gone about six weeks total. When I
returned to work, I was able to re-engage in it and be productive.'' An
Employee Comment, Doc. 885, at 1. Another employee commented, ``I used
FMLA three times in the last 9 years (with and without pay); each time
I was very grateful to know that my job status was protected when I was
out on leave. All three times I returned to work and

[[Page 35560]]

rededicated myself to my job. FMLA helped me, my family, and my loyalty
and productivity in the workplace.'' An Employee Comment, Doc. R2, at
1.
A telecommunications employee also commented that taking FMLA leave
allows her to be more productive: ``The FMLA has changed my life. It
has saved my job. Without the intermittent leave, and my taking only
1.5 days maximum per month, I would be on a disability. When I do miss
work, I work twice as hard to make up for the time I am gone. I
actually produce more than those who don't take the FMLA time.'' An
Employee Comment, Doc. 233, at 1. Another employee noted that FMLA
leave is not ``charity'' but ``instead it safeguard[s] loyal employees
who, because of unforeseen circumstances need a temporary helping
hand.'' An Employee Comment, Doc. 4732, at 1. Further, the commenter
noted, ``I have known a family which has benefited tremendously by the
FMLA. After assistance, they have emerged once again into a productive,
tax paying, exciting family that is contributing to our community.''
Id.
While other chapters of this Report detail areas where commenters
indicate the FMLA may not work as well as it could, the comments in
this chapter show the continued value to employees and employers of the
FMLA leave entitlements. While employees were relieved at having
available job-protected leave, they also often noted their increased
loyalty to their employers after using periods of FMLA leave,
especially where they felt their employers were sympathetic concerning
the leave circumstances and helpful with the procedures for taking
leave. Employers, as well as employees often noted increased
productivity among employees returning from FMLA leave and, in some
instances, provided greater benefits than those required by the Act.
The value of FMLA leave was pointed out for all types of qualifying
leave scenarios, but was particularly referenced in regard to employees
of the ``sandwich generation'' who frequently find themselves caring
for their own health needs, those of their children, and of their aging
parents.

II. Ragsdale/Penalties

In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the
Supreme Court held that the penalty provision in the Department's
regulation at section 825.700(a) is invalid. That regulation states
that ``[i]f an employee takes paid or unpaid leave and the employer
does not designate the leave as FMLA leave, the leave taken does not
count against an employee's FMLA entitlement.'' 29 CFR 825.700(a). The
Court held the provision is invalid because, in some circumstances, it
requires employers to provide leave in excess of an employee's 12-week
statutory entitlement. Although the Court did not invalidate the
underlying notice and designation provisions in the regulations, it
made clear that any ``categorical penalty'' for a violation of such
requirements would exceed the Department's statutory authority.
The Request for Information noted that a number of courts have
invalidated a similar penalty provision found in section 825.110(d),
which requires an employer to notify an employee prior to the employee
commencing leave as to whether the employee is eligible for FMLA leave.
If the employer fails to provide the employee with such information, or
if the information is not accurate, the regulation bars the employer
from challenging the employee's eligibility at a later date, even if
the employee is not eligible for FMLA leave pursuant to the statutory
requirements.
Therefore, the Department asked commenters what ``changes could be
made to the regulations in order to comply with Ragsdale and yet assure
that employers maintain proper records and promptly and appropriately
designate leave as FMLA leave?'' The Department received a significant
number of comments regarding this issue and related notice issues.

A. Background

The FMLA entitles eligible employees of covered employers to 12
weeks of leave per year for certain family and medical reasons. 29
U.S.C. 2612(a)(1). In order to allow employees to know when they are
using their FMLA-protected leave, the regulations state that ``it is
the employer's responsibility to designate leave, paid or unpaid, as
FMLA-qualifying, and to give notice of the designation to the
employee.'' 29 CFR 825.208(a). More specifically, ``[o]nce the employer
has acquired knowledge that the leave is being taken for an FMLA
required reason, the employer must promptly (within two business days
absent extenuating circumstances) notify the employee that the paid
leave is designated and will be counted as FMLA leave.'' 29 CFR
825.208(b)(1). See also 29 CFR 825.301(b)(1)(i) and (c). The employer's
designation may be oral or in writing, but if it is oral, it must be
confirmed in writing, generally no later than the following payday,
such as by a notation on the employee's pay stub. 29 CFR 825.208(b)(2).
The categorical penalty provision of the regulations with regard to
paid leave provides as follows:

If the employer has the requisite knowledge to make a
determination that the paid leave is for an FMLA reason at the time
the employee either gives notice of the need for leave or commences
leave and fails to designate the leave as FMLA leave (and so notify
the employee in accordance with paragraph (b)), the employer may not
designate leave as FMLA leave retroactively, and may designate only
prospectively as of the date of notification to the employee of the
designation. In such circumstances, the employee is subject to the
full protections of the Act, but none of the absence preceding the
notice to the employee of the designation may be counted against the
employee's 12-week FMLA leave entitlement.

29 CFR 825.208(c). See also 29 CFR 825.700(a) (``If an employee takes
paid or unpaid leave and the employer does not designate the leave as
FMLA leave, the leave taken does not count against an employee's FMLA
entitlement.'').
In Ragsdale, 535 U.S. 81, the Supreme Court considered a case in
which the plaintiff had received 30 weeks of leave from her employer.
At that point, her employer denied her request for additional leave and
terminated her employment. She alleged that her employer violated
section 825.208(a), which requires an employer to designate
prospectively that leave is FMLA-covered and to notify the employee of
the designation. Because her employer did not do so, she alleged that
she was entitled under section 825.700(a) to an additional 12 weeks of
FMLA-protected leave.
The Court found that this ``categorical penalty'' is ``incompatible
with the FMLA's comprehensive remedial mechanism,'' which puts the
burden on the employee to show that the employer interfered with,
restrained, or denied the employee's exercise of FMLA rights, and that
the employee suffered actual prejudice as a result of the violation.
Ragsdale, 535 U.S. at 89. The Court observed that, according to the
regulation, the ``fact that the employee would have acted in the same
manner if notice had been given is, in the Secretary's view,
irrelevant.'' Id. at 88. The Court also found that the regulation
``subverts the careful balance'' that Congress developed with regard to
``the FMLA's most fundamental substantive guarantee'' of an entitlement
to a total of 12 weeks of leave, which was a compromise between
employers who wanted fewer weeks and employees who wanted more. Id. at
93-94. Thus, the Court held that the penalty provision of section
825.700(a) is ``contrary to the Act and beyond the Secretary of Labor's
authority.'' Id. at 84.

[[Page 35561]]

The Supreme Court did not invalidate the notice and designation
provisions in the regulations. Indeed, the Court recognized that there
may be situations where an employee is able to show that the employer's
failure to provide the required notice of FMLA rights prejudiced the
employee in a specific way (such as depriving the employee of an
opportunity to take intermittent leave or to return to work sooner).
The Court stated, however, that the Act's remedial structure requires a
``retrospective, case-by-case examination'' to determine ``whether
damages and equitable relief are appropriate under the FMLA,'' based
upon the steps the employee would have taken had the employer given the
required notice, rather than a categorical penalty. Id. at 91. See
Sorrell v. Rinker Materials Corp., 395 F.3d 332, 336 (6th Cir. 2005)
(remanding the case for a determination of whether the doctrine of
estoppel bars the company from challenging the employee's entitlement
to FMLA leave because the employer had unconditionally approved the
leave request); Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 493-94
(8th Cir. 2002) (holding that the employer was equitably estopped from
asserting that the plaintiff had exhausted his 12 weeks of FMLA leave,
based on a letter expressly informing him after 22 weeks of disability
leave that he still had 12 weeks of FMLA leave left); Wilkerson v.
Autozone, Inc., 152 Fed. Appx. 444 (6th Cir. 2005) (based on the
employer's statement that the employee had six weeks of post-partum
FMLA leave, equitable estoppel applied because the employee reasonably
relied on it and showed the requisite prejudice).
The Ragsdale decision addressed only the penalty provision in
section 825.700(a), which is applicable to both unpaid leave and paid
leave (Ragsdale involved unpaid leave). The penalty provision in
section 825.208(c) (applicable only to paid leave) is virtually
identical. A number of courts have held that the rationale of the
Ragsdale decision applies equally to section 825.208(c), and that an
employee must show prejudice from the lack of notice to establish a
violation of the Act. See, e.g., Miller v. Personal-Touch of Va., Inc.,
342 F. Supp. 2d 499, 513-14 (E.D. Va. 2004); Donahoo v. Master Data
Ctr., 282 F. Supp. 2d 540, 554-55 (E.D. Mich. 2003); and Phillips v.
Leroy-Somer N. Am., No. 01-1046-T, 2003 WL 1790941, *5-7 (W.D. Tenn.
Mar. 28, 2003).
As discussed above, a number of courts also have found that the
``deeming'' provision in section 825.110(d) of the regulations is
invalid and contrary to the statute. The FMLA establishes that
employees are eligible for FMLA leave only if they have been employed
by the employer ``for at least 12 months'' and have ``at least 1,250
hours of service with such employer during the previous 12-month
period.'' 29 U.S.C. 2611(2)(A). The regulations generally require an
employer to notify an employee whether the employee is eligible for
FMLA leave prior to the employee commencing leave. If the employer
confirms the employee's eligibility, ``the employer may not
subsequently challenge the employee's eligibility.'' 29 CFR 825.110(d).
Furthermore, ``[i]f the employer fails to advise the employee whether
the employee is eligible prior to the date the requested leave is to
commence, the employee will be deemed eligible. The employer may not,
then, deny the leave. Where the employee does not give notice of the
need for leave more than two business days prior to commencing leave,
the employee will be deemed to be eligible if the employer fails to
advise the employee that the employee is not eligible within two
business days of receiving the employee's notice.'' Id.
Thus, even if an employee fails to satisfy the statutory
eligibility requirements, the regulation ``deems'' the employee to be
eligible for FMLA-protected leave. The courts have held that this
regulation is invalid. See, e.g., Woodford v. Comty. Action of Greene
County, Inc., 268 F.3d 51, 57 (2d Cir. 2001) (``The regulation exceeds
agency rulemaking powers by making eligible under the FMLA employees
who do not meet the statute's clear eligibility requirements.'');
Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 796-97 (11th Cir.
2000), cert. denied, 532 U.S. 1037 (2001) (``There is no ambiguity in
the statute concerning eligibility for family medical leave, no gap to
be filled.''); Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 582 (7th
Cir. 2000) (``The statutory text is perfectly clear and covers the
issue. The right of family leave is conferred only on employees who
have worked at least 1,250 hours in the previous 12 months.''
Therefore, the Department ``has no authority to change the Act,'' as
the regulation attempts to do, by making ineligible employees eligible
for family leave).
The courts have concluded that an employee may pursue a case, based
on the principle of equitable estoppel, where the employer's failure to
advise the employee properly of his/her FMLA eligibility/ineligibility
is determined to have interfered with the employee's rights, and the
employee could have taken other action had s/he been properly notified.
See, e.g., Dormeyer, 223 F.3d at 582 (``an employer who by his silence
misled an employee concerning the employee's entitlement to family
leave might, if the employee reasonably relied and was harmed as a
result, be estopped to plead the defense of ineligibility to the
employee's claim of entitlement to family leave.''); Kosakow v. New
Rochelle Radiology Assocs., P.C., 274 F.3d 706, 722-27 (2d Cir. 2001).
See also Wage and Hour Opinion Letter FMLA2002-1 (Aug. 6, 2002).

B. Comments on Ragsdale: Notice and Designation Issues

A number of commenters addressed the Ragsdale categorical penalty
issue and responded to the Request for Information's question regarding
what ``changes could be made to the regulations in order to comply with
Ragsdale and yet assure that employers maintain proper records and
promptly and appropriately designate leave as FMLA leave?''
The National Coalition to Protect Family Leave stated that section
825.700(a) and the similar penalty provision in section 825.208 should
be removed from the regulations, and that ``any `penalty' that DOL
wants to impose on employers for failure to follow certain notice
obligations dictated by the regulations must be tailored to the
specific harm suffered by the employee for failure to receive notice.''
National Coalition to Protect Family Leave, Doc. 10172A, at 43, The
Coalition asserted that retroactive designation should be permitted, so
that employees ``could receive the FMLA protections despite their
failure to adequately communicate that the FMLA is at issue, and
employers who inadvertently fail to timely designate leave can have the
opportunity to count the absence toward the employee's FMLA leave bank.
Retroactive designation should be permitted in all cases where the
employee is eligible, the condition qualifies, and the employee has
adhered to his/her FMLA notice obligations that FMLA leave is at
issue.'' Id. at 44. See also Proskauer Rose LLP, Doc. 10182A, at 9 (the
regulations should allow an employer ``who initially fails to designate
a leave as FMLA leave, but nevertheless grants the employee the leave,
to retroactively designate the leave as FMLA leave''); Coolidge Wall
Co. LPA, Doc. 5168, at 1 (the regulations should state that an employer
that has an FMLA policy in its handbook, for which an employee has
acknowledged receipt, can send out the FMLA notice ``mid-leave and can
retroactively count the employee's time''); Commonwealth of
Pennsylvania, Doc. FL95, at 2-3 (retroactive

[[Page 35562]]

designation should be allowed ``when an employee's FMLA rights were
provided during the period of absence,'' because the two-day verbal
notification requirement is difficult to achieve, although the written
notification/designation requirements ``usually can occur * * * within
the timeframes prescribed by the Regulations'').
The Air Transport Association of American, Inc., and the Airline
Industrial Relations Conference suggested that the regulations be
revised in light of Ragsdale, because employers do not know which
regulations they must follow and which are no longer valid, and
employees who read them also are confused about which regulations their
employers must follow. Doc. FL29, at 15. See also Association of
Corporate Counsel, Doc. FL31, at 10 (section 825.700 should be deleted
to clarify that an employer's failure to timely designate leave does
not increase the statutory leave period).
United Parcel Service, Doc. 10276A, at 2, suggested that the
Department should clarify in section 825.208 the effect of an
employer's mistaken designation of FMLA leave, because some courts have
held that the doctrine of equitable estoppel prevents an employer from
denying protected leave based on a subsequent determination that the
employee was not eligible. The United States Postal Service similarly
suggested that both sections 825.700(a) and 825.208(c) should be
revised to clarify that ``a technical violation of the notice
provisions does not result in a windfall of surplus FMLA protection for
an employee who suffered no harm as a result.'' Doc. 10184A, at 4. A
large provider of human resources outsourcing services commented that
``by deleting the `penalty' provision and simply reinforcing employer
notification obligations,'' the Department would appropriately respond
to Ragsdale. Hewitt Associates, Doc. 10135A, at 8. Hewitt stated that
employers benefit by providing more notice because they: Educate
employees about their rights, responsibilities, and benefits; maximize
the likelihood that employees will return to work promptly; maintain or
enhance their engagement; minimize the impact on other HR
administrative processes; minimize the impact on business operations;
and reduce available time off balances accurately. Id. at 7-8.
Finally, as discussed in detail in Chapter V, a number of
commenters stated that the two-day time frame for designating leave is
inadequate, or that the designation requirement should apply only when
employees expressly request FMLA leave. The National Association of
Convenience Stores suggested that, in light of Ragsdale, ``DOL should
consider eradicating all formal employer designation requirements.''
Doc. 10256A, at 7.
Other stakeholders, however, presented views in support of the
current notice and designation requirements and had suggestions for
changes that would provide improved and prompt information to
employees. One commenter stated that the data show that two days is
sufficient to allow employers to review and respond to employees' leave
requests. ``Most organizations spend only between thirty and 120
minutes of administrative time per FMLA leave episode to provide
notice, determine eligibility, request and review documentation, and
request a second opinion. Therefore, no change to the current two-day
response requirement is warranted.'' National Partnership for Women &
Families, Doc. 10204A, at 21 (citation omitted). That commenter also
noted that while the Supreme Court struck down the ``categorical
penalty'' in the current regulations, it left intact the requirement
that employers designate leave, and it ``did not prohibit DOL from
imposing any penalties on employers for failing to properly designate
and notify employee about leave.'' Id. at 18. Therefore, in light of
the overall purposes of the notice and designation requirements, this
commenter suggested that any changes to the regulations should:
``Emphasize that the Court did not alter the obligation of
employers to both designate leave promptly and notify employees of how
that leave has been designated. Thus, employers must continue to adhere
to these designation and notice requirements or risk penalties.''
``Reaffirm and modify current recordkeeping requirements
that require employers to keep accurate and complete records of how
leave has been designated, and when the employee was notified of the
designation.''
``Prohibit employers from making any retroactive changes
to how leave has been designated without notification and consultation
with the employee, and require maintenance of records documenting such
notification and consultation.''
``Establish new penalties for employer non-compliance that
are not automatic, but can be imposed following a complaint by the
affected employee and an independent determination of the harm caused
by the employer's violation.''

Id. at 18-19. See also Letter from 53 Democratic Members of Congress,
Doc. FL184, at 2 (noting that Ragsdale invalidated only the penalty
provision of the regulations and that any changes in the regulations
should be limited to remedying that problem and should go no further).
Another commenter suggested that ``fines should be imposed'' on
employers that do not maintain accurate records, and they ``should not
be able to retroactively change how leave was originally designated
without notice and consultation with the employee.'' OWL, The Voice of
Midlife and Older Women, Doc. FL180, at 2.
A number of commenters emphasized the hardships employees suffer
when they do not know promptly whether the employer believes they are
entitled to protected leave. Employees then either feel compelled not
to take the time off that they need, or else they take off but are
afraid because they do not know whether they will be subject to
discipline for being off work. See, e.g., Frasier, Frasier & Hickman,
LLP, Doc. FL60, at 1-3. As discussed in detail in Chapter V, a number
of commenters therefore suggested that employers be required to inform
employees promptly when they are using FMLA leave.
Another commenter noted that his employer ``is able to delay, and
many times deny, for many weeks and months the benefits and protections
which the Act affords,'' because it repeatedly asks for more
information on the certification form. An Employee Comment, Doc.
10094A, at 2. During this ``very lengthy approval process, the employee
is subjected to attendance-related discipline when the absence should
have been approved or at the very least be treated as `pending.' '' Id.
See also An Employee Comment, Doc. 5335, at 1 (noting that she had gone
out on short-term disability leave for surgery but, despite her regular
contact with the benefits specialist, she was not notified that the
company had placed her on FMLA leave). This issue is addressed in more
detail in Chapter VI relating to medical certifications.

C. Deeming Eligible Issues

A number of commenters also addressed issues related to the
provision in 29 CFR 825.110(d) deeming employees eligible for FMLA
leave if an employer either fails to advise them of their eligibility
status within the allotted time period, or incorrectly advises them
that they are eligible when they have not satisfied the statutory
requirements of 12 months of employment and 1,250 hours of service in
the preceding 12 months.
One commenter stated that ``[t]he Supreme Court's decision in the

[[Page 35563]]

Ragsdale case casts grave doubt on the validity of other categorical
penalties in the Regulations.'' National Coalition to Protect Family
Leave, Doc. 10172A, at 13. It noted that a number of courts have struck
down both the provision in section 825.110(d) stating that an employer
may not later challenge an employee's eligibility if it mistakenly
confirms that an employee is entitled to leave, and the provision
deeming an employee eligible if the employer fails to notify the
employee that the employee is not eligible prior to the start of leave
(if the employer had advance notice) or within two business days of
receiving notice. This commenter stated that it ``urges DOL to delete
the language in section 825.110(d) that [the] federal courts have
invalidated.'' Id. at 14.
Another commenter stated that, in light of the Ragsdale decision,
the penalty provision for an employer's failure to timely notify
employees that they are eligible for FMLA leave should be deleted;
however, the regulation should continue to require that the employer
notify employees whether they are/are not eligible, but either delete
the consequences from the regulation or incorporate the interference/
estoppel theory approved by the Supreme Court in Ragsdale. ``That is,
if the employee can demonstrate that the failure to provide notice
caused actual harm to the employee's FMLA rights the employer's notice
failure is actionable interference.'' Carl C. Bosland, Esq., Preemptive
Workforce Solutions, Inc., Doc. 5160, at 2-3.
Another commenter suggested that, if an employer has a handbook,
bulletin board, orientation materials, etc., that show employees were
provided information about the FMLA, which leaves are protected, and
how to apply for protected leave, ``the employer should be exempted
from consequences under this part of the act.'' Ken Lawrence, Doc.
5228, at 1.
Hewitt Associates noted that while equitable estoppel provides some
guidance, it does not provide a rule. ``In fact, an employer that
wishes to `undeem' a leave is now required to make a subjective review
of the employee's circumstances (if the employer knows them) and
analyze whether it would be fair to revoke the designation. * * *
[R]evoking Sec. 825.110(d) allows employers to correct their errors by
undesignating these leaves but, considering the analysis required, at
an overly burdensome administrative price. The Department should craft
a bright-line rule that balances the right of employers to revoke an
`inappropriate' FMLA designation, with fairness to employees who have
relied upon that designation.'' Hewitt Associates, Doc. 10135A, at 10.
This commenter suggested a rule that both allows employers to count the
time that an ineligible employee is permitted to remain on leave
against that employee's eventual 12-week entitlement, and gives
employees a ``grace period'' to return to work (the length of which
would turn on circumstances such as the length of time left in the
leave, the reason for the leave, travel, etc.). The commenter also
would require the employer to provide an ``immediate and thorough
notification to the employee'' explaining that the employee was not
eligible for leave, how the absences would be treated, the length of
the grace period, etc. Id. at 11.
As discussed in detail in Chapter V, a substantial number of
employers emphasized the difficult and time-consuming nature of making
eligibility determinations, with regard to calculating both the number
of hours worked in the past 12 months and the amount of FMLA leave
used. They objected to any revision to the regulations that would
require employers to provide periodic reports to employees about the
amount of FMLA leave they have remaining. See, e.g., United Parcel
Service, Doc. 10276A, at 7-8. On the other hand, a few employers noted
that they use payroll tracking systems that tell them whether employees
are eligible for FMLA leave.
Other commenters emphasized the importance to employees of knowing
promptly whether they are eligible for leave, and they suggested that
the FMLA regulations should encourage employers to provide accurate,
thorough and timely information about FMLA eligibility and procedures.
As discussed in Chapter V, these commenters emphasized that many
employees still do not know whether they are protected by the FMLA;
they do not have information about their leave options; and they do not
know whether their leave is being designated as FMLA leave. Therefore,
a number of commenters suggested that the Department should consider
regulations that require employers to provide notice to employees, when
they have worked for one year and on an annual basis, explaining their
eligibility status, their leave entitlement, and the procedures for
applying for FMLA leave. See, e.g., American Federation of Labor and
Congress of Industrial Organizations, Doc. R329A, at 40.

III. Serious Health Condition

The Department asked two questions in its Request for Information
about the definitions of serious health condition contained at 29 CFR
825.114: (1) ``Section 825.114(c) states `[o]rdinarily, unless
complications arise, the common cold, the flu, earaches, 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.' Have [the] limitations in
section 825.114(c) been rendered inoperative by the regulatory tests
set forth in section 825.114(a)?''; and (2) ``Is there a way to
maintain the substantive standards of section 825.114(a) while still
giving meaning to section 825.114(c) and congressional intent that
minor illnesses like colds, earaches, etc., not be covered by the
FMLA?''
The regulatory definition of serious health condition is central to
the FMLA because the primary reason that people take FMLA leave is to
attend to their own or a family member's health needs. See Westat,
``Balancing the Needs of Families and Employers, Family and Medical
Leave Surveys, 2000 Update,'' January 2001, at 2-5 (hereinafter ``2000
Westat Report'') (83.3% of employees report ``own health'' or health of
parent, child, or spouse as reason for taking leave); see also National
Coalition to Protect Family Leave, Doc. 10172A, Darby Associates,
Attachment at 10 (``The [employee's] own health * * * was the
predominant reason for leave[.]'').\3\ The Department received an
overwhelming response to these questions. In order to fully understand
these comments, though, and to give them some context it is necessary
to explain the regulatory history of the definition of serious health
condition.
---------------------------------------------------------------------------

\3\ Westat is a statistical survey research organization serving
agencies of the U.S. Government, as well as businesses, foundations,
and state and local governments. These surveys were commissioned by
the Department of labor in 2000 as an update to similar 1995 surveys
ordered by the Commission on Family and Medical Leave, which was
established by the FMLA.
---------------------------------------------------------------------------

A. History and Background

1. The Family and Medical Leave Act of 1993
Under the Act, an employee may be entitled to FMLA leave for any
one of the four following reasons:
(A) Because of the birth of a son or daughter of the employee and
in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee
for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent,
of the

[[Page 35564]]

employee, if such spouse, son, daughter, or parent has a serious health
condition.
(D) Because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.

29 U.S.C. Sec. 2612(a)(1). The Act defines a serious health condition
as ``an illness, injury, impairment, or physical or mental condition
that involves--(A) inpatient care in a hospital, hospice, or
residential medical care facility; or (B) continuing treatment by a
health care provider.'' 29 U.S.C. 2611(11). The term ``continuing
treatment'' is not defined by the statute. The FMLA expressly grants to
the Secretary of Labor the authority to ``prescribe such regulations as
are necessary to carry out [the Act].'' 29 U.S.C. 2654.
The legislative history of the Act states that ``[w]ith respect to
an employee, the term `serious health condition' is intended to cover
conditions or illnesses that affect an employee's health to the extent
that he or she must be absent from work on a recurring basis or for
more than a few days for treatment or recovery.'' H. Rep. No. 103-8, at
40 (1991); S. Rep. No. 103-3, at 28 (1993). The scope of coverage
intended by ``serious health condition'' is not unlimited, however:

The term `serious health condition' is not intended to cover
short-term conditions for which treatment and recovery are very
brief. It is expected that such conditions will fall within even the
most modest sick leave policies. Conditions or medical procedures
that would not normally be covered by the legislation include minor
illnesses which last only a few days and surgical procedures which
typically do not involve hospitalization and require only a brief
recovery period. * * * It is intended that in any case where there
is doubt whether coverage is provided by this act, the general tests
set forth in this paragraph shall be determinative.

Id. The House and Senate Committee Reports also list the types of
illnesses and conditions that would likely qualify as serious health
conditions:

Examples * * * include but are not limited to heart attacks,
heart conditions requiring heart bypass or valve operations, most
cancers, back conditions requiring extensive therapy or surgical
procedures, strokes, severe respiratory conditions, spinal injuries,
appendicitis, pneumonia, emphysema, severe arthritis, severe nervous
disorders, injuries caused by serious accidents on or off the job,
ongoing pregnancy, miscarriages, complications or illnesses related
to pregnancy, such as severe morning sickness, the need for prenatal
care, childbirth and recovery from childbirth.

H. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993). The
committee reports state, ``All of these conditions meet the general
test that either the underlying health condition or the treatment for
it requires that the employee be absent from work on a recurring basis
or for more than a few days for treatment or recovery.'' Id. The
reports further explained that these covered conditions either involve
inpatient care or significant continuing treatment. See id. (``For
example, someone who suffers a heart attack generally requires both
inpatient care at a hospital and ongoing medical supervision after
being released from the hospital. * * * Someone who has suffered a
serious industrial accident may require lengthy treatment in a hospital
and periodic physical therapy under medical supervision thereafter.'').
Significantly, the committee reports characterize covered FMLA
conditions as ones that are not only serious but also cause the
employee to be absent from work: ``With respect to an employee, the
term `serious health condition' is intended to cover conditions or
illnesses that affect an employee's health to the extent that he or she
must be absent from work[.]'' H. Rep. No. 103-8, at 40; S. Rep. No.
103-3, at 28. ``All of these health conditions require absences from
work[.]'' H. Rep. No. 103-8, at 41; S. Rep. No. 103-3, at 29.
2. Department of Labor Regulations (1993-1995)
The Act, including the definition of serious health condition
described above, was enacted on February 5, 1993. Congress gave the
Department 120 days to promulgate regulations under the new statute.
See 29 U.S.C. 2654.
Pursuant to the Act, the Department promulgated interim regulations
on June 4, 1993, which became effective August 5, 1993 (the effective
date of the Act). The Department then received public comments on the
regulations and used the comments to further refine the regulations.
Final regulations were issued on January 6, 1995. These final
regulations, adopted pursuant to this notice-and-comment rulemaking,
established the comprehensive framework that exists today for
determining a serious health condition.
The final rulemaking yielded six separate definitions of serious
health condition that exist today. A statutory definition of serious
health condition that involved only two parts (inpatient care or
continuing treatment) has thus been expanded to six separate and
distinct regulatory tests for determining a serious health condition.
Giving meaning to the broad and undefined statutory term ``continuing
treatment'' presented a daunting task for the Department. Moreover, the
Department had to be careful to ensure the definition covered every
type of serious health condition that Congress intended to cover while
not extending the Act's protections to those conditions Congress
intended to exclude.
The first regulatory definition in the regulations is a stand-alone
definition from the statute--``inpatient care (i.e., an overnight stay)
in a hospital.'' This is followed by five separate definitions for
``continuing treatment,'' all of which also qualify as serious health
conditions. See 29 CFR Sec. 825.114(a)(1)-(2). One of these five
definitions is ``incapacity due to pregnancy,'' which is a discrete
definition clearly articulated in the legislative history (``ongoing
pregnancy, miscarriages, complications or illnesses related to
pregnancy, * * * the need for prenatal care, childbirth, and recovery
from childbirth.'').
Of the four remaining definitions of serious health condition,
stakeholders have focused significantly on one definition:\4\
---------------------------------------------------------------------------

\4\ Stakeholders did also comment significantly on the
definition of a ``chronic'' serious health condition contained at 29
CFR 825.114(a)(2)(iii), which is discussed in Chapter IV.
---------------------------------------------------------------------------

(i) A period of incapacity of more than three consecutive calendar
days * * * that also involves:
(A) Treatment two or more times by a health care provider * * * or
(B) 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.

29 CFR 825.114(a)(2)(i)(A)-(B). This is an objective definition of
continuing treatment the Department established based in part on state
workers' compensation laws and the Federal Employees' Compensation Act
(``FECA''), which apply a three-day waiting period before compensation
is paid to an employee for a temporary disability. See 60 FR 2180, 2192
(Jan. 6, 1995). ``A similar provision [to FECA] was included in the
FMLA rules; a period of incapacity of `more than three days' was used
as a `bright line' test based on references in the legislative history
to serious health conditions lasting `more than a few days.' '' 60 FR
at 2192.
This objective test changed little during the rulemaking process
despite the numerous proposed revisions submitted to the Department.
These comments received in response to the interim regulations
represented a multitude of permissible alternative directions the
Department might have gone with this test, but were rejected as the
Department adhered to its original

[[Page 35565]]

standard, which is reflected in the current regulations stated above.
It is worth examining what some of those comments were to the original
rulemaking record to better inform the comments received to the current
RFI.
First, several parties contended that the period of incapacity--
whatever the exact length of days--should be judged by ``absence from
work'' as opposed to calendar days. 60 FR at 2192. Some stakeholders to
the rulemaking noted that the Department's proposed ``calendar day''
rule contradicted the legislative intent (reflected in the committee
reports) that ``the employee must be absent from work for the required
number of days[.]'' Id. at 2192. Another commenter noted that under the
three-calendar-day rule, employers would have no way of verifying
incapacity because a single absence on a Friday followed by a weekend
of incapacity could qualify as a serious health condition. See id.
Other commenters similarly favored the workday schedule because it was
more compatible with other sick leave and short-term disability
programs and ``removes any doubt as to whether an employee was
otherwise incapacitated and unable to work during days the employee was
not scheduled to work.'' Id. The Department originally chose ``calendar
days'' in the interim regulations. After receiving comments, the
Department chose, for two policy reasons, to retain calendar days as
opposed to work days: ``The Department has * * * concluded that it is
not appropriate to change the standard to working days rather than
calendar days because the severity of the illness is better captured by
its duration rather than the length of time necessary to be absent from
work.'' Id. at 2195. The Department further explained: ``[A] working
days standard would be difficult to apply to serious health conditions
of family members or to part-time workers [who might be incapacitated
but not necessarily absent from work].'' Id.
Second, there was also a broad range of suggestions as to what
length or type of incapacity was appropriate for defining a serious
health condition. Some comments rejected any fixed day limitation at
all, stating that a minimum durational limit had been specifically
rejected during a committee markup of the bill. See id. at 2192. Still
others suggested that three days was ``unreasonably low and trivialized
the concept of seriousness[.]'' Id. ``Fifteen commenters suggested
extending the three-day absence period to 5, 6, 7, or 10 days[,] * * *
two weeks[,] * * * or 31 days[.]'' Id. Other commenters suggested
eschewing a strict day standard in favor of adopting each individual
state's waiting period for workers compensation benefits or,
alternatively, the EEOC's definition of disability. See id. at 2193.
The Department rejected these various proposals in favor of its
original standard: ``Upon review, the Department has concluded that the
`more than three days' test continues to be appropriate. The
legislative history specifically provides that conditions lasting only
a few days were not intended to be included as serious health
conditions, because such conditions are normally covered by employers'
sick leave plans.'' Id. at 2195.
The Department did make one change of note in the definition of
serious health condition, however. After the 1993 interim regulations
were promulgated, several commenters urged ``clarifications [that
would] exclude from the definition [of serious health condition] minor,
short-term, remedial or self-limiting conditions, and normal childhood
or adult diseases (e.g., colds flu, ear infections, strep throat,
bronchitis, upper respiratory infections, sinusitis, rhinitis,
allergies, muscle strains, measles, even broken bones).'' 60 FR at
2193. Still others suggested that the Department expressly list every
ailment that would qualify as a serious health condition. See id. While
the Department declined to provide a ``laundry list of serious health
conditions,'' 60 FR at 2195, we did enumerate in the final regulations
examples of ailments that customarily would not be covered by the Act:
``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.'' 29 CFR Sec.
825.114(c). This language would become the subject of much reported
confusion in the regulated community (reflected in, among other things,
the many comments on this subject submitted in response to the RFI).
3. Wage and Hour Opinion Letters
In 1995, shortly after the regulations became final, the Department
provided its initial interpretation of the serious health condition
objective test when responding to an employer's objections that the
definition in sections 825.114(a)(2)(i)(A)-(B) did not reflect the
intent of the Act's authors. The Department's response reflects an
ongoing struggle to reconcile this objective test in the regulatory
definition (more than three calendar days of incapacity plus treatment)
with the legislative intent also reflected in the regulations that
common conditions like colds and flus not be covered by the Act.
The Department's opinion letter response in 1995 stated that a
minor illness such as the common cold could not be a serious health
condition because colds were on the regulatory list of non-covered
ailments. ``The fact that an employee is incapacitated for more than
three days, has been treated by a health care provider on at least one
occasion which has resulted in a regimen of continuing treatment
prescribed by the health care provider does not convert minor illnesses
such as the common cold into serious health conditions in the ordinary
case (absent complications).'' Wage and Hour Opinion Letter FMLA-57
(Apr. 7, 1995). More than a year and a half later, however, the
Department reversed course, stating that Wage and Hour Opinion Letter
FMLA-57 ``expresses an incorrect view, being inconsistent with the
Department's established interpretation of qualifying ``serious health
conditions'' under the FMLA regulations[.]'' Wage and Hour Opinion
Letter FMLA-86 (Dec. 12, 1996). In the second letter, the Department
stated that such minor illnesses ordinarily would not be expected to
last more than three days, but if they did meet the regulatory criteria
for a serious health condition under section 825.114(a), they would
qualify for FMLA leave. Complications, per se, need not be present to
qualify as a serious health condition if the objective regulatory tests
of a period of incapacity of ``more than three consecutive calendar
days'' and a ``regimen of continuing treatment by a health care
provider'' are otherwise met. See id. In reversing its position in this
second opinion letter, the Department explained that the regulations
reflect the view that, ordinarily, conditions like the common cold and
flu would not routinely be expected to meet the regulatory tests. But
such conditions could qualify under FMLA where the objective tests are,
in fact, met in particular cases. See id. ``For example, if an
individual with the flu is incapacitated for more than three
consecutive calendar days and receives continuing treatment, e.g., a
visit to a health care provider followed by a regimen of care such as
prescription drugs like antibiotics, the individual has a qualifying
`serious health condition' for purposes of FMLA.'' Id.

[[Page 35566]]

4. United States Court of Appeals Decisions
Employers challenged the Department's objective regulatory
definition of serious health condition in two U.S. Courts of Appeals.
In both cases, the regulatory test was upheld as a permissible
legislative rule pursuant to a congressional delegation of authority
under the Act. See Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir.
2000); Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001). The Eighth
Circuit in Thorson found the statutory term ``serious health
condition'' was not precisely defined in the statute and legislative
history: ``[W]e do not see th[e] legislative history as Congress
speaking `directly' to the question of what constitutes a `serious
health condition.' '' Id. at 381. Thus, the court deferred to the
Department's reasonable legislative rule implementing the statute:
``DOL's objective test for `serious health condition,' which avoids the
need for employers--and ultimately courts--to make subjective decisions
about statutory `serious health conditions,' is a permissible
construction of the statute.'' Id. The Court acknowledged that this
test might result in findings of serious health conditions for ``minor
illnesses'' that Congress did not intend to cover, but that ``the DOL
reasonably decided that such would be a legitimate trade-off for having
a definition of `serious health condition' that sets out an objective
test that all employers can apply uniformly.'' Id.
The Fourth Circuit even more squarely and directly upheld the
objective test in the regulations because the plaintiff in that case
was suffering from the flu--an illness listed in the regulations at
825.114(c) (reflecting legislative history) as an example of an illness
that is generally not a serious health condition. The Fourth Circuit
directly confronted the tension between the objective test and the list
of ailments:
There is unquestionably some tension between subsection (a),
setting forth objective criteria for determining whether a serious
health condition exists, and subsection (c), which states that
certain enumerated conditions ``ordinarily'' are not serious health
conditions. Indeed, that tension is evidenced by Miller's illness.
Miller was incapacitated for more than three consecutive calendar
days and received treatment two or more times; thus, she satisfied
the regulatory definition of a serious health condition under
subsection (a). But, the condition from which Miller suffered--the
flu--is one of those listed as being ``ordinarily'' not subject to
coverage under the FMLA.

Id. at 831. The Court concluded--even without deferring to the second
Wage and Hour opinion letter--that ``Sec. 825.114(c) is properly
interpreted as indicating merely that common ailments such as the flu
will not qualify for FMLA leave because they generally will not satisfy
the regulatory criteria for a serious health condition.'' Id. at 832.
However, ``[s]ection 825.114(c) simply does not automatically exclude
the flu from coverage under the FMLA. Rather, the provision is best
read as clarifying that some common illnesses will not ordinarily meet
the regulatory criteria and thus will not be covered under the FMLA.''
Id.
Having concluded the objective test was the dispositive one, the
Miller court, like the Thorson court, upheld the regulatory definition
as consistent with legislative intent. The court noted that these
regulations were promulgated pursuant to an express delegation from
Congress and should be given controlling effect ``unless arbitrary,
capricious, or manifestly contrary to statute.'' Id. at 833 (quotations
omitted). The court stated that ``when a regulatory choice represents a
reasonable accommodation of conflicting policies that were committed to
the agency's care by the statute, we should not disturb it unless it
appears from the statute or the legislative history that the
accommodation is not one that Congress would have sanctioned.'' Id.
(quotations omitted). The court held that the Department clearly was
within its statutory purview in this case, stating: ``Consistent with
the statutory language, the regulations promulgated by the Secretary of
Labor establish a definition of ``serious health condition'' that
focuses on the effect of an illness on the employee and the extent of
necessary treatment rather than on the particular diagnosis. This
policy decision is neither unreasonable nor manifestly inconsistent
with Congress' intent to cover illnesses that `require[ ] that the
employee be absent from work on a recurring basis or for more than a
few days for treatment or recovery' and involve `continuing treatment
or supervision by a health care provider.' '' 250 F.3d at 835
(citations omitted). Finally, like the Eighth circuit, the Fourth
Circuit noted:

It is possible that the definition adopted by the Secretary
will, in some cases--and perhaps even in this one--provide FMLA
coverage to illnesses Congress never envisioned would be protected.
We cannot say, however, that the regulations adopted by the
Secretary are so manifestly contrary to congressional intent as to
be considered arbitrary.

Id.

B. Request for Information Comments and Recommendations

The responses to the RFI demonstrate that the definition of serious
health condition continues to be a source of concern in the regulated
community in terms of its scope and its meaning. While the Department
asked only two narrow questions about the objective test and the list
of ailments, commenters to the Request for Information voiced a wide
array of opinions about the regulatory test in general.
A common theme the Department heard from various parties was that
the regulatory definition of serious health condition is vague and/or
confusing. The American Academy of Family Physicians stated: ``The
definition of a serious health condition within the Act creates
confusion not only for the administrators of the program and employers
but also for physicians. Requiring a physician to certify that a
gastrointestinal virus or upper respiratory infection is a serious
health condition in an otherwise healthy individual is incongruous with
medical training and experience. * * * [Moreover, t]he categories of
`Serious Health Conditions' are overly complicated and * * *
contradictory.'' Doc. FL25, at 1. The American College of Occupational
and Environmental Medicine agreed: ``The term `serious health
condition' is unnecessarily vague. Employees, employers and medical
providers would be well served if the FMLA were to more clearly define
the criteria for considering a health condition serious.'' Doc. 10109A,
at 2. Other commenters echoed this same concern: ``Uniformly, employers
have found the definition of `serious health condition' and the
criteria for determining whether or not an employee has a `serious
health condition' to be extremely broad and very confusing.'' ORC
Worldwide, Doc. 10138A, at 2. ``This [serious health condition]
definition is widely considered to be vague and overly broad, and has
caused unnecessary confusion.'' Florida Power & Light Company, Doc.
10275A, at 2. ``What constitutes a serious health condition? The
definition is not clear.'' City of Philadelphia, Doc. 10058A, at 1.
``The current definition is so vague that it is nearly impossible to
define a condition that does not qualify as a serious medical
condition.'' Northern Kentucky Chamber of Commerce, Doc. 10048A, at 2.
Commenters often pointed to the language in section 825.114(c)
regarding minor ailments as the primary source of definitional
confusion. Whereas the first

[[Page 35567]]

part of the regulatory definition of serious health condition in
subparagraph (a)(2) provides objective standards for leave
(irrespective of the person's medical diagnosis) in terms of ``days''
and ``incapacity'' and ``health care provider'' visits, this language
in subparagraph (c) suggests the opposite: excluding common illnesses
by diagnosis/name without regard to seriousness. The American Bakers
Association stated: ``[The definition of serious health condition] has
also caused unnecessary confusion for employers who rely on regulatory
language that states, `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.' 29 CFR 825.114(c).'' American Bakers Association, Doc.
R354A, at 4. The Association of Corporate Counsel made a similar point:
``[T]he Department should clarify its guidance in section [825.114](c)
on when conditions such as the common cold, the flu, earaches, upset
stomach, minor ulcers, headaches, and routine dental or orthodontia
problems could be considered as serious health conditions. The current
regulation indicates that such conditions should not normally be
considered serious health conditions.'' Doc. FL31, at 14.
Overall, it is probably fair to characterize the comments from
employer groups about the regulatory definition of ``serious health
condition'' as having written ``serious'' out of serious health
condition. For example, the University of Minnesota stated:

The current definition of ``serious health condition'' is broad
enough to cover minor illnesses that were not intended to be covered
by the Act. * * * The University's experience indicates that the
regulatory tests set forth in section 825.114(a) of the FMLA
regulations renders the limitations in section 825.114(c)
inoperative. Specifically, the test set forth in section
825.114(a)(2)(i) (period of incapacity lasting more than three days)
is broad enough to cover minor illnesses, like the ones referenced
in section 825.114(c). Such minor illnesses are regularly the
subject of FMLA leave requests. Because physician certifications
seldom use terms like ``common cold'', ``upset stomach'', ``ear
ache'', etc., the University does not feel it can deny the requests,
even when the University is convinced the illness is minor. As
indicated in section 825.114(c), such minor illnesses were not
intended to be covered by the Act.

University of Minnesota, Doc. 4777A, at 1-4. ``Please redefine serious
medical condition to cover truly serious needs, not the common flu.''
Debbie Robbins, Human Resources, City of Gillette, Doc. 5214, at 1.
``[T]he intent of the regulations was not to find conditions such as
the flu, earaches, headaches, and upset stomach qualifying; however, as
a result of DOL opinion letters it is practice for FMLA to be granted
for these conditions when the regulatory criteria defining a serious
health condition [are] met.'' Carle Clinic Association, Doc. 5449A, at
1. ``The DOL needs to limit the definition of serious health condition
to what it was originally intended by Congress. For example, while a
common cold or flu were never intended to be serious health conditions,
in case law courts have essentially done away with all the exclusions
from the original definition by stating that `complications' (without
defining this) could cause virtually anything (a cold, an earache, a
cut on finger) to become a serious health condition.'' Coolidge Wall
Co. LPA, Doc. 5168, at 1. ``As [the definition of a `serious health
condition'] has been interpreted, a common cold or flu bug lasting
three days creates a FMLA qualifying event. * * * As it is, a `runny
nose' for three days would qualify as long as you saw the doctor for
it. To call a `common cold' a serious health condition significantly
devalues the FML Act.'' Mark Costa, Human Resources Director, Team 1
Michigan, Doc. 5172, at 1. ``[T]he current Regulations seemingly extend
coverage to considerably more than just serious health conditions and,
in practice, the general definition often swallows up the so-called
`minor ailment exception.' '' Proskauer Rose LLP, Doc. 10182, at 5.
``Contrary to what Congress intended, the DOL regulation bypasses
`serious' in `serious health condition' by assuming a condition is
serious if an employee can get a physician to certify [that] he/she
cannot work for three or more days and that he/she has seen a health
care provider at least once and was prescribed continuing treatment by
that health care provider, or that the employee has seen a health care
provider twice regardless of whether any continuing treatment was
prescribed.'' Southwest Airlines Co., Doc. 10183A, at 9.
The Department also received many comments from employees and
employee groups, however, who felt that the objective test is a good,
clear test that is serving its intended purpose. ``[T]he current
regulations are crafted appropriately to provide guidance on what
constitutes a serious health condition without imposing overly rigid
criteria that could hinder the ability of workers to take leave when
necessary.'' National Partnership for Women & Families, Doc. 10204A, at
7. ``[N]o definition, if it is to be effective, can impose precise
categories for every health condition. The practical reality is that
serious health conditions will differ from person to person. Thus, the
regulations must necessarily have the flexibility to be applied to
different individual circumstances.'' Faculty & Staff Federation of
Community College of Philadelphia, Local 2026 of the American
Federation of Teachers, Doc. 10242A, at 4. A letter from 53 Democratic
Members of Congress also lauded the current definition of serious
health condition as both expansive and flexible. The letter cited
congressional intent of a ``general test'' that defines serious health
condition: ``We urge the Department to adhere to that test. Ultimately,
Congress and the Department are not physicians, and we cannot evaluate
every medical condition or necessary course of treatment. The presence
of a serious health condition is something that is readily determined
by medical professionals[.]'' Letter from 53 Democratic Members of
Congress, Doc. FL184, at 2. ``To protect employers from employee abuse
of this provision, the regulations establish an objective criteria to
be used to determine whether conditions presented qualify for leave.
This criteria creates a standard that can be applied in individual
cases with sufficient flexibility to adjust for differences in how
individuals are affected by illness. It also specifies that routine
health matters cannot be considered serious health conditions, unless
complications arise.'' Families USA, Doc. 10327A, at 3.
The AFL-CIO emphasized that the current objective test in the
regulations best reflects congressional intent to cover health
conditions that have a ``serious'' effect on the individual regardless
of the label of the impairment or illness. See Doc. R329A, at 21-24.
``The regulations correctly do not define serious health condition by
relying on nonexhuastive [e]xamples of serious health conditions that
Congress provided in the legislative history to the Act * * * [but
rather by defining] a serious health condition as an illness, injury or
impairment, or physical condition that requires either inpatient care *
* * or continuing treatment by a health care provider. * * * [W]e
believe that the brightline tests set forth in Section 825.114(a)
continue to provide the best means of determining what qualifies as a
serious health condition.'' Id. at 22, 24 (quotation marks and

[[Page 35568]]

citations omitted). The Coalition of Labor Union Women concurred: ``Not
only does this definition establish an objective basis for determining
when an individual employee will and will not qualify for leave, but it
also recognizes that every individual is different and thus likely to
experience a particular medical condition differently from others. Our
members have described various medical problems that affected them or
their family members and reported how many supervisors or managers
express a biased attitude toward these medical conditions based on a
stereotypical view of the condition.'' Doc. R352A, at 3. Moreover, the
Communication Workers of America provided a relevant example of a
worker being uniquely affected by a common illness: ``An employee of
Verizon experienced an extreme allergic reaction to poison oak which
made it impossible for her to sit or perform regular job functions for
a week. The FMLA protected her during this period.'' Doc. R346A, at 12-
13.
Finally, the Legal Aid Society pointed out that after Wage and Hour
Opinion Letter FMLA-86 (Dec. 12, 1996), the meaning of ``serious health
condition'' should be perfectly clear to the regulated community. It
simply may not be as ``serious'' as some would like:

With all due respect, there should not be any significant
confusion over this definition. It is clearly defined in the
regulations. Perhaps the term ``serious health condition'' is
somewhat of a misnomer because it may cause the uneducated employer
to assume that the medical condition must be sufficiently grave to
warrant leave. However, the educated and compliant employer will be
familiar with this key regulation. Indeed, the regulations make this
definition quite clear, and should be used as a road map for
ascertaining whether a medical condition constitutes a ``serious
health condition'' within the meaning of FMLA. Moreover, the
regulations make it perfectly clear that an employer is required to
``inquire further'' should it need more information to make this
decision.

The Legal Aid Society-Employment Law Center, Doc. 10199A, at 2.
There was also no shortage of answers to the two questions we asked
in the RFI: whether the limitations in section 825.114(c) have been
rendered inoperative by the regulatory tests set forth in section
825.114(a), and whether there is a way to maintain the substantive
standards of section 825.114(a) while still giving meaning to section
825.114(c) and congressional intent that minor illnesses like colds,
earaches, etc., not be covered by the FMLA. Below are some of the most
common answers and suggestions we received.
1. Section 825.114(c) Imposes no Independent Limitation on Serious
Health Condition and Therefore Need Not Be Changed
One common suggestion proffered for reconciling sections
825.114(a)(2) and (c) is to construe the list of ailments in subsection
(c) as imposing no limitations on the definition of serious health
condition. ``We do not agree * * * that Section 825.114(c) places
`limitations' on Section 825.114(a)'s regulatory tests.'' American
Federation of Labor and Congress of Industrial Organizations, Doc.
R329A, at 21. The AFL-CIO noted that Congress did not express a
specific intention to exclude ``minor illnesses like colds, earaches,
etc.,'' but rather to exclude from serious health condition only
``short-term conditions [whatever named] for which treatment and
recovery are very brief[.]'' American Federation of Labor and Congress
of Industrial Organizations, Doc. R329A, at 21 n.34 (quoting S. Rep.
No. 103-3, at 28). Thus, ``subsection (c) [only] clarifies that certain
conditions are not serious health conditions for FMLA purposes unless
they meet all of the regulatory measures of subsection (a). * * *
[T]hese examples do not modify or limit the objective tests set forth
in subsection (a)[.]'' Id. at 23.
These commenters believe section 825.114(c) is merely an
illustrative list of conditions that usually would not qualify as
serious health conditions, but that the objective test is what matters
and what is applied: ``Section 825.114(c) of the regulations includes a
list of conditions that ordinarily would not be considered serious
health conditions, such as the common cold, the flu, earaches, or an
upset stomach. But the regulation on its face also makes clear that
complications can arise to make what is usually a routine health matter
much more serious.'' National Partnership for Women & Families, Doc.
10204A, at 8. ``The list of conditions set out in 825.114(c) is useful
in setting out what `ordinarily' would not be a qualifying serious
health condition[.] * * * But the operative word in 825.114(c) is
`ordinary.' While these conditions would not `ordinarily' constitute a
serious health condition, there are extraordinary situations where
these conditions do just that. In determining what those situations
are, all employers have to do * * * is apply `the general tests' * * *
that were incorporated into the Department's regulations at
825.114(a).'' Association of Professional Flight Attendants, Doc.
10056A, at 2 (citations omitted). ``The existing regulations properly
define `serious health condition' by applying objective criteria,
including the duration of an illness and the number of treatments, to a
worker's individual case, rather than categorically excluding any set
of health conditions from FMLA coverage.'' Faculty & Staff Federation
of Community College of Philadelphia, Local 2026 of the American
Federation of Teachers, Doc. 10242A, at 3. ``As long as a diagnosis
meets the `objective criteria' of subsection (a), then subsection (c)
makes it clear that the employee has a `serious health' condition that
qualifies for FMLA leave.'' American Federation of Labor and Congress
of Industrial Organizations, Doc. R329A, at 23.
This view, commenters maintained, is the correct interpretation of
the Act: ``The statute itself recognizes the need for such flexibility.
Congress expressly chose to forego excluding any conditions from the
definition of a serious health condition and instead defined a serious
health condition according to objective criteria.'' Women's Employment
Rights Clinic, Golden Gate University School of Law, Doc. 10197A, at 5.
Commenters favoring a flexible definition of ``serious health
condition'' generally believed no changes to the regulatory definition
are necessary. ``In light of [our] experience, we do not believe that
there is any need to retreat from the existing regulatory definition of
a `serious health condition.' '' Communication Workers of America, Doc.
R346A, at 7. ``We urge DOL to retain the regulatory language in 29 CFR
825.114(a) and not to alter those provisions so that conditions like
earaches, flus, and similar illnesses can never constitute a serious
health condition.'' Women's Employment Rights Clinic, Golden Gate
University School of Law, Doc. 10197A, at 5. ``We strongly oppose any
efforts to restrict or narrow the definition of a serious health
condition. The FMLA enables eligible workers to take family or medical
leave for serious health conditions, and its regulations establish
objective criteria to be used to determine whether conditions qualify
for leave. While the regulations set parameters to help define serious
health conditions, they do not include an exhaustive list of conditions
deemed `serious' or `not serious.' '' National Partnership for Women &
Families, Doc. 10204A, at 7. ``Imposing additional requirements on the
nature or length of treatment, or the duration of incapacity, will
inevitably exclude, with no basis whatsoever, serious medical
conditions from the ambit of the FMLA. The Department should resist
making any changes in the definition of serious health condition.''
American Federation

[[Page 35569]]

of Labor and Congress of Industrial Organizations, Doc. R329A, at 24.
``I strongly oppose any changes to eligibility standards that would
impose additional barriers for workers seeking FMLA leave, [and]
regulatory revisions that would scale back the definition of `serious
health conditions' covered under the act[.]'' Judith Stadman Tucker,
The Mothers Movement Online, Doc. 4766, at 1. ``It is especially
important to me that the definition of `serious health condition' is
not narrowed and that leave remains flexible.'' An Employee Comment,
Doc. 4790, at 1. ``Altering the definition [of serious health condition
to ten days or more] will leave out numerous serious conditions from
pneumonia to appendicitis where a person could be treated and be back
on the job under 10 days. We are concerned that altering the definition
of a serious health condition will remove much needed job protection
for millions of Americans when they need it most.'' Women's City Club
of New York, Doc. 10003A, at 1. ``We are strongly opposed to any
revisions to the regulation that would narrow the current definition.
As the regulation is currently written, it adequately addresses the
fact that some conditions (e.g., a head cold) can grow into a serious
health condition needing repeated treatment and an absence from work of
more than three days.'' University of Michigan's Center for the
Education of Women, Doc. 10194A, at 1. ``Imposing categorical changes
to the definition of serious health condition, such as increasing the
required number of days of incapacity, could have a devastating impact
on employees.'' Service Employees International Union District 1199P,
Doc. FL104, at 2.
2. Section 825.114(c) Should be Converted into a Per Se Rule.
Other commenters took essentially the opposite tack: that the
congressional intent to exclude minor illnesses (reflected in section
825.114(c)) has been rendered inoperative by the objective test and
that the Department should breathe life into subsection (c) by making
it more of a per se rule as it was interpreted by Wage and Hour Opinion
Letter FMLA-57 (Apr. 7, 1995). Employers were largely in agreement that
the regulatory list of ailments has been rendered inoperative: ``[T]he
limitations in Section 825.114 (c) have been rendered inoperative by
the regulatory test in Section 825.114(a) largely by the interpretation
of the Department in holding that even minor illnesses can meet the
definition of `serious health condition.' '' ORC Worldwide, Doc.
10138A, at 2. ``Section 825.114(c) * * * has been rendered effectively
inoperative by the regulatory tests set forth in Section 825.114(a). *
* * Wage and Hour letter of interpretation of December 1996 expanding
`serious health condition' to include colds and flu further erodes
Section 825.114(c)'s potency as a brightline standard for what does not
constitute a `serious health condition.' '' U.S. Chamber of Commerce,
Doc. 10142, at 9. Some commenters pointed to legislative history from
1990-1991 that shows Congress expressly considered ailments like colds
and flus and intended them not to be covered:

The bill we are talking about requires medical certifications of
serious illnesses. We are not talking about a child with a cold. We
are not talking about a parent with the flu. We are talking about a
child with cancer who must have radiation treatments. We are talking
about an elderly parent recovering from a stroke who needs home
care.

Pilchak Cohen & Tice, P.C., Doc. 10155A, at 8 (quoting Senate hearing).
These commenters also cited to similar words spoken by a co-sponsor of
the FMLA: ``We're talking about a seriously ill child, not someone who
has a cold here.'' Id. at 8 (quoting statement of Senator Dodd at
Senate hearing).
This group of stakeholders suggested that unless verifiable medical
complications arise, the health conditions in the section 825.114(c)
list--such as colds and flus--should never qualify as serious health
conditions. ``[T]he easiest solution to this dilemma is to rescind
opinion letter FMLA-86 and carve minor illnesses out of section
825.114(c). This carve-out should include a list of example ailments
that do not qualify as serious health conditions absent serious
complications--in much the same way opinion letter FMLA-57 attempted to
do. This list should, at a minimum, include the common cold, the flu,
earaches, an upset stomach, minor ulcers, headaches, routine dental or
orthodontia problems, and periodontal disease.'' Porter, Wright, Morris
& Arthur LLP, Doc. 10124B, at 2. ``[Fairfax County Public Schools]
urges the department to return to its earlier interpretations, which
emphasize that minor ailments do not qualify as `serious.' Section
825.114(a) should be modified so that it no longer contradicts section
825.114(c). * * * Additional examples of minor, nonqualifying illnesses
would be a useful addition to this subsection.'' Fairfax County Public
Schools, Doc. 10134, at 1. ``[Section] 825.114(c) should be clarified
in that even where the common cold results in more than three
consecutive days of missed work or school, it is not considered
incapacitating or otherwise within FMLA's protections.'' Pilchak Cohen
& Tice, P.C., Doc. 10155A, at 9. The Pilchak law firm further reasoned
that if a cold or flu became truly incapacitating, ``the illness would
typically elevate to an ailment that is indeed within the FMLA's
contemplation. For example, a common cold should never be an FMLA
qualifying condition. However, if it progressed to pneumonia, then this
is the type of incapacitating condition within the FMLA's
contemplation.'' Id. at 9. ``The substantive standards of section
825.114(a) cannot be maintained while giving meaning to section
825.114(c), and the legislative intent that not all conditions are
covered cannot be secured unless and until section 825.114(c) is
revised to state that, `Unless complications arise, the common cold,
the flu, ear aches, upset stomach, periodontal disease, and similar
conditions are not serious health conditions and do not qualify for
FMLA leave.' Absent such a revision, the DOL must further define other
terms in Section 825.114(c), such as `treatment.' '' Fisher & Phillips
LLP, Doc. 10262A, at 5. ``[W]hen Congress passed FMLA, its intent was
not to cover short-term illnesses where treatment and recovery are
brief. By listing examples of conditions that would generally qualify
and conditions that would generally be excluded, employers could reduce
the use of FMLA leave for minor conditions in which treatment and
recovery are brief. The Department should generally exclude from the
list of conditions minor conditions such as colds, minor headaches, and
flu and provide an improved definition of `chronic conditions.' ''
National Business Group on Health, Doc. 10268A, at 2. See also Small
Business Administration Office of Advocacy, Doc. 10332A, at 4-5
(collecting various proposals to exclude minor illnesses by name).
3. ``More Than Three Days'' Of Incapacity Should be Changed From
Calendar Days to Work Days.
Another suggestion offered to give meaning to subsection (c) was to
change the period of incapacity in the objective test from ``calendar''
days to ``business'' days. ``The current regulations of the Department
of Labor allow for protected leave when there is a `more than three-day
incapacity,' this should be defined as a `more than three-day absence
from work.' '' Ken Lawrence, Doc. 5228, at 1. ``My suggestion is that
FMLA leave should have a waiting period, just like a disability plan. *
* * Most truly serious health conditions, as defined by the act, last
longer than 5 consecutive

[[Page 35570]]

business days and would warrant the need for the employee to be absent
from work.'' Cheryl Rothenberg, Human Resources Specialist, Doc. 4756,
at 1. ``[W]e suggest * * * [u]sing work days, rather than calendar days
allows the employer to have actual knowledge of the employee's
incapacity * * * [I]t is difficult for the employer to verify employee
incapacity over the weekend or to have knowledge sufficient to know
that the employee might be in need of FMLA leave.'' Foley & Lardner
LLP, Doc. 10129A, at 2. ``The current * * * `more than three-day
incapacity' * * * should be defined as a `more than three-day absence
from work.' '' Bob Kiefer, Baldor Electric, Doc. 5141, at 1. ``Redefine
a period of incapacity to mean a period of more than five work days or
seven consecutive calendar days, instead of the current just more than
3 days of `incapacity, before an employee is qualified for FMLA
leave.'' U.S. Chamber of Commerce, Doc. 10142A, at 9. ``We recommend
that the definition be changed to `three work days.' Health conditions
that occur `over the weekend' or other time off should * * * not be
considered.'' Lorin Simpson, Manager of Operational Systems & Labor
Relations, Utah Transit Authority, Doc. 10249A, at 1. ``[W]e request
that the Department amend this provision to require an absence for a
specified length of `consecutive scheduled work days' rather than
`consecutive calendar days.' Employers are most likely to be unaware of
employees' sicknesses over a weekend so when employees take FMLA leave
at the beginning of a workweek, this places a hardship on employers.
With this clarification, employers will have advance notice of an
employee taking FMLA leave.'' National Business Group on Health, Doc.
10268A, at 7. ``[I]f the three-day standard is maintained, this should
be defined as three scheduled work days[.]'' The Miami Valley Human
Resource Association, Doc. 10156A, at 3. ``I think it would help if the
criteria for incapacity were 5 work days as opposed to three calendar
days. * * * [Five] days would be consistent with most short term
disability waiting period requirements and with many waiting period
time frames for indemnity payments for workers compensation. (Kentucky
has a 7 day waiting period prior to the start of workers comp indemnity
payments.)'' Sharon Pepper, Doc. 5325, at 1.
4. The ``Treatment Two Or More Times by a Health Care Provider'' Must
Occur During the Period of Incapacity.
Many commenters suggested the Department maintain the substantive
language of both regulatory sections but explicitly adopt a recent
United States Court of Appeals interpretation of the regulations that
the ``treatment two or more times by a health care provider'' in
subsection 825.114(a)(2)(i)(A) must occur during the period of ``more
than three days'' incapacity. See Jones v. Denver Pub. Sch., 427 F.3d
1315, 1323 (10th Cir. 2006) (``[U]nder the regulations defining
`continuing treatment by a health care provider,' the `[t]reatment two
or more times' described in 825.114(a)(2)(i)(A) must take place during
the `period of incapacity' required by 825.114(a)(2)(i).''). ``The
Regulations need to be clarified to state that each examination must
occur during the period of incapacity that has resulted in an
employee's absence from work.'' South Central Human Resource Management
Association, Doc. 10136, at 4. ``WMATA proposes that an individual's
illness or incapacity require the treatments by a health care provider
to occur during the period of incapacity (rather than, for example,
weeks later) in order to qualify as a serious health condition.''
Washington Metropolitan Area Transit Authority, Doc. 10147A, at 2. ``We
urge the Department to * * * require the employee or covered family
member to be treated on two or more occasions during the period of
incapacity and delete the reference to treatment on one occasion plus a
regiment of continuing treatment.'' The Miami Valley Human Resource
Association, Doc. 10156A, at 3.
5. The Period of Incapacity Should Be Increased From ``More Than Three
Days'' to a Greater Number of Days
A number of stakeholders suggested reconciling the two regulatory
provisions by simply tightening the requirements for qualifying for a
serious health condition under the objective test. The primary
suggestion (though by no means the only one) was to increase the
minimum number of days an employee needs to be incapacitated to qualify
for a serious health condition. Stakeholders suggested changing the
current regulatory threshold of ``more than 3 days'' to as many as ``10
days or more.'' Miles & Stockbridge, P.C., Doc. FL79, at 2. ``I would
like to see the definition changed to require someone to miss work for
at least a full week before it would qualify as FMLA, requiring 4 full
days is at least a start.'' Ed Carpenter, Human Resources Manager,
Tecumseh Power Company, Doc. R123, at 1. ``[We] would recommend that
the Department expand the more than three-day period in
825.114(a)(2)(i) to more than seven days. This would eliminate most
minor illnesses and would also mirror more closely what employers have
in their short-term and sick leave plans.'' ORC Worldwide, Doc. 10138,
at 2. ``Increasing the time to at least five work days would help in
eliminating some * * * minor illnesses from coverage. Thus, the burden
on physicians and employers would be reduced without significant impact
upon employees with a serious medical situation.'' American Academy of
Family Physicians, Doc. FL25, at 1.
Oxbow Mining suggested that `` `serious health condition' should be
a period of incapacity of no fewer than ten (10) consecutive work days
as defined by an individual's work schedule.'' Doc. 10104, at 1. The
Society for Human Resource Management and the U.S. Chamber of Commerce
both proposed that the required incapacity continue for a minimum of
five business days or seven consecutive calendar days. See Society for
Human Resource Management, Doc. 10154A, at 4; U.S. Chamber of Commerce,
Doc. 10142A, at 9. ``MedStar Health requests that this regulatory test
be modified to utilize a more than five calendar days of incapacity
requirement.'' MedStar Health Inc., Doc. 10144, at 8. ``Incorporate a
longer period for the time of incapacitation to five (5) days.'' Kim
Newsom, Personnel Director, Randolph County, North Carolina, Doc. 4764,
at 1. See also Edison Electric Institute, Doc. 10128A, at 3 (``In order
to limit FMLA leave to those conditions that are truly serious in
nature, we believe the regulations should require a period of
incapacity of more than five calendar days, the length of a typical
workweek, before the condition may constitute a serious health
condition.'').
Other stakeholders suggested ranges in their comments. Foley &
Lardner stated the Department should ``extend the number of days of
incapacity required to qualify as a `serious health condition[ ]' * * *
from the current `more than three day' period to five, seven or ten
consecutive work days[, which] would exclude most common, non-serious
conditions, such as flu, bronchitis, sinus infections and similar
common illnesses.'' Doc. 10129A, at 1. The Proskauer Rose law firm
advocated ``the extension of the three-day period of incapacity
requirement to a five or ten day period of incapacity requirement.''
Doc. 10182, at 6. ``The definition should be revised so that the period
of incapacity is at least five consecutive days or the average waiting
period provided by employer short-term disability periods.'' Detroit
Medical Center, Doc. 10152A, at 2.

[[Page 35571]]

IV. Unscheduled Intermittent Leave

The Department asked several questions in the Request for
Information about the use of the FMLA for unscheduled intermittent
leave.\5\ This type of leave has long been a matter of particular
concern for employers and employees alike, as shown by previous
stakeholder input and public commentary presented during congressional
hearings, as well as comments filed with OMB concerning the costs and
benefits of regulations. The RFI sought comments on the following
issues, among others:
---------------------------------------------------------------------------

\5\ Commenters tended to use the terms ``unscheduled'' and
``unforeseeable'' to mean essentially the same thing: arising
suddenly and with little or no opportunity for advanced notice.
---------------------------------------------------------------------------

How the FMLA affects the ability of employers to enforce
attendance policies;
Whether unscheduled intermittent FMLA leave presents costs
or benefits different from those associated with regularly scheduled
leave;
Whether the duration of FMLA leave affects the manner in
which employers cover the work of employees taking leave;
Whether and to what extent employees misuse unscheduled
intermittent leave;
How best to accommodate employers' operational concerns
and employees' interests in legitimate unscheduled intermittent leave;
Whether and to what extent concerns arise regarding
employees not providing prompt notice when taking unscheduled
intermittent leave;
Whether and to what extent the use of unscheduled
intermittent leave affects employee morale and productivity; and
Whether the availability of intermittent leave reduces
employee turnover.
Based on the number and tone of the comments the Department
received, these questions, along with several related issues involving
unscheduled intermittent leave, remain at the forefront of the debate
regarding the FMLA and its regulations. The responses to the RFI
generally fall into two categories: comments highlighting the
disruption that unscheduled intermittent leave causes in the workplace,
particularly when that leave is taken in a manner perceived by
employers as ``abusive''; and comments emphasizing the importance of
this kind of leave for workers with certain types of chronic ailments.
For example, according to one law firm, ``[B]y far, the most
problematic type of FMLA leave is unscheduled, intermittent leave due
to chronic serious health conditions.'' Foley & Lardner LLP, Doc.
10129A, at 3.\6\ Many employers echoed this view, indicating that
unscheduled intermittent leave due to chronic conditions results in
decreased productivity, is difficult to manage, and is ripe for
``misuse.'' Yellow Book USA assessed the effects of unscheduled
intermittent leave as follows:

The use of unscheduled, intermittent FMLA leave has a drastic
negative impact on productivity and profits for employers. Larger
employers, specifically, have a greater financial burden. Employers
need to add additional staff in the Human Resources department to
track the intermittent absence time used. Additionally, employers
need to hire additional management staff to manage the employees on
intermittent leave. Larger employers are forced to provide training
to managers on a constant basis. Due to the unscheduled nature of
intermittent FMLA leave, productivity is greatly impacted. The costs
are many. Employers incur unexpected overtime costs, lost sales,
missed deadlines, additional administrative costs and negative
employee morale. From my experience, I can estimate that 30
intermittent FMLA leaves cost the company $40,000 annually.

Doc. 10021A, at 4; see also National Association of Manufacturers, Doc.
10229A, at 9-10 (``Intermittent leave is the point in the FMLA where
all the unintended harmful consequences of the law come together to
cause an economic nightmare for manufacturers: unchallengeable
ailments, unassailable and unannounced absences, and unending burdens
with no prospect of a remedy.'').
---------------------------------------------------------------------------

\6\ Many of the same commenters who expressed concerns with
unscheduled intermittent leave report little or no concerns with
scheduled leave, even when taken intermittently. Sun Microsystems
wrote:
When an employee notifies his/her manager that he/she is going
out on a planned, intermittent leave there is usually an opportunity
to: review the employee's revised work schedule needs during this
leave; identify the work load requirements during the leave; and
determine the most effective way to get the work completed given the
available resources. This is the optimal scenario whereby the
employee and his/her manager have the opportunity to create a plan
that meets both of their needs, the needs of other employees and
provides a smoother transition for the employee. On the other hand,
unplanned intermittent leave, which may be unavoidable with some
medical conditions is a significantly greater burden on the employer
and co-workers.
Doc. 10070A, at 2. See also City of Portland, Doc. 10161A, at 2
(``An employee who is absent for frequent short periods of
intermittent leave presents far greater challenges, including last
minute staffing adjustments, abuse of leave issues and negative
impacts on employee morale.''). These differences are reflected in
certain survey results from the Society for Human Resource
Management, which found that ``71 percent of respondents stated that
they have not experienced challenges in administering FMLA leave for
the birth or adoption of a child [but] 60 percent of SHRM members
reported that they experienced challenges in granting leave for an
employee's chronic condition.'' Society for Human Resource
Management, Doc. 10154A, at 2.
---------------------------------------------------------------------------

Offering a very different perspective, many employees and/or their
representatives commented that intermittent leave is expressly
permitted by the FMLA and that employees who experience unscheduled
absences due to chronic conditions are precisely those most in need of
the FMLA's protections. The AFL-CIO stated:

Congress explicitly provided that employees have the right to
take leave ``intermittently or on a reduced leave schedule when
medically necessary.'' * * * The availability of intermittent leave
is crucial for families who struggle to balance work and family
demands and is necessary for employees who suffer from chronic
health conditions or who must provide care for family members with
chronic illnesses. Congress's concern in 1995 for the difficult
choices employees must make when faced with a healthcare crisis is
even more relevant today: A growing number of employees find
themselves in the ``sandwich generation,'' faced with the dual
responsibilities of caring for children and for elderly parents.

Doc. R329A, at 30. The Legal Aid Society's Employment Law Center shared
similar concerns, asking the Department to ``please be mindful of the
employee who, in an ideal world, would not suffer from such devastating
illnesses that wreck havoc on their own lives. Employees, too, struggle
with chronic and episodic illnesses. The FMLA was specifically designed
to provide leave in these instances.'' Doc. 10199A, at 5.
The Association of Professional Flight Attendants described chronic
health conditions typically causing episodic periods of incapacity as
perhaps the most important FMLA issue for its members, making the
following observation:

Under [the employer's] no-fault absenteeism policy, these
shorter, but perhaps more frequent and unscheduled absences are just
as likely (and indeed more likely) to result in the kind of threat
to an employee's job security that the FMLA was designed to protect
against * * * But the availability of FMLA leave for chronic
conditions resulting in episodic periods of incapacitation is of
critical importance to flight attendants, in large part because of
the environment in which they work.
* * *
Many workers suffer from a variety of incapacitating health
conditions--e.g., irritable bowel syndrome--that have required
treatment over a long period of time, for ten or more years, and
which result in periodic incapacitating episodes, but who are
otherwise fully capable of performing even the most rigorous kind of
work. It does no good to advise these employees, as [the employer]
does, to apply for block leave under 825.114(a). While the employee
can be expected to experience a number of

[[Page 35572]]

incapacitating episodes over the course of the year (as in the case
of migraines), it is unlikely that any one episode would last for
more than three days. But employees who suffer from these recurring
bouts of the same incapacitating health condition (whatever its
cause) are not like employees who suffer the occasional cold or flu.
The few absences experienced as a result of such common illnesses
(once every two or three years) are unlikely to jeopardize an
employee's job. But for the employee who suffers from a chronic
recurring condition, they could experience three or four or even
five unplanned absences a year, and their jobs could be
jeopardized--but for the enactment of the FMLA.

Association of Professional Flight Attendants, Doc. 10056A, at 7, 9.
As already mentioned in Chapter I, the Department received many
comments to the RFI from employees discussing how they were able to
take FMLA leave at crucial times in their work lives and how critically
important they viewed the FMLA in providing them job security when they
needed it most. At the same time, the Department received many other
comments from employers discussing their perceptions that the FMLA at
times creates situations where some employees can misuse the rights or
privileges established under the FMLA. In this chapter, we address the
various issues raised in the comments related to unscheduled
intermittent leave in three parts. We begin by providing the statutory
and regulatory background, addressing the concepts of chronic serious
health conditions, intermittent leave, and leave that is not
foreseeable. Next, we discuss comments concerning the workplace
consequences of unscheduled intermittent leave, including scheduling
problems where employees taking intermittent leave provide little or no
notice, loss of management control resulting from perceived employee
``abuse,'' and the impact on employee morale and productivity. Finally,
we examine comments addressing the benefits to employees of the
availability of unscheduled intermittent leave.

A. Background

Employers and employees made frequent reference in their comments
to coverage of chronic conditions under the definition of serious
health condition. Both groups recognize that chronic conditions are a
primary reason for unscheduled intermittent absence under the FMLA.
Three legal concepts underpin the debate regarding unscheduled
intermittent leave: Chronic serious health conditions, intermittent
leave, and leave that is not foreseeable. Together, the interaction of
these facets of the FMLA and its regulations give rise to the issues
addressed in this chapter.
1. Chronic Serious Health Conditions
There is no definition or specific mention of a ``chronic'' serious
health condition in the Act. The House and Senate Committee Reports do,
however, refer to conditions where ``the underlying health condition or
treatment for it requires that the employee be absent from work on a
recurring basis * * * [A] patient with severe arthritis may require
periodic treatment such as physical therapy.'' H. Rep. No. 103-8, at 40
(1991); S. Rep. No. 103-3, at 29 (1993). Because of this and other
legislative history, the Department created a separate serious health
condition definition (one of the six different definitions mentioned in
Chapter III, which addresses serious health conditions) for ``chronic''
conditions. The interim 1993 regulations defined a serious health
condition, in part, as a condition involving ``[c]ontinuing treatment
by (or under the supervision of) a health care provider for a chronic
or long-term condition that is incurable or so serious that, if not
treated, would likely result in a period of incapacity of more than
three calendar days.'' 29 CFR 825.114(a)(3) (1993). ``Continuing
treatment'' was further defined as:

(1) The employee or family member in question is treated two or
more times for the injury or illness by a health care provider.
Normally this would require visits to the health care provider or to
a nurse or physician's assistant under direct supervision of the
health care provider.
(2) The employee or family member is treated for the injury or
illness two or more times by a provider of health care services
(e.g., physical therapist) under orders of, or on referral by, a
health care provider, or is treated for the injury or illness 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--for example, a course of medication or therapy--to
resolve the health condition.
(3) The employee or family member is under the continuing
supervision of, but not necessarily being actively treated by, a
health care provider due to a serious long-term or chronic condition
or disability which cannot be cured. Examples include persons with
Alzheimer's, persons who have suffered a severe stroke, or persons
in the terminal stages of a disease who may not be receiving active
medical treatment.

Id. Sec. 825.114(b)(1)-(3).
The preamble to the interim regulations explained the creation of a
separate ``chronic'' serious health condition that does not involve
incapacity per se:

Because the statute permits intermittent leave or leave on a
``reduced leave schedule'' in cases of medical necessity, it is also
clear that the Act contemplates that employees would be entitled to
FMLA leave in some cases because of doctor's visits or therapy--
i.e., that the absence requiring leave need not be due to a
condition that is incapacitating at that point in time. Thus, the
legislative history explains that absences to receive treatment for
early stage cancer, to receive physical therapy after a hospital
stay or because of severe arthritis, or for prenatal care are
covered by the Act. Therefore, the regulations provide that a
serious health condition includes treatment for a serious, chronic
health condition which, if left untreated, would likely result in an
absence from work of more than three days, and for prenatal care.

58 FR 31794, 31799 (June 4, 1993). The preamble also explained that for
certain chronic conditions, continuing treatment can include continuing
supervision, but not necessarily active care, by a health care
provider:

For any condition other than one that requires inpatient care,
the employee or family member must be receiving continuing treatment
by a health care provider. * * * In addition, there was concern
about persons who have serious, chronic conditions such as
Alzheimer's or late-stage cancer, or who have suffered a severe
stroke, who obviously are severely ill but may not be receiving
continuing active care from a doctor. Therefore, the rule
encompasses such serious conditions which are under continuing
supervision by a health care provider.
Some may argue that this approach may encompass health
conditions that are not really serious, while others may view the
approach as excluding certain situations that were intended to
require the granting of FMLA leave. However, the Department believes
the regulation's definition is most consistent with the statute and
legislative history.

Id.
Under the final 1995 regulations, a chronic serious health
condition was defined as any period of incapacity or treatment for such
incapacity that: (1) ``[r]equires periodic visits for treatment by a
health care provider, or by a nurse or physician's assistant under
direct supervision of a health care provider''; (2) ``[c]ontinues over
an extended period of time (including recurring episodes of a single
underlying condition)'' and (3) ``[m]ay cause episodic rather than a
continuing period of incapacity (e.g., asthma, diabetes, epilepsy,
etc.).'' 29 CFR 825.114(a)(2)(iii)(A)-(C). As restructured, the final
regulation did not retain from the interim regulation the requirement
that, but for treatment, more than three days of incapacity would
result. Nor did it retain the requirement of ``continuing supervision''
by a health care provider, instead requiring only ``periodic visits''

[[Page 35573]]

to the health care provider. The final regulations also created
separate categories of serious health conditions for conditions that
are long-term and for which treatment is not effective, and for
conditions that would likely result in a period of incapacity in excess
of three days without treatment. See id. Sec. 825.114(a)(2)(iv)-(v).
The Department described its treatment of chronic conditions as a
reasonable approach to the unusual circumstances that surround chronic
serious illnesses that often cause only episodic periods of incapacity:

The Department concurs with the comments that suggested that
special recognition should be given to chronic conditions. The
Department recognizes that certain conditions, such as asthma and
diabetes, continue over an extended period of time * * *, often
without affecting day-to-day ability to work or perform other
activities but may cause episodic periods of incapacity of less than
three days. Although persons with such underlying conditions
generally visit a health care provider periodically, when subject to
a flare-up or other incapacitating episode, staying home and self-
treatment are often more effective than visiting the health care
provider (e.g., the asthma sufferer who is advised to stay home and
inside due to the pollen count being too high). The definition has,
therefore, been revised to include such conditions as serious health
conditions, even if the individual episodes of incapacity are not of
more than three days duration.

60 FR 2180, 2195 (Jan. 6, 1995).
The Department explained in the preamble to the final rule the
nature of the comments received on the interim rule that had prompted
restructuring the portion of the definition addressing chronic
conditions. Some had contended that the duration of the absence was not
always a valid indicator of serious health conditions that are very
brief (e.g., a severe asthma attack that is disabling but requires
fewer than three days for treatment and recovery to permit the
employee's return to work), or that the duration is simply irrelevant
if a condition is sufficiently severe or threatening. Additional
comments contended that seriousness and duration do not necessarily
correlate, particularly for people with disabilities; that a fixed time
limit fails to recognize that some illnesses and conditions are
episodic or acute emergencies that may require only brief but essential
health care to prevent aggravation into a longer term illness or
injury, and thus do not easily fit into a specified linear time
requirement; and that establishing arbitrary time lines in the
definition only creates ambiguity and discriminates against those
conditions that do not fit the average. See id. at 2192.
A number of other comments stated that the interim rule definition
was too restrictive and recommended that it be expanded to specifically
include chronic illnesses and long-term conditions that may not require
inpatient care or treatment by a health care provider. Other commenters
took issue with the definition's characterization of ``continuing
treatment'' for a chronic or long-term condition that is ``incurable,''
contending that curability is not a proper test for either a serious
health condition or continuing treatment, that curability is ambiguous
and subject to change over time, and that many incurable disabilities
require continuing treatment that has nothing to do with curing the
condition (e.g., epilepsy, traumatic brain injury, and cerebral palsy,
conditions for which training and therapy help restore, develop, or
maintain function or prevent deterioration). See id. at 2193.
In response to the comments received, the Department also modified
and separated the portion of the interim rule's definition pertaining
to long-term conditions by deleting the reference to the condition
being incurable. Instead, the Department required that the condition
involve a period of incapacity that is permanent or long-term and for
which treatment may not be effective, but for which the patient is
under the supervision of a health care provider rather than receiving
active treatment. ``Examples include Alzheimer's, a severe stroke, or
the terminal stages of a disease.'' 29 CFR 825.114(a)(2)(iv). The
Department also created a separate definition to address serious health
conditions that are not ordinarily incapacitating (at least at the
current state of the patient's condition), but for which multiple
treatments are being given because the condition would likely result in
a period of incapacity of more than three consecutive calendar days in
the absence of medical intervention or treatment, and listed as example
conditions ``such as cancer (chemotherapy, radiation, etc.), severe
arthritis (physical therapy), [and] kidney disease (dialysis).'' Id.
Sec. 825.114(a)(2)(v). Multiple treatments for restorative surgery
after an accident or other injury were also specifically cited. The
previous requirement that the condition be chronic or long-term was
deleted from this section because cancer treatments, for example, might
not meet that test if immediate intervention occurs.
Comments received from employers in response to the RFI emphasize
how commonplace chronic conditions have become under the FMLA and how
difficult it is for employers to determine or to monitor ``incapacity''
when self-treatment is involved. See United States Postal Service, Doc.
10184A, at 4, 8-9 (Out of ``1,077,571 instances where FMLA leave was
requested and approved'' resulting in over 2 million hours of protected
FMLA leave taken, ``leave taken intermittently for chronic conditions
accounts for the largest category of FMLA conditions and constitutes
almost 38% of all FMLA cases for 2006.''); Spencer Fane Britt & Browne
LLP, Doc. 10133C, at 15 (``Of the six situations that fall within the
current definition of `serious health condition,' the `chronic'
conditions create the most problems for employers[.] The Act was never
intended to cover sporadic absences from work on a permanent basis for
the entire work life of an employee.''); Brian T. Farrington, Esq.,
Doc. 5196, at 1 (``The most troublesome part of the current regulations
is the definition of a `chronic' health condition. Under the current
regulation, the only right the employer has to challenge or question an
employee claiming a chronic health condition under 29 CFR
825.114(a)(2)(iii) is to go through the process described in
825.307(a). Once the existence of the condition has been established,
the employee can then take off any time, with little or no notice,
claiming a manifestation of the chronic condition, and the employer is
powerless either to verify or control that absence.'').\7\
---------------------------------------------------------------------------

\7\ Other comments to the RFI suggest that the Department
arguably has rendered the ``multiple treatments'' component of the
definition of serious health condition--29 CFR 825.114(a)(2)(v)--
unnecessary. See, e.g., Association of Corporation Counsel, Doc.
FL31, at 14 (``[T]he inclusion in 29 CFR 825.114(a)[2](v) of
conditions that, if left untreated, could become serious is
unnecessary and should be eliminated. Any period of absence needed
to receive multiple treatments for a condition that could result in
a period of incapacity for more than three days would likely fall
under the definition of chronic health condition in section (iii).
Indeed, the illnesses listed in the regulation (cancer, arthritis,
and kidney disease) would be chronic health conditions.''); American
Academy of Family Physicians, Doc. FL25, at 1 (``The categories of
`Serious Health Condition' are overly complicated and, in some
cases, contradictory. For instance, category 6--`Multiple Treatments
(Non-Chronic Conditions)' goes on to list as examples chronic
conditions like cancer and kidney disease.'').
---------------------------------------------------------------------------

2. Intermittent Leave
The second legal concept central to understanding the present
debate regarding unscheduled intermittent leave is the increment in
which employees may use leave. The Act provides for the taking of leave
in small

[[Page 35574]]

blocks, or intermittently, in certain situations:

IN GENERAL.--Leave under subparagraph (A) or (B) of subsection
(a)(1) shall not be taken by an employee intermittently or on a
reduced leave schedule unless the employee and the employer of the
employee agree otherwise. Subject to paragraph (2), subsection
(e)(2), and section 103(b)(5), leave under subparagraph (C) or (D)
of subsection (a)(1) may be taken intermittently or on a reduced
leave schedule when medically necessary. The taking of leave
intermittently or on a reduced leave schedule pursuant to this
paragraph shall not result in a reduction in the total amount of
leave to which the employee is entitled under subsection (a) beyond
the amount of leave actually taken.

29 U.S.C. 2612(b)(1). Although the Act specifies that an employee's
FMLA leave entitlement shall not be reduced ``beyond the amount of
leave actually taken,'' it does not specify what increment can be used
to measure that amount. As set forth in the final regulations: ``There
is no limit on the size of an increment of leave when an employee takes
intermittent leave or leave on a reduced leave schedule. However, an
employer may limit leave increments to the shortest period of time that
the employer's payroll system uses to account for absences or use of
leave, provided it is one hour or less.'' 29 CFR 825.203(d).
Comments submitted before the final regulations proposed a variety
of changes to the rule, but none was accepted. Many comments from
employers ``urged that the taking of intermittent leave in increments
of one hour or less was too burdensome'' and attempted to limit the
blocks of leave available to minimum amounts such as ``half-days (four
hours) or full days[.]'' 60 FR at 2201. Still other commenters
suggested ``that the amount of intermittent leave available be limited
to four weeks of the 12 week total available in any 12 months.'' Id. at
2202. The Department rejected any minimum limitations on intermittent
leave beyond the units of time captured by an employer's payroll system
because ``it seemed appropriate to relate the increments of leave to
the employer's own recordkeeping system in accounting for other forms
of leave or absences.'' Id. The Department explained this position on
the basis that the statute makes no provision for limiting the
increment of leave and that ``otherwise employees could be required to
take leave in amounts greater than necessary, thereby eroding the 12-
week leave entitlement unnecessarily.'' Id. Moreover,

[p]ermitting an employer to impose a four-hour minimum absence
requirement would unnecessarily and impermissibly erode an
employee's FMLA leave entitlement for reasons not contemplated under
FMLA . . . . An employee may only take FMLA leave for reasons that
qualify under the Act, and may not be charged more leave than is
necessary to address the need for FMLA leave. Time that an employee
is directed by the employer to be absent (and not requested or
required by the employee) in excess of what the employee requires
for an FMLA purpose would not qualify as FMLA leave and, therefore,
may not be charged against the employee's FMLA leave entitlement.

Id. at 2236.
In rejecting a four-hour minimum for intermittent leave in the
preamble to the interim regulations, the Department suggested that such
a limitation was unnecessary. The Department stated: ``There are other
protections for employers in the statute; for example, if leave is
foreseeable, an employee is required to try to schedule the leave so as
not to unduly disrupt the employer's operation[.]'' 58 FR at 31801. The
Department further predicted that incidents of unscheduled intermittent
leave would be unusual: ``[I]t is considered unlikely that an employee
would have several short instances of intermittent leave on an
emergency basis which qualify as serious health conditions.'' Id..
Thus, the Department did not envision how commonplace unscheduled
intermittent leave would become, at least as is now reflected in many
of the comments submitted in response to the RFI. For example, the
United States Postal Service reported to the Department that, out of
179,370 FMLA certifications and 2 million days of FMLA protected leave
in 2006, almost 38% of all leaves were chronic and intermittent, and
``76.8% of all FMLA leave hours associated with a chronic condition
were unscheduled.'' Doc. 10184A, at 9.
3. Leave That Is Not ``Foreseeable''
The third facet of the FMLA that contributes to the issues
concerning unscheduled intermittent leave is the concept of leave that
is not ``foreseeable.'' The Act expressly provides than an employee
must give 30 days notice if the need for FMLA leave is foreseeable. If
30 days' notice is not possible, the employee must give ``such notice
as is practicable.'' 29 U.S.C. 2612(e)(2)(B).

The Department's regulations on foreseeable leave mirror this
language:

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. 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.

29 CFR 825.302(a). The regulations then define ``as soon as
practicable'' to mean ``as soon as both possible and practical, taking
into account all of the facts and circumstances in the individual
case.'' Id. Sec. 825.302(b). In the case of ``foreseeable leave where
it is not possible to give as much as 30 days notice, ``as soon as
practicable'' ordinarily would mean at least verbal notification to the
employer within one or two business days of when the need for leave
becomes known to the employee.'' Id. The regulations on unscheduled
leave similarly require that ``an employee should give notice to the
employer of the need for FMLA leave as soon as practicable under the
facts and circumstances of the particular case.'' Id. Sec. 825.303(a).
As with foreseeable leave where 30 days notice is not possible, ``it is
expected that an employee will give notice to the employer within no
more than one or two working days of learning of the need for leave,
except in extraordinary circumstances where such notice is not
feasible.'' Id.
Some courts have found the Department's regulations difficult to
interpret:

Except for the 30-day notice provision, [the regulations] do not
clearly explain when leave is viewed as ``foreseeable'' or
``unforeseeable.'' For example, if an employee learns of the need
for leave only a day before the workday begins is the need for leave
viewed as ``foreseeable'' or ``unforeseeable'? What about a half-
day? Or just two hours?

Spraggins v. Knauf Fiber Glass, 401 F. Supp. 2d 1235, 1239 (M.D. Ala.
2005); see also Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719
(6th Cir. 2003) (``The regulations do not so explicitly discuss
employer notice procedures in the context of an employee's
unforeseeable need for leave, noting only that when an employee
requires emergency medical leave, an employer cannot require advance
written notice pursuant to its internal rules and procedures.'').
In a January 15, 1999 opinion letter deriving from the regulatory
language discussed above, the Department rejected an employer's
attendance policy that ``assess[ed] points against an employee who
fails to report within one hour after the start of the employee's shift
that the employee is taking FMLA intermittent leave, unless the
employee

[[Page 35575]]

is unable to report the absence due to circumstances beyond the
employee's control.'' Wage and Hour Opinion Letter FMLA-101 (Jan. 15,
1999). The Department deemed this policy non-compliant, stating:

The company's attendance policy imposes more stringent
notification requirements than those of FMLA and assigns points to
an employee who fails to provide such ``timely'' notice of the need
for FMLA intermittent leave. Clearly, this policy is contrary to
FMLA's notification procedures which provide that an employer may
not impose stricter notification requirements than those required
under the Act (Sec. 825.302(g)) and that FMLA leave cannot be
denied or delayed if the employee provides timely notice (under
FMLA), but did not follow the company's internal procedures for
requesting leave.

Id. The letter went on to provide guidance regarding how the notice
provision works:

For example, an employee receives notice on Monday that his/her
therapy session for a seriously injured back, which normally is
scheduled for Fridays, must be rescheduled for Thursday. If the
employee failed to provide the employer notice of this scheduling
change by close of business Wednesday (as would be required under
the FMLA's two-day notification rule), the employer could take an
adverse action against the employee for failure to provide timely
notice under the company's attendance control policy.

Id.
As a result of this letter, an employee must now be allowed two
full days to report an unscheduled absence regardless of the facts and
circumstances of the employee's individual case.\8\ What began as an
illustrative outer limit of one or two working days notice by the
employee to the employer of the need for leave has in effect evolved
into the rule that an employee with a chronic condition can miss work
without notifying the employer in advance of the need for leave and, in
fact, notify the employer of this event two days later. ``[The
regulatory notice provisions have] been applied by the Department * * *
to protect employees who provide notice within two days, even if notice
could have been provided sooner under the particular facts and
circumstances.'' National Coalition to Protect Family Leave, Doc.
10172A, at 27.
---------------------------------------------------------------------------

\8\ As one commenter stated, ``Not only are employers'' routine
call-in procedures subordinated to the FMLA rule allowing notice
`within one or two working days of learning of the need for leave'
(29 CFR 825.303(a)), another provision of the FMLA regulations, 29
CFR 825.208(e)(1), expands the time period to allow an employee to
notify the employer that his or her absence was FMLA-protected up to
two days after returning to work, even if the employee could have
followed normal call-in procedures or provided notice earlier. This
is another procedure that makes no sense in the context of
intermittent leave for a chronic condition.'' National Association
of Manufacturers, Doc. 10229A, at 12.
---------------------------------------------------------------------------

B. Workplace Consequences of Unscheduled Intermittent Leave

The comments received in response to the RFI reflect the tension
and complexity surrounding the workplace issues related to unscheduled
intermittent leave: tension because these issues ultimately require
striking the appropriate balance between an employee's ability to take
job-protected leave due to unforeseen circumstances and an employer's
ability to schedule its work; complexity because reaching that balance
also involves considering, at a minimum, the FMLA's notice provisions,
the definition of ``chronic'' serious health condition, the minimum
permissible leave increments, and the interaction between the FMLA and
an employer's own attendance-related policies.
The Society for Human Resource Management commented on the effect
of unscheduled intermittent leave on employers:

Intermittent leave initially was intended to permit scheduled
leave for planned medical treatments or physical therapy. Since the
FMLA's enactment, however, regulatory interpretations of a ``serious
health condition'' have brought many chronic conditions under that
umbrella, thus enabling some employees to expand FMLA protections to
the point of abuse * * * For instance, if an employee is approved
for intermittent FMLA leave related to a chronic episodic condition
for which there is no date certain when leave will be needed
(arthritis and allergies), the employee may take unscheduled leave
whenever s/he likes without further medical substantiation that the
condition actually incapacitated the employee on each leave date.
Under this frequent scenario, the employer has no ability to require
confirmation that the employee was actually ill each time leave is
taken. Conversely, if an employee attempts to take sick leave for a
non-FMLA qualifying condition, the employer can require medical
substantiation for each absence and can discipline the employee if
medical or other substantiation for each absence is not provided,
specifically based on employer policies.

Doc. 10154A, at 8.
In contrast, the comments submitted to the RFI on behalf of
employee representatives suggested a markedly different view. For
example, the AFL-CIO stated:

[T]he regulations currently permit employers to discipline
employees, even when they are eligible for leave, if they fail to
follow the rules. Employees are required to make reasonable efforts
to schedule intermittent leave so as not to ``disrupt unduly the
operations of the employer.'' 29 U.S.C. 2612(e)(2)(a); 29 CFR
825.117. Employees must also give advance notice of thirty days
before taking leave, or at least give notice as soon as practicable.
29 U.S.C. 2612(e)(2)(b) (2002); 29 CFR 825.302 (a)-(b). If an
employee could have given proper notice but did not, the employer
may delay the commencement of leave for thirty days until after
notice. See Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971
(7th Cir. 2000) (employer entitled to delay leave 30 days where
employee did not give notice of intent to take paternity leave until
day after child's birth). See also Kaylor v. Fannin Reg'l Hosp.,
Inc., 946 F. Supp. 988, 998 (1996) (``It is plaintiff's failure to
adhere to the FMLA procedures for informing his employer of
intermittent leave that is ultimately fatal to his claim.''). An
employer may deduct points under an attendance control policy from
an employee who could have given advance notice and failed to comply
with FMLA regulations. Dep't of Labor Op. Ltr. FMLA-101 (Jan. 15,
1999).
* * *
There is no empirical evidence of widespread abuse of
intermittent leave, and the current regulations provide employers
with procedures to ensure that only eligible employees take
intermittent leave, that the leave taken is medically necessary, and
that leave is scheduled at convenient times and as far in advance as
possible.

Doc. R329A, at 33.
The comments in response to the RFI focused on the following
workplace consequences of unscheduled intermittent leave: (1)
Scheduling problems caused by employee absences with little or no
notice, (2) loss of management control, and (3) impact on employee
morale and productivity. We address these issues in turn.
1. Scheduling Problems Where Employees Taking Intermittent Leave
Provide Little or No Notice
A number of comments identify the root of the problems with
unscheduled intermittent leave as the Department's interpretation of
the notice requirement, particularly the amount of notice an employee
must give to his or her employer when the employee seeks FMLA
protection for unscheduled leave. See, e.g., Southwest Airlines Co.,
Doc. 10183A, at 6-7; College and University Professional Association
for Human Resources, Doc. 10238A, at 7-8.
As mentioned above, Wage and Hour Opinion Letter FMLA-101
interpreting the regulations at 29 CFR 825.302 and 825.303 has given
rise to an understanding in the regulated community that employers (1)
are prevented from disciplining any employee for failing to comply with
a policy that requires advance notice of the need for leave and (2) are
required to treat leave as FMLA-protected as long as the employee
provides the employer with ``notice'' within two days after the

[[Page 35576]]

absence. As explained by the National Coalition to Protect Family
Leave:

The phrase ``as much notice as is practicable'' is not well-
defined. The current phrase puts employers in the difficult position
of having to approve leaves where questionable notice has been
given. The current regulatory definition--within one or two business
days--has been applied by the Department to both foreseeable and
unforeseeable leaves, and to protect employees who provide notice
within two days, even if notice could have been provided sooner
under the particular facts and circumstances. See Opinion Letter No.
101 (FMLA) (1/15/99) (proposed attendance policy, which would
require employees taking intermittent FMLA leave to report absence
within one hour after start of employee's shift unless employee was
unable to do so because of circumstances beyond employee's control,
violated FMLA because employees have two days to notify employer
that absence is for FMLA-covered reason).

National Coalition to Protect Family Leave, Doc. 10172A, at 27. See
also Temple University, Doc. 10084A, at 6.
Employer commenters to the RFI were nearly unanimous in their
understanding that the FMLA permits an employee to wait until two days
after an absence to advise his or her employer of the need for FMLA
leave. This understanding, according to the commenters, combines with
other issues--e.g., the definition of serious health condition, the
minimum period for intermittent leave, and the inability to request
additional medical information--to create a situation where employers
lose much of their ability to manage their business:

The DOL regulations at 29 CFR 825.203 require employers to
permit employees to take leave in the ``shortest period of time the
employer's payroll system uses to account for absences of leave,
provided it is one hour or less.'' Many employers have payroll
systems capable of accounting in increments as small as six minutes.
Tracking FMLA leave in such small increments is extremely
burdensome--particularly with respect to exempt employees, whose
time is not normally tracked. In addition, CUPA-HR members have had
difficulties scheduling around intermittent leave because it is hard
to find a replacement worker for small increments of time and the
regulations do not require employees to provide any advance notice
of the need for leave. The DOL Opinion Letter FMLA-101 (January 15,
1999) exacerbates this problem by stating that an employer must
accept notice of need for leave up to two days following the
absence. These problems are evidenced by the overwhelming majority
of respondents to our membership survey that reported problems with
FMLA administration. More than 80 percent of respondents reported
problems with tracking intermittent leave and close to 75 percent
reported problems with notice of leave and unscheduled absences.

College and University Professional Association for Human Resources,
Doc. 10238A, at 7-8.
Throughout the comments, employers explained why they believe the
``two day rule'' is impractical and tantamount to eliminating the
ability of employers to adequately staff their shifts and/or discipline
employees for violating standard workplace rules. The ``two day rule''
is thus described as unworkable:

[T]he DOL's informal practice of allowing employees to give
their employers notice of FMLA leave up to two business days after
the fact facilitates abuse * * * [T]his ``two-day'' practice of the
DOL is also an arbitrary, unreasonable standard[.] * * * The DOL's
two-day notice practice is not a promulgated regulation or rule, and
indeed the DOL's practice conflicts with the FMLA and DOL's own
regulations[.] * * * The DOL's informal two-day notice practice
improperly allows an employee to remain silent and provide no notice
to his/her employer for up to two full business days, even when the
employee has the knowledge and means to give timely notice to their
employer. As such, the DOL's informal two-day notice practice is an
arbitrary standard that fails to recognize an employer's legitimate
operational need for timely notice and that contradicts with an
employee's statutory duty to provide such notice as is practicable.

Southwest Airlines Co., Doc. 10183A, at 6-8.
Employers also identified as an area of concern the closely related
issue of their inability to enforce routine call-in procedures. Section
825.302(d) of the regulations, which addresses the issue of advanced
notice in the context of foreseeable leave, provides:

An employer may also require an employee to comply with the
employer's usual and customary notice and procedural requirements
for requesting leave. 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. However, failure to follow such internal employer procedures
will not permit an employer to disallow or delay an employee's
taking FMLA leave if the employee gives timely verbal or other
notice.

29 CFR 825.302(d).
A comment from Wolf, Block, Schorr and Solis-Cohen identified what
it believes to be the problems associated with section 825.302(d):

Another area of FMLA abuse involves the DOL regulations' limits
on an employer's ability to require employees to comply with their
customary call-out procedures. This is of particular concern for
employees taking intermittent leave.
* * *
[Section 825.302(d)] has been interpreted by the DOL to limit an
employer's ability to impose a call-in procedure (e.g. requiring
employees to call in and report their absence within 1 hour of their
start time) on employees who are absent from work for an FMLA
related reason where the call-in procedure is more onerous [than]
the verbal and written notice procedures set forth in 29 CFR
Sec. 825.303. The inability of an employer to insist that employees
on FMLA leave comply with a call-in procedure, such as in the
previous example, invites abuse from employees who are medically
approved for intermittent FMLA leave and, subsequently, give their
employer little or no notice leading up to their sporadic absences.

Wolf, Block, Schorr and Solis-Cohen, Doc. 10093A, at 2.
Employers asserted that the call-in procedures, which are enforced
routinely outside the FMLA context, are often critical to an employer's
ability to ensure appropriate staffing levels. The Ohio Department of
Administrative Services commented that:

Many state agencies have a call-in procedure that requires employees
to personally call within a certain period of time prior to the
shift if they will be unexpectedly absent that day. For agencies
that employ this procedure, the advanced ``call-in'' serves as a
crucial element of their attendance program, and enables the agency
to adjust schedules and personnel to cover the absent worker's
duties and responsibilities. This procedure is especially critical
in institutional agencies that provide direct care and supervision
of inmates or patients.

Doc. 10205A, at 3.
Employer commenters, however, were clear in their belief that the
Department's interpretations have severely limited those employers who
need to know in advance of any absence and have opened the door for
misuse of FMLA leave:

[T]he current FMLA regulations reduce the effectiveness of
[call-in procedures], as agencies are prohibited under the
regulations from requiring advance notice of the employee's need for
FMLA leave. Once an employee receives a certification for an ongoing
chronic condition, leave can be taken on numerous occasions
intermittently for the same condition and without advance notice. *
* * This restriction leads to a greater potential for abuse, as
employees may be tempted to use their certifications to justify
tardiness. Current FMLA regulations require an employee to give
notice of the need for FMLA leave ``as soon as is practicable,''
which usually means within a day or two of learning of the need for
leave.

Id. See also National Association of Manufacturers, Doc. 10229A, at 4,
12 (``65 percent of the requests received for intermittent leave were
made either on the day of the leave, after the leave was taken, or
without any notice. * * * [E]mployees with unscheduled intermittent
leave routinely ignore mandatory shift call-in procedures (even if they
are fully able to comply), wait two working days, as permitted by 29

[[Page 35577]]

CFR 825.303(a), and then report their absence as FMLA-qualifying'').
Wage and Hour Opinion Letter FMLA-101, discussed above, allows
employers to discipline employees for failure to follow employer notice
policies only where those policies are less stringent than the FMLA's
notice requirements.

The employer, however, could impose a penalty, i.e., assign
points under its customary attendance control policy, in a situation
where the employee was in the position of providing advance notice,
absent extenuating circumstances, of the need for FMLA leave and
failed to provide the notice in accordance with FMLA's requirements
and the company's notification policy, if less stringent than
FMLA's. Under this circumstance, the provisions of Sec. 825.302(d)
would not apply because of the employee's failure to provide timely
notice based upon FMLA's requirements (Sec. Sec. 825.302(a) and
(b)).

Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999).
This issue of an employer's ability to enforce its own notice
policies for employees taking leave has been litigated in the federal
courts with varying results.\9\ Two appellate courts have addressed
whether the application of employer policies requiring employees to
notify a specific individual or office when requesting a leave of
absence violates the FMLA and have reached differing results. In Cavin
v. Honda of America Manufacturing, Inc., 346 F.3d 713 (6th Cir. 2003),
the U.S. Court of Appeals for the Sixth Circuit addressed an employer
policy requiring an employee to formally request a leave of absence
from a specified department within three workdays of the first day
missed. The employee called daily to report his absences to the
employer's security office, but failed to comply with the requirement
to notify the correct department of his need for a leave of absence in
a timely manner. The Sixth Circuit concluded that the employer's policy
did not comply with the FMLA, holding that ``employers cannot deny FMLA
relief for failure to comply with their internal notice requirements'
as long as the employee gives timely notice pursuant to the FMLA. Id.
at 723. In denying the employer's ability to enforce its workplace
rule, the court determined that ``[i]n permitting employers to develop
notice procedures, the Department of Labor did not intend to allow
employers in effect to undermine the minimum labor standard for
leave.'' Id. at 722.
In Bones v. Honeywell Int'l., Inc., 366 F.3d 869 (10th Cir. 2004),
the Tenth Circuit took a different approach, allowing an employer to
enforce its own internal requirements governing whom an employee must
contact regarding her absence. In Bones, the employee was terminated
because she failed to report to work or to call her supervisor for
three days. On the second day of her absence, she requested a leave of
absence from the employer's medical department; the employer's policy,
however, expressly stated that employees were required to follow the
call-in procedure and that contacting the medical department was not
sufficient. Id. at 875. The court did not directly address whether the
employee had provided sufficient notice under the FMLA, finding that
the issue had been waived. Id. at 877. The court went on to note,
however, that ``Bones was terminated because she did not comply with
Honeywell's absence policy; she would have been terminated for doing so
irrespective of whether or not these absences were related to a
requested medical leave.'' Id. at 878.
---------------------------------------------------------------------------

\9\ Cases addressing employer policies have involved three types
of employer policies. The first group involves employer policies
requiring the employee to report an absence within a specific time
frame (frequently one hour prior to the start of the employee's
shift). These types of employer policies present the clearest
potential for conflict with the FMLA notice regulations. Compare
Spraggins v. Knauf Fiber Glass GmbH, Inc., 401 F.Supp. 2d 1235 (M.D.
Ala. 2005) (holding that employer could enforce rule requiring
employees to call in one hour prior to their shift unless it was
impracticable for them to do so), with Mora v. Chem-Tronics, Inc.,
16 F.Supp. 2d 1192 (S.D. Cal. 1998) (holding that employer's policy
requiring employees to call 30 minutes prior to the start of their
shift, regardless of circumstances, conflicts with FMLA notice
provision). The second group involves employer policies requiring
employees to call a specific office or individual to report an
absence. See infra (discussion of Cavin v. Honda of Am. Mfg., Inc.,
346 F.3d 713 (6th Cir. 2004), and Bones v. Honeywell Int'l, Inc.,
366 F.3d 869 (10th Cir. 2004)). The final group of cases involves
employer policies applied during the course of an employee's FMLA
leave. See, e.g., Callison v. City of Philadelphia, 430 F.3d 117 (3d
Cir. 2005) (upholding application of employer policy requiring
employees on paid sick leave to call in when leaving home); Lewis v.
Holsum of Fort Wayne, Inc., 278 F.3d 706 (7th Cir. 202) (upholding
application of three-day no-call/no-show rule); Gilliam v. UPS, 233
F.3d 969 (7th Cir. 2000) (upholding application of three-day no-call
rule).
---------------------------------------------------------------------------

2. Loss of Management Control
Employers commented frequently regarding what they see as the
difficulty in maintaining control over the workplace when, in the
employers' view at least, employees ``abuse'' unscheduled intermittent
leave in order to achieve some privilege or advantage to which they are
not entitled. See, e.g., National Association of Manufacturers, Doc.
10229A, at 4 (``As currently interpreted by DOL, the FMLA has become
the single largest source of uncontrolled absences and, thus, the
single largest source of all the costs those absences create: missed
deadlines, late shipments, lost business, temporary help, and over-
worked staff.''). The commenters assert that because employers' ability
to use call-in procedures and other attendance control mechanisms is
severely limited where the FMLA is involved, and because the FMLA
allows few options for determining whether a specific instance of leave
use is appropriate, situations arise where certain employees do as they
wish, ignoring the employers' rules, schedules, and staffing decisions.
As described by one attorney:

In my practice, by far the biggest problem we face with the FMLA
is intermittent leave * * * These employees typically use their
intermittent leave in small increments day-to-day. Especially when
based on the need to care for others or highly subjective factors,
this leave is neither scheduled in advance nor susceptible of being
scheduled. The end result is employees who, under the auspices of
FMLA, we must * * * allow to come and go as they please without any
regard for our business needs. From both a legal and practical point
of view, the employer is at the mercy of the employee. As a
practical matter, there is no effective or legally ``safe'' way for
an employer to regulate or verify the legitimacy [of] an employee's
use of intermittent leave.

Peter Wright, Esq., Doc. 4760, at 1.
One employer made the following observation:

The most difficult and burdensome part of the FMLA is the
intermittent FMLA. Many employees will request FMLA as soon as they
are placed in the discipline system for attendance. Health care
providers will complete the forms for some for any reason the
employee requests. The provider does this in such a vague manner
i.e. ``chronic condition, unknown or lifetime length, unknown
frequency that may prevent them from coming to work, may cause them
to be late leave early or not be able to attend without notice.''
This gives the employee the right to come and go as they please
without giving the company the right to question or discipline.

FNG Human Resources, Doc. FL13, at 2.
Although not strictly limited to unscheduled intermittent leave
use, a number of comments noted that employers cannot enforce their
attendance policies--particularly ``no fault'' attendance policies--
against employees on FMLA leave, which results in inconsistent
treatment of those absent for non-FMLA-qualifying reasons. The Society
for Human Resource Management summarized the issue:

Moreover, some employers' sick or personal leave policies
penalize repeated absences, even illness-related absences, which do
not qualify for FMLA protection. (These are commonly called ``no-
fault'' policies.) For a non-FMLA qualifying

[[Page 35578]]

condition, the employer can discipline and even terminate an
employee who is repeatedly absent. This follows from the principle
that regular attendance is generally required of every job and is
essential to productive and smooth operations. With an FMLA-
qualifying condition, however, the employer may not discipline the
employee for any absences, no matter how frequent, unless and until
the employee's leave entitlement is exhausted.

Society for Human Resource Management, Doc. 10154A, at 8.
The Edison Electric Institute was able to quantify the effect this
position (and other FMLA-related positions) has had on its attendance:

In the year 1987 our sick leave usage averaged 89.2 hours per
employee. In 1990 we implemented a No-Fault Modified Attendance
Policy (point system) to control employee attendance. After the
policy was in place for three years the sick leave usage dropped 70%
(from 89.2 hours to 27.2 hours). However, since FMLA went into
effect in 1993, sick leave usage has steadily increased each year.
At the end of 2006 the average hours used per employee escalated to
78.2. This is a 188% increase over a thirteen year period. * * * We
attribute most of this increase to the FMLA. Under the existing
regulations 29 CFR 825.220(c) employers cannot use the taking of
FMLA leave as a factor in employment actions, i.e., No-Fault
Attendance policies.

Edison Electric Institute, Doc. 10010A, at 1.
The types of scenarios identified by employers as subject to
``abuse'' through the improper use of unscheduled intermittent leave
include, among other things: (1) Employees using leave to cover for
simple tardiness or a desire to leave work early, and (2) employees
seeking to alter their work schedule through securing a different
shift.
a. Arriving Late/Departing Early
Many employer commenters suggested that employees use unscheduled
intermittent leave as a pretext to cover for their tardiness or to
leave work early for reasons unrelated to a serious health condition.
See Southwest Airlines Co., Doc. 10183A, at 4; Air Conference, Doc.
10160A, at 11 (``Under the current regulations, an employee could be
tardy by nearly two hours every scheduled workday for an entire year
and never exceed his allotment * * * [S]ome employees use this loophole
to leave work early every day to be at home when their healthy children
arrive home from school.''; ``[M]any employees use intermittent leave
to cover for tardiness, creating a scheduling and attendance
reliability issue for airlines.''); Cummins Inc., Doc. 10340A, at 2
(``Our payroll system allows for increments as few as three minutes,
and one facility had over 200 incidents of three minute FMLA uses in
2005. We strongly suspect that our incidents of three minute FMLA leave
are used to excuse tardiness rather than true FMLA leave.''); DST
Systems, Doc. 10222A, at 1 (``Increasing increment allowed may reduce
inappropriate use of the FMLA which can be misused for late arrivals/
tardiness instead of a legitimate FMLA reasons.''); Methodist Hospital,
Thomas Jefferson University Hospital, Doc. FL76, at 1 (``Having a major
medical problem like surgery and receiving block time off without
repercussion is not the issue. Intermittent leave on the other hand has
created a hiding place for Employees who have absence issues. * * *
Facilities are not looking to punish cancer patients who need
chemotherapy on a weekly basis; we do need to question Employees that
have intermittent problems on snow days when they call in for
``intermittent leave'' and hospitals have to struggle in providing last
minute staffing.'').
b. Obtaining a Preferred Shift
A number of commenters stated that some employees misuse the FMLA
rules to secure for themselves a preferred schedule in the form of a
shift different from the one legitimately assigned by the employer.
See, e.g., Southwest Airlines Co., Doc. 10183A, at 2, 4 (``Far too many
employees misuse unscheduled, intermittent FMLA leaves to set their
preferred rather than assigned work schedules; to work shifts paying
overtime but no show regular pay shifts; to get excused absences that
would otherwise violate attendance rules; * * * FMLA usage plummets on
December 25 Christmas Day each year when triple overtime is paid[.] * *
* FMLA usage is near its peak the day before Christmas and jumps the
day after, but somehow nearly all those employees who have been out on
FMLA feel better on Christmas day and are able to come to work.'');
Roger Bong, Doc. 6A, at 4 (``We even had one individual during our busy
period of time (where overtime was abundant) come in four hours before
the start of their shift (2 hours at double time and 2 hours at time
and one half) and then at the start of their regular shift go home on
FMLA. In that way she would earn seven (7) hours of pay and leave while
not working the shift (2nd shift) that she hated.''); Air Conference,
Doc. 10160A, at 4. (``[E]very airline has numerous examples of workers
who bid a full-time, 40-hour week schedule, entitling them to maintain
all corresponding full-time benefits, but who then cut short most work
days with intermittent leave. In other instances, reservation agents
have been known to miss their regular shift --forcing the carrier to
call-in another worker with overtime pay-- and then report into work
later that day for an overtime shift that pays a higher premium.'').
A number of commenters expressed concern that compliance with the
FMLA's intermittent leave provisions--particularly when taken for a
chronic condition--often converted a full-time position into a
permanent, part-time position:

DOL takes the view that an employee is entitled to an FMLA
reduced schedule due to a serious health condition regardless of the
fact that the condition is permanent and it is unlikely that the
employee will return to full-time employment. (DOL Opinion Letter-
97, July 10, 1998) If an employee has a reduced schedule with one
full day off per week due to FMLA, this arrangement can go on
indefinitely. This results, in effect, in the creation of a new
part-time position * * *. [An employee can refuse] reasonable
accommodation under the American[s] with Disabilities Act (ADA) but
instead chose to continue with * * * reduced schedule under FMLA * *
*. The regulations should not permit this.

Seyfarth Shaw LLP (on behalf of a not-for-profit health care
organization), Doc. 10132A at 3. See also Sally L. Burnell, Program
Director, Indiana State Personnel Department, Doc. 10244C, at 4 (``The
issue here is that some intermittent FMLA leaves almost default into
light duty assignments because supervisors must reassign work that the
frequently-absent employee is responsible for to ensure that deadlines
are met and services are provided to customers.''); Madison Gas and
Electric Company, Doc. 10288A at 2 (``Offering an employee the
possibility of 12 weeks of intermittent, unscheduled absences makes the
employer vulnerable to the discretion of the employee. An employee
taking advantage of this provision can essentially work part-time, but
reap the benefits of a full-time employee.''); Air Conference, Doc.
10160A at 11 (``Some employees use this regulation to effectively
convert a fulltime position to part-time when part-time work is not
otherwise available or to receive a shift which they do not have the
seniority to hold under a collectively-bargained seniority
system.'').\10\
---------------------------------------------------------------------------

\10\ Several comments, in making this point, noted that it is
possible for a ``full-time'' employee to use FMLA leave
intermittently under these circumstances and not exhaust his or her
yearly leave entitlement. For example, 12 weeks times 40 hours per
week = 480 hours of intermittent FMLA leave entitlement per year,
divided by 52 weeks = 9.2 hours of intermittent FMLA leave per week,
divided by 5 days per week = 1.8 hours per day.

---------------------------------------------------------------------------

[[Page 35579]]

---------------------------------------------------------------------------
Comments from the University of Minnesota noted similar problems:

Dealing with such situations is extremely difficult. Supervisors
do not know if the employee will come in to work on any given day.
They do not know if the employee will work an entire shift.
Employees will simply notify their supervisors, in many cases after
the fact, that they have experienced symptoms and cannot come in to
work, or must leave work early. A comment by a supervisor regarding
a performance issue may result in the employee excusing himself/
herself for the rest of the day. Without proper notice, a supervisor
cannot make plans for a replacement * * *. Nonetheless, the current
statutory and regulatory provisions provide employers with few
options.

University of Minnesota, Doc. 4777A, at 2.
3. Impact on Employee Morale and Productivity
A very large number of comments addressed the effect that the FMLA
(and unforeseeable intermittent leave in particular) has had on
employee morale. The Department received comments emphasizing the
positive aspects of the FMLA on employee morale and retention, as well
as the negative impact on employee morale and productivity.
a. Viewpoint: the FMLA Improves Employee Morale and Retention
Most of the comments addressing the FMLA's positive impact on
employee morale focus on the FMLA generally. Several of the commenters
who described the FMLA's positive impact on morale relied on the 2000
Westat Report. See, e.g., Faculty & Staff Federation of Community
College of Philadelphia, Local 2026 of the American Federation of
Teachers, Doc. 10242A at 8 (``The 2000 Westat Study found that 89% of
employers reported that the FMLA has had either a positive or neutral
effect on employee morale. The survey also reported that, of those who
have taken on added duties when a co-worker has taken FMLA leave, over
four in five (85%) say the impact on them was neutral or positive.'');
The Human Rights Campaign, Doc. 10179A, at 2 (same); 9to5, National
Association of Working Women, Doc. 10210A, at 2 (``And more than 4 in 5
employees who have taken on added duties when a co-worker has taken
FMLA leave say that the impact on them was neutral or positive.'').
According to the Women's Employment Rights Clinic:

Studies clearly suggest that workplace flexibility, such as
leaves for family obligations, increases employee retention * * *.
[O]ther findings ``strongly suggest that employers who provide
greater opportunities for flexible work arrangements, have
supervisors who are more responsive to the personal and family needs
of employees, and create a workplace culture that is more supportive
of the worklife needs of employees have employees who are more
satisfied with their jobs, more committed to their employers, and
more likely to plan to stay with their current employers.
Interestingly, none of these work-life supports necessarily impose
direct costs upon employers, in contrast with conventional
benefits.''

Doc. 10197A, at 7-8 (citation omitted). See also Faculty & Staff
Federation of Community College of Philadelphia, Local 2026 of the
American Federation of Teachers, Doc. 10242A, at 8 (``The law promotes
workforce stability by helping employees retain their jobs when an
emergency strikes. We believe the FMLA is essential to greater employee
retention and to reducing employee turnover, and it is crucial to
preserve FMLA's protections in their entirety.'').
A number of commenters focused on the benefits directly enjoyed by
the employer:
Based on recent research, it is clear that the FMLA contributes
to a more stable economy and workforce by helping employers retain
their employees and reduce turnover. In the 2000 Westat study, 98
percent of employees taking FMLA leave returned to work after taking
that leave. And of the employers who experienced cost savings due to
the FMLA, more than three-quarters attributed their savings to
decreased turnover. The Employment Policy Foundation reports that
the average cost of employee turnover is 25 percent of an employee's
total compensation. Not only does the FMLA support families, it also
supports businesses. The FMLA has reduced these costs by creating an
effective mechanism for employees to retain their jobs.

Families USA, Doc. 10327A, at 6 (footnotes omitted). See also The Human
Rights Campaign, Doc. 10179A, at 2 (``Many companies and states know
from experience that providing a safety net for all families is a good
business decision.''); 9to5, National Association of Working Women,
Doc. 10210A, at 2 (``The Family Medical Leave Act is a win-win for
employees and employers.'').
Several comments from employees opined that the causes of decreased
employee morale are not so much the result of the FMLA, but rather the
employer's failure to manage effectively:

The primary method for covering for employees on FMLA leave is
to assign their work to co-workers. Reportedly, this method of
getting the work done has a negative affect on the morale of the
employees who pick up the slack for their absent co-workers.
Employers should not rely on co-workers to cover for absent
employees as a matter of course. Rather, co-workers should be used
to pick up the slack when no other option is available. Most
employees will need to take FMLA leave at some point during their
career, and good management practices dictate that employers
recognize this eventuality and plan for it.

Center for WorkLife Law, Doc 10121A, at 7.
b. Viewpoint: Unforeseeable Intermittent Leave Negatively Affects
Employee Morale and Productivity
In contrast to the comments emphasizing the morale-related benefits
of the FMLA generally, several employers commented that when co-workers
perceive employees to be ``abusing'' the FMLA, morale and productivity
suffer. As described by the Pennsylvania Turnpike Commission:

FMLA leave when abused/misused affects morale negatively. We
have received phone calls from both employees and managers who are
frustrated that an employee(s) at their work location call off for
FMLA so they can be off for holidays and weekends. These call-offs
may interfere with another employee's vacation request, requiring
them to come to work while another employee uses their FMLA. We have
heard these type of holiday/vacation FMLA requests called ``get-out-
of-jail-free'' cards because there is no recourse that we have as an
employer to enforce these types of abuses/misuses of leave.
Employees will request a vacation day, and if that request is
denied, they often call in sick for FMLA that day. Some employees
have even bragged to others how easy it is to get the extra time off
and how they use this time for vacation or other non-FMLA reasons.

Doc. 10092A, at 8. See also Dover Downs Hotel & Casino, Doc. 10278A, at
2 (``Here is an example of what occurs on a REGULAR basis. An employee
requests a vacation at the last minute as she received an unexpected
invitation for a week at the beach. The manager denies the request,
citing the numerous others who were granted vacation for the week in
question. The manager simply cannot afford to allow one more person to
take that week off as it would incur overtime for others to cover for
this one. This employee chooses to head to the beach anyway and calls
the manager, citing only those magic words `FMLA'. In this true
scenario, we were inconvenienced--as were the employees who had to work
overtime to pick up extra hours to cover for this employee.'').
This sentiment is echoed in the comments of the National Coalition
to Protect Family Leave:

The Coalition believes that the availability of FMLA leave can
increase morale in the workplace, if the leave is used in accordance
with the spirit and intent of the Act. Employees who take FMLA leave
are generally satisfied, for not only are the employees able to
retain their benefits, but

[[Page 35580]]

they also have job security. However, FMLA can also lead to low
morale and decreased productivity in the workplace. When employees
take unscheduled intermittent leave and even scheduled leave in
large blocks of time, the morale and productivity may decline for
the remaining employees. The employees who report to work must cover
for their colleagues who take FMLA leave, often resulting in
overtime. Both employers and employees have expressed concerns
regarding the abuse of FMLA leave and, thus, the employees who
report to work are the ones who suffer.

Doc. 10172A, at 51. See also Bendix Commercial Vehicle Systems, Doc.
10079A, at 4, 11 (``[FMLA leave] has a positive impact when it is
believed to be used appropriately; however, when it is believed to be
being abused, it has a very negative [effect]. It can build animosity
towards coworkers for not pulling their weight, towards the employer
because we are allowing the employee to abuse the FMLA and won't do
anything about it.''; ``This means that coworkers have to be asked to
do more to cover for the person who took the intermittent FMLA. This
can create morale issues--employee not pulling their own weight.'').
Some employers report that employees themselves also identify
morale issues associated with their co-workers' use of FMLA:

There is a menacing, intangible cost to abuse of intermittent
FMLA: it wears out fellow employees who must cover shifts and trips
for those abusing FMLA. It dampens workplace morale and teamwork * *
*. In 2006, Southwest employees * * * were asked what one thing they
would change * * *. In response, employees provided hundreds of
unsolicited comments about FMLA abuse and its negative [effect] on
morale.

Southwest Airlines Co., Doc. 10183A, at 6.

Morale--Employees that are not utilizing the unforeseen,
intermittent leave report feeling cheated. They come to work on time
and work 40 hours each week. When they need time off, they utilize
their vacation time. They also report that employees on unforeseen,
intermittent leave indicate that they can and will abuse the system
when they want to. As a result, more and more employees are applying
for unforeseen, intermittent leave so they can take time off of work
whenever they choose.

Yellow Book USA, Doc 10021A, at 1. See also An Employee Comment, Doc.
136, at 1 (``We have a serious problem with this where I work. There
are several people who do take advantage of the system to the point
where it is a problem for the other workers. There is no way for them
to stop or control this either as they call in for 2 days, then are
back before required to bring in a doctor's excuse.'').
Other commenters addressed the perception of ``abuse'' of the FMLA
by leave-takers or the overall ``costs'' of the FMLA. A postal employee
commented ``it seems to me many employees abuse the system * * *. I
don't think the employees lie about illnesses, but they milk the system
to stay home as much as possible.'' An Employee Comment, Doc. 188, at
1. An employee at a unionized factory commented that he had witnessed
``a lot of abuse'' of FMLA which created morale issues as well as
additional costs to the company. An Employee Comment, Doc. 195, at 1.
However, an employee in the transportation industry noted, ``I do see
people occasionally abuse sick leave but those people would abuse it
regardless of FMLA.'' An Employee Comment, Doc. 4684, at 1.
Several commenters contended that misuse of intermittent leave has
a negative effect on employee retention and turnover. For example:

[I]t is common that morale problems begin to appear among the
employees (collectively and individually) who are left to deal with
an ``intermittent'' abuser in their production area and have to
continually pick up the slack; however, while this last group may
perhaps receive some benefit via overtime as a result, the more
common result is diminishing morale which often results in increased
turnover.

Krukowski & Costello, S.C. (on behalf of Legislative Committee of the
Human Resource Management Association of Southeastern Wisconsin), Doc.
10185A, at 8.
Additional comments in response to the RFI described the impact of
unforeseeable intermittent leave on employee morale:

[T]he availability of FMLA improves the morale of the employees
that use it, while negatively affecting the employees who do not.
Everyone knows the day may come when we all may need to use it;
however, the fact that every individual has the ability to be
certified and then be able to miss up to twelve weeks in a twelve-
month period is very disheartening. There are individuals who will
exhaust the twelve weeks and then miraculously can come to work
everyday thereafter and once eligible, complete a new certification
and start the [vicious] cycle all over again. We have no evidence
that it improves employee retention, however, employees that already
have attendance problems find themselves with a serious health
condition and are then able to continue to miss work but are able to
be excused instead.

AM General LLC, Doc. 10073A, at 2-3. See also Spencer Fane Britt &
Browne LLP, Doc. 10133C, at 19-20.

C. The Importance of Unscheduled Intermittent Leave to Employees

Many commenters addressed the need for unscheduled intermittent
leave. For example, one commenter described her personal experiences
with her daughter's chronic, serious health condition:

My daughter had a major asthma attack which caused a bronchial
infection, swelling and bacteria in her throat * * *. [N]one of my
daughter's doctors have told her how many times she needed to see
them. I'm quite sure if they knew the answer, it would have been
written * * *. No one is capable of predicting an asthma attack or
the severity of the attack; I just would like the assurance of
knowing that if or when the situation should arise, I have the time
off required to handle her needs without the threat of being * * *
terminated.

An Employee Comment, Doc. 4395, at 1. Another commenter described her
experience:

In 2003, my mother was diagnosed with end stage renal failure
and had to immediately begin receiving dialysis treatments three
times a week. Since then, I have been working a reduced work
schedule which allows me to be able to help my mom with
transportation to/from her treatments, doctor appointments, errands,
etc. * * *. I was so thankful when my employer informed me of this
law because it gave my mom peace of mind knowing that I would be
available for her when she needed me. By me working only 32 hrs a
week, instead of the normal 40 hr workweek, I have been able to act
[as] an advocate/liaison for my mom with all of her doctors,
specialists and treatments that she's had to endure. Most
importantly, it has allowed for my mom to feel independent with my
help. I know that if the FMLA act [wasn't] around, I would be losing
a lot of time and money with my employer and my mom would probably
be a burden to the society and maybe even be living in a rest home
somewhere * * *. My mom will need dialysis treatments indefinitely
but I end up taking leave without pay for most of the year[.]

An Employee Comment, Doc. 4773, at 1.
The AFL-CIO comments also included statements from individual
employees detailing the importance of intermittent FMLA leave to
affected workers:

Many of the responses to Working America's 2007 online survey on
FMLA stressed the importance of intermittent leave. A Human Services
Supervisor in Easton, Pennsylvania, relied on intermittent leave to
care for his terminally ill father:
By using the intermittent leave provisions of FMLA, I was able
to help care for my Dad in the final stages of his terminal cancer,
in his own home. I was grateful that he was able to spend his last
days in the comfort of his house, as he desired, while I was able to
maintain my employment status, which I desperately needed for my own
family. Weakening this law, will only lead to the

[[Page 35581]]

further breakdown of already stressed family support systems.

A payroll and benefits administrator in Euclid, Ohio also cares for
a sick parent:
My mother suffered a severe stroke 4 years ago. I use FMLA time
to care for her at home and keep her out of a nursing home. I have
two siblings who help with her care, so I only have to take
intermittent leave. It's hard enough to care for a disabled parent
without having to worry about losing your job * * *. It would break
my heart and my mother's if I had to put her in a nursing home. The
government should be finding ways to make it easier to take this
leave, not make it harder.

American Federation of Labor and Congress of Industrial Organizations,
Doc. R329A, at 30-31 (citation omitted).
The Center for WorkLife Law expressed its belief in the importance
of unforeseeable intermittent leave for chronic conditions to working
Americans:

Recent studies show that 65 percent of families with children
are headed by two working parents or a single parent. One in four
employed men and women has elder care responsibilities and one in 10
employees is a member of the ``sandwich generation'' with both child
care and elder care responsibilities. For those working caregivers
with a seriously ill child or family member, medical emergencies are
a way of life. Intermittent FMLA leave allows these employees to be
available to their families when they are needed most without the
stress of losing their jobs. We cannot emphasize strongly enough
that the availability of intermittent FMLA leave is critical for
eligible employees caring for an ill child, spouse or parent with a
serious chronic illness.

Doc. 10121A, at 5 (emphasis in original) (footnotes omitted).

V. Notice: Employee Rights and Responsibilities

The Department noted in its Request for Information that one
consistent concern expressed by the employee representatives during
stakeholder meetings was that employees need to be better aware of
their rights under the FMLA. Awareness of FMLA rights and
responsibilities is critical to fulfilling the goals of the statute,
yet it has been a challenge since the inception of the FMLA. Employees
learn of their rights and responsibilities through the notice
provisions of the FMLA and its implementing regulations. The Department
sought information in response to several questions concerning the
notice provisions and how those provisions relate to employee awareness
of their rights and responsibilities:
Whether employees continue to be unaware of their rights
under the Act and, if so, what steps could be taken to improve this
situation.
The Department noted that employers have reported that
some employees do not promptly notify their employers when they take
unforeseeable FMLA leave and requested information on the prevalence
and causes of employees failing to notify their employers promptly that
they are taking FMLA leave and suggestions as to how to improve this
situation.
What methods are used to notify employees that their leave
has been designated as FMLA leave? What improvements can be made so
that employees have more accurate information on their FMLA balances?
Does the two-day timeframe for providing notification to
employees that their FMLA leave request has been approved or denied
provide adequate time for employers to review sufficiently and make a
determination?

A. Background

The Act places notice obligations on both employers and employees.
The notice provisions are scattered throughout the regulations, which
further define the statutory requirements and also include additional
notice obligations.
1. Employer Notice Requirements
The FMLA mandates that covered employers affirmatively notify their
employees of their rights under the Act:

Each employer shall post and keep posted, in conspicuous places
on the premises of the employer where notices to employees and
applicants for employment are customarily posted, a notice, to be
prepared or approved by the Secretary, setting forth excerpts from,
or summaries of, the pertinent provisions of this title and
information pertaining to the filing of a charge.

29 U.S.C. 2619(a). ``Any employer that willfully violates this section
may be assessed a civil money penalty not to exceed $100 for each
separate offense.'' 29 U.S.C. 2619(b).
In addition to the statutory posting requirement, the Department of
Labor regulations flesh out employers' obligations to inform employees
of their FMLA rights and responsibilities. See generally 29 CFR
825.300-825.301. In addition to repeating the statutory requirements,
section 825.300 of the regulations requires some degree of bilingual or
multilingual notice: ``Where an employer's workforce is comprised of a
significant portion of workers who are not literate in English, the
employer shall be responsible for providing the notice in a language in
which the employees are literate.'' 29 CFR 825.300(c).
Section 825.301 sets forth additional employer notice requirements,
requiring the inclusion of information on the employee's FMLA rights
and responsibilities and the employer's policies regarding the FMLA in
the pertinent employee handbook or through other means if the employer
does not have such formal written policies. 29 CFR 825.301(a)(1)-(2).
The notice requirements set forth in section 825.301 derive from
notice provisions found throughout the regulations. Within a reasonable
time after the employee has provided notice of the need for leave, the
employer shall provide the employee with written notice detailing the
specific expectations and obligations of the employee and explaining
the consequences of a failure to meet these obligations. The written
notice must be provided in a language in which the employee is literate
and must include, as appropriate:

(i) that the leave will be counted against the employee's annual
FMLA leave entitlement (see Sec. 825.208);
(ii) any requirements for the employee to furnish medical
certification of a serious health condition and the consequences of
failing to do so (see Sec. 825.305);
(iii) the employee's right to substitute paid leave and whether
the employer will require the substitution of paid leave, and the
conditions related to any substitution;
(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) any requirement for the employee to present a fitness-for-
duty certificate to be restored to employment (see Sec. 825.310);
(vi) 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);
(vii) the employee's right to restoration to the same or an
equivalent job upon return from leave (see Sec. 825.214 and
825.604); and
(viii) 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).

29 CFR 825.301(b)(1). ``The specific notice 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.'' 29 CFR 825.301(b)(2). ``The notice shall be given
within a reasonable time after notice of the need for leave is given by
the employee--within one or two business days if feasible.'' 29 CFR
825.301(c). The written notification to the employee that

[[Page 35582]]

the leave has been designated as FMLA leave ``may be in any form,
including a notation on the employee's pay stub.'' 29 CFR
825.208(b)(2).
2. Employee Notice Requirements
The FMLA also imposes a requirement on employees to notify their
employers of the need for FMLA leave. The statute requires that in the
case of foreseeable leave due to the birth of a son or daughter or the
placement of a son or daughter with the employee for adoption or foster
care, ``the employee shall provide the employer with not less than 30
days notice before the date the leave is to begin * * * except that if
the date of birth or placement requires leave to begin in less than 30
days, the employee shall provide such notice as is practicable.'' 29
U.S.C. 2612(e)(1). The same standard applies to foreseeable leave based
on planned medical treatment for a serious health condition of the
employee or the employee's spouse, son, daughter, or parent. 29 U.S.C.
2612(e)(2).
``When the approximate timing of the need for leave is not
foreseeable, an employee should give notice to the employer of the need
for FMLA leave as soon as practicable under the facts and circumstances
of the particular case. It is expected that an employee will give
notice to the employer within no more than one or two working days of
learning of the need for leave, except in extraordinary
circumstances.'' 29 CFR 825.303(a). ``An employer may also require an
employee to comply with the employer's usual and customary notice and
procedural requirements for requesting leave. * * * However, failure to
follow such internal employer procedures will not permit an employer to
disallow or delay an employee's taking FMLA leave if the employee gives
timely verbal or other notice.'' 29 CFR 825.302(d).
While the statute and its implementing regulations require the
employee to provide notice of the need for leave, employees are not
required to specifically request FMLA leave. The ``employee need not
expressly assert rights under the FMLA or even mention the FMLA, but
may only state that leave is needed[.]'' 29 CFR 825.302(c), 825.303(b).
However, the regulations also state that ``[a]n employee giving notice
of the need for unpaid FMLA leave must explain the reasons for the
needed leave so as to allow the employer to determine the leave
qualifies under the Act. * * * In many cases, in explaining the reasons
for a request to use paid leave, especially when the need for the leave
was unexpected or unforeseen, an employee will provide sufficient
information for the employer to designate the paid leave a FMLA
leave.'' 29 CFR 825.208(a)(1).

B. Awareness of Rights

The 1995 Commission on Leave Report found that 41.9% of employees
at covered establishments had not heard of the FMLA. The 2000 Westat
Report found that 40.7% of covered employees had not heard of the FMLA
and nearly half the employees did not know whether the law applied to
them. See 2000 Westat Report, at 3-8 and 3-9. One commenter cited these
percentages and expressed a continuing concern that employees are not
aware of their rights. National Partnership for Women & Families, Doc.
10204A, at 17.
Increasing employee and employer awareness of FMLA rights and
responsibilities continues to be a challenge. See Madison Gas and
Electric Company, Doc. 10288, at 3 (``Employees tend to be uninformed
about many legal rights or employer benefit provisions. Employees seek
`just in time' information when they really need it.''). See also An
Employee Comment, Doc. 10336A, at 12 (``People generally do not
understand the law. If you address an employer's human resources
department, you can leave even more confused * * *. Overall, employee
rights are not disclosed clearly to employees.''); Zimbrick Inc., Doc.
FL125, at 9 (``Some employees are aware and others are not. However,
this is no different than any other areas.''); An Employee Comment,
Doc. 4646, at 1 (``[I]f my coworker did not inform me of FMLA I know I
would have lost my job.''). One employer suggested that employees may
be unaware of their FMLA rights due to the timing of when they receive
information about FMLA. ``If employees continue to be unaware of their
FMLA rights, it may be because most employers will cover this at
orientation. On the first day of the job, new employees are nervous and
are overwhelmed with paperwork and work rules. Since FMLA won't affect
them until they have in the requisite 12 months with the company, they
may shove that information to the back burner.'' Elaine G. Howell, H.R.
Specialist, International Auto Processing, Inc., Doc. 4752, at 1.
It appears that employees are not the only ones who could benefit
from increased awareness of FMLA. An employee who took FMLA leave for
the adoption of a daughter and later sued his employer for interfering
with his FMLA rights and terminating his employment in violation of the
FMLA stated that ``Not only was I unaware of my [FMLA] protected
status, but neither was my management as they testified in court.
[Company Name] did not meet their obligation to thoroughly explain FMLA
leave to management and therefore they failed to provide adequate
protection to their employees.'' An Employee Comment, Doc. 167A, at 2.
The Legal Aid Society-Employer Law Center commented:

Awareness of one's FMLA's rights in the workplace is woefully
absent. In my experience, most litigation has been the result of
supervisors who are simply ignorant about FMLA, its intended purpose
and basic protections, and then, with no training or information,
improperly deny FMLA leave to eligible employees with a legitimate
serious health condition. Invariably, in every case that I have
litigated, the key supervisor did not know that: (1) FMLA provides
12 weeks of leave for an eligible employee; (2) the leave can be
taken on an intermittent basis; (3) existing health care coverage
continues while an employee is on leave; (4) an employee has the
right to be reinstated to her same or comparable job upon expiration
of the leave; and (5) an employee who exercises their right to take
FMLA leave may not [be] subject to retaliation.

Doc. 10199A, at 3-4. See also Center for WorkLife Law, Doc. FL64, at 6
(``Some employers fail to inform eligible employees about their right
to take FMLA leave because of the employers' or their managers' own
lack of knowledge or understanding of the law.'').\11\
---------------------------------------------------------------------------

\11\ Private sector supervisors are subject to individual
liability under the FMLA and therefore may be held liable if they
violate an employee's FMLA rights. See 29 U.S.C. 2611(4)(A)(ii)(I);
29 CFR 825.104(d). The Department is aware, however, that there is a
conflict in the circuits and in the lower courts regarding whether
public agency supervisors can also be held individually liable under
the FMLA. Compare Modica v. Taylor, 465 F.3d 174, 186 (5th Cir.
2006) (``The most straightforward reading of the text compels the
conclusion that a public employee may be held individually liable
under the FMLA.'') and Darby v. Bratch, 287 F.3d 673, 681 (8th Cir.
2002) (``It seems to us that the plain language of the statute
decides this question * * * This language plainly includes persons
other than the employer itself. We see no reason to distinguish
employers in the public sector from those in the private sector.'')
with Mitchell v. Chapman, 343 F.3d 881, (6th Cir. 2003) (``Our
independent examination of the FMLA's text and structure reveals
that the statute does not impose individual liability on public
agency employers.''), cert. denied, 124 S. Ct. 2908 (2004) and
Wascura v. Carver 169 F.3d 683, 686 (11th Cir. 1999) (holding based
on the similarity of the definition of ``employer'' under the FMLA
and the FLSA, and circuit precedent interpreting the term under the
FLSA, that public officials are not individually liable under the
FMLA).
---------------------------------------------------------------------------

Other comments from employees and employee groups reported that
many employees have some general awareness of the FMLA but do not know
what the law is (e.g., whether it extends beyond leave for birth of a
child) or whether it applies to them. A survey conducted by AARP of
workers age 50 and over

[[Page 35583]]

revealed that, although 91 percent were generally aware of the FMLA,
only 50 percent of those workers reported that they first learned of
the FMLA through their employer, suggesting that ``more can be done to
improve employer-employee communication[.]'' AARP, Doc. 10228A, at 3. A
survey of Working America members by the AFL-CIO similarly showed that
53.9 percent of respondents were informed about their FMLA rights by
their employers. See Doc. R329A, at 7. The survey also showed that 68
percent of the respondents had taken unpaid leave to care for
themselves or a spouse, child, or parent during an illness, but did not
know whether it was considered FMLA leave. Id. at 40.
Still other stakeholders report that employees' awareness of their
FMLA rights is not lacking. For example, the National Coalition to
Protect Family Leave stated that ``Coalition members believe that, in
many cases, employees are well aware of their FMLA leave rights. Among
unionized employers, coalition members report that unions routinely
inform their members of their FMLA rights.'' Doc. 10172A, at 39. One
law firm representing employers agreed. Porter, Wright, Morris & Arthur
LLP, Doc. 10124B, at 5 (``Today, 13 years after the Act's passage,
employees are very savvy about their FMLA rights--it's the rare
employee who does not know of the FMLA.''). Other stakeholders echoed
the sentiment: ``As indicated by the high usage of FMLA by employees at
most of our member airlines, employees are fully aware of the rights
available to them under this popular Act.'' See Air Transport
Association of America, Inc., and Airline Industrial Relations
Conference, Doc. FL29, at 9. See also MedStar Health Inc., Doc. 10144,
at 15 (asserting that ``employees are not only aware of but, also, well
educated on their FMLA rights''); National Association of Convenience
Stores, Doc. 10256A, at 8 (``today's employees are aware of their
rights and obligations under FMLA long before they are hired'').
Suggestions we received for increased awareness include outreach
efforts, public campaigns, increased dissemination of materials in both
English and Spanish, on-line tools, and development of user-friendly
FMLA materials that could be widely disseminated. See National
Partnership for Women & Families, Doc. 10204A, at 17; Families USA,
Doc. 10327A, at. 4. One union stated that the ``posting requirements
for employers under FMLA do not go far enough in that they do not
actively educate employees on their rights under FMLA. In addition to
posting FMLA basic facts as required by the regulation, employers
should be required to give the information to employees, in writing,
once they become eligible under the regulations with that employer.
Contact phone numbers for the employer as well as detailed appeals
process afforded to the employee should be provided, as well as
recourse information for possible retaliatory practices by the
employer.'' United Transportation Union, Doc. 10022A, at 2.
Another union recommended that ``employees should be expressly
notified of their right to take intermittent leave.'' International
Association of Machinists and Aerospace Workers, Doc. 10269A, at. 2.
``This has proven a real problem for some of our members * * * An
employee who suffers from a condition that is still being diagnosed,
but doctors believe it is either lupus, a connective tissue disorder or
rheumatoid arthritis, arrived late to work due to her condition on a
number of occasions. This employee was completely unaware that she
could take FMLA on an intermittent basis. She thought if she took any
FMLA leave, she would have to stop working altogether, something her
illness did not necessitate and something she could not afford to do.''
Id. at 2-3. The Legal Aid Society-Employment Law Center also stated
that few employers effectively advise employees about their rights and
options under the FMLA. See Doc. 10199A, at 4. Therefore, when ``a
supervisor denies a legitimate leave, uninformed employees must make
the difficult decision to take the leave in spite of the supervisor's
denial and risk losing their jobs.'' Id. This commenter suggested that
employers provide employee training so that the workers understand
their rights.
The AFL-CIO suggested that the Department should consider
regulations that require ``employers to provide an individualized
notice provision to employees on an annual basis,'' and referred to
another commentator who suggested requiring notice to employees at the
point of hiring and annually thereafter. Doc. R329A, at 40. The
Communication Workers of America reiterated that employees should
receive documents that ``explain their annual leave entitlement and the
process for making application for FMLA leave.'' Doc. R346A, at 9. It
suggested that employers could improve employees' awareness of their
rights, as well as inform them of their individual eligibility status,
by taking steps such as producing an annual FMLA document for them. One
employee recommended that a ``manager and/or HR should formally contact
the employee and notify them of the options available under FMLA. This
should include a description of the protection and a review of what the
employee needs to do to qualify for this protection (if anything).
Employees should be clearly made aware of their obligations to the
employer. Employees should be instructed when protection begins, when
paid leave begins and ends (ie. paid vacation until it is used up), and
protection should be defined.'' An Employee Comment, Doc. 167A, at 2-3.
The National Employment Lawyers Association similarly asserted that
the regulations should require employers to take steps to provide
workers with adequate information regarding their rights and
responsibilities. See Doc. 10265A, at 4. One of its members suggested
requiring employers to have such information in their handbooks and/or
requiring employers ``to produce a written statement of rights and
responsibilities to an employee upon that employee's first anniversary
(if no handbook is issued).'' Id. See also Coalition of Labor Union
Women, Doc. R352A, at 2-3 (noting that many employees are not aware of
their FMLA rights, and that employers do not provide them with the
required information).

C. Employee Notice

As previously explained, employees have the responsibility to
notify their employers of the need for FMLA leave; however employees
are not required to expressly request FMLA leave or invoke their FMLA
rights. A great deal of anecdotal information was provided concerning
notices provided by employees as well as several suggestions on this
subject.
1. Notice of the Need for Leave: Timing and Information Provided
Stakeholders offered several possible explanations for employees
failing to provide notice of their need for leave, ranging from the
employee's relationship with his/her supervisor to not wanting the
absence to count as FMLA:

It appears that reasons for employees failing to notify their
employer in advance of FMLA leave-qualifying events vary depending
upon the medical situation and the employee's personality and
relationship with his/her supervisor. For example, some employees
discuss the possibility of surgery or childbirth informally with co-
workers and then neglect to submit formal documentation in a timely
manner perhaps assuming that the informal break room discussions are
sufficient; other employees do not want supervisors or management to
be aware of medical issues until the very last minute and

[[Page 35584]]

then provide only a bare minimum of information.
Another reason for delays is that employees seem to think that
they can retroactively document most absences, whether foreseeable
or not, and frequently submit the documentation after their return
to work. Since in many cases these employees used accrued leave to
cover their absences, it is often in the employer's interest to also
designate the absence as FMLA leave whenever the employee provides
the documentation of qualification.
It also appears that employees who have the option of using
other accrued paid leave often do not mention the reason for that
leave in order to avoid the absence being charged concurrently to
FMLA leave. Employees without other leave options are very quick to
request FMLA leave even for doubtful absences.

Sally L. Burnell, Program Director, Indiana State Personnel Department,
Doc. 10244C, at 5. See also Elaine G. Howell, H.R. Specialist,
International Auto Processing, Inc., Doc. 4752, at 1 (``As an H.R.
Specialist that handles FMLA, I can tell you that we have had employees
with a foreseeable leave that did not notify us of their need for
leave. Some employees have scheduled surgery and used vacation time. We
are unaware of it unless there are complications. * * * Many of our
employees are very private of their medical needs, as they should
be.''); Zimbrick Inc., Doc. FL125, at 10 (``We see several causes [for
employee's failing to notify employer]: (1) Employees' lack of
knowledge about FMLA; (2) employees don't anticipate the need (for
example[:] employee takes off on Friday to have surgery but due to
medical complications can't return to work on Monday); [and] (3)
employees who know FMLA is 12 weeks and they try to scam the system by
using vacation and sick time up first and then want 12 more weeks
off.''). One stakeholder cited the need to provide medical
certification of the serious health condition as a reason employees do
not request FMLA leave. See FNG Human Resources, Doc. FL13, at 3
(``Employees refuse to request FMLA because some medical providers
either refuse to complete the paperwork, complete it incorrectly or
incompletely, or charge the patient up to $50 to complete the required
certification. Employees would rather do without the hassle, request
sick pay for the days they are out, regardless of severity of their
illnesses.'').
Some commenters do not see problems with employee notification as
mentioned in the RFI and suggested maintaining the status quo.
``Clearly, employees should notify their employers about their need for
leave as quickly as is reasonably possible, but it also is important to
ensure that employees are not penalized unfairly when confronted with
unexpected emergencies. We believe the regulations strike an
appropriate balance to allow employees to take leave in emergency
situations, and also to provide employers with information about the
need for leave in a prompt manner.'' National Partnership for Women and
Families, Doc. 10204A, at 19. See also OWL, The Voice of Midlife and
Older Women, Doc. FL180, at 2 (``OWL believes that the current notice
from employee to employer in unforeseeable leave situations is
adequate.'').
The majority of stakeholders offering information on this topic,
though, highlighted the problems they see with the sufficiency of
information provided by employees in notifying employers of the need
for FMLA leave. ``[E]mployees who call in because of their own or a
family member's medical condition do not necessarily provide sufficient
information for an employer to make such a determination. Since what
constitutes ``sufficient'' information is not clearly defined anywhere
in the regulations, both employees and employers face difficulties in
meeting their rights and responsibilities under the FMLA.'' National
Coalition to Protect Family Leave, Doc. 10172A, at 39-40. See also
National Retail Federation, Doc. 10186A, at 16 (``Certain retailers
report that paperwork is often not provided in a timely manner because
the employee has failed to adequately communicate the reason prompting
the leave request or has not shared the information with an appropriate
manager.''); Jackson Lewis LLP, Doc. FL71, at 9 (``Much of the
frustration employers experience in administering FMLA leaves stems
from the difficulty employers have in ``spotting'' FMLA qualifying
absences. Employers are not ``mind readers'' and they often refrain
from asking employees why they are absent for fear that they may invade
an employee's medical privacy. It also is naive to think that employers
can effectively train front line supervisors on the myriad of health
conditions and personal family emergencies that might qualify for FMLA
protection.''); Porter, Wright, Morris & Arthur LLP, Doc. 10124B, at 4
(``The first concern in this area relates to the type of notice an
employee must provide to obtain FMLA leave. * * * Instead, they simply
need to request time off and provide a reason for their request.'');
National Association of Convenience Stores, Doc. 10256A, at 5
(``Employee notice is often vague or non-existent, forcing employer
representatives to make a discretionary ``judgment call'' in
questionable situations time and time again.'').
The timing of employee notification of the need for leave was also
mentioned by employers and employer representatives as a problem in
their administration of the FMLA, particularly--as discussed in greater
detail in Chapter IV--employee notice with respect to intermittent
leave. ``The last issue has to do with the fact that we are often not
notified that an employee is out for a serious health condition until
after they return to work and then we are unable to ask for medical
documentation.'' Jan M. Gray, Benefits Coordinator, Spokane County,
Doc. 5441A, at 1. See also Suzanne Kilts, Doc. 5204, at 1 (``On our
intermittent FMLA employees, we have had several occasions where the
employee does not call in for his FMLA absence until minutes before
their shift start. * * * Just last week I had an FMLA call off at 9:05
a.m. in the morning. That's 2 hours and five minutes after their shift
is to start.''); The Pennsylvania Turnpike Commission, Doc. 10092, at 6
(``The issue of [employees] failing to notify their supervisors
promptly that they are taking FMLA leave is very prevalent in our
company. Some employees that are approved for intermittent FMLA simply
don't show up for work, and then email or call their supervisor when
the work day is almost over to inform them that they are taking FMLA.
This is extremely frustrating as an employer, and there does not ever
seem to be a valid reason that the employee could not notify the
supervisor earlier.'').
2. Commenter Recommendations
The Department also asked for suggestions on how to improve the
reported situation of employees not promptly providing notice to their
employers of their need for unforeseeable FMLA leave. One commenter
suggested ``shifting the burden to the employee to request the leave be
designated as FMLA leave in writing.'' See Miles & Stockbridge, P.C.,
Doc. FL79, at 5. Other commenters suggested not only written leave
requests but also that leave requests specifically mention FMLA. ``It
would eliminate many disputes if an employee were required to request
leave in writing or to follow up an oral request with a written request
within a reasonable time (such as within two work days after returning
to work in the case of intermittent leave, or five work days after
requesting leave in the event of unforeseen continuous leave). * * * It
would help both parties immensely if

[[Page 35585]]

the employee were required to mention the FMLA when making such a
request.'' South Central Human Resource Management Association, Doc.
10136A, at 14; see also Spencer Fane Britt & Browne LLP, Doc. 10133C,
at 39 (same). ``Especially for intermittent use, require that employee
provide specific FMLA notice when absences are necessary, relieving
employer from identifying possible need of FMLA with timely designation
based on limited information provided by employee[.]'' DST Systems,
Inc., Doc. 10222A, at 4.
Other stakeholders expressed a desire for more information from
employees, but stopped short of suggesting a requirement that the
employee must specifically ask for FMLA leave. ``Employees should be
required to specify the purpose of any instance of FMLA leave, such as
a doctor's appointment, physical treatment, etc. so employers can
assess veracity when employees appear to be abusing the leave policy.''
U.S. Chamber of Commerce, Doc. 10142A, at 11. See also Williams Mullen,
Doc. FL124, at 2 (``DOL should implement detailed regulations which
provide necessary language or actions that must be taken by employees
to put their employers on notice of their intent to take FMLA
leave.''); Association of Corporate Counsel, Doc. FL31, at 8 (``The DOL
should revise its regulations * * * by making clear that an employee's
notice to the employer must go beyond merely requesting leave and must
provide a basis for the employer to conclude that the requested leave
is covered by the FMLA.''). However, some employers advocated for a
requirement that employees specifically request FMLA leave, suggesting
that the regulations should apply ``to only those employees who request
FML coverage.'' Edison Electric Institute, Doc. 10010A, at 3. See also
Spencer Fane Britt & Browne LLP, Doc. 10133C, at 42 (employers who have
a written FMLA policy should receive ``safe harbor'' protection and be
permitted to enforce procedural requirements such as that FMLA leave
requests be in writing, that the FMLA be specifically mentioned, and
that the requests go to a particular centralized source).
Several stakeholders recommended allowing employers to enforce
employee compliance with established attendance and leave notification
procedures, particularly with respect to intermittent unscheduled FMLA
leave. ``The regulations should expressly provide that the employer may
enforce any generally applicable leave notification or call-off
requirements, even if the FMLA is also involved.'' Ohio Public Employer
Labor Relations Association, Doc. FL93, at 4. See also Association of
Corporate Counsel, Doc. FL31, at 10 (``DOL should * * * make clear that
an employee may be subject to an employer's disciplinary process for
failure to provide timely notice or to comply with the employer's
written notification policy.''); Miles & Stockbridge, P.C., Doc. FL79,
at 4 (``A possible remedy * * * would be to require an employee taking
intermittent leave to provide notice of the need to take intermittent
leave consistent with the employer's call out procedures and/or sick
leave/absentee policy. Additionally, at the time of the employee's
call, the employee should be required to indicate that the reason for
the absence is because of the FMLA qualifying chronic condition.'');
National Association of Convenience Stores, Doc. 10256A, at 5
(``Employers should also have the flexibility to impose more stringent
internal notice requirements upon employees, and to impose leave
forfeiture provisions for their non-compliance.''); University of
Wisconsin-Milwaukee, Doc. 10098A, at 4 (``Requiring employees to comply
with regular attendance policies unless there is a `medical' emergency
would be one way to rectify the problem of employees failing to notify
the employer of the need for unforeseeable leave. Intermittent,
unscheduled FMLA does not necessarily imply a `medical emergency' which
makes regular notification impossible.''); American Electric Power,
Doc. FL28, at 2-3 (``The regulations should be reformed to allow
employers to enforce attendance policies that require employees to
observe reasonable reporting-off protocols, including policies that
require employees to report off to their direct supervisors or to a
designated person in human resources.'').

D. Employer Notification That Leave Is FMLA-Qualifying

In order to allow employees to know when they are using their FMLA-
protected leave, the regulations state that ``it is the employer's
responsibility to designate leave, paid or unpaid, as FMLA-qualifying,
and to give notice of the designation to the employee.'' 29 CFR
825.208(a). It is the Department's intent that such designation occur
``up front'' whenever possible, to eliminate protracted ``after the
fact'' disputes. See 60 FR 2180, 2207-08 (January 6, 1995).\12\
Notification that the leave is FMLA-qualifying and the specific notice
required to be provided by employers are essential means by which
employees learn of their FMLA rights and obligations. Several employers
provided information on this topic.
---------------------------------------------------------------------------

\12\ In general, employers are required to designate leave as
FMLA within two days of learning that the leave is being taken for
an FMLA-covered purpose. See 29 CFR 825.208(b)(1). The regulations
prohibit employers from retroactively designating leave as FMLA if
they could have properly determined the status of the leave at the
time the employee either requested or commenced the leave. See 29
CFR 825.208(c); but see supra Chapter II (discussing status of
penalty provision of section 825.208(c) in light of the Supreme
Court's decision in Ragsdale). The regulations do allow for
retroactive designation, however, if the employer learns after an
employee's leave has begun that the leave is for an FMLA-covered
purpose. See 29 CFR 825.208(d). Similarly, if an employer knows the
reason for the leave but is unsure whether it qualifies for FMLA
protection, or if the employer has requested but not yet received
certification of the need for leave, the employer may preliminarily
designate the leave as FMLA-covered. See 29 CFR 825.208(e)(2). If
upon receipt of the requested information the employer determines
that the leave is FMLA protected, the preliminary designation
becomes final. Id. If the additional information does not confirm
that the absence was for an FMLA-covered reason, the employer must
withdraw the preliminary designation and notify the employee. Id.
Finally, if the employer does not learn that leave was taken for an
FMLA-covered purpose until the employee returns from leave, the
employer may, within two business days of the employee's return,
designate the leave retroactively as covered by the FMLA. See 29 CFR
825.208(e)(1).
---------------------------------------------------------------------------

With regard to the notice procedures employers actually use, one
commenter stated that its notification procedures are ``working quite
well,'' because it includes FMLA information during new employee
orientation and has trained its supervisory workforce to recognize
potential covered absences. FNG Human Resources, Doc. FL13, at 4. It
stated that supervisors notify the personnel office, which mails out
contingent FMLA notices and certification paperwork with instructions
on how to have it completed, and the notice includes a statement of all
employee rights and responsibilities. This employer allows employees 20
days to return the certification forms (more than the required 15
days), in order to cover mailing time and because some medical
providers have a slow completion rate. Once the paperwork is received,
``we keep both the employee and supervisory personnel abreast of
updates and approvals.'' Id.
The Pennsylvania Turnpike Commission stated that its ``process
works great for our company and everyone is kept abreast of their FMLA
status.'' The Pennsylvania Turnpike Commission, Doc. 10092A, at 5-6. It
described that when it receives a certification form, employees are
sent a letter stating whether the leave is approved or denied, with a
starting date and expiration date if approved. It reminds the
employee's supervisor a week prior to the expiration date, who

[[Page 35586]]

reminds the employee that the leave is expiring. If the employee needs
additional leave, the employee recertifies.
The Ohio Department of Administrative Services similarly noted that
it understands that an employee's awareness of FMLA rights and
responsibilities ``is critical to fulfilling the goals of the
statute,'' and therefore employees are given notice of the State's FMLA
policy upon their hire and notices also are posted. Doc. 10205A, at 4.
The State also notifies employees of their rights verbally within two
days of designating leave as FMLA leave, and confirms the designation
in writing by the following payday. Employees receive notice the first
time they are granted FMLA leave in each six-month period. The State
noted that sending a letter to employees with chronic conditions every
time they request FMLA leave for such a condition could ``serve as an
additional opportunity for communication,'' but it believes that such
notice would be very burdensome. Id. at 5. The State also supported
eliminating the requirement to notify employees that their leave will
be counted as FMLA leave when an employee has requested FMLA leave in
writing or a verbal request has been appropriately documented. See id.
One commenter stated that it also advises employees verbally that
their leave is FMLA-qualifying and then follows up with a letter. ``If
they have already used some FMLA in the last 12 months, I will include
in the letter the amount of leave still available to them. In the case
of intermittent leave I will carefully explain our rolling 12 month
period and give them a copy of the attendance controller on which I
recorded their leave and, again, carefully explain that on the
anniversary date of time used, that amount will become available for
them to use.'' Elaine G. Howell, H.R. Specialist, International Auto
Processing, Inc., Doc. 4752, at 1.
Another commenter stated that it notifies employees that their
leave has been designated as FMLA leave by sending the employees a
letter confirming that their rights under the FMLA have been reviewed
and the leave conditionally designated, pending proper doctor
certification. Franklin County Human Resources Department, Doc. FL59,
at 7. The University of Washington noted that it mails a written
notification to eligible employees after a health-related three-day
absence. See University of Washington, Doc. FL17, at 2-3.
The National Coalition to Protect Family Leave stated that many of
its members follow the regulations for designating leave at sections
825.301(b) (specific notice of rights and responsibilities) and
825.208(b)(2) (payroll stub or other written designation). However, it
stated that some employers are not aware of both provisions, and that
the designation process is confusing when an employer provisionally
designates leave when the employer does not have sufficient information
to make a final determination within two days. The Coalition suggested
that the regulations should allow the ``official `designation' notice
to be sent to employees after sufficient information is received from
the employee to make a determination whether the leave qualifies for
FMLA protections as part of the section 825.301 notice obligations
(rights and responsibilities requirement). No further designation
should be required. Employers should simply have the obligation to
provide the employees with FMLA usage information on request[.]''
National Coalition to Protect Family Leave, Doc. 10172A, at 42.
One commenter suggested, as a possible improvement that would allow
employees to receive more accurate information on their FMLA leave
balances, that employees should keep their own records and also ask
``the employer for a copy of their FMLA records and report any
discrepancies within a specified amount of time to be resolved.''
Bendix Commercial Vehicle Systems LLC, Doc. 10079A, at 9. Another
commenter similarly suggested that employers should be required ``to
make a good faith effort to provide employees with information about
their eligibility status and FMLA leave balances within a reasonable
amount of time, upon request by an employee[,]'' but employees also
should be required to track their own hours and notify the employer if
they dispute the employer's data. Spencer Fane Britt & Brown LLP, Doc.
10133C, at 43. This commenter contended that an employee's FMLA rights
should be ``no greater than they would otherwise be if the employer
either fails to provide the information or inadvertently provides
inaccurate information.'' Id.

E. Timing Issues

The Request for Information sought comments on whether the two day
time frame for employers to notify employees that their request for
FMLA leave has been approved or denied was adequate.
The majority of comments on this topic indicated that the current
two-day time frame was too restrictive. See, e.g., United Parcel
Service, Doc. 10276A, at 10 (``In most cases, the initial notification
of an absence or need for leave is received by front-line management,
who conveys the information up the chain of command and to the local HR
representative, who notifies the FMLA administrator, who is ultimately
responsible for making a determination. It is not unusual for it to
take one to two business days just for the right personnel to receive
the information, much less make a determination and communicate it back
to the employee.''); Courier Corporation, Doc. 10018A, at 4 (``The two-
day timeframe is way too short for notifying employees about their
leave request, since as employers we are often chasing information from
the employee or physician.''); Spencer Fane Britt & Browne LLP, Doc.
10133C, at 42 (``For most employers, this is virtually impossible.
Although most employers designate leave within a reasonable time frame,
it is usually well outside the two-day time frame, thus creating a risk
that the designation will be ineffective.''). Employers suggested
varying timeframes to replace the two-day limit. See, e.g., Fisher &
Phillips LLP, Doc. 10262A, at 15 (fifteen days from receipt of a
certification form); National Coalition to Protect Family Leave, Doc.
10172A, at 48 (ten business days); Association of Corporate Counsel,
Doc. FL31, at 11 (five working days); Courier Corporation, Doc. 10018A,
at 4 (five days); United States Postal Service, Doc. 10184A, at 5
(same); Northrop Grumman Newport News Shipbuilding and Dry Dock
Company, Doc. FL92, at 3 (same); Spencer Fane Britt & Browne LLP, Doc.
10133, at 42 (suggesting a reasonableness standard).
One employer stated that while some decisions can be made in two
days, even a week might not be sufficient in other cases, depending
upon the amount of information supplied by an employee and whether
clarification is needed from the health care provider. See Elaine G.
Howell, H.R. Specialist, International Auto Processing, Inc., Doc.
4752, at 1. Other commenters similarly stated that the two-day time
frame for providing notification to employees that FMLA leave has been
approved or denied is inadequate, ``as there are many factors which
result in delays in both obtaining information and processing
requests.'' Hinshaw & Culbertson LLP, Doc. 10075A, at 5.
With regard to possible alternative requirements, Jackson Lewis
suggested employers should not be required to designate absences as
FMLA-qualifying within two days, ``as long as the employee is receiving
the protections of the FMLA[,]'' and that a regulation could allow
employers to preliminarily

[[Page 35587]]

designate absences as FMLA-qualifying, subject to the ``employees
``opting out'' of FMLA leave'' or the employer establishing that the
condition does not qualify. Doc. FL71, at 8. The commenter stated this
``would bring greater certainty and closure to absence management for
absences by imposing a periodic ``employee-employer'' reconciliation of
FMLA leave.'' Id. at 9. Alternatively, Jackson Lewis suggested that a
regulation could ``require that employers advise employees in general
notices that they must specifically request FMLA leave for all absences
of less than one week in duration,'' and that employers should be
allowed ``to designate retroactively absences that initially were not
classified by either the employer or employee as FMLA but would, in
retrospect, qualify as intermittent leave under the FMLA.'' Id. See
also Fairfax County Public Schools, Doc. 10134A, at 3-4 (in order to
focus on the outcome [12 weeks of leave] rather than the application
process, employers could be required to notify employees annually that,
if they have one year of service and 1,250 hours, they are entitled to
FMLA leave and then the burden should be on employees to contact the
designated official to apply).
Another commenter suggested that, because employers experience
problems with giving proper notice when employees do not provide prompt
and proper notice of their need for leave, ``DOL should implement
detailed regulations which provide necessary language or actions that
must be taken by employees to put their employers on notice of their
intent to take FMLA leave. As a result, employers will be significantly
better equipped to execute their responsibilities under the Act,
including, but not limited to notifying employees that the leave in
question will count as FMLA leave.'' Williams Mullen, Doc. FL124, at 2.
See also Miles & Stockbridge, P.C., Doc. FL79, at 5 (designation
difficulties could be eliminated by requiring employees ``to request
the leave be designated as FMLA leave in writing'' either prior to or
within three days of the absence); Betsy Sawyers, Director, Human
Resources Department, Pierce County, Washington, Doc. FL97, at 4
(responsibility for requesting FMLA leave should be shifted to employee
so employer does not have to ``second guess or request additional
explanation from the employee'' or, alternatively, broaden an
employer's ability to retroactively designate FMLA leave to include
entire period of leave). Another commenter noted that it would like the
regulations to provide further guidance on making retroactive FMLA
designations when an employee has initial absences that do not qualify
for FMLA leave, but the health condition develops over a period of
time. City of Eugene Human Resource & Risk Services, Doc. 10069A, at 1.
Another commenter emphasized the hardships employees suffer when
they do not know promptly whether the employer believes they are
entitled to protected leave. The commenter stated that companies do not
respond within the required two business days, so employees either do
not take the time off that they (or their family members) need, or else
they take off but are afraid because they do not know whether they will
be subject to discipline for being off work. Frasier, Frasier &
Hickman, LLP, Doc. FL60, at 1-3. The commenter gave an example of an
employee who was not advised of his FMLA leave status until
approximately 60 days after he submitted a certification form. This
commenter suggested finding some means of making employers respond
timely to requests for leave. Similarly, the International Association
of Machinists and Aerospace Workers suggested that employers should be
``required to promptly inform workers when they are using their FMLA
leave, and to provide copies of FMLA leave balances,'' rather than
putting this burden on employees, because employees can be confused as
to which days their employer has counted as FMLA leave and which it has
not. Doc. 10269A, at 3. See also 9to5, National Association of Working
Women, Doc. 10210A, at 3 (same).
One commenter noted that ``[m]istakes about an employee's
eligibility under the FMLA can be costly for both employers and
employees. Certainty in this area is critical.'' National Multi Housing
Council and National Apartment Association, Doc. 10219A, at 2. However,
other comments indicate that certainty may be difficult to achieve
promptly. For example, the Ohio Department of Administrative Services
noted that, because the 1,250 hours of work test involves
distinguishing between active work and paid time off, such as vacation
time, sick leave, bereavement leave, holidays, personal leave, etc.,
``eligibility determinations continue to bring confusion to employers
and their managers. In light of the difficult fact patterns that
oftentimes accompany eligibility determinations, the State of Ohio
recommends that the Department implement a ``safe harbor'' provision to
exempt employers from penalties when employers follow the regulatory
requirements and make a good faith eligibility determination that is
later overturned by a court or other authoritative body.'' Ohio
Department of Administrative Services, Doc. 10205A, at 1. (Penalties
arising from an employer's failure to follow the regulatory
requirements concerning notice are addressed in Chapter II of the
Report.).
AVAYA Communication similarly noted that calculating the 1,250
hours of work is a time consuming process for employers, and that ``it
is difficult to obtain an accurate number of hours worked in time for
the notification letter to go out promptly.'' Doc. FL33, at 1.
Therefore, the commenter recommended allowing employers a grace period
within which to determine whether employees are eligible for leave.
Another commenter believed that employers should simply have to advise
an employee who does not have the requisite 1,250 hours of service of
that conclusion, and the employer should not be required to advise the
employee when s/he will be eligible for FMLA leave because that timing
is difficult to predict. Pilchak Cohen & Tice, P.C., Doc. 10155A, at 5.
See also United Parcel Service, Doc. 10276A, at 7-8 (objecting to any
revision to the regulations that would require ``employers to provide
periodic or on-demand updates about the amount of FMLA leave remaining
to employees'').
On the other hand, another commenter noted that it uses a tracking
program related to its payroll system that tells it whether ``the
employee has been employed one year, worked 1250 hours in the prior
twelve months, and the number of weeks they are eligible [based on] any
previous leaves associated with FMLA. A notice is sent to the employee
within 48 hours of their request.'' AM General LLC, Doc. 10073A, at 2.
Another employer similarly stated that it determines whether employees
are eligible by running a report through the payroll system to track
the number of hours worked in the past 12 months, but then spends ``an
unusual amount of time'' determining how much FMLA leave the employee
already has used. Elaine G. Howell, H.R. Specialist, International Auto
Processing, Inc., Doc. 4752, at 1.
One law firm suggested that the Department's regulations may be the
cause of employer confusion over their notice responsibilities. ``The
Regulations include several notice obligations, which we believe are
not all necessary and have simply created more FMLA paperwork than is
really necessary.'' Spencer Fane Britt & Browne LLP, Doc. 10133C at 41.
``The

[[Page 35588]]

Regulations do not include in one provision all of the applicable time
frames and when they apply. Employers struggle over provisions
requiring preliminary designations, final designations, when
designations can be made retroactively, whether to designate leave as
FMLA leave when an incomplete certification is returned, and when the
``two-day'' designation rule applies.'' Id. at 41-42.
Finally, 53 Democratic Members of Congress recognized the potential
for confusion concerning employer notice obligations.

The Department mentions a few of the notice issues that have
arisen under the FMLA. While it is true that the statute is not
perfectly clear in elaborating the notice obligations of employees
and employers under the FMLA, it is not clear that the Department
can fully resolve the issues through revisions in regulation alone.
It would be helpful for the Department to ask Congress to clarify
how the notice motions of the Act apply. The law or the regulations
should put forth a clear and commonsense regime by which employers
would notify workers of their rights and responsibilities under the
Act, workers would be required to notify their employers of their
need to take FMLA leave, and employers would be required to notify
workers of their approval or denial of FMLA leave as well as the
term of any approval or reasons for any denial and appeal rights.
Clearer notice requirements would also resolve any issues related to
the ``duration'' of leave.

Letter from 53 Democratic Members of Congress, Doc. FL184 at 3.
On the other hand, a few commenters indicated that the two-day time
frame is adequate. One commenter stated that the ``two-day rule is not
an issue when you are aware of a possible FMLA event on the first day
of eligibility[,]'' because the contingent notice can be mailed or
handed to the employee immediately, but problems arise when the
possible FMLA coverage is not known until later, such as when the
employee returns to work. FNG Human Resources, Doc. FL13, at 5.
However, this employer allows the employee to apply at that time and
gives them the paperwork immediately. The National Partnership for
Women & Families noted the current data does not support an increase in
the time period beyond the two days provided. See National Partnership
for Women & Families, Doc. 10204A, at 21 (``Most organizations spend
only between thirty and 120 minutes of administrative time per FMLA
leave episode to provide notice, determine eligibility, request and
review documentation, and request a second opinion. Therefore, no
change to the current two-day rule response requirement is
warranted.'') (footnote omitted). Notably, Unum Group, a provider of
Federal and state FMLA administration services, stated that ``[t]he
two-day timeframe for providing notice to an employee of his/her
eligibility for FMLA leave is sufficient.'' See Doc. 10008A, at 3. At
the end of 2006, Unum Group reported having 95 customers located
throughout all 50 states and administering leaves for a total employee
population of 585,157. Id. at 1.

VI. The Medical Certification and Verification Process

The Department asked several questions in the Request for
Information regarding the medical certification and verification
process. This chapter addresses the Department's request for comments
on the following issues: whether the regulatory restriction in section
825.307(a) that permits an employer to contact the employee's health
care provider for purposes of clarification and authentication only
through the employer's health care provider results in unnecessary
expense or delay and what are the benefits of the restriction; whether
the optional model certification form (WH-380) seeks the appropriate
information and how it could be improved; whether the general 30-day
period for recertification set forth in section 825.308 is an
appropriate time frame; whether second opinions should be allowed on
recertifications; and whether employers should be allowed to request a
fitness for duty certification for an employee returning from
intermittent leave. This chapter also addresses other comments received
regarding the medical certification process including comments related
to the Health Insurance Portability and Accountability Act of 1996
(``HIPAA''), Pub. L. 104-191, a law that was discussed in Request for
Information but was not directly referenced in any specific questions.

A. Statutory and Regulatory Provisions Regarding Medical Certification
and Verification

The medical certification process implicates several statutory and
regulatory provisions under the FMLA. While the Act does not require
employers to obtain medical certification in support of an employee's
request for leave, if an employer chooses to do so, it is limited in
what medical information it may seek as well as the process it must go
through to obtain that information.
1. Statutory Provisions Regarding the Medical Certification and
Verification Process
Employers have the option of requiring employees who request leave
due to their own serious health condition or to care for a covered
family member with a serious health condition to support their need for
leave with a certification issued by their (or their family member's)
health care provider. See 29 U.S.C. 2613(a).\13\ The information
necessary for a sufficient certification is set forth in section 103 of
the Act. See 29 U.S.C. 2613(b). The statute states that a medical
certification ``shall be sufficient'' if it states the following: the
date the condition commenced; the probable duration of the condition;
``appropriate medical facts'' regarding the condition; a statement that
the employee is needed to care for a covered family member or a
statement that the employee is unable to perform the functions of his/
her position (as applicable); dates and duration of any planned
treatment; and a statement of the medical necessity for intermittent
leave and expected duration of such leave. Id.
---------------------------------------------------------------------------

\13\ The certification provision does not apply to requests for
leave to care for a healthy newborn or newly placed child under 29
U.S.C. 2612(a)(1)(A) and (B).
---------------------------------------------------------------------------

In cases in which the employer has reason to doubt the validity of
the certification provided by the employee, the statute allows the
employer to require the employee to obtain a second opinion from a
health care provider of the employer's choice and at the employer's
expense. See 29 U.S.C. 2613(c). Where the first and second opinions
differ, the employer may require the employee to obtain a binding third
opinion from a health care provider selected jointly by the employer
and employee (and paid for by the employer). See 29 U.S.C. 2613(d).
Finally, the statute allows the employer to require the employee to
provide subsequent recertifications from the employee's health care
provider on a reasonable basis. See 29 U.S.C. 2613(e).
In addition to the certification of the need for leave due to the
employee's or a covered family member's serious health condition, the
statute also allows employers to require certification of the
employee's ability to return to work following leave for his or her own
serious health condition as a precondition to job restoration under
certain circumstances. See 29 U.S.C. 2614(a)(4). An employer's request
for a return-to-work certification must be pursuant to a uniformly
applied practice or policy. Id. Where an employee's

[[Page 35589]]

return to work is governed by the terms of a collective bargaining
agreement or State or local law, however, the FMLA does not supersede
those procedures. Id.
2. Regulatory Provisions Regarding the Medical Certification and
Verification Process
The regulations flesh out the procedures employers must follow when
utilizing the tools provided them in the Act for verifying an
employee's need for FMLA leave. In general, sections 825.305 and
825.306 address the initial medical certification, section 825.307 sets
forth the employer's options for verifying the information in the
initial certification, section 825.308 details the employer's right to
seek subsequent recertification, and sections 825.309 and 825.310
address the employer's ability to require certification of the
employee's ability to return to work following FMLA leave due to their
own serious health condition.
Section 825.305 requires an employer to notify the employee in
writing if the employer is going to require medical certification for
the leave (subsequent requests for recertification may be oral). See 29
CFR 825.305(a). Section 825.305 also sets forth the general rule that
employers must allow employees at least 15 calendar days to provide the
certification and that, where time allows, employees should provide the
certification prior to the commencement of foreseeable leave. See 29
CFR 825.305(b). While employers are generally expected to inform
employees that certification will be required at the time the leave is
requested or, if the leave is unforeseen, within two business days of
the leave commencing, employers may request certification at a later
time if they have reason to question the appropriateness or duration of
the leave. See 29 CFR 825.305(c). Employers are required to inform
employees of the consequences of not providing the requested
certification and to advise the employee if the certification is
incomplete and allow an opportunity for the employee to cure any
deficiency. See 29 CFR 825.305(d). If the employer's sick leave plan's
certification requirements are less stringent and the employee or the
employer exercises the option to substitute paid sick leave for unpaid
FMLA leave, the employer may only require compliance with the less
stringent certification requirements of the paid leave plan. See 29 CFR
825.305(e).
Section 825.306 of the regulations sets forth the information
required for a complete certification, which may be provided on the
Department's optional WH-380 form or any other form containing the same
information. See 29 CFR 825.306. Section 307 governs the employer's
ability to seek clarification and authentication of, and a second and/
or third opinion on, the employee's medical certification. See 29 CFR
825.307. This section makes clear that an employer may not require
information beyond that set forth in section 306, but that the
employer's health care provider may seek clarification or
authentication of the information in the certification from the
employee's health care provider with the employee's permission. See 29
CFR 825.307(a). Section 307 also makes clear that where an employee's
FMLA leave is also covered by workers' compensation, the employer may
follow the workers' compensation procedures if they allow for direct
contact with the employee's health care provider. See 29 CFR
825.307(a)(1). If the employer has reason to question the validity of
the certification, the employer may require the employee to obtain a
second opinion at the employer's expense and with a health care
provider selected by the employer. See 29 CFR 825.307(a)(2). If the
second opinion conflicts with the employee's original certification,
the employer may require the employee to obtain a binding third opinion
at the employer's expense from a health care provider selected jointly
by the employer and the employee. See 29 CFR 825.307(c). If it is
ultimately determined as a result of the second and/or third opinion
process that the employee is not entitled to FMLA-protected leave, the
leave shall not be designated as FMLA-covered and the employer may
treat the leave under its established policies. See 29 CFR
825.307(a)(2).
Section 308 of the regulations sets forth the conditions under
which an employer may request recertification of the employee's (or
covered family member's) serious health condition. See 29 CFR 825.308.
Generally, employers may not request recertification more often than
once every 30 days and only in connection with an absence. Where the
initial certification indicates a minimum period of incapacity in
excess of 30 days, recertification may not be requested until the
initial period of incapacity indicated has passed. See 29 CFR
825.308(b)(1). In all instances, employers are allowed to request
recertification if there is a significant change in circumstances
regarding the leave or if the employer receives information that casts
doubt on the employee's stated reason for the absence. See 29 CFR
825.308(a)-(c). Employers must allow employees at least 15 days to
provide recertification. See 29 CFR 825.308(d). Recertifications are at
the employee's expense and completed by the employee's health care
practitioner. Employers are not permitted to request second opinions on
recertifications. See 29 CFR 825.308(e).
Finally, sections 825.309 and 825.310 of the regulations govern
requirements for the employee's return to work. Employers may require
employees to report periodically on their intention to return to work.
See 29 CFR 825.309(a). If an employee states an unequivocal intention
not to return to work the employer's obligations under the FMLA cease.
See 29 CFR 825.309(b). Where an employee needs more or less leave than
originally requested, the employer may require the employee to provide
notice of the changed circumstances within two business days where
foreseeable. See 29 CFR 825.309(c). Employers may have a uniformly
applied policy of requiring similarly situated employees who take leave
for their own serious health condition to submit certification of their
ability to return to work. See 29 CFR 825.310(a). Such certification
need only be a simple statement of the employee's ability to work. See
29 CFR 825.310(c). The employer's health care provider may contact the
employee's health care provider, with the employee's permission, to
clarify the return-to-work certification but may not request additional
information and may not delay the employee's return to work. Id. The
employee bears the cost of providing the return to work certification.
See 29 CFR 825.310(d). Where state or local law or the terms of a
collective bargaining agreement govern an employee's return to work,
those provisions shall apply. See 29 CFR 825.310(b). Employers are
required to provide employees with advance notice of the requirement to
provide a return-to-work certification. See 29 CFR 825.310(e). Where an
employee has been given appropriate notice of the requirement to
provide a return-to-work certification, the employee's return from
leave may be delayed until the certification is provided. See 29 CFR
825.310(f). Return-to-work certifications may not be required for
employees taking intermittent leave. See 29 CFR 825.310(g). Employers
may not require a second opinion on return-to-work certifications. See
29 CFR 825.310(e).

B. Comments Regarding the Medical Certification and Verification
Process

1. Medical Certification Process
Both employers and employees expressed frustration with the medical

[[Page 35590]]

certification process. As discussed below, employers generally
expressed frustration with their ability to obtain complete and clear
certifications. Employees expressed frustration with employers
determining that a certification is incomplete but not informing the
employee what additional information is necessary to satisfy the
employer's concerns. Some commenters noted that these repeated requests
for additional information are causing tension in the doctor/patient
relationship. Overall, the comments make clear that the certification
process is a significant source of friction between employees and
employers: The two groups, however, attribute the source of the
friction to very different causes.
a. Complete Certifications
Multiple employers commented that a complete certification should
require not just that the certification form is filled-out, but that
meaningful responses are given to the questions. See, e.g., Jackson
Lewis LLP, Doc. FL71, at 5 (``The rule prohibiting employers from
asking any additional information once an employee submits a completed
medical certification ignores the reality that a technically
`completed' certification may offer little insight into the need for
FMLA leave, much less the medical necessity for leave on an
intermittent basis.''); National Coalition to Protect Family Leave,
Doc. 10172A, at 47 (``If health care providers * * * do not provide
direct responses to the questions, the regulations should be modified
to specify that the certification is not considered `complete' for
purposes of the employee's certification obligations, thereby not
qualifying the employee for FMLA leave.''); South Central Human
Resource Management Association, Doc. 10136, at 11 (``We recommend the
Regulations make clear that a `complete' certification is required,
that meaningful answers have to be furnished for all questions, and
that a certification is `incomplete' if a doctor provides `unknown' or
`as needed' to any question.''). A commenter who had represented
several employees in FMLA suits disagreed, however, stating that ``in
order to avoid protracted litigation over these issues, once completed
and signed by a physician, the model certification form should be
considered final and binding.'' Kennedy Reeve & Knoll, Doc. 4763A, at
14.
Commenters' frustration with vague and nonspecific responses on
certifications was greatest in regard to certifications for
intermittent leave due to chronic conditions. See, e.g., Federal
Reserve Bank of Chicago, Doc. FL56, at 2 (``We often see health care
providers list the duration of an employee's chronic condition as
`indefinite' or `lifetime' and indicate that the frequency of the
episodes of incapacity as `unknown.' This makes it very difficult to
manage employee attendance.''); City of Portland, Doc. 10161A, at 2
(``The certifications, particularly for chronic conditions, are often
so vague as to be useless.''); South Central Human Resource Management
Association, Doc. 10136, at 11 (``If a doctor cannot venture an
estimate as to how often an employee will have a true medical need to
be absent, we question whether the doctor is competent to evaluate the
condition.''); Society for Human Resource Management, Doc. 10154A, at 8
(``Notations such as `lifetime,' `as needed,' or other similarly vague
statements ought not suffice. Health care providers in particular
should be required to provide as much detail as possible on the total
amount of intermittent leave that is needed or allow employers to deny
the leave.''). The American Academy of Family Physicians, however,
noted that such responses are appropriate in some circumstances:

Intermittent leave is problematic for the certifying physician
and employer. Employers have noted that with respect to the
frequency of the episode of incapacity, the physician might write
``unknown.'' Employers argue that this leaves them in the difficult
position of guessing about the employee's regular attendance.
However, the frequency of incapacity in chronic conditions such as
migraine headaches is not predictable, making ``unknown'' the
appropriate answer to the question. * * * It is worth noting that
despite medical advances, absolute cures do not exist for all
conditions making the duration of these conditions ``indefinite'' or
``lifetime'' from the current medical perspective.

American Academy of Family Physicians, Doc. FL25, at 2-3. Other
commenters echoed the point that specific estimates of the frequency
and duration of intermittent leave due to the flare-up of a chronic
condition cannot always be made. See, e.g., An Employee Comment, Doc.
4668, at 1 (``The Doctor should simply state that the person has a
covered condition and how long the person will need to take time off
and when, if known. If unknown the Doctor should be able to say just
that.''); Association of Professional Flight Attendants, Doc. 10056A,
at 10 (recounting employee's sending over 25 pages of medical
documentation in an effort to satisfy employer's questions regarding
frequency and duration of need for leave due to chronic conditions);
Mark Blick DO, Rene Darveaux MD, Eric Reiner MD, Susan R. Manuel PA-C,
Doc. FL292, at 1 (``The form also asks us to estimate how often a
patient may need to miss work and then wants patient to fill a new form
if they miss more than we estimate. Unfortunately, we in health care do
not have a crystal ball to know the precise number of days patients may
miss.''). As the Communication Workers of America noted, when it comes
to the frequency and duration of leave due to a chronic condition
employers are searching for certainty in response to a question which
asks the health care provider for an estimate. Doc. R346A, at 10 (``The
current certification form recommended by DOL makes it clear that the
doctor is being asked to estimate the likely frequency and duration of
any absences (`probable duration' `likely duration and frequency'), yet
many employers seem to expect a definitive prediction and deny leaves
that exceed the estimates provided on the original certification
form.'').
b. Incomplete Certifications
Multiple commenters also expressed frustration with what they
perceived to be the open-ended nature of the certification process and
sought clarification of how many opportunities an employee must be
provided to cure a defective certification. See, e.g., Waste
Management, Inc., Doc. 10240A, at 2 (``The current regulation is open
to interpretation regarding when information is due and how much
additional time should be afforded to employees who do not share the
FMLA certification forms timely.''); Ken Lawrence, Doc. 5228, at 1
(``At the present time the employee is really not limited to any
particular time (could be months) if they are making `good faith'
efforts to obtain the certification.''); Federal Reserve Bank of
Chicago, Doc. FL56, at 2 (``There should be an absolute cut off when an
employer can require the employee to submit a completed certification
form and the consequence of not meeting that deadline is that the
absence(s) is not covered by the FMLA.''); Society for Human Resource
Management, Doc. 10154A, at 18 (``HR professionals often have
difficulty in determining how many times an employer must give an
employee an opportunity to `cure' a deficiency, and how long to allow
them to provide such a complete certification.''). Commenters also
sought clarification regarding the consequences to the employee if
leave is taken during the certification process but a complete and
sufficient certification is not ultimately provided.

[[Page 35591]]

Delaying a leave for the tardy return of a completed
certification is meaningless because by the time the delayed
certification has been returned, the employee has likely already
taken leave (perhaps for weeks) and the employer can only revoke the
FMLA designation for time already taken. The situation is
exacerbated because the employer cannot reduce any of the employee's
FMLA balance despite the fact the employee was absent. As a result,
the employee is rewarded by having the opportunity to take more than
12 weeks of leave in that given year. While the employer technically
could terminate or discipline the employee for this non-FMLA time
already taken, in all likelihood employers would be concerned that
such an action would run afoul of the law's sweeping prohibitions
from interfering with, restraining or denying an employee's leave.

Hewitt Associates, Doc. 10135A, at 19; see also United Parcel Service,
Doc. 10276A, at 11 (``The remedy specified in the regulations for an
employee's failure to provide adequate notice is to deny or delay the
employee's leave, but in these cases, leave has already been taken.'');
Foley & Lardner LLP, Doc. 10129A, at 4 (``The provision does not
explain how long the delay may last or what the consequences of a
`delay' can be.''); Sherman & Howard L.L.C., Doc. 10252A, at 1 (``The
regulations should make clear that if an employee does not ultimately
qualify for FMLA leave, or fails to provide medical certification to
support the requested leave, the employee's absence will be
unprotected. This means that the employer may appropriately enforce its
attendance policy which may result in disciplinary action being taken
against the employee.'').
c. Employer Requests for Additional Information
Employee commenters expressed related frustrations with the
certification process. In particular, several commenters stated that
employers repeatedly reject certifications as incomplete without
specifying what additional information is necessary, leading to a
prolonged and frustrating back-and-forth process. See, e.g.,
International Association of Machinists and Aerospace Workers, Doc.
10269A, at 4 (``We have many members who have their doctors fill out
the paper work only to be told it is not properly filled out. The
employee fixes that problem and the Company tells them there is another
problem with the paper work. This occurs over and over until finally
the doctor or the employee, or both give up.''); Association of
Professional Flight Attendants, Doc. 10056A, at 18 (``[I]t is simply
unfair to send FMLA leave requests back to the employees and their
treating health care providers for more medical facts, without ever
indicating what kinds of additional medical facts are required before
the employer will make a determination of medical eligibility or
medical ineligibility.''). The commenters noted that these repeated
requests for additional information force the employee to make
additional visits to his or her health care provider (resulting in
additional missed work and expense) and discourage the employee from
pursuing FMLA protection. See, e.g., Association of Professional Flight
Attendants, Doc. 10056A, at 12 (``[T]he Company's decision to challenge
somewhat routinely the health care provider's estimate of frequency and
duration imposes substantial burdens on the employee--both in terms of
the cost of a second or third visit to the doctor's office, and in
terms of the time required to complete what is becoming a paperwork
nightmare.''); An Employee Comment, Doc. 4395, at 1 (recounting her
personal experience with repeated employer requests for additional
information regarding her daughter's medical condition); An Employee
Comment, Doc. 4668, at 1 (``It should not be up to the employer to
nitpick a request for FMLA coverage.'').\14\ Commenters noted that
repeated requests for additional information were creating tension
between employees and their health care providers. See International
Association of Machinists and Aerospace Workers, Doc. 10269A, at 4
(``Some doctors refuse to fill out the exact same paperwork every 30
days, particularly for life-long chronic conditions like colitis or
migraines.''); Kennedy Reeve & Knoll, Doc. 4763A, at 15 (``I have been
hearing more and more stories of doctors refusing to fill out the
forms, thereby leaving the employee without recourse.''); Lucy Walsh,
Director, Human Resources, Providence Health Ministry, Doc. 10064A, at
1-2 (``Some physicians have absolutely refused to deal with the forms
at all which leaves both the employee and employer in a dilemma.'');
Coalition of Labor Union Women, R352A, at 5 (``Many doctors are
refusing to complete duplicative paperwork, resulting in leave denials
that must be either appealed or pursued through the contract's
grievance procedures.'').
---------------------------------------------------------------------------

\14\ Several commenters also expressed concern that health care
providers are charging employees to complete the certification form
(and, in some cases, to respond to employer requests for
clarification). See, e.g., Sun Microsystems, Inc., Doc. 10070A, at 2
(reporting that their employees have been charged between $25 and
$200 to fill out a medical certification); FNG Human Resources, Doc.
FL13, at 3-4 (employees charged up to $50 for certification); Shelly
Johnson, Oklahoma State University, Doc. 5185, at 1 (same).
---------------------------------------------------------------------------

Some commenters viewed repeated employer requests for additional
medical information as an inappropriate attempt by the employer to
substitute its determination of the seriousness of the employee's
health condition for the employee's health care provider's judgment.
See Coalition of Labor Union Women, Doc. R352A, at 4 (``We have heard
disturbing reports from our members that many employers are often
`second-guessing' the diagnoses of workers' doctors and other health
care providers by insisting on additional certifications or challenging
intermittent leave requests if the doctor's estimate of the likely time
needed is exceeded even by one or two days or in some minor respect. We
believe that DOL should issue a strong reminder that employers are
obligated to utilize the second opinion process established in the
regulations.''); Communications Workers of America, Doc. R346A, at 7
(``In CWA's experience, many employers evidence their distaste for FMLA
leaves by needlessly quarreling with the information provided by health
care providers in support of the employee's request for leave or
`second-guessing' the doctor under the guise of `clarifying' the
information provided on the form.''); Association of Professional
Flight Attendants, Doc. 10056A, at 15 (identifying ``employer's
rejection of [FMLA] applications based on its medical staff's
disagreement with the health care provider's estimate of duration and
frequency, or treatment plan, without invoking the second doctor
review'' as one of three primary concerns with medical certification
process).
Not all commenters, however, felt the current certification process
needed to be revised. One commenter noted that the current
certification process works well in its workplace.

We have trained our supervisory workforce to recognize even the
slightest possibility of a covered absence. The supervisory
personnel notify H.R. to mail out contingent FMLA notice and we
include Certification paperwork with instructions on how to have it
completed. We immediately place the employee on possible FMLA
pending the receipt of certification paperwork. The notice covers
all provisions of FMLA and necessary steps to rights and
responsibilities. We actually give the employees 20 days to return
the certification to cover the mailing time and some providers' slow
completion rate. Once all certification paperwork is received we
keep both the employee and supervisory personnel abreast of updates
and approvals.

FNG Human Resources, Doc. FL13, at 4; see also Legal Aid Society--
Employment Law Center, Doc. 10199A,

[[Page 35592]]

at 3 (``It is the [certification procedure] that establishes the
objective basis for leave based upon the informed opinion of the health
care provider of the employee or family member. Despite this useful,
practical, and commonsense system that was designed to evaluate whether
any condition constitutes a `serious health condition,' many employers
refuse to use it or use it improperly.''). Several commenters suggested
that there was no need to change the current certification procedure.
See, e.g., National Partnership for Women & Families, Doc. 10204A, at
19 (``The existing regulations appropriately balance a worker's
interest in a manageable certification process that does not impose
unreasonable burdens, with the employer's interest in the accurate
certification of medical conditions.''); Faculty & Staff Federation of
Community College of Philadelphia, Local 2026 of the American
Federation of Teachers, Doc. 10242A, at 6 (same); Center for Law and
Social Policy, Doc. 10053A, at 4 (same); OWL, The Voice of Midlife and
Older Women, Doc. FL180, at 2 (opposing any change in certification
rules).
2. Employer Contact With Employee's Health Care Provider--Process and
Privacy Concerns
Both employers and employees commented extensively on the subject
of employer contact with the employee's health care provider. Section
825.307(a) of the regulations requires that employers may contact the
employee's health care practitioner for clarification of the medical
certification only with the employee's consent and the contact must be
made through a health care practitioner. The employer may not use the
clarification process to request additional information beyond the
information required in the initial certification. See 29 CFR
825.307(a). In general, employers were frustrated with the regulatory
restrictions on contact with the employee's health care provider and
employees were concerned that any changes to the current process would
impinge on their medical privacy.
a. Requirement That Employer Communicate Through a Health Care Provider
Many employers commented that the requirement that they communicate
only through a health care practitioner resulted in significant cost
and delay. See, e.g., Milwaukee Transport Services, Inc., Doc. FL80, at
3 (``In 2006 alone, MTS spent $23,000.00 for the services of a
designated health care provider because it was not itself permitted
under the FMLA regulations to ask questions which that provider was
then forced to ask on its behalf.''); City of Portland, Doc. 10161A, at
2 (``The Act requires employers to use the employee as an intermediary
to communicate with doctors or incur substantial costs hiring
additional doctors to consult with employee physicians or, in narrow
circumstances, to give second and third opinions. Greater flexibility
in obtaining information for medical certification would streamline
FMLA approvals.''); Hewitt Associates, Doc. 10135A, at 15 (``The
employer's engagement of its own health care provider is expensive,
takes additional time and ultimately delays the decision to approve or
deny a leave request. Moreover, in cases when the employer simply wants
clarification on the amount of time off required, it provides no true
benefit to either the employer or the employee.''). The AFL-CIO,
however, commented that ``[a]ny expense caused by the requirement that
employers use their own health care professional to contact the
employee's treatment provider, rather than making contact directly, is
necessary to the preserve employee privacy.'' Doc. R329A, at 42.
Some commenters suggested that employers' expenses could be reduced
by permitting registered nurses to contact the employee's health care
provider. See, e.g., United Parcel Service, Doc. 10276A, at 8-9 (noting
that even employers that have nurses on their staff are required to
hire a health care provider to comply with section 825.307(a) of the
regulations); MedStar Health, Inc., Doc. 10144A, at 16-17 (same);
Manufacturers Alliance/MAPI, Doc. 10063A, at 7 (suggesting inclusion of
RNs, LPNs, and physician's assistants under the term ``health care
provider''); see also American Academy of Physician Assistants, Doc.
10004A, at 1 (suggesting that definition of health care provider in
regulations should be broadened to include physician assistants). The
Coalition of Labor Union Women, however, objected to broadening the
definition of health care providers allowed to contact the employee's
treating physician, noting that its members ``complain that employers
use nurses or physician's assistants who are not adequately trained and
who repeatedly challenge their doctor's diagnoses and predictions of
leave duration and frequency, leading to the need for additional
certifications and forcing the employee to take personal leave time to
obtain new paperwork.'' Coalition of Labor Union Women, Doc. R352A, at
6. Other commenters suggested that their human resources professionals
could more efficiently clarify the certification with the employee's
health care provider because they were both better versed in the FMLA
and more familiar with the employee's job duties and the work
environment than the employer's health care provider. See, e.g.,
Association of Corporate Counsel, Doc. FL31, at 10 (``[T]he employer's
staff members--often its Human Resources employees--are usually more
knowledgeable about the specific job requirements and other information
that may be relevant or helpful to the employee's health care provider
in making his/her assessment.''); Milwaukee Transport Services, Inc.,
Doc. FL80 at 3-4 (same). One commenter, however, suggested that it was
appropriate that medical inquiries be handled by medical professionals.
See Unum Group, Doc. 10008A, at 3 (``The regulatory requirement that
the employee's health care provider be contacted only through the
employer's health care representative is beneficial in that it not only
protects the privacy of employees but also ensures that medical
information discussed and terminology used while clarifying and
authenticating complete medical certifications are understood and
correctly interpreted.'').
Employers also expressed frustration with the scope of information
they could request when clarifying a medical certification. See Sally
L. Burnell, Program Director, Indiana State Personnel Department, Doc.
10244C, at 6 (``The requirement to have another health care provider
contact the submitting health care provider, and then only for
clarification of the form, not for additional information,
unnecessarily complicates and lengthens the approval process, often
beyond the length of the absence itself.''); Jackson Lewis LLP, Doc.
FL71, at 5 (``The rule prohibiting employers from asking for any
additional information once an employee submits a completed medical
certification ignores the reality that a technically `completed'
certification may offer little insight into the need for FMLA leave,
much less the medical necessity for leave on an intermittent basis.'').
Several employee commenters, however, asserted that employers are
already using the clarification process improperly to seek additional
information beyond that included in the certification form or even to
challenge the employee's health care provider's medical judgment. See
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied

[[Page 35593]]

Industrial and Service Workers International Union, Doc. 10237A, at 4
(``It has been our experience that some employers contact the health
care provider and attempt to reschedule appointments, ask questions
that go beyond the certification of serious health condition at issue,
or even try to get the health care provider to change the medical
certification, all without employee consent.''); Communications Workers
of America, Doc. R346A, at 10 (``In CWA's experience, there is
currently widespread non-compliance with the intent of the current
regulation [29 CFR 825.307] limiting employer contact with employee
health care providers to those circumstances where `clarification' or
`authentication' are necessary.'').
b. Requirement of Employee Consent for Contact
Several commenters asserted that the requirement that an employer
obtain employee consent prior to contacting the employee's health care
provider makes it extremely difficult for employers to investigate
suspected fraud related to medical certifications. See, e.g., Robert
Haynes, HR-Compliance Supervisor, Pemco Aeroplex, Inc, Doc. 10100, at 1
(noting difficulty in investigating fraud when employee's consent is
necessary for the employer to authenticate form with employee's health
care provider); Ohio Public Employer Labor Relations Association, Doc.
FL93, at 5-6 (same); United States Postal Service, Doc. 10184A, at 15
(suggesting that a ``simple and fair way to remedy this problem is to
allow an employer to make contact with the provider for the purpose of
confirming authenticity''); Taft, Stettinius & Hollister LLP, Doc.
FL107, at 6 (``Where authenticity is suspect, the employer's inquiry is
not medically related but rather, is intended to determine whether the
employee's health care provider issued the certificate and that it has
not been altered. In such circumstances, the restrictions contained in
Section 825.307(a) serve no useful purpose, impose unnecessary expense
on employers, and are not justified by any language in the Act.'').
Honda suggested that the regulations should distinguish between
contacts by the employer to confirm administrative details and contacts
related to substantive medical discussions: ``[T]he FMLA Regulations
should be amended to permit the employer to contact the employee's
health care provider's office to confirm date, time and place of
appointments, but not permit the employer to discuss the medical facts,
the need for leave and the frequency and duration of leave with the
employee's health care provider.'' Honda, Doc. 10255A, at 11-12. Other
commenters suggested that the process for seeking medical information
under the FMLA should be consistent with the procedure set forth under
the Americans with Disabilities Act. See infra Chapter VII.
c. Employee Privacy Concerns
Finally, many commenters expressed concern that any changes to the
regulations governing contact between their employers and their health
care providers would compromise their right to medical privacy. See,
e.g., An Employee Comment, Doc. 4019, at 1 (``I also oppose any
regulatory changes that would allow employers to directly contact a
worker's health care provider, which unnecessarily violates the
worker's right to keep medical information confidential.''); 9to5,
National Association of Working Women, Doc. 10210A, at 4 (``We also
oppose any regulatory changes that would allow employers to directly
contact a worker's health care provider, which unnecessarily violates
the worker's right to keep medical information confidential.'');
Faculty & Staff Federation of Community College of Philadelphia, Local
2026 of the American Federation of Teachers, Doc. 10242A, at 6 (same);
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, Doc. 10237A, at 4
(same). Another commenter stated, ``[w]orkers have the right to keep
their medical information confidential and not have irrelevant health
status information affect their employers' decisions.'' Families USA,
Doc. 10327A, at 5. Moreover, the National Partnership for Women and
Families noted that the Department already considered issues relating
to the employer's need for medical information and the employee's right
to medical privacy and struck the appropriate balance back in 1995 with
the final regulations: ``DOL has already considered comments regarding
concerns about an employer's ability to obtain medical information from
a health care provider. The interim [1993] FMLA regulations entirely
prohibited an employer from contacting the health care provider of the
employee or the employee's family member. In response to a number of
comments, * * * DOL amended the regulations to allow an employer's
health care provider to contact an employee's or a family member's
health care provider to clarify or authenticate the information in this
medical certification. In arriving at this compromise, DOL limited this
contact to an employer's health care provider to protect the privacy
interests of employees and their families and ensure that their medical
information was only being shared between medical professionals.'' Doc.
10204A, at 20 (footnotes omitted); see also Service Employees
International Union District 1199P, Doc. FL104, at 5 (same); American
Federation of Labor and Congress of Industrial Organizations, Doc.
R329A, at 42-43 (same).
3. Interaction of Health Insurance Portability and Accountability Act
and Medical Certification Process
As noted in the Request for Information, the most significant law
passed since the FMLA with regard to employee medical information is
the Health Insurance Portability and Accountability Act (``HIPAA'').
HIPAA addresses in part the privacy of individually identifiable health
information. The Department of Health and Human Services (``HHS'')
issued regulations found at 45 CFR Parts 160 and 164 that provide
standards for the privacy of individually identifiable health
information. The HIPAA regulations do not impede the disclosure of
protected health information for FMLA reasons if the employee has the
health care provider complete the medical certification form or a
document containing the equivalent information and requests a copy of
that form to personally take or send to the employer. HIPAA
regulations, however, clearly do come into play if the employee asks
the health care provider to send the completed certification form or
other medical information directly to the employer. In such situations,
HIPAA will generally require the health care provider to first receive
a valid authorization from the employee before sending the information
to the employer.
There is no requirement under the FMLA that employees sign a
release allowing employers to access their medical information. In the
preamble to the final regulations, the Department specifically rejected
the idea of requiring employees to execute a medical release as part of
the certification process as unnecessary. See 60 FR 2180, 2222 (Jan. 6,
1995) (``The Department has not adopted the suggestion that a waiver by
the employee is necessary for FMLA purposes. The process provides for
the health care provider to release the information to the patient
(employee or family member). The employee then releases the information
(form) to the employer. There should be no concern

[[Page 35594]]

regarding ethical or confidential considerations, as the health care
provider's release is to the patient.''). Employers, however, always
have the statutory right under the Act to obtain sufficient medical
information to determine whether an employee's leave qualifies for FMLA
protection, and it is the employee's responsibility to ensure that such
information is provided to the employer. If an employee does not
fulfill his or her obligation to provide such information upon the
employer's request, the employee will not be entitled to FMLA leave.
See 29 CFR 825.307-825.308; Wage and Hour Opinion Letter FMLA-2004-2-A
(May 25, 2004). Some commenters believe that the HIPAA regulations
restricting the flow of medical information from health care providers
to third parties have created tension with the employer's right to
medical information under the FMLA and have caused difficulties for
employees seeking to exercise their FMLA rights. See, e.g., Krukowski &
Costello, S.C. (on behalf of Legislative Committee of the Human
Resource Management Association of Southeastern Wisconsin), Doc.
10185A, at 3 (``[W]hen an employer may attempt to ascertain the true
nature of any given absence, the employee then uses HIPAA as a shield
designed to prevent the employer from obtaining any further information
in order to clear up any ambiguities (or discover potential
abuses).''); Methodist Hospital, Thomas Jefferson University Hospital,
Doc. FL76, at 2 (``With HIPAA regulations physicians are reluctant to
share information with Employers who are trying to accommodate Employee
medical conditions to minimize absence.''); American Academy of Family
Physicians, Doc. FL25, at 3 (``We agree with comments that the Health
Insurance Portability and Accountability Act (HIPAA) has created
confusion about the disclosure of information on the FMLA form. As
employers are not covered entities, disclosure directly to the employer
is prohibited without an authorization by the patient.'')
Several commenters reported that they have experienced increased
difficulties with obtaining medical certifications from health care
providers as a result of HIPAA. See, e.g., AIG Employee Benefit
Solutions' Disability Claims Center, Doc. 10085A, at 2-3 (``More than
one Provider has written `HIPAA' across the Form and returned it.'');
Briggs & Stratton Corporation, Doc. FL37, at 4 (``[M]any physicians
still insist that they are prohibited by HIPAA from responding to
questions on the Certification.''). As a result of these difficulties,
several commenters--including some medical providers--suggested that
employees be required to sign a release as part of the certification
requirement allowing the employer to communicate directly with the
employee's health care provider. See, e.g., American Academy of Family
Physicians, Doc. FL25, at 3 (``The specific information required by the
FMLA certification form and lack of an authorization on the form
releasing the information may lead to inadvertent HIPAA violations. We
would recommend the addition of an authorization to release medical
information to the certification form which would allow the patient to
indicate their authorization to release information to a family member
or directly to the employer.''); Ed Carpenter, Human Resource Manager,
Tecumseh Power Company, Doc. R123, at 1 (certification process would be
made easier if employee signed a release allowing the employer to
contact employee's health care provider); Williams Mullen, Doc. FL124,
at 3 (``DOL should coordinate HIPAA and FMLA issues, including medical
certifications with HIPAA waivers, to make the process of medical
information consistent.''). Other commenters, however, objected to
requiring employees to provide medical releases in exchange for
requesting FMLA leave. See United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, at 4 (``The USW asks the DOL to clarify that
employees are not required to provide a release of medical information
to the employer as a condition of applying for or receiving FMLA
leave.'').
Finally, some commenters suggested that the protections afforded to
employee medical information by HIPAA have obviated the need for
employers to get employee consent for clarification of FMLA
certifications. See Ohio Public Employer Labor Relations Association,
Doc. FL93, at 6 (``With HIPAA laws protecting confidential medical
information, the excessive restrictions found in 29 CFR 825.307 are
unnecessary and should be removed.''); Taft, Stettinius & Hollister
LLP, Doc. FL107, at 5 (``HIPAA and similar laws provide ample
protection for personal health data and the employee's health care
provider can always refuse to disclose information if he or she
considers a request for clarification to implicate privacy issues.'');
Hewitt Associates, Doc. 10135A, at 15 (``[G]iven HIPAA concerns, it's
likely that the employee will still have a check over the process as
the health care provider would require the employee's permission before
he or she would speak with the employer.''); see also National Retail
Federation, Doc. 10186A, at 17 (``The professional standards binding
health care providers serve as a sufficient ``check'' on the scope of
the inquiry.'').
4. Recertification and Second and Third Opinions
The medical verification process does not end with the initial
medical certification. Employers who question the validity of an
employee's medical certification have the right to require a second
opinion from a health care provider of their choosing. See 29 CFR
825.307. Where the second opinion conflicts with the initial
certification, the regulations allow the employer to obtain a final and
binding third opinion from a jointly-designated health care provider.
See id. Additionally, employers have the right to require employees to
provide subsequent recertification for conditions that persist over
time. See 29 CFR 825.308. The Request for Information sought comments
regarding several aspects of the recertification and second opinion
processes. Comments were sought regarding the time frame for
recertification and the requirement that requests for recertification
be made only in connection with an absence. Comments were also sought
on whether the second and third opinion process should be extended to
apply to recertifications in addition to the initial certification.
a. Timing of Recertifications
Several commenters recommended that employers should be allowed to
seek recertification every thirty days regardless of the minimum
duration of the need for leave set forth in the certification. See,
e.g., United Parcel Service, Doc. 10276A, at 11 (``As currently
drafted, [the] language permits employees to evade the 30-day
recertification requirement by having their health care provider
specify a longer period of time.''); University of Minnesota, Doc.
4777A, at 1 (``In all cases, employers should have the right to request
recertification from an employee on FMLA leave every thirty days.'');
Carolyn Cooper, FMLA Coordinator, City of Los Angeles, Doc. 4709, at 1
(``A remedy to this manipulation or gaming of the medical certification
restriction pertaining to intermittent/reduced work schedule leaves is
to allow employers to request recertification every 30 days, regardless

[[Page 35595]]

if the duration indicated in the initial medical certification is
greater than 30 days.''). The National Coalition to Protect Leave made
a related point that recertifications should be permitted every thirty
days irrespective of whether there was an absence during that period.
See National Coalition to Protect Family Leave, Doc. 10172A, at 49
(``Employers should always be allowed to obtain recertification every
30 days as long as the initial certification indicates the leave needed
is ongoing; the right of an employer to request recertification in such
circumstances should not be limited to whether an employee had an
`absence.'); see also Hewitt Associates, Doc. 10135A, at 17 (``Simplify
Sec. 825.308 by deleting the requirement that employers can only
request recertification `in connection with an absence' allowing
employers to ask for a recertification every 30 days.'').
Many of the commenters seeking more frequent recertifications cited
the desire to control unforeseen, intermittent absences due to chronic
conditions. See Pierce Atwood, LLP (on behalf of Maine Pulp & Paper
Association), Doc. 10191A, at 2-3 (``Given the fact that intermittent
leave is widely abused, employers need more flexibility to request
recertification for intermittent leave than for serious health
conditions that render the employee unable to work for the full 12
weeks.''); Nancy Dering Martin, Deputy Secretary for Human Resources
and Management, Commonwealth of Pennsylvania, Doc. FL95, at 4 (``Also,
because of the potential for abuse, we recommend Section 825.308 be
further revised to allow employers to require a medical excuse
indicating the time of the appointment or treatment when leave is used
intermittently, the absence is unexpected, or the employer suspects
abuse.''); Milwaukee Transport Services, Doc. FL80, at 2 (``One
regulatory change that would assist employers such as MTS in curbing
intermittent leave abuse would involve revising the current
recertification regulation, 29 CFR [Sec. ] 825.308, by allowing an
employer to require medical documentation of the need for intermittent
FMLA leave on any occasion on which such leave is taken.''). Several of
these commenters suggested that employers should be allowed to obtain
medical verification of each intermittent absence even if that
verification were more summary than a recertification. See Northrup
Grumman Newport News Shipbuilding and Dry Dock Company, Doc. FL92, at 2
(``A rule could be added to require employees to provide documentation
from the healthcare provider each time they exercise intermittent
leave, documenting specifically that the intermittent condition
prevented attendance at work.''); Spencer Fane Britt & Browne LLP, Doc.
10133C, at 32 (``The employee should not be permitted to be the only
party who determines the medical necessity of an absence on any
particular day. * * * If an employee is ill enough to miss work, the
employee should be required to visit or at least consult by phone with
his/her doctor.''); Seyfarth Shaw LLP (on behalf of a not-for-profit
health care organization), Doc. 10132A, at 4 (``We suggest as an
alternative an amendment to the regulations so that an employer can
request documentation from the employee's health care provider pursuant
to a uniformly applied policy for similarly-situated employees for any
unforeseen, intermittent absence of less than a work day due to a
chronic serious health condition.'').
Employee commenters objected to more frequent recertifications,
however, because of the additional burden placed on employees. See,
e.g., International Association of Machinists and Aerospace Workers,
Doc. 10269A, at 4 (``[O]ur members find that the requirement to
recertify every thirty days is incredibly burdensome. * * * [I]t is
very expensive for employees to get re-certifications. Some employees,
particularly in rural areas, have to travel long distances to even see
their doctors. It is ironic that often these employees actually have to
miss more work time just to get the recertification.''); An Employee
Comment, Doc. 4738, at 1 (``For an employer to repeatedly request for
recertifications every 30 days, for an chronic Asthmatic who has an
unforeseeable mild flare-up that can be taken care of with prescription
medication, seems unreasonable and repetitious.''); Kennedy Reeve &
Knoll, Doc. 4763A, at 17 (``The frequency with which some employers are
requiring notes and recertification is both logistically (due to the
availability of doctor's appointment times) and financially burdensome
on the employee and physician.''); An Employee Comment, Doc. 4582, at 1
(``[E]ven though my mother's illness is terminal and my father's
condition is considered lifetime, I still am required to fill out forms
and have a doctor sign them every 3 months. The physician's office now
charges me $20 for each form I have to have them sign. As you can
imagine, this takes a lot of time and money.'').
Physicians also objected to allowing recertifications every 30 days
for conditions that are medically stable: ``This is a burden to
physicians who spend time completing the form to indicate that a
chronic condition is still being managed. It would lessen this burden
to allow recertification only for those conditions which are not
categorized as chronic care or permanent disability.'' American Academy
of Family Physicians, Doc. FL25 at 3; see also Mark Blick DO, Rene
Darveaux MD, Eric Reiner MD, Susan R. Manuel PA-C, Doc. FL292, at 1
(``One employer requires us to complete the form every 60 days (ATT/
SBC), one employer every 90 days and another every year. Chronic
conditions extending a patient's lifetime such as diabetes and
hypertension are not going to change and there is no reason the form
has to be updated multiple times throughout the year.''). Another
commenter suggested that employers are abusing the recertification
process and using repeated requests for recertification to discourage
employees from taking FMLA leave:

[E]mployees bear the expense and burden of having to secure re-
certifications and run the risk of denials if health care providers
do not cooperate (or fail to do so in the relatively short time
required by the employer), even though the serious and chronic
nature of their medical condition is well documented. In fact, we
believe that, in some work locations, these re-certification
requests are thinly veiled efforts to discourage employees from
taking intermittent FMLA leave and/or to retaliate against them for
needing to do so.

Communications Workers of America, Doc. R346A, at 12.
b. Second and Third Opinion Process
Several employers commented on the expense involved in the second
and third opinion process. See, e.g., Honda, Doc. 10255A, at 11
(``Based upon Honda's experience, second and third opinions average
over $700 per second or third opinion, and cost the employees their
time.''); Spencer Fane Britt & Browne LLP, Doc. 10133C, at 25 (``Second
and third opinions have proven expensive and difficult to obtain.'');
Yellow Book USA, Doc. 10021A, at 2 (asserting that second opinions are
so expensive they are not used); Zimbrick, Inc., Doc. FL125, at 12
(``We have not requested a second opinion. The cost, time and negative
impact on employee morale is prohibitive.''). Other commenters noted
practical concerns regarding finding physicians to perform second
opinions. See, e.g., United States Postal Service, Doc. 10184A, at 19
(``We are experiencing increasing difficulty finding physicians who
will perform a second opinion medical exam. Although we do not keep
numbers on refusal rates, our national FMLA coordinators

[[Page 35596]]

regularly voice concerns about this problem.''); Foley & Lardner LLP,
Doc. 10129A, at 5 (``Our experience shows that second opinions are
rarely used due to delay inherent in locating a health care provider
and scheduling an examination and due to the expense associated with
obtaining these opinions.''); Coolidge Wall Co., Doc. 5168, at 1
(``Even in larger cities it can be difficult to find doctors in a
specialty who are willing to do FMLA second opinion examinations.'');
FNG Human Resources, Doc. FL13, at 5 (``Requesting a second opinion is
neither economically feasible nor beneficial in our area. We do not
find healthcare providers willing to state that another provider is
incorrect in his/her diagnosis.'').
Some commenters suggested that employers should be allowed to use
doctors with whom they have relationships for second opinions because
these health care providers are more familiar with the work environment
and job requirements. See, e.g., Air Conference, Doc. 10160A, at 13
(``[O]ur member carriers have developed relationships with health care
providers who understand our industry and operating environment and who
are very familiar with the essential functions of airline jobs.'').
Two commenters expressed frustration that even where the second and
third opinion process resulted in a determination that the employee was
not entitled to FMLA leave, employees have attempted to subvert the
process by submitting a new certification for the same condition thus
initiating the review process anew. See United States Postal Service,
Doc. 10184A, at 19 (``[A] number of employees * * * subsequently submit
a new medical certification from their original health care provider
which counters the information in that second/third opinion. The
employees then argue that the employer must go through the second
opinion process again.''); Exelon, Doc. 10146, at 6 (``Even if both the
second and third opinion providers disagree with the employee's own
provider, after the process has been concluded, the regulations do not
preclude the employee from submitting a new certification to support a
new absence, and subsequent absences, from work for the same medical
condition for which a second and third opinion were obtained.'').
c. Expanding Second Opinions to Recertification
Despite employer frustrations with the costs and utility of the
second and third opinion process, however, some employers sought to
expand the use of the process to recertifications. See, e.g., National
Coalition to Protect Family Leave, Doc. 10172A, at 49 (``Permitting
second and third opinions [on recertifications] will provide
substantial benefits to both employers and employees. Employers will
not have to incur the unnecessary expense of obtaining second and third
opinions based on a doubtful initial certification unless a pattern of
abuse in fact develops without losing the opportunity to challenge the
certification at a later date. Employees will also benefit, since they
will not have to go for second and third opinions if they do not abuse
FMLA leave even if their original medical certification creates doubt
as to the validity of the need for leave.''); United States Postal
Service, Doc. 10184A, at 17 (``[A] second opinion should be allowed
during the lifetime of an employee's condition, so long as there is
reason to doubt the validity of the information in the
certification.''); Air Conference, Doc. 10160A, at 13 (``Second and
third opinions should also be available to employers on a medical
recertification.'').
Commenters noted that the statute is silent as to the availability
of second opinions on recertification and argued that the Department
should not prohibit their use by regulation. See City of New York, Doc.
10103A, at 9 (``Under 29 CFR 825.308(e), employers are specifically
barred from seeking a second or third opinion on a recertification. The
FMLA, however, does not bar an employer from seeking additional
opinions for a subsequent recertification.''); National Coalition to
Protect Family Leave, Doc. 10172A, at 49 (``Subsection 29 CFR
825.308(e) prohibits employers from obtaining second and third opinions
in connection with recertifications despite the fact that no statutory
prohibition exists with regard to such requests.''); Association of
American Railroads, Doc. 10193A, at 4 (noting that the prohibition on
second and third opinions on recertification is not based on the Act).
Other commenters, however, viewed the statutory silence differently,
arguing that the statute only provides for second opinions on the
initial certification and therefore they should not be permitted on
recertification. See American Federation of Labor and Congress of
Industrial Organizations, Doc. R329A, at 44; National Partnership for
Women & Families, Doc. 10204A, at 22-23 (``The regulations do not allow
employers to request second opinions for medical recertifications
because the statute itself only provides for second opinions in the
context of initial certifications.''). Honda urged that the
Department's 2005 opinion letter concerning reinitiating the medical
certification process on an annual basis, and with it the availability
of the second opinion process, be incorporated into the regulations.
See Honda, Doc. 10255A, at 15; see also American Federation of Labor
and Congress of Industrial Organizations, Doc. R329A, at 44 (``[T]he
regulations currently permit employers to reinitiate the medical
certification process twelve months after leave commences, including
requests for second and third opinions, regardless of past
certification for the same health condition.''); Wage and Hour Opinion
Letter FMLA-2005-2-A (Sept. 14, 2005).
The United States Postal Service argued that allowing second
opinions on recertifications would ultimately inure to the benefit of
employees. See Doc. 10184A, at 19 (``When an employer knows that it has
the option of a second opinion if later needed, it is more likely to
allow the protection at the outset even in instances where it may have
some concern about the certification. The employee will be more
content, as the leave request is quickly approved and he/she is spared
a second medical exam.''). The National Partnership for Women &
Families disagreed, however, stating that the extension of the second
and third opinion process to recertifications would burden employees.
See Doc. 10204A, at 22-23 (``[A]llowing employers to request second
opinions on recertifications would unfairly burden employees for taking
leave to which they are entitled.'').
d. Adequacy and Use of Current Medical Verification Process
Finally, some commenters suggested that, if properly used, the
recertification and second and third opinion processes set forth in the
current regulations provided employers with ample tools to control FMLA
leave usage.

At present, we believe that the regulations provide a manageable
balancing of the employer's need for accurate information
demonstrating that the leave is covered by the Act and the
employee's important privacy interest. The regulations also
establish a clear framework within which to evaluate leave requests
when good faith questions arise--the second and third opinion
process. Because of the concerns that this existing process is not
being followed by many employers, we urge DOL to take steps to
evaluate whether that process is being utilized appropriately.

Coalition of Labor Union Women, Doc. R352A, at 6; see also 9to5,
National Association of Working Women, Doc. 10210A, at 4 (``Robust
employer

[[Page 35597]]

safeguards already exist in the current regulations. Employers are
allowed to ask for second and third opinions from alternate doctors for
an FMLA request. Employers have always had the ability to handle
suspicious patterns of time off, just like any other personnel
problem.''); Kennedy Reeve & Knoll, Doc. 4763A, at 14-15 (``Instead of
utilizing the certification process and the second and third opinion
process within the regulations, many employers are now choosing to
forgo some or all of those processes, and instead litigating these
issues at a high price to everyone, including the courts. In order to
avoid costly litigation and in order to provide more stability in the
administration of leaves of absences, the regulations should require
the use of a consistent form and also require the utilization of the
regulatory enforcement procedures[.]'').
5. Medical Certification of the Employee's Ability To Return To Work
(``Fitness for Duty Certifications'')
Section 825.310 of the regulations allows employers to require
medical certification of the employee's fitness to return to work under
certain circumstances. Section 825.310(g), however, bars employers from
seeking a fitness for duty certification from employees returning to
work after taking intermittent leave. See 29 CFR 825.310(g). The
Request for Information sought comments on the benefits and burdens of
removing this restriction and allowing fitness for duty certifications
for employees returning from intermittent leave.
Many commenters questioned the rationale for the different
treatment the regulations accorded to different types of leave and
argued that safety concerns support requiring fitness for duty
certifications for intermittent leave.

Exempting chronic conditions from return to work clearance seems
to make little sense because those conditions are just as likely as
any other to compromise the health or safety of the workforce.
Indeed, some chronic conditions are even more likely to give rise to
a justifiable need for return to work clearance than the other
serious health conditions under the FMLA. For example, an employer
may have little concern about the clerical assistant returning to
work after giving birth, but far more (and legitimate) concern about
allowing a utility worker to return after a series of epileptic
seizures on the job.

United States Postal Service, Doc. 10184A, at 20; see also Honda, Doc.
10255A, at 14 (``Not permitting fitness-for-duty medical forms for FMLA
Intermittent Leaves puts employers and employees at risk. Such a
prohibition creates an exception to most employers' policies or
practices when an employee has been incapacitated for any medical
reason for more than a brief period.''); MGM Mirage, Doc. 10130A, at 10
(``Quite simply, an employee places his/her physical condition at issue
by requesting FMLA leave. This is true regardless of whether the
employee was absent as result of continuous or intermittent leave.'').
Some employers noted that the particular safety concerns inherent
in their workplaces necessitated that they obtain clear information
regarding an employee's ability to safely return from leave. See Union
Pacific Railroad, Doc. 10148A, at 6 (noting that clear information
regarding their employees ability to work is critical as ``those very
employees are entrusted with jobs that affect the safety and security
of the general public''); Honda, Doc. 10255A, at 14 (``In
manufacturing, many of the jobs include safety-sensitive duties.
Therefore, the current regulation prohibiting a fitness-for-duty form
for intermittent leaves puts the employee and his/her co-workers at
risk and requires the employer to assume a legal risk for liability, if
there is an accident caused by the reinstated employee.''); City of New
York, Doc. 10103A, at 7 (``Fitness for Duty Certifications for
employees in safety-sensitive positions who are intermittently absent
should be an option for employers. For example, if a sanitation worker
responsible for driving a two-ton truck on public roadways takes
intermittent leave to treat high blood pressure, a fitness for duty
certification should be required before the employee is restored to the
position which carries an extreme responsibility to the public.'').
These employers suggested that the FMLA return to work process
undercuts legitimate employer safety programs. For example, the Maine
Pulp & Paper Association submitted the following statement:

Employees in the paper industry routinely work with hazardous
materials in close proximity to heavy machinery. Forcing employers
to accept the employee's medical provider's simple statement that
the employee ``is able to resume work,'' or worse, in the case of an
intermittent leave-taker, accept the employee's word alone with no
medical verification whatsoever jeopardizes the safety of co-workers
and increases exposure to expensive workers' compensation claims.
MPPA's members have strong safety programs which should not be
undercut by administrative requirements of the FMLA.

Pierce Atwood, LLP (on behalf of Maine Pulp & Paper Association), Doc.
10191A, at 4.
Several employers suggested the Department should delete or revise
this section of the regulations so that employers would have the same
right to seek fitness for duty certifications from employees returning
to work from intermittent leave. See, e.g., Willcox & Savage, Doc.
10088A, at 6; Foley & Lardner LLP, Doc. 10129A, at 5; National
Coalition to Protect Family Leave, Doc. 10172A, at 50. The National
Partnership for Women & Families, however, argued that requiring
employees returning from intermittent leave to provide fitness for duty
certifications--which are to the employee's expense--would
significantly undermine the statutory purpose behind allowing employees
to take intermittent leave. See Doc. 10204A, at 23 (``Any benefit to
the employer of obtaining fitness for duty statements from intermittent
leave-takers is far outstripped by the unwarranted burden that such a
change in the regulations would impose on employees. * * * The
intermittent leave option helps to take some of the financial strain
off employees by enabling them to continue to earn a paycheck while
addressing serious health or family needs, and allows employees to
preserve as much of the twelve weeks of leave as possible.'')
(footnotes omitted). The AFL-CIO also noted that ``[r]equiring
employees who take intermittent leave to present fitness for duty
certifications for potentially every absence is burdensome and
unnecessary.'' Doc. R329A, at 44. See also National Business Group on
Health, Doc. 10268A, at 4 (``It would be an administrative headache to
require a fitness for duty statement from an employee who is absent
intermittently. The added paperwork to cover this would be overly
burdensome.''); Kennedy Reeve & Knoll, Doc. 4763A, at 18 (``[T]he
logistical impossibility and financial burdens of allowing employers to
require fitness-for-duty statements for each and every day of absence
make such a policy not feasible.''). In an attempt to address the costs
concern, one commenter suggested that employers bear the cost for
fitness for duty certifications when the employee is returning from
intermittent leave. See United Parcel Service, Doc. 10276A, at 6.
Finally, some commenters commented that the return to work process
under the FMLA conflicted with the return to work process under the
ADA, with the latter providing a better model because it allows both
more substantive information and physical examinations. See infra
Chapter VII.

[[Page 35598]]

6. WH-380 Form
The Department provides an optional model certification form titled
``WH-380'' to assist employers who require employees to provide medical
certification of their need for FMLA leave. The form can be used for
initial certification or recertification, as well as for second and
third opinions. While employers may use a form other than the WH-380,
they may not require information beyond what is required by the sample
form. 29 CFR Sec. 825.306(b). The Request for Information sought
comments on how this form is working and what improvements could be
made to it to facilitate the certification process.
Several commenters expressed frustration with the current form,
finding it overly long and complicated. See, e.g., American Academy of
Family Physicians, Doc. FL25, at 2 (``The form WH-380 is overly
complicated and confusing in its format.''); Spencer Fane Britt &
Browne LLP, Doc. 10133C, at 27 ( ``DOL's prototype medical
certification form * * * is confusing to employers, employees, and
health care providers.''); United Parcel Service, 10276A, at 10 (``The
current WH-380 form is poorly drafted and confusing.''); Courier
Corporation, Doc. 10018A, at 3 (``We feel the Certification of Health
Care Provider (Optional Form WH-380) is far too vague.''); Association
of Corporate Counsel, Doc. FL31, at 10 (``The current form is confusing
and often results in incomplete or vague responses by health care
providers that are insufficient to assess the employee's eligibility
for leave or the timing of the leave.'').
Several commenters suggested that the form could be simplified if
it was broken into multiple forms, with separate forms either for
intermittent and block leave, or for leave for the employee and leave
for the employee's family member. See, e.g., Yellow Book USA, Doc.
10021A, at 3 (suggesting separate forms for block and intermittent
leave); National Counsel of Chain Restaurants, Doc. 10157A, at 16
(suggesting separate forms for employee and family members); Indiana
University, School of Medicine, Department of Orthopedic Surgery, Doc.
FL70, at 1 (same); Ohio Department of Administrative Services, Doc.
10205A, at 6 (same). Spencer Fane recommended that the Department
actually develop four different versions of the form for: ``(a)
Continuous leave for employee's own serious health condition; (b)
continuous leave for serious health condition of a family member; (c)
reduced schedule/intermittent leave for employee's own serious health
condition; and (d) reduced schedule/intermittent leave for serious
health condition of a family member.'' Doc. 10133C, at 32.
Commenters also suggested ways to make the current form more useful
to employers and easier for health care providers to understand and to
complete. See, e.g., Courier Corp., Doc. 10018A, at 4 (Suggesting that
the ``form could be modified to be in more of a checkbox format, that
might facilitate the physician's office in actually completing it more
fully and providing better information for the employer to evaluate the
need for leave.''); United States Postal Service, Doc. 10184A, at 12
(advocating elimination of serious health condition checklist in favor
of description of medical facts); National Coalition to Protect Family
Leave, Doc. 10172A, at 47 (``DOL can make the form more user-friendly
by streamlining the information requested instead of asking the health
care providers to respond to a page and a half of specific
questions.'') (footnote omitted). A physicians group suggested that use
of a standard form, as opposed to individual employer variations, would
reduce the burden on health care providers. See American Academy of
Family Physicians, Doc. FL25, at 2; see also Kennedy Reeve & Knoll,
Doc. 4763A, at 14 (``The model certification form must be simplified,
and then it must be the required form for employers to use.'').
Several commenters suggested that the Department ``allow an
employer the option of identifying key job skills and tasks, similar to
the [ADA], to allow the doctor to make a more informed decision about
the necessity of leave with respect to the specified essential job
functions[.]'' U.S. Chamber of Commerce, Doc. 10142A, at 8; see also
United States Postal Service, Doc. 10184A, at 14 (form should include
``a statement that the provider has been informed of the employee's
essential job functions''). Another commenter, however, noted that the
FMLA regulations already permit employers to ``include a job
description with the medical certification form given to the treating
physician'' but that few employers utilize this process. Kennedy Reeve
& Knoll, Doc. 4763A, at 5.
Commenters also suggested that the WH-380 should include a
diagnosis, something that was included in the form published with the
interim FMLA regulations but was removed from the form when the
regulations were finalized. See Preamble to Final FMLA Regulations, 60
FR 2180, 2222 (Jan. 6, 1995) (``The regulation and form no longer
provide for diagnosis.''); see also South Central Human Resource
Management Association, Doc. 10136A, at 11 (``an employer should be
permitted to obtain diagnosis and prognosis''); Detroit Medical Center,
Doc. 10152A, at 2 (``It is critical that the regulations and WH-380
form be changed to require actual diagnoses to determine whether an
employee's absences correlate with the medical certification.''). One
such commenter stated that ``the FMLA's current restriction on
obtaining a diagnosis creates an unnecessary and awkward limitation on
the employee's health care provider in completing the medical
certification form and the employer's health care provider in seeking
clarification of information contained in that form. Generally,
meaningful communications between the health care providers cannot take
place without some discussion about the actual diagnosis, particularly
if second and third opinions are involved.'' MedStar Health, Inc., Doc.
10144A, at 17.
Finally, some commenters noted that the WH-380 does not include all
of the information that an employer is entitled to under the Act.
Importantly, multiple commenters noted that the current form does not
require the health care provider to certify the medical necessity for
intermittent leave, which is a statutory requirement for the taking of
such leave. See 29 U.S.C. Sec. 2612 (b); see also National Coalition
to Protect Family Leave, Doc. 10172A, at 47 (``In the case of
intermittent leave, the medical necessity for the intermittent or
reduced schedule also should be specified in accordance with 29 CFR
Sec. 825.117 (not currently asked on the model form).''); Society for
Human Resource Management, Doc. 10154A, at 18 (same); American Electric
Power, Doc. Fl28, at 5 (``Unfortunately, the statutory requirement that
`medical necessity' be demonstrated by employees seeking intermittent
leave has been effectively eliminated by the Department's
regulations.''). Another commenter noted that the current form also
does not solicit the information necessary to allow employers to
determine whether an employee is entitled to FMLA leave to care for a
child who is 18 years old or older. Honda, Doc. 10255A, at 13
(suggesting that in order for employers to determine whether an adult
child is covered under the FMLA the form should be amended to include:
``[1] Whether the adult child has a physical or mental disability; [2]
Whether the physical or mental disability has caused the child to be
incapable of self-care; and [3] A checklist of `activities of daily
living' and `instrumental activities of daily

[[Page 35599]]

living' that the adult child cannot perform.'').

VII. Interplay Between the Family Medical Leave Act and the Americans
With Disabilities Act

The Department's Request for Information noted that several
organizations had reported the FMLA's ``interaction with other laws,''
including Title I of the Americans with Disabilities Act of 1990, 42
U.S.C. 12101-12117, 12201-12213 (1994) (``ADA''), was a ``potential
source of confusion.''\15\ In seeking comments on section 825.307 of
the FMLA implementing regulations, which permits an employer to contact
the employee's health care provider for purposes of clarification and
authentication only through the employer's health care provider and
only with the employee's permission, the Department specifically asked
how this provision ``[should] be reconciled with the [ADA], which
governs employee medical inquiries and contains no such limitation on
employer contact?'' Although not directly mentioning the ADA, the
Department also asked for information relating to the ``implications of
permitting an employer to modify an employee's existing job duties to
meet any limitations caused by the employee's serious health condition
as specified by a health care provider, while maintaining the
employee's same job, pay, and benefits.''
---------------------------------------------------------------------------

\15\ Several commentators have called the intersection of the
ADA, the FMLA, and workers' compensation laws the ``Bermuda triangle
of employment laws'' because, while all three address employers'
obligations towards employees with certain medical conditions, the
responsibilities imposed by each are overlapping but distinctively
different. Lawrence P. Postol, ``Sailing the Employment Law Bermuda
Triangle,'' The Labor Lawyer, Vol. 18, No. 2 (Fall 2002); Peter A.
Susser, Family and Medical Leave Handbook, Vol. 6, No. 4, p. 7 (July
1998).
---------------------------------------------------------------------------

The ADA, which is enforced by the United States Equal Employment
Opportunity Commission (``EEOC''), the Department's Office of Federal
Contract Compliance Programs, and the Department of Justice, prohibits
private employers, state and local governments, employment agencies,
and labor unions from discriminating in employment against qualified
individuals with disabilities. See 42 U.S.C. 12101-12117, 12201-12213.
The statute includes an affirmative obligation to provide reasonable
accommodation to the known disability of a qualified applicant or
employee, unless doing so would pose an ``undue hardship.'' See 42
U.S.C. 12112 (b)(5)(A). Under the ADA, an employee who needs medical
leave related to his or her disability is entitled to such leave if
there is no other effective accommodation and the leave will not cause
an ``undue hardship'' on the employer's business operations. See EEOC,
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act (hereafter, ``EEOC Reasonable
Accommodation Guidance''), at Question 21. The FMLA, enforced by the
Department's Wage and Hour Division, entitles ``eligible'' employees of
covered employers up to 12 weeks of unpaid, job-protected leave each
year-with continuation of group health insurance coverage under the
same conditions as prior to leave-for specified family and medical
reasons, including the employee's own serious health condition. See 29
U.S.C. 2612, 2614(c). The FMLA does not include a provision for
``reasonable accommodation,'' nor does it limit the availability of
leave to situations where the employee's absence would not cause an
``undue hardship'' for the employer. Nonetheless, one of the stated
purposes of the FMLA is to allow an employee to take reasonable leave
for medical reasons ``in a manner that accommodates the legitimate
interests of employers.'' 29 U.S.C. 2601(b).
While both statutes provide employees with job-protected medical
leave, as the FMLA's legislative history makes clear, ``the leave
provisions of the [FMLA] are wholly distinct from the reasonable
accommodation obligations of employers covered under the [ADA].'' S.
Rep. No. 3, 103d Cong., 1st Sess. 38 (1993). Indeed, the two Acts have
distinctively different purposes: the ADA is intended to ensure that
qualified individuals with disabilities are provided with equal
opportunity to work, while the FMLA's purpose is to provide reasonable
leave from work for eligible employees. Compare 42 U.S.C. 12101 and 29
CFR 1630.1 (Title I of the ADA requires equal employment opportunity
for qualified individuals with disabilities) with 29 U.S.C. 2601(b)
(one of the purposes of the FMLA is ``to entitle employees to take
reasonable leave for medical reasons, for the birth or adoption of a
child, and for the care of a child, spouse, or parent who has a serious
health condition''). Recognizing this fact, section 825.702(a) of the
FMLA implementing regulations provides that ``[a]n employer must
therefore provide leave under whichever statutory provision provides
the greater rights to employees.'' See also EEOC, Fact Sheet: The
Family and Medical Leave Act, the Americans with Disabilities Act, and
Title VII of the Civil Rights Act of 1964 (hereafter, ``EEOC FMLA and
ADA Fact Sheet''), at Question 17.
Moreover, an FMLA ``serious health condition'' is not necessarily
an ADA ``disability.'' An ADA disability is an impairment that
substantially limits one or more major life activities, a record of
such an impairment, or being regarded as having such an impairment. See
42 U.S.C. 12102(2). While some conditions that qualify as serious
health conditions under the FMLA may be ADA disabilities (e.g., most
cancers and serious strokes), other qualifying serious health
conditions under the FMLA may not be ADA disabilities. For example,
periods of incapacity due to a routine broken leg or hernia could
qualify as an FMLA serious health condition, but not be a qualifying
disability under the ADA because the impairment is not substantially
limiting. Similarly, incapacity due to pregnancy (e.g., severe morning
sickness) qualifies as a serious health condition under the FMLA, but
may not be a disability under the ADA because the condition is not
long-term or permanent. See EEOC FMLA and ADA Fact Sheet, at Question
9.
Despite the different purposes and scope of the two statutes, the
FMLA and its implementing regulations borrow several important concepts
from the ADA. For example, the Department relied on ADA concepts when
defining one of the qualifying reasons for medical leave under the
FMLA--because of an employee's own serious health condition. The
statutory provision governing this issue provides that leave is
available ``because of a serious health condition that makes the
employee unable to perform the functions of the position of such
employee.'' 29 U.S.C. 2612(a)(1)(D). The implementing regulations
provide that leave entitlement accrues under this provision ``where a
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,'' as provided for under the ADA and the EEOC's
regulations. 29 CFR 825.115. Under the ADA, a qualified individual with
a disability is defined as an individual who, with or without
reasonable accommodation, can perform all of the ``essential
functions'' of the position in question. See 42 U.S.C. 12111(8). The
ADA implementing regulations define essential functions as the
``fundamental job duties'' of the employment position. 29 CFR
1630.2(n).
The intersection of the ADA and the FMLA, and its implications for
employees and employers, was the subject of much discussion by
respondents to the Department's RFI.

[[Page 35600]]

The comments focused on five broad areas of interplay between the two
statutes, discussed in greater detail below: (1) The interaction
between the FMLA employee notice provisions and the ADA prohibitions on
medical inquiries; (2) obtaining medical information under the FMLA and
the ADA; (3) confirming that an employee is fit to return to work after
medical leave under the FMLA and the ADA; (4) offering light duty,
modified work or transfers/reassignments under the FMLA and the ADA;
and (5) permitting ``reasonable leave for medical reasons'' under the
FMLA and the ADA.

A. The Interaction of the FMLA Employee Notice Provisions and the ADA
Medical Inquiry Prohibitions

Under section 825.302 of the FMLA implementing regulations, an
employee must provide notice ``sufficient to make the employer aware
that the employee needs FMLA-qualifying leave, and the anticipated
timing and duration of the leave.'' The request may be verbal and the
employee need not specifically mention the FMLA. See 29 CFR 825.302(c).
The regulations permit an employer to ``inquire further'' about an
employee's medical condition where insufficient information is
initially provided. Id. The ADA, however, strictly proscribes the
circumstances under which employers may make medical inquiries of
employees, including those without ADA disabilities, providing that:

A covered entity shall not require a medical examination and
shall not make inquiries of an employee as to whether such employee
is an individual with a disability or as to the nature and severity
of the disability, unless such examination or inquiry is shown to be
job-related and consistent with business necessity.

42 U.S.C. 12112(d)(4)(A); see also 29 CFR 1630.14(c).\16\ The ADA also
prohibits discrimination in employment against individuals who are
``regarded as'' having an impairment by their employer. 42 U.S.C.
12102(2)(c) and 12112(a).
---------------------------------------------------------------------------

\16\ EEOC Enforcement Guidance expressly provides that the ADA's
restrictions on inquiries and examinations apply to all employees,
not just those with disabilities, such that ``[a]ny employee * * *
has a right to challenge a disability-related inquiry or medical
examination that is not job-related and consistent with business
necessity.'' EEOC, Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees under the Americans
with Disabilities Act, at General Principles Section.
---------------------------------------------------------------------------

The Department received comments from employers and their
representatives suggesting that employees need to be further educated
about their obligations under the FMLA to provide appropriate
information about why leave is needed so that employers can fulfill
their obligations under the Act if the leave is potentially FMLA-
covered without violating the ADA's restrictions on medical inquiries
or running the risk that they will be deemed to have ``regarded''
someone as disabled. More than one commenter noted that an employee's
failure to provide adequate FMLA notice can place employers in an
unreasonable situation. For example, the National Coalition to Protect
Family Leave stated that employers often have been required to ```read
between the lines' by grasping unspoken behavioral clues that an
employee may need [FMLA] leave,'' which places ``employers--and their
front-line managers--in the impossible position of having to navigate
between compliance with the FMLA * * * and compliance with the [ADA]
which restricts medical inquiries of employees and prohibits employers
from `regarding' individuals as disabled.'' Doc. 10172A, at 31-32. A
law firm representing employers echoed similar concerns. Schwartz
Hannum PC, Doc. 10243A, at 7 (cases reasoning that ``unusual behavior''
may itself constitute notice to employer of need for FMLA leave
``impose an unreasonable expectation upon managers and human resources
personnel * * * such employer representatives must be able to intuit
when an employee's body language or behavior suggests that an FMLA
leave may be appropriate.'').
Still another commenter noted that ``[e]mployers are wary of asking
too many questions for fear of violating complicated limitations of the
ADA.'' Employers Association of New Jersey, Doc. 10119A, at 7. This
commenter stated that ``employers err on the side of caution and grant
many questionable FMLA requests to ensure the employee's rights are not
violated.'' Id. at 8; see also National Public Employer Labor Relations
Association, Doc. R358A, at 10 (suggestion in section 825.302 that
employers may ``inquire further'' about an employee's medical condition
when insufficient information is provided ``flies in the face of what
human resources managers have trained supervisors not to do under other
federal laws,'' such as the ADA).

B. Obtaining Medical Information Under the FMLA and the ADA

While an employer's obligation to provide medical leave under both
the FMLA and the ADA are triggered by similar employee notice
provisions, the approach an employer must follow to obtain appropriate
medical information to support the need for leave varies depending on
whether the employee's request is covered by the FMLA or the ADA. The
statutory provisions of the ADA outline the factors to be considered
when determining whether a reasonable accommodation must be granted (42
U.S.C. 12111(10)) and the types of medical inquiries and examinations
that may be made (42 U.S.C. 12112(d)), but do not specify a particular
process for considering an employee's request for reasonable
accommodation. The EEOC's implementing regulations and interpretative
guidance suggest that an employee and employer engage in an
``interactive process'' designed to confirm that the employee has an
ADA-covered disability and to identify an effective accommodation for
the employee's specific limitations. See generally 29 CFR Part 1630 and
Appendix to Part 1630--Interpretive Guidance on Title I of the
Americans with Disabilities Act (``This process of identifying whether,
and to what extent, a reasonable accommodation is required should be
flexible and involve both the employer and the individual with a
disability.''). As part of this process, the employer may request
reasonable documentation about the nature, severity, and duration of
the employee's impairment, and the extent to which the impairment
limits the employee's ability to perform daily activities when the
disability or the need for accommodation is not known or obvious. See
EEOC Reasonable Accommodation Guidance, at Question 6; EEOC,
Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act
(hereafter, ``EEOC Disability-Related Inquiries Guidance''), at
Question 7. If the initial information provided is insufficient, the
EEOC encourages the employer to ``consider consulting with the
employee's doctor (with the employee's consent).'' EEOC Disability-
Related Inquiries Guidance, at Question 11.
The FMLA, after appropriate notifications, allows the employer to
require that the employee submit a certification from his/her heaLth
care provider to support the need for FMLA leave. If the employer
questions the validity of the employee's certification, the employer
may require second and/or third medical opinions to resolve the
situation. See 29 U.S.C. 2613. The FMLA medical certification process
prohibits an employer from contacting an employee's health care
provider directly and restricts the scope and timing of information
requests. See 29

[[Page 35601]]

CFR 825.303-825.311; (See also Chapter V for a discussion of employee
notification rights and responsibilities and Chapter VI for a full
discussion of the FMLA medical certification and verification
process.).
Commenters routinely noted these differences between the ADA and
the FMLA, and the difficulties caused when leave requests triggered
obligations under both statutes. See International Foodservice
Distributors Association, Doc. 10180A, at 2 (``The severe limitations
on inquiries of healthcare providers certifying the presence of serious
health conditions--more extreme than under the ADA or state workers'
compensation laws--should be revisited.''). Several of these commenters
stated that the ``FMLA restrictions particularly are problematic when
employers face a request from an employee that triggers obligations
under both the FMLA and ADA, given that the latter requires the
employer to engage in interactive processes to accommodate the
employee.'' Temple University, Doc. 10084A, at 10; United States Postal
Service, Doc. 10276A, at 9-10 (``When an FMLA-qualifying `serious
health condition' is also a potential `disability' under the ADA,
[section 825.306's] restriction on medical information is in conflict
with the ADA interactive process, which allows--and arguably requires--
an employer to gather far more medical information regarding an
employee so that it can make an informed decision regarding possible
accommodations.''). Another commenter argued that the FMLA process
``places artificial restrictions on access to necessary information
regarding an employee's serious health condition. The limitations
imposed by the FMLA regulations go far beyond those imposed in such
acts as the [ADA] and clearly fail to balance both employer and
employee rights under the FMLA.'' MGM Mirage, Doc. 10130A, at 7; see
also U.S. Chamber of Commerce, Doc. 10142A, at 7 (``Employers found
that the burdens to obtaining medical information under the FMLA are
significantly greater'' than inquiries under the ADA).
Several commenters contrasted employees' obligations under the FMLA
medical certification process with employees' obligations under the ADA
interactive process. See, e.g., Pilchak Cohen & Tice, P.C., Doc.
10155A, at 23 (``employees should have a duty to cooperate with the
employer, as they do under the ADA''). A law firm reported that its
employer clients feel that their hands are tied when employees fail to
complete and return FMLA medical certification forms. Proskauer Rose,
Doc. 10182A, at 2. This commenter stated that, ``[w]ith the frequent
overlap between FMLA and employer-provided leave, and the interplay
with disability discrimination and workers compensation laws, many
employers are reluctant to risk disciplining an employee for the
administrative failure to timely comply with the provision of
information needed to make an FMLA eligibility determination.'' Id.
Commenters also noted that the two statutes allow employers to
obtain different information regarding an employee's medical condition,
with the ADA generally permitting a broader exchange of information.
See, e.g., South Central Human Resource Management Association, Doc.
10136A, at 11 (``The ADA allows an employer to obtain all relevant
medical information in determining whether a `disability' exists. The
same approach should be used under the FMLA.''); see also MedStar
Health, Inc., Doc. 10144A, at 17 (allow ``employers' health care
providers to obtain information regarding the actual diagnosis of an
employee's serious health condition,'' as is currently permitted under
the ADA). Still other commenters suggested that the Department ``allow
an employer the option of identifying key job skills and tasks, similar
to the [ADA], to allow the doctor to make a more informed decision
about the necessity of leave with respect to the specified essential
job functions.'' U.S. Chamber of Commerce, Doc. 10142A, at 8; see also
United States Postal Service, Doc. 10184A, at 14 (form should ``include
a statement that the provider has been informed of the employee's
essential job functions'').
Information received in response to the Department's RFI suggests
that one particularly problematic area for many employers is that the
FMLA prohibits direct employer contact with the employee's health care
provider, while the ADA does not. Compare 29 U.S.C. 2613 with EEOC
Disability-Related Inquiries Guidance, at Question 11. Several
commenters noted that the FMLA ``limitations associated with the
clarification process were created solely by the regulations. Such
limitations contradict what was expressly addressed and permitted by
Congress when enacting the ADA just three years before the FMLA.'' The
National Coalition to Protect Family Leave, Doc. 10172A, at 46; see
also Temple University, Doc. 10084A, at 10 (The FMLA restrictions on
direct doctor contact are ``purely a product of the regulation.''). One
commenter summed up the difficult position it believes this places
employers in:

If an employee requests reasonable accommodation under the ADA
in connection with or before an FMLA request, therefore, the Company
lawfully may have direct contact with the employee's health care
provider. In those cases, the rule that an employer may contact * *
* the provider directly for one purpose but not for the other
confuses employees and their providers. As well, whenever the
Company contacts a provider for ADA purposes during the
certification process, there is an inherent risk that the contact
could be challenged as unlawful under the FMLA.

Progressive, Doc. FL2, at 4.
A number of retailers reported that this limitation ``poses one of
the biggest obstacles to preventing FMLA misuse and abuse. It also
creates a conundrum for compliance-minded employers who are concerned
about violating the FMLA when fulfilling their obligations under the
ADA.'' National Retail Federation, Doc. 10186A, at 17. Furthermore,
some commenters felt that the prohibition against contact with the
health care provider is unnecessary. One public employer asserted:

Comparison with the [ADA] demonstrates that these additional
barriers are not necessary. The ADA, like the FMLA, requires
employers to review an employee's medical information and make
determinations about the employee's ability to work based on that
medical information. The type of medical information reviewed under
both statutory schemes is similar. Additionally, the employer's
staff members reviewing FMLA requests may also be responsible for
making determinations regarding employee ADA accommodation requests.

City of New York, Doc. 10103A, at 8; see also Edison Electric
Institute, Doc. 10128A, at 9 (``Our experience has shown no negative
consequences of direct contact between employers and their employees'
health care providers in the ADA context.''); Clark Hill PLC, Doc.
10151A, at 3-4 (Because the ADA ``clearly allows employers to make such
job related inquiries to a health care provider on their own* * *.
[t]he added burden of hiring a health care provider is not
necessary''). Comments from the National Retail Federation also reflect
this view:

Employers know based on the conversations they have with health
care providers during the ADA process that the clarification and
additional information they need usually does NOT require the
involvement of another health care professional. The need to follow-
up with the health care provider presents an exception and is borne
out of legitimate needs, such as to gain a better understanding of
an employee's condition, to determine if the employee qualifies, and
if so, what should the employer reasonably expect with respect to
intermittent absences and to curb abuse.

[[Page 35602]]

National Retail Federation, Doc. 10186A, at 17.
These commenters, and numerous others, suggested that the
Department ``allow employers to contact the health care provider to
confirm that appointments or treatments are being scheduled when least
disruptive to operations * * * and for the purposes of clarification
and to verify authenticity of the certification.'' Commonwealth of
Pennsylvania, Doc. 10042A, at 4; see also City of Philadelphia
Personnel Department, Doc. 10058A, at 2 (arguing that Department should
permit Human Resource department to contact employee's doctor ``when
medical certification is vague and needs clarification'' in same way
practice is ``currently permitted under the ADA''); Frost, Brown, Todd,
LLC, Doc. 10137A, at 2 (eliminate barrier on direct doctor contact as
``unnecessary and unjustified'' given that such contact is permitted
under ADA and most state workers' compensation laws); International
Public Management Association for Human Resources and International
Municipal Lawyers Association, Doc. R350A, at 4 (allow employers to
communicate directly with health care providers, as is permitted under
ADA).
Other commenters suggested that employers be permitted to require
that an employee provide a limited release allowing the disclosure of
sufficient medical information to confirm the need for leave, as is
permitted by the ADA. Seyfarth Shaw LLP (on behalf of a not-for-profit
health care organization), Doc. 10132A, at 4 (suggesting that employers
be allowed to require that employees seeking FMLA leave sign release
authorizing employer to submit list of questions to employee's health
care provider as is permitted by ADA); see also United States Postal
Service, Doc. 10184A, at 16-17 (noting that such an approach would be
consistent with the ADA where it is ``well settled law that an employee
who refuses to provide an employer with sufficient medical information
under the ADA can be denied the accommodation the employee seeks'').
For a fuller discussion of comments relating to medical releases and
medical certification forms generally, see Chapter VI.
More generally, many of the commenters stated that the FMLA
certification process could be improved if a more interactive process,
similar to that provided for under the ADA, was adopted. See, e.g.,
Fairfax County Public Schools, Doc. 10134A, at 4-5 (ADA interactive
process is ``much better model'' and FMLA ``regulations should
encourage free communication in order for the parties to have a common
understanding of medical limits and leave requirements'');
Manufacturer's Alliance/MAPI, Doc. 10063A, at 7 (suggesting that ``the
ADA informal interactive process used to gather information on an
employee's medical condition should be adopted under the FMLA'');
Society for Human Resource Management, Doc. 10154A, at 17 (``By
reconciling the processes permitted by the ADA with the FMLA, needless
time and expense associated with the FMLA approval process will be
eliminated.''); National Association of Manufacturers, Doc. 10229A, at
9 (``The ADA model should be adopted for the FMLA[.]''). A human
resource management association stated that an interactive process
would work better than the ``exchange of paper'' process currently in
place under the FMLA:

While we understand the goals reflected by the FMLA, perhaps it
would be less burdensome if employers were allowed to be involved in
the back-and-forth discussion between the employee and physician as
opposed to stressing the exchange of paper similar to the
``interactive process'' line of cases that has developed under the
ADA * * *. When family and medical leave is properly certified, it
is our experience that the leave is typically granted; however, when
the circumstances surrounding the leave are less than clear or the
doctor's certification is less than straightforward, the employer is
in a no-win situation.

Krukowski & Costello, S.C. (on behalf of Legislative Committee of the
Human Resource Management Association of Southeastern Wisconsin), Doc.
10185A, at 4.
Commenters suggested a number of potential benefits that might flow
from implementing similar processes for obtaining medical information
under the ADA and FMLA. The City of New York stated that more
consistent procedures would allow employers ``to make informed
decisions in a timely manner'' and reduce administrative compliance
burdens by allowing ``staff members who review both FMLA- and ADA-
related requests * * * to apply a similar inquiry procedure to both
types of situations.'' Doc. 10103A, at 9. Another commenter stated that
adopting similar processes would eliminate confusion between the FMLA
and ADA guidelines for medical inquiries and interactive discussion.
Northern Kentucky Chamber of Commerce, Doc. 10048A, at 7. The Ohio
Department of Administrative Services believed such a change would
``diminish the requirement that the doctor correct vague or incomplete
paperwork.'' Doc. 10205A, at 4-5. Another commenter suggested that the
need for a second opinion examination would be reduced by incorporating
ADA concepts into the FMLA certification process. See Pilchak Cohen &
Tice, P.C., Doc. 10155A, at 22. A health care provider argued that
coordinated procedures for obtaining medical information under the FMLA
and the ADA would reduce employer costs of providing FMLA leave.
MedStar Health, Inc., Doc. 10144A, at 17 (current rule creates an
``unnecessary cost for employers, even for those with in-house employee
health offices that are staffed by nurses but do not have a nurse
practitioner or other FMLA health care provider'').
The AFL-CIO, however, argued that the clear distinctions between
the ``reasonable accommodation'' provisions of the ADA and the ``leave
provisions'' of the FMLA made the different procedures under each
statute for obtaining medical information appropriate:

Since only ``known physical or mental limitations'' trigger an
employer's obligation to make reasonable accommodation under the ADA
(Sec. 12112(b)(5)(A)), it is reasonable for employers to have
direct contact with employees' health care providers in certain
limited situations. An ADA employer may require detailed medical
knowledge of an employee's disability in order to accommodate that
disability in the workplace. Furthermore, it is advantageous for
employees with disabilities if their employers understand their
limitations.
The same concerns are not present with respect to FMLA medical
determinations--employers are not required by the FMLA to make
changes in the workplace to accommodate the serious health
conditions of employees, and they therefore need less information
than employers under the ADA in order to fulfill their statutory
obligations. In the FMLA context, an employer does not need access
to information beyond a doctor's certification of the factors
establishing the presence of a serious health condition under the
statute and a doctor's estimate of likely absences or duration of
treatment.

American Federation of Labor and Congress of Industrial Organizations,
Doc. R329A, at 42-43. The National Partnership for Women & Families
also opined that the FMLA and the ADA raise different privacy concerns
and thus that a different approach to protecting medical privacy is
appropriate under the FMLA. See Doc. 10204A, at 21 (``The privacy
concerns regarding employers' access to medical information are
heightened in the context of the FMLA because the FMLA governs the
employer's access not only to the medical information of employees, but
also to the medical information of employees' family members. This
provides justification for additional caution in insuring the

[[Page 35603]]

privacy of medical information under the FMLA.'').

C. Confirming That an Employee Is Fit To Return To Work After Medical
Leave Under the FMLA and the ADA

Under the ADA, an employer may require an employee returning from
medical leave to provide a doctor's note, as long as it has a policy or
practice of requiring all employees to do so, and may require an
employee to submit to a fitness for duty examination when the
``employer has a reasonable belief that an employee's present ability
to perform essential job functions will be impaired by a medical
condition or that s/he will pose a direct threat.'' EEOC Disability-
Related Inquiries Guidance, at Questions 15 and 17. The FMLA
regulations, on the other hand, prohibit an employer from obtaining
(except when governed by a collective bargaining agreement or State or
local law) a fitness for duty examination when an employee returns from
an intermittent leave absence, even if the request would be permitted
under the ADA. See 29 CFR 825.310(g). The same section allows employers
to require a fitness for duty certification pursuant to a uniformly
applied policy, but limits that certification to a ``simple statement''
of an employee's ability to return to work and places limitations on an
employer's communications with the employee's health care provider
regarding the employee's ability to return to work that are not present
under the ADA. 29 CFR 825.310(c).
As noted in Chapter VI, numerous commenters questioned the FMLA
restrictions on fitness for duty certifications, with many arguing that
the current process compromises legitimate safety concerns. Several of
these commenters stated that the FMLA fitness for duty provision
``conflicts with that permitted under the ADA,'' with the latter
allowing both more substantive information and physical examinations.
National Coalition to Protect Family Leave, Doc. 10172A, at 50; see
also Fisher & Phillips LLP, Doc. 10262A, at 17-18 (``Employers must be
permitted to verify FMLA leave and fitness for duty in the same way
they currently verify other absences due to illness.''). An employer's
association that commented on the different standards under the ADA and
the FMLA stated that, ``an employer is more aware of the inherent
duties of a job than the employee's health care provider. Yet [under
the FMLA], the employer may not delay the employee's return to work
while contact with the health care provider is being made.'' Employers
Association of New Jersey, Doc. 10119A, at 8-9. This commenter
suggested that the Department adopt the reasonable belief standard used
under the ADA so that employers could seek fitness for duty
certifications for FMLA leave in all instances, and using the same
processes, permitted by the ADA. Id.
Several commenters representing employees cautioned that altering
the fitness for duty certification procedures under the FMLA would
place an ``unwarranted burden'' on employees. See, e.g., National
Partnership for Women & Families, Doc. 10204A, at 23. For a fuller
discussion of employee comments relating to this issue, see Chapter VI.

D. Offering Light Duty, Modified Work, or Transfers/Reassignments Under
the FMLA and the ADA

One of the qualifying reasons for medical leave under the FMLA is
for an employee's own serious health condition. The FMLA implementing
regulations provide that an employee is entitled to leave under this
provision ``where a 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 ADA
and the EEOC's regulations. 29 CFR 825.115.\17\ The regulations
prohibit employers from modifying an employee's job functions to
preclude the taking of FMLA leave. 29 CFR 825.220(b)(2), see also
825.702(d)(1). The FMLA permits the temporary reassignment of employees
needing intermittent or reduced schedule leave ``that is foreseeable
based on planned medical treatment'' under certain circumstances. See
29 U.S.C. 2612(b)(2).
---------------------------------------------------------------------------

\17\ As discussed later in this chapter, the Department received
comments suggesting that the Department's regulation is inconsistent
with the ADA. Under the ADA, an employee is entitled to reasonable
accommodation only if he or she has a covered disability and is
qualified to perform (with or without an accommodation) all of the
essential functions of his or her position. Only those physical or
mental impairments that ``substantially limit'' one or more major
life activities are covered disabilities under the ADA.
---------------------------------------------------------------------------

Under the ADA, an employer must provide reasonable accommodation,
including job restructuring, to qualified individuals with
disabilities. See 42 U.S.C. 12111(9); 29 CFR 1630.2(o). Under EEOC
Enforcement Guidance, an employer is not required to eliminate an
``essential function'' of a position, but may do so if it wishes.
``This is because an individual who is unable to perform the essential
functions, with or without reasonable accommodation, is not a
``qualified'' individual with a disability within the meaning of the
ADA.'' See EEOC Reasonable Accommodation Guidance, General Principles
Section. Moreover, the employer has the ``ultimate discretion'' to
choose among reasonable accommodations as long as the chosen
accommodation is effective. EEOC Reasonable Accommodation Guidance, at
Question 9. In certain situations, employers must offer light duty or
reassignment to qualified individuals with disabilities as a reasonable
accommodation. See, e.g., EEOC, Enforcement Guidance: Workers'
Compensation and the ADA (hereafter, ``EEOC Workers' Compensation
Guidance''), at Questions 27 and 28 (discussing employer's obligation
to provide light duty work); EEOC FMLA and ADA Fact Sheet, at Question
13 (discussing employer's obligation to reassign employee to vacant
position).
A number of commenters discussed the different treatment afforded
modified work, light duty, and transfers/reassignments under the FMLA
and the ADA. While commenters sometimes used these terms
interchangeably, this Chapter treats each issue separately. This is
because each may impose different obligations and restrictions on
employers under the ADA and the FMLA. Thus, for the Department's
purposes, the discussion of modified job duties generally refers to
situations where an employer wishes to modify an employee's job duties
in his or her existing job, and particularly to the suggestion by
commenters that employers should be permitted to remove one or more
essential job functions in lieu of providing FMLA leave. The discussion
of the treatment afforded ``light duty'' under the FMLA and ADA refers
to particular positions created specifically for the purpose of
providing work for employees who are unable to perform some or all of
their normal duties. It is important to note, however, that the term
``light duty'' also is used by some employers to refer to situations
whereby employees are excused from performing certain job functions of
their normal job or are assigned to any less demanding position. The
discussion below concerning transfers or reassignments is intended to
cover those situations whereby an employer reassigns an employee to an
alternative position, which need not be, and often is not, part of the
employer's ``light duty'' program.
1. Modifying Job Duties
The FMLA regulations prohibit employers from ``changing the
essential functions of [the employee's] job in order to preclude the
taking of leave.'' 29 CFR 825.220(b)(2). Many employers expressed
support for changing the regulations to allow ``an employer to

[[Page 35604]]

modify an employee's job duties in his/her existing job--including
removal of essential job functions--in lieu of FMLA leave.'' National
Coalition to Protect Family Leave, Doc. 10172A, at 36 (emphasis in
original); see also College and University Professional Association for
Human Resources, Doc. 10238A, at 9 (allowing modification of job duties
in employee's existing job allows for ``greater flexibility to meet
staffing needs''); National Retail Federation, Doc. 10186A, at 14-15
(``return[ing] an associate with a non-occupation illness or injury to
work in a manner that is consistent with restrictions is not unfriendly
to the employee and is consistent with the statutory intent of FMLA'');
DST Systems Inc. Doc. 10222A, at 3 (``Modifications enable an employee
to continue work and avoid the need for FMLA leave, thus eliminating
the burden on fellow employees and the employer, and loss of active
employment for the employee''). These commenters suggested that ``an
employee who can perform an essential function with an accommodation,
or by virtue of the elimination of that task for the period he or she
is unable to perform it, should not be permitted to reject the
accommodation and pursue FMLA leave. This result is contrary to the
legislative intent of FMLA, which was passed to protect employees who
had to miss work rather than employees who merely chose to miss work
because they prefer to avoid it.'' National Association of Convenience
Stores, Doc. 10256A, at 2-3; see also Fisher & Phillips LLP, Doc.
10262A, at 6 (same).
Commenters supporting this view argued that ``[a]llowing this would
benefit both employers and employees. The more options employees have
to remain at work, the less likely they are to exhaust their leave
rights and, more importantly, their rights to reinstatement.'' National
Coalition to Protect Family Leave, Doc. 10172A, at 36-37. A number of
employers felt that requiring modified work would be particularly
helpful in situations where the ``employee has requested intermittent
leave to be taken on an unplanned, unscheduled basis.'' Bendix, Doc.
10079A, at 8; see also The Retail Industry Leaders Association, Doc.
10259A, at 3-4 (same); Detroit Medical Center, Doc. 10152A, at 3
(same). A university employer stated that allowing an employer to
modify essential functions of an employee's job may be a better
alternative than placing the employee on leave, as it allows the
employer ``greater flexibility to meet staffing needs, while also
providing the employee with protections. It also would better
rationalize the FMLA with accommodation provisions of the [ADA] and the
light duty provisions of workers' compensation laws.'' Temple
University, Doc. 10084A, at 8-9; College and University Professional
Association for Human Resources, Doc. 10238A, at 9 (same). As one law
firm noted, ``[a]n employee at work performing his or her job is
certainly preferable to their not being at work at all. This option
would also benefit employees to the extent that they would now have the
opportunity to continue receiving pay.'' Fisher & Phillips LLP, Doc.
10262A, at 11.
A group representing 5,000 physicians and other health care
professionals specializing in the field of occupational and
environmental medicine stated that employers should be ``encouraged in
the FMLA to assist the employee to consider alternatives for a better
health solution than taking time off from work.'' The American College
of Occupational and Environmental Medicine, Doc. 10109A, at 2. Another
commenter noted it could not see any ``negative effect'' to allowing an
employer to alter the essential functions of an employee's job but
thought it was unlikely that ``most employers would ever take this
opportunity, as most are loathe to concede that essential functions may
not really be essential.'' Kennedy Reeve & Knoll, Doc. 4763A, at 12.
A number of employee organizations expressed concern about any
change to the FMLA scheme that would require employees to accept an
employer's offer of modified work in lieu of leave. As the National
Partnership for Women and Families stated:

One bedrock principle of the FMLA is the right of an eligible
employee to take a specified amount of leave for family or medical
reasons and then return to the same or equivalent job. To the extent
the RFI is considering a change in the regulations to require an
employee to accept an employer's offer to make modifications to the
employee's existing job to accommodate a serious health condition,
we believe such a change would be inconsistent with the express
language and intent of the FMLA. We also would oppose any effort to
penalize an employee who declined to accept such a position, except
as currently permitted by law. The law entitles eligible employees
to take up to twelve weeks of family or medical leave, and nothing
in the statute, regulations, or legislative history suggests that an
employee should lose the right to determine whether or not to take
leave if an employer modifies the employee's job duties.

National Partnership for Women & Families, Doc. 10204A, at 16; Families
USA, Doc. 10327A, at 5; see also American Federation of Labor and
Congress of Industrial Organizations, Doc. R329A, at 35 (``[N]either
the statute nor the regulations provides a basis for treating a
modified position as the equivalent of FMLA leave. An employee who
accepts a modified job does not forfeit his or her entitlement to a
full 12 weeks of leave if the employee remains unable to perform the
essential functions of the unmodified job.'').
Some employers also expressed concern about the implications of
eliminating essential job functions. A state employer, who opposed any
requirement that employers modify essential job functions under the
FMLA, expressed concern that such a proposal would not be cost
effective, require significantly more documentation, and cause
``further confusion'' between the FMLA and the ADA. The Commonwealth of
Pennsylvania, Doc. 10042A, at 2; see also The Pennsylvania Turnpike
Commission, Doc. 10092A, at 5 (permitting employers to modify existing
job duties would ``add to the existing confusion of FMLA and [ADA]
regulations''). Another state employer thought that it would be
``unduly burdensome to require employers to also modify job duties for
employees with serious health conditions'' because employers already
were legally obligated to provide modified work under workers'
compensation laws and the ADA. City of Portland, Office of Management
and Finance, Doc. 10161A, at 5. A business organization in Northern
Kentucky did not believe that permitting an employer to change the
essential functions of a job would be of ``significant value.''
Northern Kentucky Chamber of Commerce, Doc. 10048A, at 4-5. This
organization felt that permitting such a practice would likely add
increased administrative burdens, cause further conflict between the
ADA and the FMLA, and require increased communications with supervisors
to ensure that all assigned work met the employee's restrictions, among
other issues. See id. at 4-5; see also National Business Group on
Health, Doc. 10268A, at 5 (``implications of modifying an employee's
job duties include higher budgeted costs, peer dissatisfaction, and the
administrative difficulty of moving an employee to a temporary
position''); Elaine G. Howell, H.R. Specialist, International Auto
Processing, Inc., Doc. 4752, at 3 (modifying an employee's existing job
duties would allow employees to collect the same pay and benefits while
no longer doing an equivalent job and cause employees to provide their
physicians ``with reasons why they

[[Page 35605]]

could not do the most disliked portion of their jobs'').
A health system consisting of multiple hospitals in the Washington,
D.C., metropolitan area expressed concern that modifying one or more
essential job functions in lieu of providing leave under FMLA might
mean that an employer would be required to modify those same functions
as a reasonable accommodation under the ADA, when it otherwise would
not be required to do so.

In keeping with the approach under the [ADA] that essential job
functions need not be modified in order to accommodate an employee's
disability, such modifications should not occur to accommodate an
employee's serious health condition under the FMLA. Both laws serve
an important purpose in accommodating employees for the ultimate
objective of having them perform the essential job functions. Thus,
nothing should detract from determinations made regarding the
essential job functions as necessary and central to a job position.
Additionally, it is important to note that if employers modify
essential job functions for FMLA purposes, they have potentially
obligated themselves to doing so under the ADA.

MedStar Health, Inc., Doc. 10144A, at 14-15. As another employer noted,
removing essential job functions for FMLA purposes ``could lead to an
argument that these functions are not that essential, and that the
employer should be required to remove them from the position's job
duties altogether as an accommodation'' under the ADA. Washington
Metropolitan Area Transit Authority, Doc. 10147A, at 4; see also
Madison Gas and Electric Company, Doc. 10288A, at 3 (``An employer may
be hesitant to modify an employee's existing job duties due to the
implications of the [ADA].''). The health care employer felt that
``[t]his would be an undesirable result for employers seeking to
reasonably facilitate and manage ADA-related job accommodations.''
MedStar Health, Inc., Doc. 10144A, at 14-15. Another company, Zimbrick,
Inc. stated the following:

Because FMLA and ADA overlap, modifying existing job duties
essentially creates a temporary accommodation which could become
permanent. From a business perspective, why would we want to pay an
employee performing only part of the essential functions the same as
someone who performs all of them?

Doc. FL125, at 1.
The EEOC also stated that ``such an alteration to the FMLA rule
could raise new ADA issues related to essential functions and
reasonable accommodation.'' United States Equal Employment Opportunity
Commission, Doc. 10234A, at 3. In its comments, the EEOC acknowledged
that the ADA permits, but does not require, an employer to modify or
remove essential job functions. The Commission noted, however, that it
has not yet provided guidance on ``whether an employer's reasonable
accommodation duty [under the ADA] could be satisfied by reallocating
essential functions with the express purpose of precluding leave as a
reasonable accommodation.'' Id.
2. Offering Light Duty Work
A number of organizations also commented on the differences between
the FMLA's and ADA's treatment of light duty work. Section 825.220(d)
of the FMLA regulations provides that an employee may voluntarily
accept a ``light duty'' assignment while recovering from a serious
health condition, but cannot be coerced to do so. When an employee
accepts a light duty assignment, the time spent working in the light
duty position does not count against his or her FMLA leave entitlement.
Under the FMLA, the employee's right to be restored to the same (or
equivalent) position held prior to the start of the leave, however,
expires after a cumulative period of 12 weeks of leave and light duty
work. 29 CFR 825.220(d); see also Wage and Hour Opinion Letter FMLA-55
(March 10, 1995). By contrast, under the ADA, an employer does not have
to create a light duty position for an individual with a disability
but, if a vacant, light duty position already exists, the employer must
reassign the individual with a disability to the position if there is
no other effective accommodation available and the reassignment would
not pose an undue hardship. See EEOC, Workers' Compensation Guidance,
at Questions 27 and 28. In addition, if the only effective
accommodation available is similar or equivalent to a light duty
position, an employer must provide that accommodation, absent undue
hardship. See EEOC, Workers' Compensation Guidance, at Question 27.
Nearly all respondents to a survey conducted by a human resource
association in Ohio ``believed employees requesting leave for their own
serious health conditions should be required to accept light duty work
consistent with their medical restrictions, if offered.'' Miami Valley
Human Resource Association, Doc. 10156A, at 6-7. The National
Association of Convenience Stores, the U.S. Chamber of Commerce, the
Society for Human Resource Management, the College and University
Professional Association for Human Resources, and others agreed. See
National Association of Convenience Stores, Doc. 10256A, at 2-3; U.S.
Chamber of Commerce, Doc. 10142A, at 11; Society for Human Resource
Management, Doc. 10154A, at 9; College and University Professional
Association for Human Resources, Doc. 10238A, at 9; American Bakers
Association, Doc. R354A, at 4; American Hotel & Lodging Association,
Doc. R366A, at 3; National Public Employer Labor Relations Association,
Doc. R358A, at 8. Employers who supported this proposal believed that
``[i]n many cases, light duty may be a better alternative than placing
the employee on leave, as it allows the employer greater flexibility in
meeting its staffing needs. Such a change also would better rationalize
the FMLA with the accommodation provisions of the [ADA] and the light
duty provisions of many workers' compensation laws.'' College and
University Professional Association for Human Resources, Doc. 10238A,
at 9. Other commenters stated that it ``is unnecessary, and often ill-
advised, to allow an employee to refuse light duty * * * Experience has
shown that employees with minor injuries generally recover more quickly
if they are working, gradually returning to their former
capabilities.'' Society for Human Resource Management, Doc. 10154A, at
9; see also The Retail Industry Leaders Association, Doc. 10259A, at 3-
4 (same).
Several employers supporting mandatory light duty work thought that
such work should count against an employee's 12-week FMLA entitlement.
See National Association of Convenience Stores, Doc. 10256A, at 2-3;
Fisher & Phillips LLP, Doc. 10262A, at 6; American Bakers Association,
Doc. R354A, at 4 (Department should clarify that ``time spent in light
duty work away from the employee's usual job counts against the 12
weeks of FMLA entitlement for all purposes''). As one employer noted,
``light duty should count against an employee's FMLA leave entitlement
and reinstatement rights. Otherwise, the employer ends up essentially
making reasonable accommodations for FMLA even if the condition is not
an ADA-qualifying disability.'' Sally L. Burnell, Program Director,
Indiana State Personnel Department, Doc. 10244C, at 4.
On the other hand, some employers thought light duty should not
count against the employee's FMLA leave entitlement. A survey conducted
by a national law firm revealed that 66% of the almost 150 individuals
who responded on behalf of their companies did not believe that light
duty work should be counted against an

[[Page 35606]]

employee's FMLA leave entitlement. ``The vast majority of respondents
felt that light duty is generally the result of a work injury or
occupational injury and is better dealt with through the ADA or
workers' compensation. Most respondents stated that with light duty, an
employee is usually working and therefore not on leave.'' Hinshaw &
Culbertson LLP, Doc. 10075A, at 4; see also MedStar Health, Inc., Doc.
10144A, at 14 (``When an employee works, even in an alternate light
duty capacity, he/she is not absent under the meaning of the FMLA.'').
A number of organizations representing employees also opposed
permitting an employer to modify an employee's existing job in lieu of
providing leave. See, e.g., American Federation of Labor and Congress
of Industrial Organizations, Doc. R329A, at 34 (``treating light duty
work as the equivalent of FMLA leave falls squarely'' within statutory
prohibition making it unlawful to interfere with, restrain, or deny
exercise of right to take FMLA leave and conflicts with regulatory
provision concerning waiver of FMLA rights). Several of these
commenters thought that counting light duty as FMLA leave would be
unfair to employees because ``[i]f an individual is at work, even if
the duties have been modified to address the employee's illness or care
giving responsibilities, he or she is still engaging in productive
activity for the employer.'' University of Michigan Center for the
Education of Women, Doc. 10194A, at 2; see also Families USA, Doc.
10327A, at 4-5 (``opposes any reduction in FMLA leave for time spent
working in a ``light duty'' position.''); Coalition of Labor Union
Women, Doc. R352A, at 4-5 (``counting ``light duty'' work as FMLA leave
is not appropriate and runs counter to the intent of the statute'').
3. Standards for Transferring/Reassigning Employees
The Department also received comments regarding the differing
standards under the FMLA and the ADA for transferring or reassigning
employees to alternative positions. The FMLA provisions regarding
transfers to an alternative position, discussed more fully in Chapter
VIII, generally permit the employer to temporarily transfer an employee
who needs foreseeable intermittent or reduced schedule leave for
planned medical treatment to an alternative position with equivalent
pay and benefits. The position must be one for which the employee is
qualified and which better accommodates recurring periods of leave. See
29 U.S.C. 2612(b)(2). (See also Chapter IV discussing unscheduled
intermittent leave.). Under the ADA, part-time work or occasional time-
off may be a reasonable accommodation. As a general matter, transfer is
the accommodation of last resort under the ADA. However, if, or when,
an employee's need for part-time work or reduced hours in his or her
current position creates an undue hardship for an employer, the
employer must transfer the employee to a vacant, equivalent position
for which the employee is qualified, unless doing so would present an
undue hardship for the employer. If an equivalent position is not
available, the employer must look for an equivalent position at a lower
level. Further accommodation is not required if a lower level position
is also unavailable. See EEOC FMLA and ADA Fact Sheet, at Question 13.
Employers who place employees in lower level positions are not required
to maintain the employee's salary at the level of the higher grade,
unless the employer does so for other employees. See EEOC Technical
Assistance Manual Sec. 3.10.5.
As discussed more fully in Chapter VIII, a number of commenters
suggested that the FMLA regulations should be amended so that employers
may transfer employees who request unscheduled or unforeseeable
intermittent leave. Some commenters supporting reassignment argued that
employers should be permitted to temporarily transfer an employee to an
alternative position in ``all cases involving intermittent leave or
reduced leave schedules.'' United Parcel Service, Doc. 10276A, at 5.
Still other commenters suggested that employers should be allowed, in
certain circumstances, to permanently reassign employees needing
unforeseeable intermittent leave due to a chronic condition. See Betsy
Sawyers, Director, Human Resources Department, Pierce County,
Washington, Doc. FL97, at 4. Many employers that supported reassignment
urged that a process similar to that provided under the ADA be adopted,
whereby reassignment ``could be conditioned on the employer's
determination that unscheduled leave could not be continued without
jeopardizing the essential functions of the job. After making such a
determination, the employer could reassign the employee to a position
that better accommodated intermittent attendance.'' Fairfax County
Public Schools, Doc. 10134A, at 3; see also National Council of Chain
Restaurants, Doc. 10157A, at 10-11 (FMLA should ``accommodate employers
in a manner similar to the ADA,'' by permitting the employer to
transfer a manager needing unscheduled intermittent FMLA leave ``to a
lesser management or a non-management position that better accommodates
the employer's needs''). As one employer stated, this approach ``would
provide employers with more flexibility in accommodating the employee's
need for leave while enabling the employer to better manage the
workforce.'' Exelon, Doc. 10146A, at 8.
A law firm suggested that employers also be permitted to reduce the
employee's pay and benefits upon transfer, as is permitted for
reassignments under the ADA. See Pilchak Cohen & Tice, P.C., Doc.
10155A, at 12.\18\ Another commenter also recommended that the employer
``be allowed to adjust the employee's compensation and benefits so that
they are commensurate with the position into which the employee is
being moved.'' National Council of Chain Restaurants, Doc. 10157A, at
10-11. The law firm supporting this approach explained that, otherwise,
the provisions for transferring employees under the FMLA are
``inherently unrealistic'' because the ``employee would always prefer
to be transferred to a position with less responsibilities and less
duties, but with equal pay and benefits.'' Pilchak Cohen & Tice, P.C.,
Doc. 10155A, at 12.
---------------------------------------------------------------------------

\18\ While the FMLA permits the temporary reassignment of
employees needing intermittent or reduced schedule leave ``that is
foreseeable based on planned medical treatment'' under certain
circumstances, the statute expressly requires that the alternative
position have equivalent pay and benefits. 29 U.S.C. 2612(b)(2).
---------------------------------------------------------------------------

E. Permitting ``Reasonable Leave for Medical Reasons'' Under the FMLA
and the ADA

An employee is entitled to reasonable accommodation, including
medical leave, under the ADA only if he or she has a covered disability
and is qualified to perform (with or without an accommodation) the
essential functions of the position. 42 U.S.C. 12112(b)(5)(A); see
generally EEOC Reasonable Accommodation Guidance. Only those physical
or mental impairments that ``substantially limit'' one or more major
life activities are covered disabilities under the ADA. See 42 U.S.C.
12102(2)(A). Moreover, an employer is not required to provide any
accommodation that would pose an ``undue hardship'' on the operation of
the employer's business. See 42 U.S.C. 12112(b)(5)(A); 29 CFR 1630.9.
``Undue hardship'' means significant difficulty or expense and refers
not only to financial difficulty, but also to requested accommodations
that are unduly extensive, substantial, or disruptive, or those that
would fundamentally alter

[[Page 35607]]

the nature or operation of the business. See 42 U.S.C. 12111(10); 29
CFR 1630.2(p). An employer also is not required to eliminate an
essential function of an employee's position when providing
accommodation under the ADA. See generally EEOC Reasonable
Accommodation Guidance.\19\
---------------------------------------------------------------------------

\19\ The EEOC has stated that ``in some instances, an employer's
refusal to modify a workplace policy, such as a leave or attendance
policy, could constitute disparate treatment as well as a failure to
provide a reasonable accommodation.'' EEOC Reasonable Accommodation
Guidance, at Question 24. Numerous court decisions have held that
the ADA does not protect individuals who have ``erratic, unplanned
absences.'' EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 948
(7th Cir. 2001) (``our court, and every circuit that has addressed
this issue has held that ``in most instances the ADA does not
protect persons who have erratic, unexplained absences, even when
those absences are a result of a disability. The fact is that in
most cases, attendance at the job site is a basic requirement of
most jobs.''); accord Brenneman v. MedCentral Health System, 366
F.3d 412 (6th Cir. 2004); Mason v. Avaya Communications, Inc., 357
F.3d 1114 (10th Cir. 2004); Nesser v. Trans World Airlines, Inc.,
160 F.3d 442, 445 (8th Cir.1998); Hypes v. First Commerce Corp., 134
F.3d 721 (5th Cir.1998); Lyons v. Legal Aid Soc'y, 68 F.3d 1512,
1516 (2d Cir.1995); Tyndall v. Nat'l Educ. Ctrs., 31 F.3d 209, 213
(4th Cir.1994); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir.1994); cf.
Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th
Cir.1998); Hypes v. First Commerce Corp., 134 F.3d 721 (5th
Cir.1998); Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1516 (2d
Cir.1995); Tyndall v. Nat'l Educ. Ctrs., 31 F.3d 209, 213 (4th
Cir.1994); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir.1994); cf.
Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128 (9th Cir. 2001)
(noting ``that although excessive or unscheduled absences may
prevent an employee from performing the essential functions of his
job and thereby render him not otherwise qualified for purposes of
the ADA, regular and predictable attendance is not per se an
essential function of all jobs''); Ward v. Mass. Health Research
Inst., 290 F.3d 29 (1st Cir. 2000) (while ``regular and reliable
schedule may be an essential element of most jobs, resolution of the
issue in each case requires a fact-intensive inquiry into the
pattern of the attendance problem and the characteristics of the job
in question''); see also David v. Florida Power & Light Co., 205
F.3d 1301 (11th Cir. 2000) (holding that overtime, like job
presence, can be an essential function of a job).
---------------------------------------------------------------------------

One of the stated purposes of the FMLA is to permit employees to
take reasonable leave for medical reasons ``in a manner that
accommodates the legitimate interests of employers.'' 29 U.S.C.
2601(b). The statute entitles employees to FMLA leave for (among other
qualifying reasons) a serious health condition that makes them unable
to perform the functions of their position. See 29 U.S.C.
2612(a)(1)(D). The FMLA implementing regulations adopt the ADA
``essential function'' concept in explaining when an eligible employee
is entitled to leave for his or her own serious health condition. Under
section 825.115, leave may accrue to an eligible employee ``where a
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.'' 29 CFR 825.115. Other provisions of the FMLA
allow an employee to take leave intermittently or on a reduced
schedule. See 29 U.S.C. 2612(b); 29 CFR 825.203-825.205. Unlike the
ADA, however, neither the FMLA regulations nor the statute limits the
availability of such leave to situations where the employee's absence
does not impose an ``undue hardship'' on the employer.
A number of commenters believed that the FMLA regulations should be
revised to incorporate the ADA concept of ``substantially limited'' in
working. As a group of human resource professionals stated:

The Act seems to suggest that an employee is only entitled to
FMLA leave for a serious health condition when the condition makes
the employee totally unable to work. The Regulations have gone one
step further and state that an employee is entitled to FMLA leave if
he/she is unable to perform just one essential job function. * * *
Employees should only be able to take FMLA leave if they are
substantially limited in their ability to perform essential job
functions.

South Central Human Resource Management Association, Doc. 10136A, at
18; see also Baldor Electric Company, Doc. 10320A, at 2 (leave should
only be allowed when a person cannot perform the majority of the
essential functions). According to another employer, ``the current
regulatory framework allows for leave when an employee is unable to
perform only one essential function of his or her job, even if there
are ten other essential functions of the job that the employee is able
to perform. This conflicts with the provisions of the [ADA].'' Verizon,
Doc. 10181A, at 7.\20\
---------------------------------------------------------------------------

\20\ In the process of finalizing the FMLA implementing
regulations, the Department received comments questioning whether
section 825.115 was intended to mean that an eligible ``employee
must be found unable to perform each and every essential function
(i.e. all), or only any single one, or some of several of the
essential functions' in order to take FMLA leave due to his or her
own serious health condition. The Department made clear in the
preamble to its Final Rule that ``[t]his section was intended to
reflect that an employee would be considered ``unable to perform the
functions of the position'' * * * if the employee could not perform
any one (or more) of the essential functions.'' 60 FR 2179, 2196
(Jan. 6, 1995).
---------------------------------------------------------------------------

Commenters also routinely contrasted an employer's ability to
manage absenteeism under the FMLA and the ADA, particularly in
situations where an individual takes unscheduled intermittent leave. A
law firm representing employers summarized the inconsistencies between
the two statutes:

The [FMLA] Regulations clearly state that the ADA definition of
``essential job functions'' is to be used under the FMLA. 29 CFR
825.115. Although attendance is an essential job function under
well-established ADA case law, the Regulations ignore the case law
and permit employees to maintain unacceptable attendance records on
a permanent basis. In fact, the FMLA Regulations permit employees
with permanent chronic conditions to be absent with impunity for
approximately 25% of a work year. * * * The ADA, on the other hand,
does not protect an employee with a disability who cannot maintain
an acceptable attendance record.
The courts have consistently and uniformly held that attendance
is an essential job function and that a continuous or reduced
schedule leave of a reasonable duration are reasonable
accommodations under the ADA. * * *. [T]he FMLA was intended to
cover a temporary emergency or critical need for medical leave, not
a permanent non-emergency or non-critical need for medical leave.

Spencer Fane Britt & Browne LLP, Doc. 10133C, at 9; see also South
Central Human Resource Management Association, Doc. 10136A, at 13
(noting inconsistency between ADA and FMLA treatment of attendance and
stating that FMLA regulations ``permit chronic absenteeism problems
whereas the ADA does not''); United States Postal Service, Doc. 10184A,
at 24 (``Pursuant to the ADA, an employer is not required to
accommodate chronic absenteeism or allow employees to work on a part-
time schedule while encumbering a full-time position. Yet the FMLA
requires an employer to do just that.''); Association of Corporate
Counsel, Doc. FL31, at 2-3 (suggesting, when discussing employer's
ability to control absenteeism under FMLA, that ``current regulations
protect employee behavior that the Federal Courts and the EEOC have
concluded is not only unreasonable but also inconsistent with the
essential needs and expectations of employers''). For a full discussion
of comments regarding the impact of unscheduled intermittent leave on
attendance, see Chapter IV.
To address these concerns, a significant number of employers and
organizations representing employers suggested that intermittent or
reduced schedule medical leave should not be required under the FMLA
when it presents an ``undue hardship'' or means that the employee
cannot perform the essential functions of the position, as would be the
case under the ADA.

[P]rovisions could be added to the FMLA and its regulations to
take into account the impact of intermittent leave on the employer.
The ADA utilizes reasonableness and undue hardship standards when
assessing employee requests for accommodations. Under the ADA, an
employer is not required to fundamentally alter the nature of a
position in order to accommodate an employee's

[[Page 35608]]

disability. The FMLA and its regulations should include similar
considerations. An employer should not be required to grant a
request for intermittent leave if the request fundamentally alters
the nature of the employee's position (i.e., effectively changes the
start or end time for the position, allows the employee to excuse
himself/herself from work without notice, excuses the employee from
performing essential duties, excuses the employee from the
requirement to work overtime, etc.). An employer should not be
required to grant a request for intermittent leave if there is no
reasonable way to cover the employee's work duties (e.g., because of
the nature of the position; because the employee cannot provide
reasonable advance notice of the leaves; because the leaves are
frequent).

University of Minnesota, Doc. 4777A, at 3; see also National Retail
Federation, Doc. 10186A, at 11 (``One suggestion is that intermittent
leave should not be required where the unpredictable or short-term
nature of the absences impose undue hardship or mean that the employee
cannot perform the essential functions of the job.''); National Council
of Chain Restaurants, Doc. 10157A, at 10 (``same defenses available
under the ADA [e.g., undue hardship] should be available'' when
employee is unable to perform essential functions); Texas Parks and
Wildlife Department, Doc. 10253A, at 1 (allow employers to consider
business necessity when intermittent leave extends beyond one year or
480 hours of leave); International Public Management Association for
Human Resources and International Municipal Lawyers Association, Doc.
R350A, at 3 (summarizing survey of local, state, and federal government
employers, including respondent's suggestion that ``an ADA-type
exception be made if the need for intermittent leave will pose an undue
hardship on the employer''). One commenter suggested that amending the
FMLA to include ``undue hardship'' and ``direct threat'' defenses would
import the ``important balance between employee and employer rights
found in the ADA'' to the FMLA and make the two laws better integrated.
Pilchak Cohen & Tice, P.C., Doc. 10155A, at 18.
While not specifically addressing the inclusion of an ``undue
hardship'' defense under FMLA, several commenters representing
employees indicated that they ``strongly oppose any reconsideration of
the FMLA that would serve to limit FMLA's scope or coverage.'' American
Federation of State, County and Municipal Employees, Doc. 10220A, at 1.
A membership organization affiliated with the AFL-CIO expressed concern
about the impact ``scaling back'' FMLA protections would have. They
noted that, at each FMLA workshop they conducted, ``attendees
repeatedly told us that, without the protections offered by the FMLA,
many would have been out of work and without crucial healthcare
benefits, due to their employers' very strict absence policies.''
Coalition of Labor Union Women, Doc. R352A, at 2. The National
Partnership for Women & Families, while acknowledging that ``situations
involving unscheduled leave may present unique challenges for both
employees and employers,'' argued that limiting the availability of
unscheduled leave ``would be inconsistent with the very purpose of the
FMLA'' which provides for unscheduled leave because ``it is impossible
to plan or script every situation where family or medical leave is
needed.'' Doc. 10204A, at 12.

VIII. Transfer to an Alternative Position

The RFI did not specifically ask questions about an employer's
ability to transfer an employee to an ``alternative position'' but the
Department received many unsolicited comments on this topic. Under the
Act, an employer may transfer an employee to an ``alternative
position'' with equivalent pay and benefits when the employee needs to
take intermittent or reduced schedule leave ``that is foreseeable based
on planned medical treatment[.]'' 29 U.S.C. 2612(b)(2). This statutory
provision was intended ``to give greater staffing flexibility to
employers by enabling them temporarily to transfer employees who need
intermittent leave or leave on a reduced leave schedule to positions
more suitable for recurring periods of leave. At the same time, it
ensures that employees will not be penalized for their need for leave
by requiring that they receive equivalent pay and benefits during the
temporary transfer.'' 60 FR 2180, 2202 (Jan. 6, 1995).
Section 825.204 of the regulations explains more fully when an
employer may transfer an employee to an alternative position in order
to accommodate intermittent leave or a reduced leave schedule. Section
825.204(a) sets the general parameters for the transfer: ``If an
employee needs intermittent leave or leave on a reduced leave schedule
that is foreseeable based on planned medical treatment for the employee
or a family member, * * * 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.'' 29 CFR
825.204(a).
Section 825.204(d) prohibits an employer from ``transfer[ing] the
employee to an alternative position in order to discourage the employee
from taking leave or otherwise work a hardship on the employee.''
Section 825.204(e) limits the length and circumstances of the transfer:
``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/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.'' 29 CFR 825.204(e). Unlike a
``light duty'' assignment under section 825.220 of the regulations, a
transfer to an alternative position does not require the employee's
consent. Cf. 29 CFR 825.220(d) (light duty) (``[Regulations do] not
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[.]'').

A. Department's Regulations Only Permit Transfer Where Employee Needs
Intermittent Leave or Leave on a Reduced Leave Schedule That Is
Foreseeable Based on Planned Medical Treatment.

A significant number of commenters questioned why the regulations
permit an employer to transfer an employee only when the employee's
need for leave is foreseeable based on planned medical treatment as
opposed to a chronic need for unforeseeable leave. These stakeholders
noted as an initial matter that the statute is silent on the issue.
``We recognize that while the statute allows an employer to transfer an
employee taking intermittent or reduced schedule leave for planned
medical treatment, * * * it is silent on taking unforeseeable
intermittent leave or foreseeable leave unrelated to treatment.''
Seyfarth Shaw LLP (on behalf of a not-for-profit health care
organization), Doc. 10132A, at 3. It is the regulations, commenters
contended, that prohibit a transfer in the unforeseeable intermittent
context. ``As presently drafted, Sec. 825.204 only permits employers
to transfer an employee to an alternative equivalent position where the
employee's need for intermittent leave is `foreseeable based on planned
medical treatment.''' United Parcel Service, Doc. 10276A, at 5.
``Section 825.204 allows an employer to transfer an employee to an
alternative

[[Page 35609]]

position where the leave is foreseeable based on planned medical
treatment for the employee or a family member.'' Seyfarth Shaw LLP (on
behalf of a not-for-profit health care organization), Doc. 10132A, at
3. Moreover, Ford & Harrison noted a recent Sixth Circuit case, which
stated that the Department's regulations allow ``an employer [to] * * *
transfer an employee only when the need for the intermittent leave is
foreseeable.'' Doc. 10226A, at 6. See Hoffman v. Professional Med Team,
394 F.3d 414, 421, n.11 (6th Cir. 2005) (transfer of employee with
chronic condition requiring unforeseeable leave likely prohibited by
sections 825.204(a), (c), and (d)).
Many commenters saw no practical basis for differentiating between
foreseeable and unforeseeable need for leave in this context. ``We do
not see any basis for distinguishing between foreseeable vs.
unforeseeable leaves for purposes of such temporary transfers.'' United
Parcel Service, Doc.10276A at 5. Similarly, another commenter stated:

[Section 825.204 provides n]o similar option * * * for employers
to transfer or otherwise alter the duties of an employee who needs
unscheduled or unforeseeable intermittent leave. Even if the
employee's unscheduled intermittent absences may result in
substantial safety risks to the public or co-employees, or could
cause serious disruption to the operations of the employer, such
employee's duties or position cannot be altered as a result of the
unscheduled intermittent leave.

The Southern Company, Doc. 10293A, at 3. Another company echoed the
same concern that under the current regulatory scheme ``[e]mployers do
not have [the option] to transfer or otherwise alter the duties of an
employee who needs unscheduled or unforeseeable intermittent leave.''
Edison Electric Institute, Doc. 10128A, at 6.
In fact, many employers reported that the underlying rationale for
the transfer provision--to provide ``greater staffing flexibility''
while maintaining the employee's same pay and benefits--is best served
where the employee's need for leave is unforeseeable. ``[I]f there is
to be such a distinction, then a strong argument can be made that the
DOL and Congress got it exactly backwards. Indeed, it is much easier
for employers to arrange temporary coverage of an employee's normal job
duties where the intermittent leaves occurs on a regular and
foreseeable schedule, than it is to accommodate an employee with a
chronic condition with unforeseeable flare-ups[.]'' United Parcel
Service, Doc. 10276A, at 5. Other commenters agreed:

Employers report that it is most often the employees whose
intermittent or reduced leave schedule is unforeseeable who cause
the most disruption in the workplace. For example, an employee works
on an assembly line in a factory that runs on a 24-hour basis in
three shifts. The employee has been approved to take intermittent
leave to accommodate migraines and has been calling in sick on a
relatively frequent, but unforeseeable basis (e.g., approximately
three times a month), giving only about an hour notice before the
start of his shift. Good attendance is essential to this position
because an absence can hold up the entire production line.

Ford & Harrison LLP, Doc. 10226A, at 6. ``The most complicated part of
intermittent leave * * * occurs with unplanned intermittent leave * * *
[A]ccommodating late arrivals or even early departures to satisfy the
requirements of an intermittent leave can create problems in the
workplace, including overburdening other workers and creating a sense
of inequity and frustration.'' Leonard, Street and Deinard, Doc.
10330A, at 2.
Other commenters criticized the entire idea of ``alternative
positions'' as unrealistic and/or problematic. For example, one law
firm stated that ``alternative positions'' are a fiction:

Alternative positions do not exist in the real world. [The
regulations] provide that in a reduced schedule situation, ``an
[employer] may assign an employee to an alternate position with
equivalent pay and benefits that better accommodate the employee's
intermittent or reduced leave schedule.'' * * * When this provision
is pointed out, the overwhelming majority of employers I work with
just laugh. Employers simply do not have ``alternative positions''
hanging around which they can simply slot someone into. Most FMLA-
covered companies are small and medium sized. They do not have
hundreds of positions. This was a regulatory provision written
without understanding of the real world. Real companies are trying
to run lean. They do not [have], and cannot afford to create, an
extra position which is not needed. So, the ``alternative position''
provision is generally useless.

Boardman Law Firm, Doc. FL4, at 2.

Even where an alternative position exists to which an employee on
intermittent leave may be assigned, problems can arise. ``Employees on
unpredictable intermittent leave who have been placed in lower-level
positions on a temporary basis can degrade morale of other employees in
the same positions. The other employees in the same positions may earn
lower wages than the employees on FMLA leave, but those other employees
are held to higher attendance standards, absent their own need for FMLA
leave.'' North Dakota Society for Human Resource Management State
Council, Doc. FL90 at 3. ``[T]he regulation that permits an employer to
transfer an employee to another position which better accommodates the
intermittent leave is inherently unrealistic. Is there any doubt that
an employee would always prefer to be transferred to a position with
less responsibility and less duties, but with equal pay and benefits?
And, would an employee placed into such a position of equal pay and
benefits, but with less responsibilities and duties, have any
motivation to get better?'' Pilchak Cohen & Tice, P.C., Doc. 10155A, at
12.

B. Recommendations From the Regulated Community

Most stakeholders who submitted comments on this subject agreed
that the regulations should be revised to permit employee transfers in
the case of either foreseeable or unforeseeable leave: ``This section
should be amended to permit the transfer to an alternative position for
unforeseen intermittent absences or foreseen intermittent absences
unrelated to medical treatment. * * * In the absence of such an
amendment, prohibiting such transfers often creates undue hardship to
our organization's ability to provide patient care or other services
and does not further the purposes of the FMLA.'' Seyfarth Shaw LLP (on
behalf of a not-for-profit health care organization), Doc. 10132A, at
3. ``The FMLA regulations should be clarified to ensure that the
employer may transfer the employee to a position that better
accommodates an unforeseeable intermittent leave schedule.'' Ford &
Harrison LLP, Doc. 10226A, at 6. ``DOL should revise Sec. 825.204 to
permit temporary transfer in all cases involving intermittent leave or
reduced leave schedules.'' United Parcel Service, Doc. 10276A, at 5.
``Section 825.204 should be modified to allow an employer to transfer
an employee who requires unscheduled intermittent leave to an
alternative position with equivalent pay and benefits or to otherwise
alter such employee's job duties (e.g., assign to another shift) in
order to better accommodate the periods of intermittent leave. Such a
modification would allow an employer to determine how to best
accommodate the employee's periodic and unforeseen absences to minimize
the disruption in the workplace and perhaps avoid a safety risk to
others, while at the same time allow the employee to perform the
essential functions of the position to the best of his or her
ability.'' The Southern Company, Doc. 10293A, at 3. ``Employers should
be provided with greater flexibility to temporarily transfer

[[Page 35610]]

employees to positions that better accommodate intermittent and reduced
schedule absences.'' Taft, Stettinius & Hollister LLP, Doc. FL107, at
3. ``The employer should be permitted to move an employee on
intermittent leave * * * to another position with the same salary and
benefits, if in such a position the leave would be less disruptive. * *
* [P]ermitting the employer flexibility to relocate an employee at the
same salary and benefits * * * would help to address the difficulties
employers have in addressing demands for intermittent leave for chronic
illnesses.'' Leonard, Street and Deinard, Doc. 10330A, at 2. ``[T]he
employer should be able to place employees whose restrictions only
require some additional rest periods, or less strenuous work, into
other slots, without requiring time off.'' Indiana Chamber of Commerce,
Doc. 10170A, at 3. ``Employers should be able to reassign an employee
on intermittent leave, without loss to the hourly pay rate or
degradation in assignment, to a position schedule that would be more
conducive to an intermittent schedule without fear of retaliation
claims. Employees would still be returned to the same or similar job
assignment at the end of the FMLA leave.'' County of Placer, Doc.
10067A, at 3.
Some employers felt the move should be potentially permanent where
the employee's schedule cannot meet the employer's need:

Where regular and predictable attendance is an essential
function of a position, and the employee occupying that position has
a chronic medical condition that the physician has determined will
never allow regular and predictable attendance, the Employer should
be allowed to accommodate that employee by permanently transferring
him/her to an alternative position or, if no alternative is
available, to separate the employee from the position that requires
regular and predictable attendance, even if the employee has not
exhausted the 12 weeks of FMLA leave.

Betsy Sawyers, Director, Human Resources Department, Pierce County,
Washington, Doc. FL97, at 4. The Fairfax County Public Schools echoed
this theme: ``[I]t would be helpful if the regulations would allow the
employer to reassign the employee after a specified period of
unscheduled intermittent leave, such as two or three months.
Reassignment could be conditioned on the employer's determination that
unscheduled leave could not be continued without jeopardizing the
essential functions of the job. After making such a determination, the
employer could reassign the employee to a position that better
accommodated intermittent attendance.'' Doc. 10134A, at 3. In a
different but related context, Ford & Harrison made the same
suggestion: ``[An] employee works in [a] position at the * * * factory.
The employee sees a posting for an opening for the assembly line
position for which good attendance is essential and requests a
promotion or transfer to that position. If the employee is otherwise
qualified for the position, but for the employee's attendance issues
due to the intermittent FMLA leave, the regulations should be clarified
to ensure that the employer be allowed to deny the promotion/transfer
without risking a claim of FMLA retaliation or interference with the
employee's FMLA rights on the grounds that the employee's current
position better accommodates an unforeseeable intermittent leave
schedule.'' Ford & Harrison LLP, Doc. 10226A, at 6.
The Southern Company noted that permitting transfers of employees
who need unforeseeable leave would be consistent with the spirit of the
FMLA, given the pay and benefits safeguards built into the transfer
provision. ``All the safeguards that currently exist in Section 825.204
(i.e., equivalent pay and benefits, transfer may not work a hardship on
employee, and restoration rights at the end of the necessity of the
leave) would be applicable to ensure that the employee's rights to take
FMLA leave will not be deterred in any way. Accordingly, modifying
Section 825.204 to encompass intermittent unscheduled leave would be
consistent with the FMLA's stated purpose ``to entitle employees to
take reasonable leaves for medical reasons * * * in a manner that
accommodates the legitimate interests of employers.'' The Southern
Company, Doc. 10293A, at 3. Edison Electric agreed that this was a
reasonable solution under the Act: ``Such a modification [to the
regulations for unscheduled intermittent leave] would allow an employer
to determine how to best accommodate the employee's periodic and
unforeseen absences to minimize the disruption in the workplace and
perhaps avoid a safety risk to others, while at the same time allowing
the employee to perform the essential functions of the position to the
best of his or her ability.'' Doc. 10128A, at 7. But see Brian T.
Farrington, Esq., Doc. 5196, at 1 (``Th[e] [intermittent absence]
problem is particularly acute when the employee performs an important
or unique function, and repeated absences can put the employer in a
very difficult situation. In such a case, transferring the employee to
another position * * * doesn't solve the problem. The employee is
needed in his/her principal position, not some alternative job.'').
On the other hand, some commenters pointed out the potential
downside of permitting employers to unilaterally modify jobs.
``Allowing employers to modify employee's job duties to temporarily
meet limitations may be acceptable until the employee recovers fully.
However, the potential for employer's modification being sub-par,
demoralizing and unfair is very, very high.'' An Employee Comment, Doc.
10336A at 26. The AFL-CIO, moreover, encouraged employers to use the
tools they currently have to reach a mutually agreeable solution: ``We
encourage employers to consider whether job modifications will permit
employees to remain at the workplace under mutually agreeable
arrangements.'' Doc. R329A, at 36.

IX. Substitution of Paid Leave

The Department requested input on three issues related to the
substitution of paid leave provisions: (1) The impact of the
prohibition under section 825.207 on ``applying [employers'] normal
leave policies to employees substituting paid vacation and personal
leave for unpaid FMLA leave[;]'' (2) how the ``existence of paid leave
policies affect[s] the nature and type of FMLA leave used[;]'' and (3)
whether ``employers allow employees to use paid leave such as sick
leave to cover short absences from work (such as late arrivals and
early departures) for FMLA covered conditions[.]''
Section 102(c) of the Act provides that FMLA leave is, as a general
rule, unpaid leave. Section 102(d) addresses circumstances in which an
employee may substitute (i.e., use concurrently) accrued paid leave for
the unpaid FMLA leave period. See 29 U.S.C. 2612(d); 29 CFR 825.207(a).
Under this section of the FMLA, an ``employee may elect, or an employer
may require, the employee to substitute'' accrued paid leave for the
employee's FMLA leave. See 29 U.S.C. 2612(d)(2); 29 CFR 825.207(a).
That is, the law provides employees the option to take their accrued
paid leave concurrently with their FMLA leave in order to mitigate
their wage loss. If an employee elects not to substitute accrued paid
leave, however, the employer has the right to require such
substitution. Where either the employee or the employer elects to
substitute accrued paid leave, the employee will be entitled to FMLA
protection during the period in which paid leave is substituted.
The underlying reason for an FMLA request determines the types of
available accrued paid leave that may be substituted. If the requested
FMLA leave

[[Page 35611]]

is for the birth of a child, placement of a child for adoption or
foster care, or to care for a spouse, child or parent who has a serious
health condition, employees may choose to--or be required by their
employers to--substitute any accrued vacation, personal (including
leave available leave under a ``paid time off'' plan) or family leave
(subject to limitations). See 29 U.S.C. 2612(d)(2)(A)-(B); 29 CFR
825.207(b), (e).
When employees seek FMLA leave to care for their own or a
qualifying family member's ``serious health condition,'' accrued paid
medical, sick, vacation or personal leave may be substituted. See 29
U.S.C. 2612(d)(2)(B); 29 CFR 825.207(c). The substitution of accrued
medical/sick leave for FMLA leave is limited to circumstances that meet
the requirements of the employers' existing medical/sick leave
policies. See 29 U.S.C. 2612(d)(2)(B); 29 CFR 825.207(c). Employers are
not required to ``provide paid sick leave or paid medical leave in any
situation in which such employer would not normally provide any such
paid leave.'' 29 U.S.C. 2612(d)(2)(B). Essentially, employers may
maintain medical/sick leave policies distinct and separate from FMLA
leave, and will not be required to provide paid leave where the reason
for the leave is not covered by their policy (e.g., if the employer's
plan allows the use of sick leave only for the employee's own
condition, the employer is not required to allow an employee taking
FMLA leave to care for a child to use sick leave). As the regulations
state, ``an employee does not have a right to substitute paid medical/
sick leave for a serious health condition which is not covered by the
employer's leave plan.'' See 29 CFR 825.207(c).
The regulations specifically prohibit employers from placing any
restrictions or limitations on employees' accrued vacation or personal
leave, however, or any leave earned or accrued under ``paid time off''
plans. See 29 CFR 825.207(e). Additionally, the regulations provide
that, if neither the employee nor the employer chooses to substitute
paid leave, the employee ``will remain entitled to all paid leave''
previously accrued or earned. See 29 CFR 825.207(f).
The regulations also address how FMLA entitlements are applied when
employees qualify for both FMLA leave and payments under a non-accrued
paid benefit plan, such as leave provided under a temporary disability
or workers' compensation plan. See 29 CFR 825.207(d). Specifically, the
regulations provide that when employees are on leave under a short-term
disability or workers' compensation plan, the choice to substitute paid
leave for unpaid FMLA leave is inapplicable, because such benefit plans
already provide compensation and the leave therefore ``is not unpaid.''
See 29 CFR 825.207(d)(1)-(2). To the degree that the underlying
condition for which the employee is receiving workers' compensation or
short-term disability pay also qualifies as a serious health condition
under the FMLA, an employer may designate FMLA leave to run
concurrently with the employee's workers' compensation or disability
leave. See id.; see also Repa v. Roadway Express, Inc., 477 F.3d 938,
941 (7th Cir. 2007) (``Because the leave pursuant to a temporary
disability benefit plan is not unpaid, the provision for substitution
of paid leave is inapplicable. However, the employer may designate the
leave as FMLA leave and count the leave as running concurrently for
purposes of both the benefit plan and the FMLA leave entitlement.'').
If the requirements to qualify for disability plan payments are more
stringent than those of the FMLA, the employee may either satisfy the
more stringent plan standards or instead choose not to receive
disability plan payments and use unpaid FMLA leave or substitute
available accrued paid leave. See 29 CFR 825.207(d)(1).
Under section 825.207(h), if the employer's notice or certification
procedural standards for taking paid leave are less stringent than the
general FMLA requirements and such paid leave is substituted for the
FMLA leave, the employee may be required to meet only the less
stringent requirements. However, if ``accrued paid vacation or personal
leave is substituted for unpaid FMLA leave for a serious health
condition, an employee may be required to comply with any less
stringent medical certification requirements of the employer's sick
leave program.'' 29 CFR 825.207(h). Further, where employees comply
with the applicable less stringent requirements, employers may not deny
or limit FMLA leave. Id. Nevertheless, as the preamble to the 1995
Final Rule noted, employers may revise any such less stringent notice
or certification requirements so that their paid leave programs
correspond to the FMLA requirements, or may treat paid and unpaid leave
differently. See 60 FR 2180, 2206, Jan. 6, 1995. Comments regarding the
effects of these regulatory provisions on employers' paid leave
policies are also discussed in Chapter IX.B.1.
Lastly, the regulations provide that compensatory time off,
available to state and local government employees under section 7(o) of
the Fair Labor Standards Act (``FLSA''), is not considered a ``form of
accrued paid leave.'' See 29 CFR 825.207(i). Employees may request to
take accrued compensatory time in lieu of FMLA leave, but employers may
not require its substitution.\21\ If compensatory time is used in lieu
of FMLA leave, employers may not count it against employees' FMLA
entitlement. Id.
---------------------------------------------------------------------------

\21\ ``Compensatory time off'' is paid time off accrued by
public sector employees in lieu of ``immediate cash payment'' for
working in excess of the applicable maximum hours standard of the
FLSA. 29 CFR 553.22(a). Compensatory time must be earned at a rate
of not less than ``one and one-half hours for each hour of
employment for which overtime compensation is required by section 7
of the FLSA.'' 29 CFR 553.22(b). Police, firefighters, emergency
response personnel, and employees engaged in seasonal activities may
accrue up to 480 hours of compensatory time, while other public
sector employees may accrue up to 240 hours. See 29 CFR 553.24.
---------------------------------------------------------------------------

In response to the RFI, the Department received many comments
related to the general impact of the substitution of paid leave
provisions. The RFI also generated comments on how these provisions
interact with employer policies regarding paid leave and other
workplace benefits, such as temporary or short-term disability leave,
leave under workers' compensation plans, and collectively bargained
leave benefits. Some commenters also addressed the impact of the
substitution of leave provisions on the requirements of certain other
state and federal laws.

A. General Impact of the Substitution of Paid Leave Provisions

Several employee advocacy groups noted that the ability to
substitute paid leave for an otherwise unpaid FMLA leave period is a
critical factor in employees being able to utilize FMLA leave.
According to these commenters, the substitution of paid leave
provisions are ``essential to workers' ability to exercise their rights
under the law. Few workers can afford to take extended periods of leave
without pay.'' See Faculty & Staff Federation of Community College of
Philadelphia, Local 2026 of the American Federation of Teachers, Doc.
10242A, at 4. See also Center for Law and Social Policy, Doc. 10053A,
at 3 (same); Service Employees International Union, Local 668
Pennsylvania Social Services Union, Doc. FL105, at 3 (``Permitting
workers to use their accrued paid leave as wage replacement * * * makes
it possible for them to take time off to address critical family and
medical issues.'').
The AFL-CIO also noted that the lack of paid leave ``presents a
significant obstacle for those who cannot afford to take FMLA leave,''
as shown by the 2000 Westat Report, which found that

[[Page 35612]]

the most commonly noted reason for not taking leave was inability to
afford it. Doc. R329A, at 28-29. The Coalition of Labor Union Women
similarly noted that ``a disturbing number of workers are unable to
take advantage of FMLA leave because it is not paid and they cannot
afford to lose time away from paying jobs.'' Doc. R352A, at 4. Allowing
the substitution of paid leave has ``helped many employees cope with
personal and family health emergencies,'' without which they ``would
have faced a terrible choice between their health needs and their job
security,'' while allowing such flexibility ``promotes worker morale
and productivity.'' Id. See also International Association of
Machinists and Aerospace Workers, Doc. 10269A, at 2; 9to5, National
Association of Working Women, Doc. 10210A at 3; National Partnership
for Women & Families, Doc. 10204A, at 9-10; Families USA, Doc. 10327A,
at 3-4. Moreover, the Coalition of Labor Union Women made the point
that, because paid leave is available only when already provided by
employers, the employers have already determined that such paid leave
``will not have an adverse impact on their business * * * and does not
create undue hardships for the employer.'' See Doc. R352A, at 4.
The National Business Group on Health similarly stated that
allowing paid leave and FMLA leave to run simultaneously both
``protects employees' incomes during periods of serious illness and
maximizes the flexibility in the design of employer leave policies.''
Doc. 10268A, at 7. The Maine Department of Labor asserted that allowing
substitution helps everyone: employees living paycheck-to-paycheck, who
``cannot afford to take unpaid leave without risking the loss of
housing, heat, food[;]'' employers, who would suffer lost productivity
if employees continued to work while ill; the public sector, because
employees otherwise would have ``to rely more and more on public
resources to cope[;]'' and the health care system, because employees
otherwise would work until their condition became worse and more
expensive to treat. Doc. 10215A, at 3.
Not all commenters uniformly supported the substitution of paid
leave, however. Some employers commented that the substitution of leave
provisions contribute to increased FMLA leave at otherwise popular
vacation or personal leave times. Another commenter noted that it is
not just holidays or high demand periods but that the ``employee is
more likely to use FMLA leave for the employee's own serious health
condition when the employee is receiving a paid sick or disability
benefit * * * without a financial impact, some employees have little to
no incentive to work and actually have an incentive not to work, since
the employer cannot discipline them for using job protected FMLA
leave[.]'' Exelon, Doc. 10146A, at 6. The substitution provisions can
thus leave an employer in a quandary: ``While some may think the
solution is to reduce or eliminate paid sick or disability benefits or
to make the standards for receiving such benefits more stringent to
avoid FMLA leave abuse, doing so penalizes the vast majority of
employees who use sick days or disability benefits only when they are
truly unable to work due to illness or injury.'' Id.
As noted in other chapters of this Report, many commenters
discussed the idea that the different treatment experienced by
employees based on the type of leave requested may have a substantial
effect on employee morale and productivity. A comment from the Indiana
State Personnel Department noted that problems arise when employers
require substitution of paid leave for FMLA leave. See Doc. 10244C, at
2 (employees who saved and maintained leave balances become angry when
forced to use accrued leave as employees ``feel they are being
penalized for working overtime without taking leave''). While not
directly addressing morale concerns, the Ohio Department of
Administrative Services noted in a similar vein that some state
agencies reported that employees take advantage of FMLA leave only when
they had exhausted all of their accrued paid leave and were in jeopardy
of disciplinary action. See Doc. 10205A, at 3. Thus, according to the
comment, FMLA was used as a last resort when employees no longer had
paid time off. In response to the problem, the Ohio Department of
Administrative Services adjusted its leave policies to allow individual
state agencies to require substitution of paid leave. Id.

B. Effect on Workplace Benefits and Policies

Responses to the RFI indicated a variety of workplace benefits are
affected by substitution of paid leave. Employers' policies pertaining
to employer-provided paid leave plans are impacted, as are benefit
plans such as workers' compensation and short term disability, as well
as existing collective bargaining agreements. Some government employers
also commented on the impact of the inability to substitute
compensatory time off for FMLA leave.
1. Effect on Employer Policies
Many employers commented that the regulations force employers to
treat employees seeking to use accrued paid leave concurrently with
FMLA leave more favorably than those who use their accrued paid leave
for other reasons. The Madison Gas and Electric Company, for example,
stated that ``during `peak' or `high demand' vacation periods,
employees may request FMLA leave causing the employer to deny other
employees their scheduled leaves due to staffing level concerns based
on business needs.'' Madison Gas and Electric Company, Doc. 10288A, at
1. The United Parcel Service concurred: ``The applicable DOL regulation
* * * states that no limitation may be placed by the employer on
substitution of paid vacation or personal leave for FMLA leave * * *.
Indeed, as written, this regulation would even trump vacation picks
conducted according to collectively bargained seniority provisions; an
employee with little seniority could, if on FMLA leave during a `plum'
vacation week, substitute otherwise unavailable paid vacation time for
his or her unpaid FMLA leave.'' Doc. 10276A, at 3-4 (citation and
quotation marks omitted). Some employers provided specific examples of
this phenomenon:

Deer hunting, if you happen to work for someone, usually calls
for the individual to request and receive approval to use vacation
and or personal leaves of absences during the Deer Hunting season.
These requests escalate geometrically during the deer hunting
season. Usually approvals for these days off are made using some
kind of seniority provisions. Employees who can not get approval can
circumvent the ``written in cement'' policies by securing a Family
doctor to provide FMLA documentation for [a serious health
condition].

Roger Bong, Doc. 6A, at 3. Another employer stated, ``We have had an
employee request a week of vacation during the holidays and the request
was denied because we had so many other employees off. Then the
employee just called off for the entire week using FMLA, and then went
on her vacation to Florida.'' Vicki Spaulding, Akers Packaging Service,
Inc., Doc. 5121, at 1. See also National Coalition to Protect Family
Leave, Doc. 10172A, at 5 (``The Department has * * * established
preferential rights to employees taking FMLA leave by effectively
mandating that employers waive normal vacation and personal leave
policies. In fact, nothing in the Act requires preferential treatment
for FMLA leave users.''); Temple University, Doc. 10084A, at 5.

[[Page 35613]]

As previously noted, section 825.207(e) provides that accrued paid
vacation or personal leave may be substituted for any FMLA leave, and
an employer may not place any limitations on this substitution right.
The preamble to the 1995 Final Rule stated, for example, that an
employer could not limit the timing during the year in which paid
vacation leave could be substituted, or require an employee to use such
leave in full day increments or a week at a time, even if it normally
restricted paid vacation in such ways. See 60 FR 2180, 2205, Jan. 6,
1995. Opinion letters relating to the substitution of paid vacation or
personal leave have clarified that such leave is ``accrued'' and thus
available for substitution only when the employee has earned it and is
fully vested in the right to use it during the leave period. See Wage
and Hour Opinion Letters FMLA-81 (June 18, 1996); FMLA-75 (Nov. 14,
1995); and FMLA-61 (May 12, 1995). In contrast to vacation leave, the
regulations clarify that substitution of paid sick or medical leave is
authorized only ``to the extent the circumstances meet the usual
requirements for the use of sick/medical leave.'' 29 CFR 825.207(c).
The College and University Professional Association of Human
Resources suggested employers should be allowed to apply their normal
leave policies to all types of paid leave, including vacation and
personal leave, in order to ease administrative and paperwork burdens
and to eliminate the preferential treatment it believes is afforded to
employees seeking FMLA leave over employees requesting vacation or
personal leave. Doc. 10238A, at 6. See also Ohio Public Employer Labor
Relations Association, Doc. FL93, at 5; Temple University, Doc. 10084A,
at 5.
The National Retail Federation suggested clarifying the meaning of
``personal leave'' under section 825.207. Doc. 10186A, at 8. The Miami
Valley Human Resource Association requested clearer guidelines that
instruct employers as to when they are allowed to deny employees'
substitution of paid leave, if they fail to follow employers' leave
notification policies. Doc. 10156A, at 4.
The National Coalition to Protect Family Leave commented that many
employers are providing general paid time off (``PTO'') benefits to
employees--which are provided in a single amount of paid leave to be
used for any reason--instead of the more traditional paid leave
policies for vacation and medical/sick leave. See Doc. 10172A, at 23.
The comment noted that the regulations still speak in terms of paid
personal or vacation leave, thus prohibiting employers from applying
``their normal leave rules to the substitution of such leave for unpaid
FMLA leave, even when using PTO in connection with an illness.'' Id.
PTO plans generally allow for employees to take paid leave for any
reason, as long as company procedures are satisfied.
A law firm commented that ``substitution of paid leave should not
nullify an employer's right to require medical certification'' where
the employer maintains a PTO plan. Fisher & Phillips LLP, Doc. 10262A,
at 6. Section 825.207(h) states that if ``accrued paid vacation or
personal leave is substituted for unpaid FMLA leave for a serious
health condition, an employee may be required to comply with any less
stringent medical certification requirements of the employer's sick
leave program.'' 29 CFR 825.207(h). PTO plans, however, do not
distinguish between sick pay and vacation pay and generally have no
``sick leave'' medical documentation requirement. Thus, according to
Fisher & Phillips, an employer should not be prohibited from requiring
a medical certification form to determine whether the leave qualifies
as FMLA leave ``simply because its paid time off program does not
require it.'' Id. The firm further stated:

Essentially, employers with more generous leave programs are
often disadvantaged by that generosity, as their employees are more
likely to use leave if it is paid. Again, that generosity should not
impose an obstacle to employer efforts to determine whether the
absence qualifies for FMLA to begin with, or to enforce its paid
time off programs consistently.

Id. at 7. The National Coalition to Protect Family Leave agreed that
employers with generous PTO plans are restricted by the regulations and
suggested such treatment could result in employers reducing paid leave.
See Doc. 10172A, at 23.
A comment from a law firm stated that, in terms of tracking FMLA
leave, a double standard exists under the regulations. Spencer Fane
Britt & Browne LLP, Doc. 10133C, at 50. Many employers allow employees
to take non-FMLA leave only in increments that are longer than the time
periods used for pay purposes. Id. The firm expressed a concern,
however, that such a policy may constitute ``retaliation'' under the
FMLA regulations, even though it is allowable for non-FMLA leave. For
example, an employer may normally only allow employees to use paid
leave in four-hour increments, but if the employee is only away from
work for 1.5 hours for an FMLA reason, there is a question as to how
much time the employer may charge against the employee's paid leave
balance. Id. The comment concludes, ``[i]t is inherently unfair to
provide employees with FMLA absences with greater benefits than they
would otherwise have.'' Id.
On the other hand, the AFL-CIO commented that Congress placed no
limitations on an employee's right to substitute paid vacation or
personal leave, noting that ``the Department specifically rejected
proposals to limit employees' substitution rights'' when promulgating
the FMLA final rules, based on the statutory language. See American
Federation of Labor and Congress of Industrial Organizations, Doc.
R329A, at 27-28. The AFL-CIO also noted that the prohibition on
employer limitations applies only to vacation and personal leave, and
that employers remain free to apply their normal rules to the
substitution of paid sick leave.
2. Benefit Plans: Short-Term Disability and Workers' Compensation
As indicated above, the choice to substitute accrued paid leave is
inapplicable when employees receive payments from a benefit plan that
replaces all or part of employees' income. See 29 CFR 825.207(d). As
the preamble to the 1995 Final Rule explained, if an employee suffers a
work-related injury or illness, the employee may receive workers'
compensation benefits or paid leave from the employer, but not both. 60
FR 2180, 2205, Jan. 6, 1995. Thus, when such an injury or illness also
qualifies under the FMLA and the employee is receiving workers'
compensation benefits, the employer may not require the employee to
substitute paid vacation or sick leave, nor may the employee elect to
receive both payments. See id. However, the time the employee is absent
from work counts against the employee's FMLA entitlement. See 60 FR at
2205-06. See also Wage and Hour Opinion Letter FMLA2002-3 (July 19,
2002) (allowing FMLA leave to run concurrently with workers'
compensation is expressly allowed under the regulations, but receipt of
workers' compensation payments prohibits the substitution of other
accrued paid leave).
One Employee Relations Manager noted a similar rule applicable
under some employers' disability leave policies, pursuant to which
``the employees' use of vacation and other earned time with pay to
cover a personal illness may exclude them from qualifying for paid
short-term disability

[[Page 35614]]

benefits offered by the employer.'' Cindy S. Jackson, Employee
Relations/Labor Relations Manager, Cingular, Doc. 5480, at 1. A case
manager from St. Elizabeth Medical Center, in Edgewood, Kentucky,
indicated employees who take FMLA leave for their own serious health
condition often qualify for short term disability payments after using
a required amount of paid time off. See Doc. 10071A, at 3-4. Another
employer from Huntington, Indiana said many of its employees on FMLA
leave eventually qualify for short term disability, resulting in
payments during leave. Bendix Commercial Vehicle Systems LLC, Doc.
10079A, at 3. According to this commenter, ``if FMLA were required to
be paid by the employer, you would see a lot more use of the
intermittent, specifically abuse of FMLA.'' Id. An HR manager agreed,
commenting that an employee who took FMLA leave concurrently with
short-term disability leave ``allegedly for a painful and permanent
spinal condition, is now heading up the company baseball team.'' See
Debra Hughes, HR Manager, Doc. 2627A, at 2; see also Roger Bong, Doc.
6A, at 3.
Another commenter felt that the regulations ``created a
substantial, unintended burden by prohibiting the substitution of
accrued, paid leave'' during an FMLA leave period that ran concurrently
with paid leave taken under a workers' compensation or a state-mandated
disability plan. See Employers Association of New Jersey, Doc. 10119A,
at 3. This commenter also suggested that employers requiring
substitution of paid leave could run afoul of the regulations when
employees qualify under a state's mandatory, non-occupational,
temporary disability plan; it also pointed out that many employees
actively seek the substitution of their accrued paid leave because
temporary disability plans only pay a portion of their salary. Id at 4.
The United Steelworkers also commented on the relationship between
short-term or other disability leave and leave under the FMLA, stating
that some employers may incorrectly ``tell their employees they cannot
receive income replacement under the [short term disability] plan and
be on FMLA-protected leave at the same time'' and thus incorrectly
advise employees that they waive their FMLA protections by going on
paid disability leave. See Doc. 10237A, at 3. To avoid this confusion,
the United Steel Workers recommended that the Department ``use the
rulemaking process to clarify that employers must treat family/medical
leave and short-term disability as separate and independent sources of
protection.'' Id.
Some comments also found difficulties in the way substitution of
paid leave provisions are carried out by employers or objected to
substitution more generally. The United Transportation Union, Florida
State Legislative Board commented that the problem with the
substitution of paid leave is that employers can force employees to use
their hard-earned vacation and personal leave. See Doc. 10022A, at 2.
The commenter labeled it an ``unfair and burdensome practice.'' Id.
3. Collective Bargaining Agreements
The substitution of paid leave provisions also interact with
existing collective bargaining agreements (``CBAs''). One union
commented that employers attempt to circumvent collective bargaining
agreements by relying on their statutory right to substitute paid
leave, while ignoring their contractual obligations. See United
Transportation Union, Florida State Legislative Board, Doc. 10022A, at
2. A law firm representing several train and rail unions also noted
such a trend: ``Notwithstanding the CBAs' unequivocal mandate that
employees are entitled to use their paid leave at the time they choose
and not at a time chosen by the carriers, the carriers in 2004 began
to, and now routinely, require employees to use their paid leave
whenever they exercise their statutory right to FMLA leave--thus
usurping the employees' collectively-bargained right to choose when and
for what purpose to use paid leave.'' Zwerdling, Paul, Kahn & Wolly,
P.C., Doc. 10163A, at 2. The comment concluded that ``the statute may
not be used as a tool to avoid compliance'' with the parties' prior
agreements. Id.
Another commenter raised the same issue, noting that this dispute
has arisen in the railroad context where several railroad employers
have claimed that FMLA gives them the authority to diminish the rights
afforded to employees under their existing contracts to decide when and
in what manner to use their paid leave. See Guerrieri, Edmond, Clayman
& Bartos, P.C. (on behalf of several labor unions in the railroad,
airline, bus, and other industries), Doc. 10235A, at 2.\22\ This
commenter also noted that the Department considered and addressed the
issue of collective bargaining agreements in the preamble to the 1995
regulations: ``At the same time, in the absence of other limiting
factors (such as a State law or applicable collective bargaining
agreement), where an employee does not elect substitution of
appropriate paid leave, the employee must nevertheless accept the
employer's decision to require it.'' Id. at 3 (citation omitted).
---------------------------------------------------------------------------

\22\ See also Jeanne M. Vonhof & Martin H. Malin, What a Mess!
The FMLA, Collective Bargaining and Attendance Control Plans, 21
Ill. Pub. Employee Relations Rep. 1 (Fall 2004) (discussing FMLA and
collective bargaining agreements from perspective of labor
arbitrators, noting that regulations allow parties to bargain for
specific rights, especially option to manage when substitution of
paid leave is permitted).
---------------------------------------------------------------------------

This law firm also noted that a 1994 Wage and Hour opinion letter
further clarifies ``that a collective bargaining agreement [can] limit
an employer's ability to require use of paid leave in conjunction with
FMLA leave.'' Id. at 3. See Wage and Hour Opinion Letter FMLA-33 (March
29, 1994) (``With reference to your constituent's concerns pertaining
to paid vacation and sick leave, an employer may require an eligible
employee to use all accrued paid vacation or sick leave for the family
and medical leave purposes indicated above before making unpaid leave
available. However, section 402 of FMLA does not preclude the union's
right to collectively bargain greater benefits than those provided
under the Act. In this instant case, the subject union could negotiate
that substitution of accrued paid leave is an election of the employee
only.'').
Further, the commenter referred to the ongoing litigation on this
issue and urged that any regulatory action taken by the Department be
consistent with this position. Guerrieri, Edmond, Clayman & Bartos,
P.C. (on behalf of several labor unions in the railroad, airline, bus,
and other industries), Doc. 10235A, at 3-4. See Bhd of Maintenance of
Way Employees v. CSX Transp., Inc., 478 F.3d 814 (7th Cir. 2007). In
CSX, a group of rail carriers required employees to substitute accrued
paid leave for family or medical leave covered by the FMLA, relying
upon their FMLA right to do so. The carriers required substitution for
intermittent leave for the employee's own condition, but they did not
require substitution when an employee used a block of FMLA leave for
his or her own serious health condition. The plaintiffs, a collection
of rail unions, challenged the action on the grounds that an existing
CBA precluded involuntary substitution of paid leave. They claimed that
when a CBA gives employees greater rights than the FMLA, the Act does
not supersede such contractual rights. The court held that while
employers generally are permitted to require substitution of paid
leave, the FMLA does not authorize rail carriers that are

[[Page 35615]]

subject to the Railway Labor Act (RLA) to do so when that would violate
a CBA and the RLA's prohibition against making unilateral changes in
working conditions.
The AFL-CIO--in addition to adopting the comments of other unions
on this issue--asserted that employers cannot require employees to
substitute paid leave for FMLA leave in a manner that contravenes
existing CBAs, whether those agreements are subject to the RLA or the
National Labor Relations Act. See Doc. R329A, at 29. The AFL-CIO stated
that ``the Department should make no changes in its regulations
governing substitution of paid leave for FMLA leave in the collective-
bargaining context.'' Id.
On the other hand, the Union Pacific Railroad Company noted that
its Train and Engine Service employees have an FMLA leave rate that is
five times higher than its other employees. See Doc. 10148A, at 2-3.
The employer stated that there is no obvious reason for this disparity,
such as a higher injury rate. ``The only significant differences
between the Train and Engine Service employee populations and all
others are: 1) The schedules or lack thereof (most T&E employees have
no set schedule but rather work on call * * *); and 2) Union Pacific
does not require T&E employees to substitute paid leave for FMLA
absences of less than 12 hours because paid leave cannot be granted to
these employees in smaller increments under their collective bargaining
agreements.'' Id. at 2. Union Pacific explained, for example, that when
a T&E employee who is called to duty states that s/he has a migraine
and cannot report for two hours, no paid leave is substituted.
Employees working under other collective bargaining agreements where
Union Pacific can require substitution for less than full day
increments are more reluctant to use FMLA leave unless absolutely
necessary, because they do not want to decrease their accrued paid
leave. See id. Three years of employer-collected data show that a
``disproportionately high number of FMLA absences among Train and
Engine Service employees are in increments of less than 12 hours.'' Id.
4. Compensatory Time Off
As noted above, subject to the provisions of section 7(o) of the
FLSA, state and local government employers may provide employees with
compensatory time off at time and one half for each hour worked in lieu
of paying cash for overtime. The FMLA regulations at 29 CFR 825.207(i)
specifically prohibit employers from counting compensatory time off
against an employee's FMLA entitlement.
One commenter noted the inconsistency in the regulations regarding
the use of compensatory time off, stating ``[w]hile an employer cannot
compel the use of compensatory time, if an employee asks to use it to
cover a FMLA absence, the time off should count against the FMLA
entitlement. If compensatory time is allowed to be taken in lieu of
FMLA leave, the regulations should require employees to take the
compensatory time at either the beginning or end of the leave.'' City
of Portland, Doc. 10161A, at 4. See also Washington Metropolitan Area
Transit Authority, Doc. 10147A, at 3 (regulation ``discourages
employers from working with employees to minimize the negative
financial impact of unpaid leave at times when employees are most in
need'').

X. Joint Employment

A. Statutory Background

The FMLA covers an employer in the private sector engaged in
commerce or in an industry or activity affecting commerce if it employs
50 or more employees for each working day in 20 or more calendar
workweeks in the current or preceding calendar year. See 29 U.S.C.
2611(4). An employee of an FMLA-covered employer is ``eligible'' for
the benefits of the FMLA if the employee has worked for the employer
for at least 12 months, for at least 1,250 hours of service during the
preceding 12-month period, and is employed at a worksite where 50 or
more employees are employed by the employer within 75 miles of that
worksite. 29 U.S.C. 2611(2).
Despite the plain wording of these definitions a number of
questions have arisen as to their meaning, such as how to treat
employees with no fixed worksite, employees who are jointly employed by
two or more employers, employees of temporary help companies, and
others. The Department included the topics of employer coverage and
employee eligibility in its RFI. In particular, the RFI noted that the
Court of Appeals in Harbert v. Healthcare Services Group, Inc., 391
F.3d 1140 (10th Cir. 2004), partially invalidated 29 CFR 825.111(a)(3),
which states that when an employee is jointly employed by two or more
employers, the employee's worksite is the primary employer's office
from which the employee has been assigned or to which the employee
reports.

B. Department of Labor Regulations

Section 825.104(c) of the regulations addresses who is the employer
where more than one entity is involved, such as in an ``integrated
employer'' situation. It provides that the ``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.'' 29 CFR 825.104(c)(2).
Factors considered in determining whether two or more entities are an
integrated employer include the degree of common management,
interrelation between operations, centralized control of labor
relations, and common ownership/financial control.
The Department stated in the preamble to the final rule that the
``integrated employer'' test is not a new concept, but rather it is
based on established case law arising under Title VII of the Civil
Rights Act of 1964 and the Labor Management Relations Act.
Section 825.106 of the regulations implements how the Department
views employer coverage and employee eligibility in the case of joint
employment. It provides that 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. For example, where the
employee performs work which simultaneously benefits two or more
employers, and there is an arrangement between employers to share an
employee's services or to interchange employees, a joint employment
relationship generally will be considered to exist. Id. Sec.
825.106(a). The regulations further provide:

(b) 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 or leasing agency supplies employees
to a secondary employer.
(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 help or leasing agencies, for example, the
placement agency most commonly would be the primary employer.

Id. Sec. 825.106(b)-(c). Under section 825.106(d), employees
jointly employed by two employers must be counted by

[[Page 35616]]

both employers in determining employer coverage and employee
eligibility. Thus, for example, an employer who jointly employs 15
workers from a leasing or temporary help agency and 40 permanent
workers is covered by FMLA. Although 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 or leasing 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 temporary/leased
employees, and thus may not interfere with an employee's attempt to
exercise rights under the Act, or discharge or discriminate against an
employee for opposing a practice that is unlawful under FMLA. See 29
CFR 825.106(e).
With regard to the term ``worksite,'' the legislative history
states that it is to be construed in the same manner as the term
``single site of employment'' under the Worker Adjustment and
Retraining Notification (``WARN'') Act, 29 U.S.C. 2101(a)(3)(B), and
the regulations under that Act (20 CFR Part 639). See S. Rep. No. 103-
3, at 23 (1993), H.R. Rep. No. 103-8(I), at 35 (1993). Accordingly, the
FMLA regulations define the term ``worksite'' in those cases in which
the employee does not have a fixed place of employment by using
language that is very similar to the WARN Act definition in 20 CFR
639.3(i)(6). Section 825.111 provides as follows:

(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.''

29 CFR 825.111(a)(2).
When applying the employee eligibility test (i.e., the 50
employees/75 miles test) to employees of temporary help offices and
others who are jointly employed by two or more employers, however, the
regulation provides that ``the employee's worksite is the primary
employer's office from which the employee is assigned or reports.'' 29
CFR 825.111(a)(3).

C. Wage and Hour Opinion Letter

In Wage and Hour Opinion Letter FMLA-111 (Sept. 11, 2000), the
Department considered the application of the FMLA regulations'
``integrated employer'' test and ``joint employment'' tests in sections
825.104 and 825.106 to a ``Professional Employer Organization'' (PEO).
The PEO in question had established a contractual relationship with its
clients under which it established and maintained an employer
relationship with the workers assigned to the clients (who were leased
worksite employees provided via the contract with the client) and
assumed substantial employer rights, responsibilities and risks.
Specifically, the PEO assumed responsibility for personnel management,
health benefits, workers' compensation claims, payroll, payroll tax
compliance, and unemployment insurance claims. Moreover, the PEO had
the right to hire, fire, assign, and direct and control the employees.
Based on the facts described in the incoming letter, the Opinion
Letter found that ``it appears'' the PEO is in a joint employment
relationship with its clients for these reasons:

1. The PEO is a separately owned and a distinct entity from the
client as it is under contract with the client to lease employees
for the purpose of handling ``critical human resource
responsibilities and employer risks for the client.''
2. The PEO is acting directly in the interest of the client in
assuming human resource responsibilities.
3. The PEO appears to also share control of the ``leased''
employee consistent with the client's responsibility for its product
or service.

Based on the specified responsibilities, the Opinion Letter stated
that ``it would appear that'' the PEO is the ``primary'' employer for
those employees ``leased'' under contract with the client. Thus, the
PEO would be responsible for giving required notices to its employees,
providing FMLA leave, maintaining group health insurance benefits
during the leave, and restoring the employee to the same or equivalent
job upon return from leave. The ``secondary employer'' (i.e., the
client) would be responsible for accepting the employee returning from
FMLA leave in place of a replacement employee if the PEO chooses to
place the employee with the client. The Opinion Letter concluded that
the client, as the ``secondary'' employer, whether a covered employer
or not under the FMLA, is prohibited from interfering with a ``leased''
employee's attempt to exercise rights under the Act, or discharging or
discriminating against an employee for opposing a practice that is
unlawful under the Act.

D. Harbert v. Healthcare Services Group, Inc.

Section 825.111(a)(3) of the regulations provides that for an
employee jointly employed by two or more employers, the ``worksite'' is
the location of the primary employer's office from which the employee
is assigned or reports. In Harbert v. Healthcare Services Group, Inc.,
391 F.3d 1140, the Court of Appeals held that section 825.111(a)(3), as
applied to the situation of an employee with a long-term fixed worksite
at a facility of the secondary employer, was arbitrary and capricious
because it: (1) Contravened the plain meaning of the term ``worksite''
as the place where an employee actually works (as opposed to the
location of the long-term care placement agency from which Harbert was
assigned); (2) contradicted Congressional intent that if any employer,
large or small, has no significant pool of employees nearby (within 75
miles) to cover for an absent employee, that employer should not be
required to provide FMLA leave to that employee; and (3) created an
arbitrary distinction between sole and joint employers.
With respect to the term ``worksite,'' the court stated that
Congress did not define the term in the FMLA, and it concluded that the
common understanding of the term ``worksite'' is the site where the
employee works. With respect to the employee eligibility requirement of
50 employees within 75 miles, the court noted that Congress recognized
that even potentially large employers may have difficulty finding
temporary replacements for employees who work at geographically
scattered locations. Congress thus determined that if any employer
(large or small) has no significant pool of employees in close
geographic proximity to cover for an absent employee, that employer
should not be required to provide FMLA leave to that employee.
Therefore, the court concluded that:

An employer's ability to replace a particular employee during
his or her period of leave will depend on where that employee must
perform his or her work. In general, therefore, the congressional
purpose underlying the 50/75 provision is not effected if the
``worksite'' of an employee

[[Page 35617]]

who has a regular place of work is defined as any site other than
that place.

391 F.3d at 1150.
In comparing how the regulations apply the term ``worksite'' to
joint employers and sole employers, the court stated:

The challenged regulation also creates an arbitrary distinction
between sole employers and joint employers. For example, if the
employer is a company that operates a chain of convenience stores,
the ``worksite'' of an employee hired to work at one of those
convenience stores is that particular convenience store. See 58 FR
31794, 31798 (1993). If, on the other hand, the employer is a
placement company that hires certain specialized employees to work
at convenience stores owned by another entity (and therefore is
considered a joint employer), the ``worksite'' of that same employee
hired to work at that same convenience store is the office of the
placement company.

391 F.3d at 1150.
Importantly, the court did not invalidate the regulation with
respect to employees who work out of their homes: ``We do not intend
this statement to cast doubt on the portion of the agency's regulation
defining the `worksite' of employees whose regular workplace is his or
her home. See 29 CFR 825.111(a)(2).'' 391 F.3d at 1150, n.1. Nor did
the court invalidate the regulatory definition in section 825.111(a)(3)
with respect to employees of temporary help companies: ``An employee of
a temporary help agency does not have a permanent, fixed worksite. It
is therefore appropriate that the joint employment provision defines
the ``worksite'' of a temporary employee as the temporary help office,
rather than the various changing locations at which the temporary
employee performs his or her work.'' 391 F.3d at 1153.

E. RFI Comments and Recommendations

The RFI requested specific information, in light of the court's
decision in Harbert, on the definition in section 825.111 for
determining employer coverage under the statutory requirement that
FMLA-covered employers must employ 50 employees within 75 miles. The
Department also sought comment on any issues that may arise when an
employee is jointly employed by two or more employers or when the
employee works from home. Below are some of these comments.
1. ``Worksite'' for Employees Jointly Employed by Two or More Employers
The AFL-CIO in its comments urged the Department not to revise 29
CFR Sec. 825.111 (a)(3) to reflect the court's decision in Harbert
that held this section to be invalid when applied to a jointly-employed
employee with a long-term fixed worksite at a facility of the secondary
employer. See Doc. R329A, at 18, 21. The AFL-CIO pointed to the
legislative history that the term ``worksite'' is to be construed in
the same manner as the term ``single site of employment'' under the
WARN Act and the regulations under that Act.
Specifically, the AFL-CIO agreed with the dissent in Harbert that
the Secretary's interpretation of ``single site of employment'' under
the WARN Act regulations as applying equally to employees with and
without a fixed worksite is a ``permissible and reasonable
interpretation'':

[Interpreting the WARN Act regulation so that it] only applies
to employees without a regularly fixed site of employment would seem
to contravene the express language of the provision which mentions
other categories, including employees who ``travel from point to
point, who are outstationed, or whose primary duties involve work
outside any of the employer's regular employment sites.''

Doc. R329A, at 20 (citations omitted).
Finally, the AFL-CIO agreed with the dissent that the application
of the rule does not result in arbitrary differences between sole and
joint employers under the FMLA. See id. at 20. Instead, it results in a
rational distinction, rooted in the very purpose of the 50 employees
within 75 miles rule, where the placement agency locates and hires the
worker for the client agency:

Basing FMLA eligibility on primary employers prevents confusion
and provides certainty, because a temporary placement employee's
coverage could vary daily were he placed in different [locations of
the client employer] on a rotating basis. Further, contrary to the
court's assertion, the ability of a * * * [client employer] and a
placement agency to find abundant nearby replacements probably is
not identical, after all, the placement agency specializes in hiring
and placing employees within the area.

Doc. R329A, at 20-21 (citation omitted).
The National Partnership for Women & Families similarly commented
that it believes the current regulations are sound and do not require
change. Specifically, the National Partnership stated that the preamble
to the FMLA regulations makes clear that the Department gave much
consideration to the question of how best to determine an employee's
worksite. It noted that the Department's definition of the employee's
``worksite'' is in accord with the FMLA's legislative history, namely,
that the term was to be construed the same as the term ``single site of
employment'' under the WARN Act regulations. The National Partnership
commented that the purpose of designating the primary office as the
worksite is to ensure that the employer with the primary responsibility
for the employee's assignment is the one held accountable for
compliance with these regulations. See Doc. 10204A, at 6. The National
Partnership stated that the same principles articulated in the
regulations with regard to ``no fixed worksite'' situations also should
apply to this factual scenario. ``In cases where employees have long-
term assignments, we believe the purposes of the FMLA are best served
by using the primary employer from which the employee is assigned as
the worksite for determining FMLA coverage.'' Id.
Similarly, the Public Service Company of New Mexico commented that
it has employees who perform work in a remote area or at home, and that
it always interprets the most favorable option for the employee for
FMLA eligibility. ``There is no known benefit to our company if we deny
FMLA to certain workers simply due to their remote location.'' Doc.
10074A, at 3.
On the other hand, the National Council of Chain Restaurants
commented that 29 CFR 825.104 and 825.106 are overly vague and
expansive in their definitions of joint and integrated employment. Doc.
10157A, at 3. The National Council stated that these regulations were
creating a potential liability for many restaurant franchisees and
other small business owners who should not be considered employers
under the Act. Id.

Oftentimes, individuals will have an ownership interest in one
or more restaurants or stores. The FMLA regulations create a
potential risk that a joint employment situation or a single
integrated enterprise will be found even when the franchisee has
few, if any, individuals who work at or for more than one of the
restaurants or stores.

Id. at 4.
The law firm of Pilchak Cohen & Tice commented that, under the
current regulations, employees at the same size establishment are
treated differently because one works for a traditional sole employer
and the other works for a staffing firm:

For example, where a small retail store chain may have many
employees nationwide, each store could employ fewer than 50
employees. Those employees clearly would not be eligible for FMLA in
the traditional employment context. Yet, under the current
regulation, if that same retail chain utilized contract employees
from an entity which employed more than 50 employees from its home
office and that is where the contract employees received their
assignments from or reported to, those contract employees could have
FMLA rights at the retail chain. This creates an arbitrary
distinction between

[[Page 35618]]

sole and joint employers * * * Under 29 CFR 825.106(e), an employer
could contract for an engineer, Employee A, for a six-month project,
and then find out after the employee has only been there for two
weeks, that Employee A will need 12 weeks off due to the upcoming
birth of his child. Upon Employee A's departure, the employer would
then have to spend the time and expense training Employee B only to
[be] forced to return Employee A to the position, even though it had
already spent time training two individuals. The employer would then
have to spend additional time and expense bringing Employee A ``up
to speed'' on the project and complete the training initially
started.

Doc. 10155A, at 7.
Pilchak Cohen & Tice stated that the regulation would be more
palatable if, to qualify for FMLA job restoration with the client
company, the contract employee had to have at least 12 months of
service at that location. Id.
As discussed below, the law firm of Fisher & Phillips commented
that an Outsourcing Vender (elsewhere called a Professional Employer
Organization, or PEO) should not be treated as a joint employer. In
contrast with an employer who uses a PEO, however, Fisher & Phillips
stated that a small employer who uses employees from a temporary agency
may still have to comply with the FMLA:

In this context, aggregation of the number of employees of both
the temporary agency and the worksite employer may make sense in
some cases because the temporary agency can help the smaller
employer adapt to an employee's leave of absence by reassigning
another temporary worker. Moreover, this regulation is consistent
with Congress' intent that the application of the FMLA not unduly
burden smaller employers who are unable to reassign employees to
cover for absent workers.

Doc. FL57, at 6.
The law firm of Smith & Downey commented that placement agencies
(as opposed to PEOs, as discussed below) face a different problem than
other employers, in that they may not succeed in obtaining the client
company's agreement to reinstate an employee who is returning from FMLA
leave. Smith & Downey stated that in many cases although the placement
agency dutifully fulfills its FMLA obligations, the entity with whom
the employee was placed refuses to reinstate the employee returning
from FMLA leave. Doc. FL106, at 1. ``This scenario typically places the
placement agency in an impossible position, particularly in those cases
where the only placements provided by the placement agency are with the
single entity in question.'' Id. at 2.
Smith & Downey commented that the client company may not be able to
keep a position available for the temporary employee who is on FMLA
leave because the position is mission-critical to the company's
success, and it proposed that the Department issue regulations that
provide for an exception to the usual joint employment rules in those
cases in which the employee is placed in a position that is mission-
critical to the client employer. Id.
The National Coalition to Protect Family Leave commented that the
court in Harbert was correct in distinguishing between a jointly
employed employee who is assigned to a fixed worksite and a jointly
employed employee who has no fixed worksite and changes worksites
regularly. ``As for the former, the worksite for purposes of
determining whether they are eligible employees * * * would be the
fixed worksite of the secondary employer. As for the latter, the
worksite would continue as stated in the regulation[.]'' Doc. 10172A,
at 13.
Finally, Access Data Consulting Corporation stated that the best
way to resolve identifying the employer is for the Department to
clarify that ``the person's employer is the entity from which their
paycheck is written.'' Doc. 10029A, at 2. This commenter stated that in
the case of an employee who is employed by a long-term care placement
agency and is assigned to work at the home of a client, the employer of
record is the placement agency, not the client, because the paycheck is
derived, or written from, the placement agency. ``This is not a
situation where the employee has two employers; the employee has one--
the placement agency, and that company's demographics should be used to
determine FMLA eligibility.'' Id.
2. Professional Employer Organizations (PEOs)
A number of commenters, including the AFL-CIO, Jackson Lewis,
Wilson Sonsini Goodrich & Rosati, Fulbright & Jaworski, Littler
Mendelson, Fisher & Phillips, and TriNet, commented that the
regulations incorrectly consider Professional Employer Organizations or
PEOs (sometimes called HR Outsourcing Venders) to be joint employers
with their client companies.
The comments submitted by the law firm of Jackson Lewis explained
the typical differences between a temporary staffing agency and a PEO:
A temporary staffing agency is a labor supplier that supplies employees
to a client employer. A PEO is a service provider that provides
services to existing employees of a company. Doc. R362A, at 3. Jackson
Lewis commented that the determination of whether an employee is a
``key'' employee for purposes of considering entitlement to leave, for
example, is made by the client employer and not by the PEO. It further
stated that, unlike a temporary staffing agency, a PEO does not have
the ability to place an employee returning from FMLA leave with a
different client employer. Id. at 4.
Jackson Lewis commented that, like the employees of temporary
staffing agencies, the client employer should include the employees
serviced by a PEO for purposes of the 50 employee threshold, but should
not include the corporate employees of the PEO or the employees of
other clients of the PEO. See Doc. R362A, at 3, 5. ``In the PEO
context, the ``worksite'' is the client's workplace. Just as in
Harbert, aggregating unrelated companies that utilize the services of
the same PEO is contrary to the purpose and intent of the statute and
improperly creates coverage of employees that were not intended to be
covered by the FMLA.'' Id. at 5.
The AFL-CIO commented that PEOs engage in a practice known as
``payrolling,'' in which the client employers transfer the payroll and
related responsibilities for some or all of their employees to the PEO,
and that typically, the PEO also makes payments on behalf of the client
employer into state workers' compensation and unemployment insurance
funds, but the PEO does not provide placement services. In contrast
with a temporary staffing agency, this commenter stated, PEOs do not
match people to jobs. See Doc. R329A, at 16.

Thus, PEOs do not fit the model of the primary employer who
should bear the FMLA's job restoration responsibilities in a joint
employment situation, because there is no evidence to suggest that
hiring and related functions fall to them, as opposed to the client
employer. * * * Client employers should not be able to shed FMLA
responsibilities when they have contractual relationships with
entities such as PEOs that are not able to fulfill the FMLA's job
restoration responsibilities, despite how attractive it may be for
the client to shift, and the PEO to ``accept,'' those
responsibilities. For all of these reasons, we urge the Department
to reconsider its joint employment rules as they apply to PEOs and
similar organizations.

Id. at 17-18.
The law firm of Wilson Sonsini Goodrich & Rosati commented that 29
CFR 825.106(d) has led to a broader coverage of the Act than was
intended by Congress. See Doc. R122A, at 4. Many small or start-up
companies use PEOs to administer their payroll and benefits or provide
other human resources assistance and this may

[[Page 35619]]

constitute a ``joint employer'' relationship. ``As a result, an
employer that has only 15 employees (which is the cause of the need to
outsource human resources functions) and would not otherwise be covered
by the FMLA must count the employees of the PEO in addition to their
own employees, which results in FMLA coverage for the employer.'' Id.
The law firm of Littler Mendelson stated that a ``PEO arrangement''
refers to a circumstance in which a customer contracts with another
company to administer payroll and benefits, and perform other similar
functions. Doc. 10271A, at 2. ``Employee leasing arrangements''--like
those involving temporary services firms and other staffing companies--
refer to arrangements in which the staffing firm places its own
employees at a customer's place of business to perform services for the
recipient's enterprise. The PEO assumes certain administrative
functions such as payroll and benefits coverage and administration
(including workers' compensation insurance and health insurance). The
PEO typically has no direct responsibility for ``hiring, training,
supervision, evaluation, discipline or discharge, among other critical
employer functions.'' Id. Littler Mendelson argued that an employer--
employee relationship between the PEO and these employees does not
exist, based on the economic realities of the relationship and the fact
that the employee is not dependent on the putative employer for his
economic livelihood. ``Because a PEO does not control its client's
employees, does not hire, fire or supervise them, determine their rates
of pay or benefit from the work that the employees perform, the PEO
cannot be considered an employer under the FLSA or the FMLA.'' Id. at
3.
Littler Mendelson commented that PEOs typically provide their
services to small businesses and add value by administering their
payroll process and providing access and administration of employee
benefits that would be cost prohibitive if the small businesses tried
to contract for these benefits on their own. ``It makes no sense to
make an otherwise non-covered employer subject to the FMLA, in
contravention of Congress' intent [in creating a small business
threshold], simply because it contracts with a PEO for payroll services
and other administrative benefits.'' Id. at 6.
The law firm of Fisher & Phillips commented on the same kinds of
differences discussed above between a PEO and a temporary employment
agency, staffing agency or traditional leasing company.

Specifically, if an employer contracts with an HR Outsourcing
Vendor, should the number of individuals employed by the HR
Outsourcing Vendor [PEO] be aggregated with the number of
individuals employed by the employer in question? In addition,
should the number of Individuals employed by the HR Outsourcing
Vendor's other clients (within a 75-mile radius) be aggregated with
the number of individuals employed by the employer in question. The
answer to both of these questions is ``no.'' Unfortunately, under
the current regulations, this answer is not clear. Consequently, the
ambiguity from the two controlling regulations on the issue
(Sections 825.111 and 835.106(d) has forced some employers to turn
to the Judicial system for relief. Thus, in the interest of Judicial
economy, ensuring compliance with the FMLA where warranted, and
effectuating Congress' intent to protect small employers from the
burdens of the FMLA, we respectfully request the DOL to revise and
clarify not only Section 825.111, but also Section 826.106(b)-(e)
concerning joint employment, as these sections relate to * * *
[PEOs]. In addition, or alternatively, we urge the DOL to implement
new regulations that expressly detail the requirements for an entity
to be subject to the requirements of the FMLA. * * * Extending
Section 835.106(d) to encompass relationships between * * * [PEOs]
and their clients produces absurd results that were not intended by
Congress and do not adhere to the intent of the FMLA.

Doc. FL57, at 2-3.
TriNet commented that in the case of a PEO, the employee is hired
first by the client company and the PEO enters the picture when the
client company signs up with the PEO and the existing workforce begins
to receive PEO services. ``The timing is exactly opposite with a
temporary staffing agency that first has an employee in its pool of
talent and then second assigns that employee to a particular company to
work.'' Doc. FL109, at 3.
The law firm of Fulbright & Jaworski commented that PEO
responsibilities vary by organization and contract, but that most are
not involved in the day-to-day operations of their client's business
and do not exercise the right to hire, fire, supervise or manage daily
activities of employees. In some cases, the PEO and the client are not
in the same city. Doc. FL62, at 1. The firm commented on the need for
the Department to clarify that opinion letter FMLA--111 (Sept. 11,
2000) is about an atypical PEO who actually exercised control over
client's employees. ``This comment letter requests a Department
regulation [as follows] clarifying that the most common type of PEOs--
PEOs that do not exercise control of employees '' are not covered
employers under the FMLA.'' Id. at 2.

Professional Employer Organizations that contract to perform
administrative functions, including payroll, benefits, regulatory
paperwork, and updating employment policies, are not joint or
integrated employers with their clients under the provisions of 29
CFR 825.104 and 825.106, provided they do not exercise control over
the day-to-day activities of the client's employees or engage in the
hiring or firing of the client's employees.

Id. at 6.
3. Employees Who Work at Home
The RFI also sought comment on what constitutes the worksite for an
employee who works from home. As discussed above, the Access Data
Consulting Corporation commented that the employer should be determined
``by the entity from which their paycheck is written.'' Doc. 10029A, at
2. This commenter stated that the same principle should apply to
workers who work from home. Id.
The National Coalition to Protect Family Leave commented that 29
CFR 825.111(a)(2) already addresses the issue of identifying the
worksite for employees who work at home by expressly stating that an
employee's home is not an appropriate worksite. In such cases, the
location the employee reports to or that furnishes the employee with
assignments is the worksite for FMLA purposes. ``The Coalition concurs
with this analysis * * * [and] asks DOL to clarify the situation where
an employee is jointly employed and works out of his home instead of
changing locations regularly or at a secondary employer's premises. In
such circumstances, the Coalition recommends that the employee's
worksite be the primary employer's office from which the employee is
assigned or reports.'' Doc. 10172A, at 13.

XI. Data: FMLA Coverage, Usage, and Economic Impact

To assist in analyzing the impacts of the FMLA, the Department
presented estimates of the coverage and usage of FMLA leave in 2005 in
the ``FMLA Coverage and Usage Estimates'' section of the Request for
Information (``RFI'').\23\ The Department requested comment on these
estimates and any data that would allow the Department to better
estimate the costs and benefits of the FMLA, as well as particular
issues for which the Department was seeking additional information.
---------------------------------------------------------------------------

\23\ 2005 data was used because the 2006 annual employment
figures were not available in December of 2006 when the RFI was
published.
---------------------------------------------------------------------------

The Department's estimates were based, in large part, on a report
it published in January 2001, Balancing the Needs of Families and
Employers: Family and Medical Leave Surveys,

[[Page 35620]]

2000 Update and its underlying employer and employee surveys. As the
Department explained in the RFI, this report is commonly referred to as
``the 2000 Westat Report''--available online at www.dol.gov/esa/whd/fmla2007report.htm.\24\
---------------------------------------------------------------------------

\24\ Westat is a statistical survey research organization
serving agencies of the U.S. Government, as well as businesses,
foundations, and state and local governments. These surveys were
commissioned by the Department of Labor in 2000 as an update to
similar 1995 surveys ordered by the Commission on Family and Medical
Leave, which was established by Title III of the FMLA. Many of the
comments to the RFI cited the Westat Report and surveys but referred
to it by a number of names including the West Report, Westat's FMLA
Report, the FMLA Report, the Department's FMLA Report, and the 2000
FMLA Report. In order to minimize any confusion in this chapter, the
report will be referred to as the ``2000 Westat Report,'' the
employer survey will be referred to as ``Westat's employer survey,''
the employee survey will be referred to as ``Westat's employee
survey,'' and when discussing both the employer and employee surveys
they will be referred as the ``Westat surveys.''
---------------------------------------------------------------------------

The 2000 Westat Report was a compilation, analysis, and comparison
of one set of survey research with another set that was conducted in
1995. Title III of the Family and Medical Leave Act established a
bipartisan Commission on Family and Medical Leave to study family and
medical leave policies. The Commission surveyed workers and employers
in 1995 and issued a report published by the Department in 1996, ``A
Workable Balance: Report to Congress on Family and Medical Leave
Policies'' ``--available online at www.dol.gov/esa/whd/fmla2007report.htm.
The RFI was not meant to be a substitute for survey research about
the leave needs of the work force and/or leave policies being offered
by employers. Nonetheless, the Department identified a number of issues
in the RFI on which it sought quantitative data that would supplement
and update the data that was collected by the Westat surveys. The
Department specifically asked for information and data on:
The approach the Department used to estimate the number of
eligible FMLA workers at covered establishments in 2005;
The approach the Department used to estimate the number of
FMLA leave-takers given the data limitations and methodological issues
in the 2000 Westat Report, and other available data that could be used
to refine its estimate;
The approach the Department used to estimate the number of
covered and eligible workers taking intermittent FMLA leave, and other
available data that could be used to refine its estimate;
The approach the Department used to estimate the number of
covered and eligible workers taking unforeseen intermittent FMLA leave,
other available data that could be used to refine this estimate, and
information on the prevalence, durations, and causes of intermittent
leave; and,
The economic impact of intermittent FMLA leave and
unforeseen intermittent leave, including any differences between large
and small employers, the impact that unscheduled intermittent leave has
on productivity and profits, information on the concentration of
workers taking unscheduled intermittent FMLA leave in specific
industries and employers, and information on the factors contributing
to large portions of the work force in some facilities taking
unscheduled, intermittent FMLA leave.
The Department also asked for information related to the different
treatment of FLSA exempt and nonexempt employees taking unscheduled,
intermittent FMLA leave, and the different impact the leave taken by
FLSA exempt and nonexempt employees may have on the workers who are
taking leave and their employers. More generally, the Department also
asked for information that can be used to improve the estimates of the
impact that FMLA leave has on employers and employees, and for any data
that would allow the Department to better estimate the costs and
benefits of the FMLA.
In response to this request, the Department received a significant
amount of quantitative and qualitative data from a wide variety of
sources that updates and builds upon the data collected in the Westat
surveys. This includes a wide variety of national survey data from
employers and employees; detailed information from specific employers,
both large and small, in a wide variety of industries; and economic
studies, or references to economic studies, on the costs and benefits
of the FMLA.\25\
---------------------------------------------------------------------------

\25\ Some of the data submitted were national surveys (e.g.,
AARP, International Foundation of Employee Benefit Plans, Society
for Human Resource Management, National Association of
Manufacturers, U.S. Chamber of Commerce, WorldAtWork, and the
College and University Professional Association for Human
Resources). Others submitted surveys or collections of reports from
their clients, customers, or members (e.g., Willock Savage,
Kalamazoo Human Resources Management Association, Manufacturers
Alliance, Air Conference, Association of American Rail Roads, Retail
Industry Leaders Association, National Federation of Independent
Business, HR Policy Association, International Public Management
Association for Human Resources, and American Bakers Association).
Numerous other comments provided data from individual companies
(e.g., United Parcel Service, U.S. Postal Service, Honda, Southwest
Airlines, YellowBook, Madison Gas and Electric Company, Edison
Electric, Verizon, Delphi, MGM Mirage, Union Pacific, and Palmetto
Health) or government and quasi-government agencies (e.g., New York
City, Dallas Area Rapid Transit, Fairfax County, VA, the Port
Authority of Allegheny County, PA, and the City of Portland, OR).
Other comments provided references to previously published studies
(e.g., Darby Associates, the Center for WorkLife Law, Women
Employment Rights, and the Family Care Alliance). Many comments were
also received from labor organizations and family advocates (e.g.,
AFL-CIO, Communications Workers of America, National Partnership for
Women and Families, Families USA, 9to5, National Association of
Working Women). Finally, the Department received many comments from
workers who took FMLA leave.
---------------------------------------------------------------------------

The Department also received comments on the estimates it presented
in the RFI, many of which were consistent with the Department's
estimates. Many comments stated that the Department's estimates of FMLA
usage, especially of intermittent FMLA leave, appear to be low given
their experience. In this chapter, the Department presents both the
estimates developed for the RFI and the comments received about those
estimates. Although the Department evaluates the RFI estimates based
upon the comments received, no revisions to the RFI estimates have been
developed at this time. Finally, this chapter offers some observations
about the impacts of certain aspects of FMLA leave on certain sectors
of the economy.
Care should be taken to avoid drawing improper comparisons of data
submitted in response to the RFI with the data from the Westat surveys.
The record presented here is different than the previous two
Departmental reports because the RFI is a different information-
gathering tool than the previous surveys. Given the differences in the
data gathering approaches, the depth with which the RFI looked at
specific regulatory issues, and, of course, the differences in the
self-selection of those who took the time to submit comments to the RFI
compared to voluntarily responding to previous survey questionnaires,
variations in the data should be expected.

A. Comments on the 2000 Westat Report and Further Data Collection

The Department used the 2000 Westat Report as the basis for the
coverage and usage estimates presented in the RFI. Although the
Department did not specifically ask for comments on estimates in the
2000 Westat Report, it did note that it was ``interested in refining
the coverage and eligibility estimates in the 2000 Westat Report,'' and
highlighted a number of important results and caveats from the 2000
Westat Report.

[[Page 35621]]

The Department received a few comments alleging the RFI was
critical of the 2000 Westat Report. For example, the National
Partnership for Women & Families stated that ``[t]he RFI takes great
pains to criticize the 2000 study of FMLA[.]'' Doc. 10204A, at 2.
However, as the Department explained in the RFI, there were several
methodological issues that Westat itself noted (particularly in
Appendix C) \26\ that may have resulted in, among other issues, the
overestimation of FMLA-covered and eligible workers and an
underestimation of workers not covered.\27\ Identifying some of
Westat's own caveats and limitations was not a criticism of the 2000
Westat Report. Rather, the methodological issues of the 2000 Westat
Report referred to in the RFI, some of which had to do with statistics
regarding intermittent leave, were meant to fully inform the public
about the limitations of the 2000 Westat Report particularly in light
of how the data was being used and because the Department was
interested in refining some of the estimates. It should further be
noted that the Department based its best estimates on the 2000 Westat
Report and believes that, despite the caveats noted, the 2000 Westat
Report still provides a great deal of useful information and data on
FMLA leave-takers. A number of commenters concurred, stating: ``the
2000 Westat Study, even with its limitations, has been invaluable and
represents the best available source for information on FMLA usage and
coverage.'' Faculty & Staff Federation of Community College of
Philadelphia, Local 2026 of the American Federation of Teachers, Doc.
10242A, at 2.
---------------------------------------------------------------------------

\26\ See 2000 Westat Report, at C-1.
\27\ See 2000 Westat Report, at 3-4.
---------------------------------------------------------------------------

Other commenters, however, were more critical of the 2000 Westat
Report. For example, the U.S. Chamber of Commerce noted that the
questionnaire used to survey establishments ``provides little insight *
* * on the nuanced complexity of the law, the vagueness that has
resulted in abuse of FMLA leave, the cost associated with compliance
and, more significantly, the cost associated with providing leave to
employees who likely were not intended to be covered by the statute.''
Doc. 10142A, at 11. Another comment noted ``[t]he Department does not
have an accurate measure of intermittent leave because this was not
covered adequately by the Westat surveys'' and that ``there are a few
questions in [the employer] survey that address intermittent leave, but
not necessarily the FMLA definition of intermittent leave.'' Randy
Albelda, Heather Boushey, and Vicky Lovell, Doc. 10223A, at 2. An
economic analysis of the FMLA by Criterion Economics concluded that the
results of the Westat surveys ``are subjective, qualitative,
incomplete, and biased in the direction of understating the costs of
FMLA[.]'' National Coalition to Protect Family Leave, Doc. 10172A,
Attachment at 23.
A number of groups favored additional data collection, beyond the
RFI, but were split as to whether such additional data collection was
needed to form the basis for rulemaking or would even contribute
significantly beyond what is already known and available. The National
Partnership for Women & Families noted that ``the lack of available
data on many of the issues raised in the RFI is an unfortunate reminder
of DOL's failure to conduct objective studies on the FMLA and its
implementation in recent years. * * * DOL has neglected to undertake
significant efforts to update this research, thus leaving an
information void. While the RFI solicits data from commenters on a long
list of questions, in many cases it is DOL that has been--and is--best
positioned to gather the relevant data to provide answers.'' Doc.
10204A, at 2. ``DOL has a particularly important role in conducting and
commissioning objective, scientifically sound research that can be used
to inform and assess implementation of the FMLA,'' and that pursuing
changes to the FMLA regulations without such data is unwarranted and
inappropriate. Id. The AFL-CIO stated ``The Department should not yield
to anecdotal evidence with respect to the purported burden of leave on
employers as a basis for tightening the eligibility rules for FMLA
leave. Anecdotes can never substitute for hard data[.]'' Doc. R329A at
9.
Randy Albelda, Heather Boushey, and Vicky Lovell mirrored the
comments of others that recommended that ``[a]dditional data
collection, using nationally representative surveys, could illuminate
the issues raised in the RFI'' while noting that the Westat surveys
``provide us with valuable information about family and medical leave-
taking[.]'' Doc. 10223A, at 1, 2. Criterion Economics concluded that
``[t]he Department has taken the first step towards a more complete and
accurate assessment by soliciting additional information through the
RFI[.]'' National Coalition to Protect Family Leave, Doc. 10172A,
Attachment at 23. The U.S. Chamber of Commerce also recommended that a
``follow-up study with employers should be conducted,'' but did not
believe such further study should delay regulatory action ``strongly
recommend[ing]'' that the Department initiate a rulemaking. Doc.
10142A, at 12. Another economic analysis by Darby Associates noted that
although ``the data are scattered, spotty, frequently inconsistent, and
largely anecdotal and episodic,'' ``[t]here is in the record a
substantial amount of data, analysis and conjecture on which to base a
description of various attributes of benefits and costs arising from
over a decade of experience under the FMLA.'' National Coalition to
Protect Family Leave, Doc. 10172A, Attachment at 7.
The Department does not dispute that the RFI was not a nationally
representative FMLA survey as were the Westat surveys and the
Department makes no attempt to directly compare data from such
different types of information collection. The Department,
nevertheless, believes that the RFI was a useful information collection
method that yielded a wide variety of objective survey data and
research, as well as a considerable amount of company-specific data and
information that supplements and updates our knowledge of the impacts
of FMLA leave. In fact, several organizations conducted national
surveys in response to the RFI.\28\
---------------------------------------------------------------------------

\28\ See also footnote 25.
---------------------------------------------------------------------------

Finally, the Department asked a number of questions in the RFI on
intermittent leave because one of the findings of the 2000 Westat
Report was that ``most employers report no adverse effects [from FMLA],
including from intermittent leave,'' \29\ while more recent information
on intermittent leave from private sector surveys and reports,
recommendations to the Office of Management and Budget, and stakeholder
meetings suggested that intermittent leave is a difficult issue for
many employers, particularly in some industries. Moreover, there was
not a lot of information on the issue in the 2000 Westat Report. As the
remainder of this chapter demonstrates, the data and information
obtained in response to the RFI provides considerable insight and a far
more detailed picture of the workings of the FMLA, and the impact of
intermittent leave, than the Westat surveys.
---------------------------------------------------------------------------

\29\ See 2000 Westat Report, Foreword by DOL at ix.
---------------------------------------------------------------------------

B. Number of Covered and Eligible Workers

The Department presented its best coverage estimates in the RFI.
These estimates were based upon updating the estimates in the 2000
Westat Report to account for differences in employment between 2000 and
2005 and

[[Page 35622]]

``correcting'' some of the methodological issues in the 2000 Westat
Report. A full description of the Department's approach was presented
in the RFI and resulted in the following estimates:

Number of Covered and Eligible Employees Under the Family and Medical
Leave Act in 2005
------------------------------------------------------------------------
In millions
------------------------------------------------------------------------
Total U.S. Employment................................... 141.7
Employees at FMLA-Covered Worksites..................... 94.4
Eligible Employees at FMLA-Covered Worksites............ 76.1
------------------------------------------------------------------------
Note: Employment for 2006 was not available at the time the RFI was
published in December 2006.

The Department did not receive any substantive comments on its
coverage or eligibility estimates or the methodology it used to produce
those estimates and concludes that these estimates are currently the
best available.

C. Number of Workers With Medical Certifications for Chronic Conditions

Although the Department did not specifically ask in the RFI for
comments on the number of covered and eligible workers who have medical
certifications for FMLA leave, nor did it ask for this information in
either the 1995 FMLA surveys or Westat surveys, it received a wide
variety of information and data on this issue. Nationwide survey data
and company-specific reports indicate that a significant number of
workers have medical certifications on file with their employers for
chronic health conditions, especially for some facilities or
workgroups, and that the number is increasing. For example:
Respondents to the National Association of Manufacturers'
survey reported ``that 25 percent of those eligible for FMLA leave had
medical certifications on file for a `chronic' illness that permitted
unannounced, unscheduled intermittent leave.'' Doc. 10229A, at 10.
Another comment noted that ``[s]everal other [air]
carriers report that 50% or more of all flight attendants and agents
are certified for FMLA leave.'' Air Conference, Doc. 10160A, at 4.
A survey by the U.S. Chamber of Commerce found ``[l]arge
companies reported having generally 15 percent of the workforce with
active medical certifications for FMLA at any time.'' Doc. 10142A, at
2.
Verizon noted that 44 percent of the employees in its
Florida Network Centers division had medical certifications and their
Business Solutions Group saw a jump in medical certifications from 28
percent in 2005 to 42 percent in 2006. Doc. 10181A, at 4.
The Commonwealth of Pennsylvania stated that it has two
24/7 healthcare facilities where 6 percent and 10 percent of the
workers have medical certifications that excuse them from working
mandatory overtime. Doc. 10042A, at 3.
The City of New York noted that 32 percent of all police
communication technicians (911 call-takers) have medical
certifications. Doc. 10103A, at 3.
The data received in response to the RFI suggest that a significant
number of workers in certain facilities and workplaces have medical
certifications on file for chronic health conditions, which due to
certain regulatory provisions and interpretations can allow these
workers to take unscheduled intermittent leave with little or no
notice, or to be excused from certain shifts or mandatory overtime.

D. Number of FMLA Leave-Takers

The Department presented three estimates of the number of covered
and eligible workers who took FMLA leave in 2005 and asked for
information and data on the approach it used to make these estimates,
and for other available data that could be used to develop its
estimates given the data limitations and methodological issues in the
2000 Westat Report. A full discussion of the Department's approach was
presented in the RFI and resulted in the following estimates:

------------------------------------------------------------------------
Percent of
covered & Number of
eligible FMLA leave-
workers takers (in
taking millions)
leave
------------------------------------------------------------------------
Upper-bound Estimate*......................... 17.1 13.0
Employer Survey Based Estimate**.............. 8.0 6.1
Lower-bound Estimate*......................... 3.2 2.4
------------------------------------------------------------------------
*From the Westat employee survey.
**The Department used a rate of 6.5 percent of covered workers in the
RFI. The rate presented here is the percentage of covered and eligible
workers calculated by dividing 6.1 million by 76.1 million.

In response to this request the Department received a significant
amount of data on FMLA leave usage from a wide variety of sources,
including nationally representative survey data and detailed
information from specific employers, both large and small, in a wide
variety of industries. The Department also received a few comments on
the data limitations with its approach and methodology for estimating
FMLA leave usage.
1. Comments on the Department's Approach and Data on the Number of
Leave-Takers
The Department received very few comments on its approach. Most of
the comments concerning the Department's leave estimates presented FMLA
usage figures at or above the Department's estimates, although many of
these were for individual employers or certain facilities of individual
employers. For example:
The U.S. Postal Service reported that 18.4 percent of its
620,688 employees took FMLA leave in 2006.\30\ Doc. 10184A, at 3.
---------------------------------------------------------------------------

\30\ The U.S. Postal Service only reported data for those
employees who are in its eRMS system.
---------------------------------------------------------------------------

Madison Gas and Electric Company stated, ``[o]ur data
shows 30% of eligible workers requested FMLA leave. Of the 30%, only
69% of the requested leaves qualified as FMLA leave. This resulted in
20% of eligible workers taking a qualified FMLA leave.'' Doc. 10288A,
at 4.
Delphi reported that at one of its large manufacturing
facilities in the Midwest ``nearly one of every five'' workers took
FMLA leave in 2005. Doc. 10225A, at 1.
UnumProvident reported that 17 percent of the employees in
the FMLA program that it administers for 95 clients nationwide took
FMLA in 2006. Doc. 10008A, at 1-2.
First Premier Bank stated that ``[o]n average, over 25% of
our staff has been on FMLA at one point or another during the course of
a year. There is almost 10% of our staff on FMLA at any given time.''
Doc. 10101A, at 1.
The University of Washington noted that ``[i]n our
organization of 950 employees * * * we consistently have 20% of the
workforce absent from work under FMLA[.]'' Doc. FL17, at 2.
The Department notes that although some employers experienced
higher rates of FMLA usage than the rates published in the RFI, this
does not indicate that these estimates were wrong. The Department
presented three alternative estimates of average FMLA use across all
employers in all industries of the economy in the RFI. Clearly some
employers in some industries will experience higher rates of usage just
as other employers in other industries may experience lower rates. For
example, the International Foundation of Employee Benefit Plans
conducted a nationwide survey of 241 corporate benefit managers, public

[[Page 35623]]

employers, and professional service providers and found:

------------------------------------------------------------------------
Percent of
Percent of workers using FMLA leave companies
------------------------------------------------------------------------
Less than 1%.............................................. 9
1% to 3%.................................................. 17
4% to 6%.................................................. 22
7% to 10%................................................. 17
11% to 15%................................................ 11
16% to 20%................................................ 6
More than 20%............................................. 4
Don't Know................................................ 13
------------------------------------------------------------------------

Doc. 10017A, at 17.
Although it is not possible to calculate the mean of this survey,
the median of those reporting a percentage is between 7 percent and 10
percent. This would appear to be consistent with the national average
findings presented in the 2000 Westat Report that 6.5 percent of
workers employed at facilities covered by the FMLA took FMLA leave, and
reflects the comments that suggest ``[w]ith the exception of Westat's
employer survey, in which double counting may have occurred, the data
tends to show that FMLA usage remains low.'' AFL-CIO, Doc. R329A, at 5
(footnote omitted).
Additional comments reported FMLA usage that is consistent with the
range the Department estimated in the RFI. For example:
A nationwide survey of 1,356 covered and eligible workers
age 50+ by AARP found that 9 percent took leave under the FMLA. Doc.
10228B, at 5.
The NJ Transit reported that 9 percent of its employees
are covered and eligible leave-takers. Doc. FL85, at 8.
FNG Human Resources stated that ``an average of 8% of
employees [are] on some manner of Family Medical Leave at all times.''
Doc. FL13, at 2.
Progressive Inc. also reported that approximately 10
percent of its workforce is on FMLA leave at any given time. Doc. FL2,
at 1-2.
The AFL-CIO stated that ``our survey shows that almost 16
percent (15.99%) of respondents have taken FMLA leave. These results
are well within the general range of the Westat employee-based
survey[.]'' Doc. R329A, at 7.
Further, comments clearly show that FMLA leave usage varies with
workgroups of some employers and that using averages for FMLA usage may
hide the impact it has on some employers and some facilities/workgroups
within employers. For example:
Union Pacific reported that ``17% of Train and Engine
Service employees use FMLA leave versus 3.5% use among all other
employees (5 x more). This disproportionate rate of use is magnified
when coupled with the fact that Train and Engine Services employees
make up roughly 46% of all employees company wide (25,000 of 54,000
total).'' Doc. 10148A, at page 2.
The Manufacturers Alliance reported that one ``member
company that is highly diversified, with eight business groups, states
that the percentage of FMLA leave taken intermittently within those
groups has ranged from a low of 10 percent to a high of 75 percent.
Across all units, the company estimates that the percentage of
intermittent leave as a percentage of all FMLA leave is in the range of
40 to 50 percent.'' Doc. 10063A, at 3.
2. Trend in the Number of Workers Taking FMLA Leave
A number of comments indirectly echoed Randy Albelda, Heather
Boushey, and Vicky Lovell, who specifically noted that ``using the 2000
share of those taking leave with 2005 employment data may also
underestimate the true take-up of the FMLA.'' Doc. 10223A, at 1. The
Albelda letter speculated that more people may know their FMLA rights
in 2005 compared to 2000, just as the 1995 FMLA surveys and Westat
surveys showed an increase in the percentage of covered workers taking
FMLA leave from 1995 to 2000. Madison Gas and Electric attributed its
higher rate to employers' ``increased awareness and recordkeeping
related to FMLA leave'' and ``[e]mployees have also become more aware
of their rights under FMLA, which has changed the scope of leaves
requested and taken.'' Doc. 10288A, at 4.
A number of other commenters explicitly reported that the use of
FMLA leave has increased since 2000. For example:
The Air Conference stated that ``[t]he percentage of
employees using FMLA is steadily increasing'' in the airline industry.
Doc. 10160A, at 4.
The Port Authority of Pittsburgh stated that ``the number
of employees on an approved leave at any one time has increased by five
percent. In 2002 approximately 6% of the workforce was on leave at any
one time. Over the years, this number has steadily increased to the
current level of 11%.'' Doc. FL135, at 2.
``The Dallas Area Rapid Transit (DART) has experienced a
significant increase in FMLA utilization over the past four years.
Employee FMLA absences increased from 1,965 workdays in FY 2003, to
over 6,100 workdays in 2006.'' Doc. FL41, at 2.
The National Association of Manufacturers commented that
``for one major auto parts manufacturer, applications for FMLA leave
increased 150-fold in ten years,'' Doc. 10229A, at 4.
The City of New York reported that ``[t]he use of FMLA
leave * * * has increased substantially in the last five years, from
10.8% of all medical leave in 2001 * * * to the 2006 level of 27.0% of
all medical leave.'' Doc. 10103A, at 2.
Aztec Manufacturing reported that ``FMLA absences have
grown 200% from 2002 to 2006.'' Doc. 10081A, at 2.
Others suggested that FMLA usage remains low. The Department notes,
however, that firms with higher than average FMLA usages rates probably
have a greater incentive to report their higher rates than those with
rates lower than the average.
Although the weight of the comments strongly suggests that the
percentage of employees using FMLA leave has increased, particularly in
some industries, the range of workers who took FMLA leave in 2005
(between 3.2 percent and 17.1 percent) is consistent with the data
submitted in response to the RFI. Nevertheless, the Department
recognizes it is possible that the number of workers who took FMLA
leave in 2005 is more likely to be between 6.1 million and 13.0 million
than between 2.4 million and 6.1 million. As the next section
indicates, awareness of the FMLA appears to be higher in 2005 than in
1999 when Westat conducted its surveys. So just as FMLA usage increased
between the times the two surveys sponsored by the Department were
conducted in the 1990s, given the comments received it is likely that
FMLA usage increased between 1999 and 2005.
3. Awareness of FMLA Leave Usage
In the RFI, the Department also raised the issue about the
difference between its lower-bound estimate based upon Westat's
employee survey and its best estimate based upon Westat's employer
survey. The Department noted: ``2.4 million may be a lower-bound
estimate in that it may under-estimate the number of covered and
eligible workers who actually took FMLA leave, because evidence exists
that many workers are unaware that their leave qualified and that their
employers may have designated their leave as FMLA leave.'' 71 FR 69511.
The Department received many comments on this issue. For example,
one commenter stated that ``[t]he obvious reason for this [discrepancy
between employer and employee survey

[[Page 35624]]

figures] is that a significant number of employers are not properly
informing employees that they are utilizing FMLA leave time when that
is actually occurring.'' Kennedy Reeve & Knoll, Doc. 4763A, at 13.
Others believe that there may be some confusion over FMLA leave
when other types of leave are taken concurrently. The National Council
of Chain Restaurants, for example, stated that the Department asked
``why employee estimates regarding the use of FMLA are so much lower
than employer estimates. We believe employees are much more likely to
focus on whether leave is paid or unpaid, and only to count unpaid
leave as FMLA leave when they answer such questions.'' Doc. 10157A, at
7. The Commonwealth of Pennsylvania reported that 6 percent of its
employees ``use some type of FMLA qualifying leave without pay each
year.'' Doc. 10042A, at 2. However, this did ``not include employees
who use paid leave in lieu of unpaid FMLA leave.'' Id.
Data from the Westat surveys and other surveys suggest that when
many employees think of FMLA leave, they only think of unpaid leave and
do not realize that FMLA leave often runs concurrently with paid leave.
They do not associate taking paid sick leave and other forms of paid
leave (e.g., vacation, personal) as taking FMLA leave `` when at times
it may be designated as such by their employer as permitted by the
statute. For example, AARP's national sample of workers 50 or more
years old reported that ``[d]espite high overall awareness of FMLA and
the fact that the majority (58%) of survey respondents have taken at
least some time off for family- or medical-related reasons within the
past five years, only nine percent of respondents (or 15% of leave-
takers) reported that any of the time taken was FMLA leave.'' Doc.
10228B, at 4.
4. Continuing Concern With Estimates of Leave Usage Over Time
After reviewing the comments the Department continues to believe
that the available data do not enable an accurate estimation of the
total number of workers who took FMLA leave since 1993, and remains
concerned about the possible misinterpretation of its estimates and
misapplication of its methodology for estimating the number of workers
who took FMLA leave in a given year. In fact, the Department received a
few comments with different estimates of the number of workers who have
taken FMLA leave since 1993. For example, the National Women's Law
Center noted, without citation, that ``[c]lose to 80 million workers
have taken FMLA leave in the last 14 years[,]'' and 9to5 stated, again
without citation, that ``FMLA has allowed more than 50 million
Americans to take job-protected leave[.]'' Doc. 10272A, at 1; and Doc.
10210A, at 1, respectively.
As noted in the RFI, the Department has determined that the
available data do not enable the accurate estimation of the total
number of workers who have taken FMLA leave from 1993 to 2005 because
``establishments may double count persons that took more than one FMLA
leave'' during the 18-20 month survey period that began in January
1999. Moreover, this double counting is even more likely to occur over
the longer period that began in 1993 due to workers who have chronic
conditions, more than one family member with a serious health
condition, or multiple pregnancies or adoptions.
5. Differences Between FLSA Exempt and Nonexempt Workers
In the RFI the Department solicited the following information with
respect to workers who are salaried and exempt from the Fair Labor
Standards Act (``FLSA'') under 29 CFR Part 541:
The Department requests that commenters submit information
related to the different treatment of FLSA exempt and nonexempt
employees taking unscheduled, intermittent FMLA leave.
The Department also requests information on the different
impact the leave taking by FLSA exempt and nonexempt employees may have
on the workers who have taken leave and their employers.
The Department received a few comments in response to this request
but they were generally vague and inconclusive. Some comments indicated
that nonexempt employees tend to take more FMLA leave than exempt
employees. For example, ``[t]he majority of our FMLA requests are from
hourly Fair Labor Standards Act-nonexempt employees.'' University of
Wisconsin-Milwaukee, Doc. FL120, at 1. Others indicated that FMLA usage
by nonexempt workers presents more of an issue than FMLA usage by
exempt workers because nonexempt workers tend to take more unscheduled
intermittent leave. For example:

As a general rule, non-exempt employees are more likely to use
unscheduled intermittent leave than exempt employees. In the case of
exempt employees, many tend to work more than 40 hours each week
anyhow, or make up the time later, or work from home even when on a
leave of absence. Exempt employees tend to use FMLA leave primarily
for birth of a child, acute illnesses or surgery, or planned medical
treatment (e.g., chemotherapy), all of which normally result in
scheduled time off and predictable time off. In most cases, these
leaves are continuous leaves or intermittent leaves over a period of
less than six (6) months.

Spencer Fane Britt & Browne LLP, Doc. 10133C, at 22.
However, several comments, particularly from the Society for Human
Resource Management chapters, suggest that the difference between
exempt and nonexempt employees is not their pattern of FMLA leave use
but rather the way their employers track the use of FMLA leave. One
commenter stated that ``many employers do not keep track of partial day
absences of exempt employees because it is virtually impossible to know
if and when the time has been made up. Many exempt employees make up
the time of their own volition.'' Arkansas Society for Human Resource
Management State Council, Doc. 5161, at 1. Another commenter noted that
``[t]racking FMLA leave in such small increments is extremely
burdensome--particularly with respect to exempt employees, whose time
is not normally tracked.'' Northern Arizona University, Doc. 10014A, at
5. One worker also agreed that employers treat exempt and nonexempt
workers differently when it comes to tracking FMLA leave:

I know there is inconsistency throughout the company on the
application of how FMLA is measured. For example, exempt employees
are allowed to take time off and it is generally considered that if
you have [worked] a minimum of 5 hours, you have [worked] a full
day. If I call in late due to being ill, the time I work is measured
and if I do not make the 8 hours, I'm expected to log the
difference. If another exempt calls in late because their child is
sick, nothing is done. If they come in late or leave early, it is
never a problem. My time is always scrutinized and questioned.

An Employee Comment, Doc. 10336A, at 9.
Although there was no consensus in the comments on whether one
group is taking more FMLA leave than the other group, one commenter
noted an apparent difference in the manner in which exempt and
nonexempt employees are paid while on FMLA leave. For example, Madison
Gas and Electric stated ``[a] variance also exists between time taken
by FLSA exempt and non-exempt employees. Exempt employees are typically
paid for time away while non-exempt employees do not receive pay,
unless they are able to substitute from a paid leave balance. This pay
for leave time differences generally increases the amount of time taken
by FLSA exempt employees.'' Doc. 10288A, at 5.

[[Page 35625]]

E. Number of Workers Taking Intermittent FMLA Leave

The Department presented its estimate of the number of covered and
eligible workers who took intermittent FMLA leave in 2005 and asked for
information and data on the approach it used to make the estimate, and
for other available data that could be used to refine its estimate. As
noted in the RFI, the Department used data from Westat's employee
survey to develop an estimate of the number of workers that used
intermittent FMLA leave in 2005. Specifically, Westat's employee survey
found that almost one-quarter (23.9 percent) of covered and eligible
workers who took FMLA leave reported taking their leave intermittently.
That is, they repeatedly took leave for a few hours or days at a time
because of ongoing family or medical reasons. Therefore, based on the
Westat survey data, about 1.5 million FMLA leave-takers (i.e., 23.9
percent of 6.1 million FMLA leave-takers) or about 2 percent of the
workers employed in the establishments covered by the FMLA (i.e., 1.5
million of 94.4 million) used intermittent leave in 2005.
In response to this request, the Department received a significant
amount of data on intermittent FMLA leave usage from a wide variety of
sources, including nationally representative survey data and detailed
information from specific employers, both large and small, in a wide
variety of industries. In fact, the Department received more data on
this issue (and the unscheduled component of intermittent leave
discussed in the following section) than almost any other issue in the
coverage and usage section of the RFI. The Department also received a
few comments on the data limitations with its approach and methodology
for estimating intermittent FMLA leave usage.
1. Comments on the Department's Approach To Estimating Intermittent
FMLA Leave Use
As was noted in the RFI, the Westat surveys ``tended to focus on
the longest leaves taken for family and medical reasons rather than the
leaves taken intermittently.'' However, the Westat surveys also asked
some questions related to intermittent leave.
Randy Albelda, Heather Boushey, and Vicky Lovell submitted one of
the most critical comments on the Department's approach that touched on
some data limitations of Westat's employee survey while noting that
``data that are available from the survey seem to suggest a wide range
of possible leave-takers who might use the leave intermittently.'' Doc.
10223A, at 2. Specifically, the Albelda letter stated:

[The Department's] approach may substantially understate the use
of intermittent leave. The Department uses data from the employee
survey, which does not ask about the number of intermittent leaves,
asking instead whether those who took a leave for purposes covered
under FMLA leave took their leave intermittently. Some, none, or all
of that leave may have been under FMLA, but there is no way to know
from the survey questions. Further, the Department applies this
``guesstimate'' to the total number of leave-takers, which may not
be correct. As the Department points out, this assumes that all
groups of workers are equally likely to take intermittent leave,
which may not be true.
The Department does not have an accurate measure of intermittent
leave because this was not covered adequately by the Westat
surveys''. The Westat employee survey asks how many leaves employees
took over the previous 16-18 month period and probes further about
two of their longest leaves, but does not specifically ask about
FMLA-defined intermittent leave[.]

Doc. 10223A, at 2.
This criticism notwithstanding, the Albelda letter went on to
identify a number of questions in the Westat employee survey that might
be used to refine the Department's approach and reached nearly the same
estimate as that presented by the Department in the RFI, that
intermittent FMLA leave appears to be important for more than a quarter
of leave-takers. Specifically, the Albelda letter noted:

The data that are available from the survey seem to suggest a
wide range of possible leave-takers who might use the leave
intermittently. For example, 27.7 percent said they alternated
between leave and work (question A5BB), with more than half (53.3
percent) of that group indicating they did that for less than half
of their leave (question A5C). So, a relatively large number
indicate not taking a leave all at once, but over half did so for
less than half of their leave. In another part of the survey, 7.2
percent of leave-takers said that they were not off work the entire
time during their longest leave over the past 16-18 months (question
A3E). Of those who took multiple leaves, 20 percent indicated they
alternated between leave and work (question A8); of those, 13
percent indicated they do so regularly (question A8A). Thus, the
ability to use FMLA leave intermittently appears to be an important
feature of the policy for more than a quarter of leave-takers.

Doc. 10223A, at 2-3 (footnote omitted).
Madison Gas and Electric Company stated that ``the approach used by
the Department [to estimate the usage of intermittent leave] seems
sound but will vary between employers. The estimated use of
intermittent leave is lower than the experience of our company.'' Doc.
10288A, at 4.
A number of commenters who were critical of the Department's
approach recommended that the Department collect additional information
about intermittent FMLA leave, which was one of the objectives of the
RFI. See Chapter XI, section A.
2. Data on the Number of Intermittent Leave-Takers
The Department received a significant amount of data on the number
and percentage of workers who have taken intermittent FMLA leave that
supplements and updates the results of the 2000 Westat Report. For
example, a nation-wide survey of 241 corporate benefit managers, public
employers, and professional service providers by the International
Foundation of Employee Benefit Plans found:

------------------------------------------------------------------------
Percent of
Percent of FMLA leave that is taken intermittently companies
------------------------------------------------------------------------
Less than 5................................................ 48
5 to 15.................................................... 16
16 to 25................................................... 10
26 to 55................................................... 6
More than 55............................................... 5
Don't Know................................................. 14
------------------------------------------------------------------------

Doc. 10017A, at 20.
Although it is not possible to calculate the mean of this survey,
the median of those reporting a percentage is between 5 percent and 15
percent, which is below Westat's estimate that 23.9 percent of FMLA
leave-takers took some of their leave intermittently. Other comments
also reported percentages of intermittent FMLA leave lower than either
Westat's estimate or the Department's estimate that about 2 percent of
all workers employed in the establishments covered by the FMLA took
intermittent FMLA leave. For example:
According to the WorldatWork survey, 18.1 percent of FMLA
leaves in 2005 were due to chronic conditions. Doc. 10201A, at 11.
The AFL-CIO stated ``in our survey just 12 percent of all
respondents reported having taken intermittent leave. This finding
supports that available evidence, which shows that `intermittent leave
is used infrequently[.]' '' Doc. R329A, at 7.
One member company of the Manufacturers Alliance stated
that intermittent leave ``is rare and generally involves ongoing
medical treatment[.]'' This company ``does not see a lot of
intermittent leave--probably less than 10 percent of all leave taken.''
Doc. 10063A, at 2.
Many comments, however, reported intermittent FMLA usage above
either

[[Page 35626]]

the Westat or the Department's estimates. For example:
The University of Washington reported ``5% of employees
are currently approved for intermittent FMLA leave.'' Doc. FL17, at 2.
Honda reported that 2,249 employees out of an employee
population of 20,757 (about 11 percent) took a total of 22,250 days of
intermittent FMLA leave in 2006. Doc. 10255A, at 6.
NJ Transit reported that ``fully 95 percent of [FMLA]
requests were for intermittent leave.'' Doc. FL85, at 5.
Progressive Inc. reported that 75 percent of its
employees' FMLA leaves are intermittent. Doc. FL2, at 2.
The Madison Gas and Electric Company reported that
``[o]ver one-third of employees within our company request intermittent
leave which is higher than the estimate determined by the Department.''
Doc. 10288A, at 4.

See also Delphi Inc, Doc. 10225A, at 2; Kalamazoo Human Resource
Management Association, Doc. 10035A, at 2; HR Policy Association, Doc.
R367A, at 3; Southwest Airlines Co., Doc. 10183A, at 3.
Other comments show that intermittent FMLA leave usage varies by
workgroup within some employers, and that using averages for
intermittent FMLA usage across industries and operations within
industries may hide the impact that FMLA usage has on some employers
and some facilities/workgroups within employers. For example:
Based on client comments, Spencer Fane Britt & Browne
stated ``[t]here are employers who report that they have as many as 40-
50% or more of all their employees, and as much as 75-100% of employees
within a particular work group or department, who have submitted
medical certifications for and use intermittent leave for chronic
conditions.'' Doc. 10133C, at 19.
Southwest Airlines reported that ``[i]n the workgroup with
the highest percentage of FMLA use in relation to [the] number of
employees, Reservations, intermittent FMLA represents 75% of the FMLA
leaves over the last two years[.]'' Doc. 10183A, at 3.
The Manufacturers Alliance reported that one highly
diversified member with eight business groups stated ``that the
percentage of FMLA leave taken intermittently within those groups has
ranged from a low of 10 percent to a high of 75 percent'' with a
company wide average of ``40 percent to 50 percent.'' Doc. 10063A, at
3.

See also MGM Mirage, Doc. 10130A, at 4; Briggs and Stratton, Doc.
FL37, at 1-2; and Association of American Railroads, Doc. 10193A, at 1.
A number of other comments reported that intermittent leave usage
is increasing. In some cases the reported increases are very large. For
example:
DST Systems, Inc. stated that ``[t]he burden of
intermittent leave is steadily growing. The number of intermittent
leaves at our company has grown almost 300% in one year, from 71 in
2005 to 221 in 2006.'' Doc. 10222A, at 2.
Verizon provided the example of its Customer Financial
Services Mass Market group where ``the use of intermittent leave has
increased from 22% of eligible employees in 2004 to 30% in 2005 and 37%
in 2006.'' Doc. 10181A, at 4.
National Association of Manufacturers reported that
``[f]or one major auto parts manufacturer * * * the use of intermittent
leave increased five times more quickly than that for regular FMLA
leave. Our data indicate that the experience of this company is typical
of manufacturers.'' Doc. 10229A, at 4.
The fact that some employers have higher rates of intermittent FMLA
leave use than the averages estimated by the Department is not
surprising, especially in view of the self-selection of those who took
the time to submit comments to the RFI. Moreover, it is noteworthy that
the preponderance of companies responding to the survey conducted by
the International Foundation of Employee Benefit Plans reported that
less than 25 percent of FMLA leaves were taken intermittently.
On the whole, the data presented above appear to be consistent with
the ratios used by the Department to develop the estimates presented in
the RFI, i.e., that about one quarter of FMLA leaves are taken
intermittently. However, the Department believes that its estimate that
about 1.5 million workers took intermittent FMLA leave in 2005 may be
too low because the estimate of 1.5 million workers taking intermittent
FMLA leave was based upon the estimate of 6.1 million workers taking
FMLA leave and for the reasons discussed above (e.g., increased
employee awareness), the 6.1 million estimate may be low. Moreover, the
comments also suggest that more workers appear to be taking
intermittent FMLA for chronic serious health conditions.

F. Number of Workers Taking Unforeseen or Unscheduled Intermittent FMLA
Leave

The Department presented its estimate of the number of covered and
eligible workers who took unscheduled intermittent FMLA leave in 2005
and asked for information and data on the approach it used to make the
estimate, and for other available data that could be used to refine its
estimate.\31\ The Department also requested comment on the prevalence,
durations, and causes of intermittent leave.
---------------------------------------------------------------------------

\31\ Commenters used the terms ``unscheduled'' and
``unforeseen'' interchangeably.
---------------------------------------------------------------------------

As noted in the RFI, the Department used the responses to Question
A8a in Westat's employee survey as a rough ``proxy'' for the percentage
of the employees who took unscheduled intermittent FMLA by assuming
that the portion of the intermittent FMLA leave-takers who took
unscheduled leave were the 45.4 percent that answered ``As Needed'' to
Question A8a. Thus the Department estimated that about 700,000 workers
(i.e., 45.4 percent of 1.5 million) took unscheduled intermittent FMLA
leave in 2005.
In response to this request, the Department received a significant
amount of data on the use of unscheduled intermittent FMLA leave from a
wide variety of sources, including nationally representative survey
data and detailed information from specific employers, both large and
small, in a wide variety of industries. The Department also received a
few comments on the data limitations with its approach and methodology
for estimating intermittent FMLA leave usage.
Although the Department did not receive significant comments on its
method for estimating the number of workers who took unscheduled
intermittent FMLA leave in 2005 (about 12 percent of workers taking
FMLA leave), the Department acknowledges that the uncertainty regarding
this estimate is larger than that of the estimate of intermittent FMLA
leave because data on taking leave as needed was used as a proxy for
unscheduled intermittent leave. Moreover, it is important to note that
many of the estimated 700,000 workers may take a number of unscheduled
intermittent leaves depending on their chronic health condition.\32\
---------------------------------------------------------------------------

\32\ For example, Randy Albelda, Heather Boushey, and Vicky
Lovell noted that data from the Westat employee survey found that
for the 27.7 percent who said they alternated between leave and work
(question A5BB), more than half (53.3 percent) of that group
indicated they did that for less than half of their leave (question
A5C). Doc. 10223A, at 2-3. This implies that nearly one-half (46.7
percent) used more than half of their leave intermittently. Given
the comments that were received, certainly a significant amount of
this intermittent leave was unscheduled. Id.
---------------------------------------------------------------------------

The Department did receive a significant amount of data on the
number and percentage of workers who

[[Page 35627]]

have taken unscheduled intermittent FMLA leave. Many commenters also
used terms such as ``certified for intermittent leave'' or ``leave
taken intermittently for chronic conditions'' to describe their data.
For example:
The National Association of Manufacturers said that
``respondents to the NAM's survey'' reported that 25 percent of those
eligible for FMLA leave had medical certifications on file for a
``chronic'' illness that permitted unannounced, unscheduled
intermittent leave. If only those workers used intermittent leave,
manufacturers are experiencing a use of intermittent leave at nearly 8
times the national average!'' Doc. 10229A, at 10.
Southwest Airlines noted that ``[m]ost of the intermittent
leave at Southwest is also taken on an unscheduled basis, without
advance notice by employees, particularly during the last five years.''
Doc. 10183A, at 1.
New York City said that ``[t]he use of FMLA leave,
particularly unscheduled intermittent leave, by PCTs [police
communication technicians] has increased substantially in the last five
years, from 10.8% of all medical leave in 2001, to a high of 39.6% of
all medical leave in 2003, to the 2006 level of 27.0% of all medical
leave.'' Doc. 10103A, at 2.
Other comments show that unscheduled intermittent FMLA leave usage
varies with workgroups of some employers; these comments suggest that
using averages for FMLA usage may hide the impact it has on some
employers and some facilities/workgroups within employers. For example:
The National Association of Manufacturers said that
``[f]or one major manufacturer, a staggering 60 percent of all FMLA
leave taken in the last nine months was for a period of one day or
less. Nearly all of this leave was unscheduled, nearly all of it
unannounced.'' Doc. 10229A, at 10.
The University of Wisconsin-Milwaukee stated ``[i]n one
department alone, of 135 hourly blue-collar employees, 37 took FMLA
during 2006, or roughly 27.4 percent. Of the 37 who used FMLA during
2006, 24 were on intermittent, unscheduled FMLA, or roughly 65 percent
of those who used FMLA were on intermittent unscheduled FMLA.'' Doc.
10098B, at 3.
The U.S. Chamber of Commerce provided several examples of
workplaces where the large numbers of active FMLA certifications permit
a significant portion of the workforce to take unscheduled FMLA leave.
``Large companies reported having generally 15 percent of the workforce
with active medical certifications for FMLA at any time. Some employers
reported extraordinary levels of active FMLA cases. * * * One employer
reported certain facilities with 30 percent of the workforce classified
as FMLA active. Another employer reported a call center where 50
percent of the workforce was classified as FMLA active.'' Doc. 10142A,
at 2, n. 2.
After reviewing the comments, it appears that the Department's
unscheduled intermittent FMLA leave estimates presented in the RFI--
that about 700,000 workers took unscheduled intermittent FMLA leave--
may be too low for at least a couple of reasons. First, as noted in the
previous section, the Department's estimate of the number of workers
who took intermittent leave in 2005 appears to be low. Second, the
comments also suggest that a significant percentage of FMLA covered and
eligible workers have medical certifications on file for chronic
conditions that enable them to take unscheduled intermittent leave with
little or no notice.\33\ Thus, it is likely that a significant portion
of the estimated 6.1 million workers who took FMLA leave in 2005
(perhaps several million) took some form of intermittent leave and that
many of the workers who took intermittent leave took at least some of
it without prior notification.
---------------------------------------------------------------------------

\33\ See Chapter IV.
---------------------------------------------------------------------------

Finally, it is clear from the record and the comments received that
if another nationwide survey of both employers and employees on the use
and impact of FMLA is conducted in the future, it should do more than
simply update the Westat surveys. The Westat surveys were not designed
to inquire specifically about many of the issues currently being raised
(e.g., the use of unscheduled intermittent FMLA leave); the definition
of ``intermittent leave'' used by Westat did not match the statutory
definition; and the Westat surveys did not collect data on medical
certifications for chronic health conditions.

G. The Economic Impact of FMLA Leave

Previous congressional testimony, the 2000 Westat Report, other
surveys, and stakeholder meetings suggest that the FMLA has significant
benefits and costs. Further, most surveys of workers and employers show
that, while the FMLA has been generally effective in carrying out the
congressional intent of the Act, some aspects of the statute and
regulations have created challenges for both workers and employers. As
was stated in the RFI:

[T]he Department has not received complaints about the use of
family leave--i.e., leave for the birth or adoption of a child. Nor
do employers for the most part report problems with the use of
scheduled intermittent leave as contemplated by the statute, such as
when an employee requests leave for medical appointments or medical
treatment like chemotherapy. Rather, employers report job
disruptions and adverse effects on the workforce when employees take
frequent, unscheduled, intermittent leave from work with little or
no advance notice to the employer.

The Department received additional support for this understanding
in response to the RFI from both worker and employer groups. For
example, the AFL-CIO noted that ``[c]oupled with smaller, more recent
studies, the 2000 Westat Report shows that the FMLA, as implemented by
the regulations, has worked as Congress intended.'' Doc. R329A, at 1.
Further, the National Association of Manufacturers stated that ``the
FMLA has achieved its principle goal: leave to care for oneself or
one's family during health problems. * * * Yet there are a number of
areas that continue to plague employers who are trying to provide the
leave made available by law in a manner that is reasonable and cost-
effective.'' Doc. 10229, at 3.
Given this assessment, the Department presented Westat's estimates
of the impact that the FMLA had on productivity and profitability (see
71 FR 69513, Table 4), and asked a variety of questions intended to
update and supplement data in the 2000 Westat Report on the economic
impact of the FMLA. Specifically, the Department asked for:
Data that would allow the Department to better estimate
the costs and benefits of the FMLA.
How does the availability of FMLA leave affect employee
morale and productivity?
Is there any evidence that FMLA leave increases employee
retention, thereby, reducing employee turnover and the associated
costs?
Alternative information related to the different economic
impacts that intermittent leave has on large employers compared to
smaller employers.
Alternative information regarding any economic impact that
recurring unforeseen, unscheduled, intermittent FMLA leave may have on
covered employers, and on productivity and profits.
Information on the concentration of workers taking
unscheduled, intermittent FMLA leave in specific industries and
employers.

[[Page 35628]]

Information on the factors contributing to large portions
of the work force in some facilities taking unscheduled, intermittent
FMLA leave.
Does scheduled FMLA leave present different problems or
benefits from unscheduled FMLA leave? Does intermittent leave present
different problems or benefits from leave taken for one continuous
block of time? Does the length of leave taken present different
problems or benefits?
How do employers cover the work of employees taking FMLA
leave? Does the length of leave impact this coverage? Does the fact
that the leave is scheduled or unscheduled impact this coverage? Does
the amount of notice given by the leave-taking employee impact this
coverage? Does the fact that the leave is intermittent impact this
coverage?
Is there any evidence of employers closing or relocating
facilities as a result of employee leave patterns (either scheduled or
unscheduled)?
The Department received many comments on some of these questions
(e.g., the impact of the FMLA on employees' morale, productivity and
profits) and very few, if any, comments on others (e.g., the closing of
plants due to the FMLA). Since the responses to many of the questions
overlap, the Department decided to organize the findings presented
below by topic rather than according to each question asked.
1. Comments on the Department's Approach on the Economic Impacts of the
FMLA
It was not the Department's intention in the RFI to focus on just
the impact that the FMLA regulations have on productivity and
profitability. Rather, the intention was to supplement existing data
and information on the wide variety of economic impacts that the FMLA
is likely to have on both workers and employers, including productivity
and profitability. Despite this, the Department received some criticism
that it did not discuss nor solicit sufficient information to assess
the overall financial impact of the FMLA on the economy. For example,
some Members of Congress noted that there may be ``unintended
consequences that not only have an adverse effect on employers, they
are equally harmful to employees[.]'' Letter from 2 Republican Members
of Congress, Doc. FL112, at 1. A more specific critique was submitted
by Criterion Economics, which stated:

[N]either the Westat survey nor the RFI itself provide an
appropriate economic framework for assessing the costs of the FMLA.
Both the Survey and the RFI focus on the effects of FMLA on the
``profitability'' and ``productivity'' of firms. * * * [T]he costs
of FMLA are likely borne to a significant extent by workers, in the
form of reduced wages, higher unemployment, or both; and by
consumers, in the form of higher prices.

National Coalition to Protect Family Leave, Doc. 10172A, Attachment at
2.
Darby Associates took another approach and used a standard economic
welfare framework to assess the size, nature, and distribution of the
Act's benefits and costs and among individuals, and concluded their
analysis with a deadweight economic loss estimate. They also noted that
many FMLA benefits and costs are difficult to measure. See National
Coalition to Protect Family Leave, Doc. 10172A, Attachment.
Finally, the Office of Advocacy at the Small Business
Administration (SBA) also noted that in 1995 the Department published a
final rule that ``improperly compared the number of covered small
entities to the total number of small businesses, rather than
calculating the number of small businesses that are covered by a rule
that will suffer a significant economic impact.'' \34\ Doc. 10332A, at
4. The SBA Office of Advocacy recommended a Section 610 review that
includes an evaluation of the ``degree to which the technology,
economic conditions, or other factors have changed * * * the area
affected by the rule.'' Doc. 10332A, at 3.
---------------------------------------------------------------------------

\34\ It should also be noted that the Regulatory Impact Analysis
that accompanied the Department's 1995 final FMLA rule was based on
1987 and 1993 General Accountability Office (GAO) reports that did
not include the net cost associated with replacing workers or
maintaining output while workers are on unpaid leave. Nor did it
include the costs associated with intermittent or unforeseen
intermittent leave for the GAO reports focused on ``extended'' leave
for birth or adoption of a child, a seriously ill child, a seriously
ill parent, a seriously ill spouse, and temporary medical leave.
---------------------------------------------------------------------------

2. Overall Impacts of the FMLA
Although the intent of the RFI was not to provide a basis for
estimating the entire impact of the FMLA on the economy, the Department
did receive some comments about the overall impacts of the FMLA. These
comments were generally divided into the costs and benefits resulting
from the current implementation of the statute. The Department did not
receive a single submission that attempted a comprehensive and detailed
cost-benefit analysis.
3. Overall Benefits of the FMLA
The Department received many comments discussing the benefits to
workers and employers of the FMLA in general as well as specific
benefits that result from decreased costs to employers and the economy.
These benefits include: The retention of valuable human capital, having
more productive employees at work, lower long-run health care costs,
lower turnover costs, lower presenteeism costs,\35\ and lower public
assistance costs.
---------------------------------------------------------------------------

\35\ Presenteeism is where employees report to work when they
are ill and perform below the employer's expectations because they
are not well.
---------------------------------------------------------------------------

Often these benefits are immeasurable and priceless. See also
Chapter I. One worker perhaps said it best: ``Last year, my husband was
diagnosed with Hodgkin's Lymphoma. * * * It was during this time that
my husband needed me most. Had I not had the opportunity afforded to me
by the FMLA, I don't know what we would have done. I needed to be there
to help him eat, take care of him when he was sick, consult with
doctors and nurses, but most of all for mental and emotional support.
He still says how important it was that I was with him at all times
during this terrible experience. * * * FMLA allowed me to help my
husband and not have to worry about job security.'' An Employee
Comment, Doc. 4755, at 1. Clearly, ``there is no denying the importance
of fundamental benefits conferred by the Act on individuals.'' National
Coalition to Protect Family Leave, Doc. 10172A, Darby Associates,
Attachment at 2.
Although none of the commenters developed an overall estimate of
the benefits of the FMLA, the comments generally characterized the
major benefits to employers as reducing the cost of presenteeism and
employee turnover. Additionally, there was a significant amount of
anecdotal evidence presented on the benefits to the employees taking
FMLA leave and their families.
For example, one commenter noted that ``[t]he Department should
remember that there would be many hidden costs associated [with]
weakening this law. Sick employees will report to work thereby
infecting co-workers and further damaging productivity. People will not
be able to provide adequate care for sick children and elderly parents.
Nobody knows what such neglect might cost our economy.'' An Employee
Comment, Doc. 5438, at 1.
4. Reduced Presenteeism Costs
According to the Center for Worklife Law, ``The cost of lost
productivity due to presenteeism is significantly greater than the cost
of lost productivity due to absenteeism. The total annual cost of lost
productivity is $250 billion. Presenteeism accounts for $180 billion or
72% of that total. The availability of

[[Page 35629]]

intermittent FMLA leave incentivizes employees to stay home when they
are seriously ill and reduces lost productivity expenses incurred by
employers.'' \36\ Doc. 10121A, at 5. ``Sick men and women do not add in
a positive way to their working environment. What does happen is the
population of the surrounding offices are exposed to increased risk of
illnesses causing flu, colds and other seasonal illnesses to move more
quickly and with a greater toll on our population in general.'' An
Employee Comment, Doc. 4710, at 1.
---------------------------------------------------------------------------

\36\ The Center for WorkLife Law's reference for these estimates
was Jodi Levin-Epstein, Presenteeism and Paid Sick Days, Center for
Law and Social Policy (February 28, 2005), citing W. Stewart, D.
Matousek, & C. Verdon, The American Productivity Audit and the
Campaign for Work and Health, The Center for Work and Health,
Advance PCS (2003).
---------------------------------------------------------------------------

The estimates submitted for the record, such as the one cited
above, already include a reduction in presenteeism due to the use of
the FMLA as the studies were conducted well after the FMLA was enacted
in 1993. Although many commenters cited the overall costs of
presenteeism and asserted that FMLA has some positive impact on
limiting those costs, no one attempted to quantify the marginal effect
or economic impact that enactment of the FMLA had on the issue.
However, the lack of a quantitative estimate does not mean that the
FMLA does not have an impact on presenteeism. Clearly, the FMLA has
allowed workers to take leave and not work when they are suffering from
a serious health condition that is contagious. On the other hand, it is
also evident that workers with contagious illnesses still come to work
for a variety of reasons.
5. Increased Employee Retention and Lower Turnover Costs
The Department received many comments emphasizing the positive
impact the FMLA has on employee morale and how it increases worker
retention and lowers turnover costs. By reducing employee turnover,
some commenters argued that the FMLA reduces employer costs.
For example, the Human Rights Campaign noted that ``[t]he 2000
Westat Study found that 89% of employers reported that the FMLA has had
either a positive or neutral effect on employee morale. The survey also
reported that, of those who have taken on added duties when a co-worker
has taken FMLA leave, over four in five (85%) say the impact on them
was neutral or positive.'' Doc. 10179A, at 2. The Center for Law and
Social Policy cited ``[t]he 1995 Commission on Leave report [that]
found that 10.9 percent of leave-takers who are not covered by FMLA
fail to return to the same employer after taking leave, compared to
only 1.9 percent of workers who are covered.'' Doc. 10053A, at 2.
Finally, Local 2026 of the American Federation of Teachers concluded,
``[t]he law promotes workforce stability by helping employees retain
their jobs when an emergency strikes. We believe the FMLA is essential
to greater employee retention and to reducing employee turnover, and it
is crucial to preserve FMLA's protections in their entirety.'' Doc.
10242A, at 8.
A survey of AARP members suggests that the FMLA also increases the
supply of labor. When FMLA leave-takers in its survey ``were asked to
speculate about the steps that they would have taken if they had not
received FMLA leave, approximately one in ten (11%) indicated that they
would have had to quit their job or would have lost their job[.]'' Doc.
10228B, at 4.
Notably, the Center for WorkLife Law tried to quantify some
parameters of the impact the FMLA has on worker retention. ``Employers
also profit from the availability of intermittent leave. * * * [T]he
total estimated annual replacement cost to employers associated with
caregiver attrition is $6,585,310,888. Without FMLA leave, attrition
among employed caregivers would increase even more sharply.'' \37\ Doc.
10121A, at 5.
---------------------------------------------------------------------------

\37\ The Center for WorkLife Law reference for this estimate was
``The MetLife Caregiving Cost Study: Productivity Losses to U.S.
Business,'' MetLife Mature Market Institute and National Alliance
for Caregiving, at 12 (July 2006).
---------------------------------------------------------------------------

However, other commenters noted that while some uses of FMLA leave
(e.g., for a medical emergency, the birth of a child, to receive medial
treatment or therapy) are good for employee morale, the repeated use of
unscheduled FMLA leave by some employees can actually have the opposite
effect. See Chapter IV, for a more complete discussion.
6. Other Benefits
A number of workers also submitted comments that either explicitly
or implicitly identified other important benefits of the FMLA, such as
having more productive employees at work, lower long-run health care
costs, retaining valuable human capital, and lower public assistance
costs. For example,
``Because of the Act our team is still complete and
productive * * * the Family and Medical Leave Act not only keeps
productive teams together in the long run, but it fosters loyalty to
the corporation not only for those who take part in family leave, but
for those who respect the support of their colleagues. It is a small
investment by the corporation for a long term benefit.'' An Employee
Comment, Doc. 4858, at 1-2.
``Having a parent available to care for a sick child has
proven benefits in shortened recovery times and better health and
school outcomes.'' 9 to 5, National Association of Working Women, Doc.
10210A, at 1.
``Because of being able to take time off for treatment and
retain my job, my company was able to retain valuable expertise.'' An
Employee Comment, Doc. 234, at 1.
``If it were not for FMLA, my family and I would be living
in a box under a bridge somewhere * * * if it were not for my employer
being understanding and supporting FMLA, [I would] be another statistic
of the unemployed in the United States.'' An Employee Comment, Doc.
5006, at 1.
Clearly the FMLA has resulted in significant benefits for
employers, their employees and the public. Employers benefit from
reduced turnover and decreased presenteeism. Workers benefit from being
able to take leave to care for themselves and family members with
serious health conditions without fear of losing their jobs. Society
benefits from the increased supply of trained workers and the reduced
need for public assistance. The fact that these benefits have not been
quantified or expressed in monetary terms by any of the commenters
should not be taken as an indication that these benefits are not
substantial.
7. Overall FMLA Compliance Costs
Some commenters cited a 1995 Department of Labor cost estimate \38\
and a 2004 study by the Employment Policy Foundation that estimated the
cost of the FMLA. For example, the SBA Office of Advocacy stated: ``In
1995, DOL estimated that the cost to all business from the FMLA [was]
$675 million annually, but only computed the costs of maintaining group
health insurance during periods of permitted absences. In contrast, a
study by the Employment Policy Foundation (EPF) estimates that the
direct costs [of] FMLA leave to employers was $21 billion in 2004 in
terms of lost productivity from absenteeism, continued health benefits,
and net labor replacement costs.'' \39\ Doc. 10332A, at 3-4. The EPF
estimates were based upon the direct compliance

[[Page 35630]]

costs of the firms responding to a membership survey.
---------------------------------------------------------------------------

\38\ 60 FR 2180.
\39\ See also footnote 34.
---------------------------------------------------------------------------

The Department received one economic study from Darby Associates
that assessed the impact of the FMLA on the economy ``based on a review
of data and analysis available after a decade of experience under the
Act.'' National Coalition to Protect Family Leave, Doc. 10172A,
Attachment at 1. ``The paper concludes that much of the cost of
implementation of the Act is effectively a ``dead weight'' economic
loss that reflects economic waste and confers very limited benefit on
all but a few stakeholders. These deadweight losses are estimated to be
in excess of $30 billion annually[.]'' Id. Darby Associates developed
their estimate by adding $11 billion in indirect costs from a 2001
National Association of Manufacturers survey to the $21 billion direct
costs estimate by EPF.
Darby Associates also identified a number of FMLA-related costs
that they did not attempt to separately estimate: these include the
loss of productivity, increased administrative and personnel costs,
overtime pay, decreases in quality and safety, and costs imposed on
customers and other employees. National Coalition to Protect Family
Leave, Doc. 10172A, Attachment at 15. Darby Associates went on to note
that ``[m]any of the costs of leave, especially intermittent leave, are
experienced in ways that defy measurement `` lost opportunities by
employers as well as impacts on other employees in the workplace,
including stress, inconvenience, loss of morale and workplace
effectiveness.'' Id., Doc. 10172A, Attachment at 13-14.
A primary finding of Criterion Economics' analysis is that ``the
costs of FMLA are likely borne to a significant extent by workers, in
the form of reduced wages, higher unemployment, or both; and by
consumers, in the form of higher prices.'' National Coalition to
Protect Family Leave, Doc. 10172A, Attachment at 2. See also id., Doc.
10172A, Darby Associates, Attachment.
8. Summary of the Overall Benefits and Costs of the FMLA
The available evidence appears to support the conclusion that both
the costs and benefits of the FMLA are large and difficult to quantify.
The overall weight of the comments is that the FMLA has had
immeasurable benefits for millions of workers and has imposed
significant costs on the economy. The records shows it has likely
increased the supply of labor and reduced employer costs by enabling
employees to remain in the work force in the face of serious health
conditions, but its costs are borne by individuals as consumers,
workers, and economic stakeholders.
As explained in earlier chapters, numerous comments that the
Department received in response to the RFI confirm that the greatest
challenge for employers associated with the FMLA, and its most
significant economic impacts, stem primarily from the unscheduled
intermittent leave portion of the FMLA.\40\
---------------------------------------------------------------------------

\40\ See also Chapter IV.
---------------------------------------------------------------------------

Finally, the Department believes that it would be difficult, with
any precision, to differentiate the impact that the FMLA has had on the
supply of labor, wages and prices from other changes that have occurred
over the last 14 years. Similarly, it is not possible, with any
precision, to estimate what the labor turnover rates or the cost of
presenteeism would be without the FMLA.

H. Comments on the 2000 Westat Report's Findings on the Impact
Intermittent FMLA Leave Has on Productivity and Profitability

The Department received many comments quoting sections of the 2000
Westat Report that suggest intermittent FMLA leave generally is not a
problem for employers. For example, Local 2026 of the American
Federation of Teachers stated, ``[t]he 2000 Westat Study found that 81%
of covered establishments reported that intermittent leave had no
impact on business productivity, and 94% reported that intermittent
leave had no impact on business profitability.'' Doc. 10242A, at 6.
Similarly, the Women's City Club of New York stated, ``[r]esearch shows
that the FMLA has been beneficial to business. A United States
Department of Labor employer [survey], released in 2000, found that 9
in 10 covered employers report that the FMLA has a positive or neutral
effect on productivity and growth.'' Doc. 10003A, at 2.
Similarly, a 2007 Society for Human Resource Management survey
found that 71 percent of respondents reported no noticeable effect on
productivity. See Doc. 10154A, Attachment at 4. However, in the
Department's view, the fact that many employers responding to a survey
did not experience problems does not mean that the FMLA does not have a
significant impact on the productivity and profits of a number of other
employers in certain industries and sectors of the economy. As was
noted by Criterion Economics, ``[c]ritical aggregate statistics in the
Westat Survey are constructed by averaging across all industries.
Reliance on simple averages disguises the fact that certain sectors
incur disproportionately high costs as a result of FMLA compliance, and
hence leads to estimates that are biased downward.'' National Coalition
to Protect Family Leave, Doc. 10172A, Attachment at 19.
In other words, just as certain employers reported higher FMLA
leave use in response to the RFI than the average estimated by the
Department, some employers are likely to incur higher costs than the
``average'' firm responding to Westat's employer survey. If these high
costs are clustered in specific industries or types of work, then the
FMLA could impose significant costs for those clusters of employers
while the average number of employers may have reported relatively
lower costs.\41\
---------------------------------------------------------------------------

\41\ Similarly, epidemiologists might find a problem due to the
cluster of an illness in a specific locality or demographic group,
even if the average incidence in the general population is low.
Therefore, it is not sufficient to only examine the average impact
on employers. It is also necessary to examine the impact on
employers experiencing problems to determine if there is some
pattern involved.
---------------------------------------------------------------------------

Other comments cited the 2004 study by the Employment Policy
Foundation (EPF) \42\ referenced in the RFI as evidence that there are
significant costs incurred by some firms in some industries. For
example, The Equal Employment Advisory Council stated:
---------------------------------------------------------------------------

\42\ Janemarie Mulvey, The Cost and Characteristics of Family
and Medical Leave, Employment Policy Foundation Issue Backgrounder
(Apr. 19, 2005). But see Institute for Women's Policy Research,
Assessing the Family and Medical Leave Act: An Analysis of an
Employment Policy Foundation Paper on Costs (June 29, 2005).

While the 2000 Westat Report * * * suggests little, if any,
burden associated with administering FMLA leave, we believe the
Report does not accurately reflect the level of difficulty some
employers have experienced in attempting to comply with the current
FMLA regulations. Many EEAC members participated in a separate
survey of 431 large corporations conducted by the Employment Policy
Foundation in 2002. Of the 94 companies that responded, the vast
majority reported that intermittent leave has been a problem to
administer (87.2%). * * * Most of the respondents who were able to
quantify the cost of complying with the regulatory FMLA
recordkeeping and notification requirements reported a moderate to
significant cost burden, with annual estimated costs per employer
ranging from $213,188 to $1.3 million, excluding employer costs for
complying with other existing federal recordkeeping and reporting
---------------------------------------------------------------------------
requirements.

Doc. 10107A, at 2-3.
Moreover, as was noted in the RFI, Westat found that establishments
with more than 250 employees experienced greater negative impacts on
productivity

[[Page 35631]]

and profits than smaller establishments covered by the Act. Criterion
Economics presented an analysis stating that ``[i]n reporting its
results, the Westat survey weights the results by the number of
establishments, a weighting scheme that biases the overall results in
favor of responses provided by small establishments, as there are far
more small firms than large firms in the United States. *** weighting
the Westat survey results by employment has a large effect on the
reported impact.'' National Coalition to Protect Family Leave, Doc.
10172A, Attachment at 14-15.

I. Impact of Unscheduled Intermittent FMLA Leave

As discussed in Chapter IV, the Department received a variety of
comments regarding the impact of unscheduled intermittent FMLA leave.
At the same time, notice issues notwithstanding, comments from
employees demonstrate that it is the unpredictable nature of certain
serious health conditions that makes the use of intermittent leave
invaluable.
Representative of many employer comments, the National Business
Group on Health described the impact of unscheduled FMLA leave this
way:

Unscheduled leave presents different problems than scheduled
FMLA leave because of the lack of advance notification and
unpredictability of the employee's time away from work. Furthermore,
it creates significant problems if the employer cannot obtain
adequate staffing. Additionally, the need for overtime or temporary
personnel increases operating costs. With unscheduled leave,
employers cannot give advance notice of the need for overtime to
those employees who must fill in for the employees on FMLA leave,
negatively affecting employee morale. Scheduled FMLA leave, on the
other hand, gives the employer a better opportunity to plan, though
it still raises operating costs. It allows an employer time to
obtain coverage during an employee's absence from the employer's own
staff pool and to administer the FMLA leave in a timely manner.
Also, the other employees who fill in for colleagues on FMLA can
better plan their overtime.

Doc. 10268A, at 2. See also South Central Human Resource Management
Association, Doc. 10136A, at 7.
However, the Women's Employment Rights Clinic at Golden Gate
University School of Law provided this view of the benefits to workers
of intermittent FMLA leave:

Intermittent and reduced schedule leaves are central to
employees' ability to balance work and family. * * * the opportunity
to take leave in limited increments is extremely important to
workers. In the case of one's own medical needs, intermittent and
reduced schedule leave allow employees to continue working while
undergoing medical treatments that require only partial absence from
work. This not only gives the employee the opportunity to continue
earning wages, but also to continue as an active participant in the
workforce * * * For those who need only partial leave for care of a
family member, such flexible leave arrangements give the worker the
opportunity to maintain much needed earning capacity during periods
of increased medical and caretaking expenses.

Doc. 10197A, at 6.
Keeping workers with chronic conditions employed not only benefits
the workers themselves but also benefits society in the form of reduced
public assistance payments. For example, one worker stated:

Without [the FMLA], I would have surely missed mortgage
payments, car payments and my paycheck would definitely not have
been enough to provide groceries for the family. The end result
would be a damaged credit history in which my family and I would
suffer paying higher costs of insurance and other means of credit,
suffering for years and years, causing unresolved debt hanging over
our heads. Not to say the least, without this protection, I probably
would have lost my job and all its benefits due to the missed time
at work.

An Employee Comment, Doc. 2666, at 1. Another worker stated:

My experience with the Act has been extensive as I used both
intermittent and continuous leaves to care for my elderly mother * *
* . Without this important benefit * * * [o]ur only alternative was
to deplete Mother's assets and apply for Medicaid which would put
the financial responsibility of her care on the Federal Government.
With this Act we feel we were able to accomplish our goals and avoid
shifting the burden of care to the government.

An Employee Comment, Doc. 4720, at 1.
On the other hand, as explained in Chapter IV, many comments
indicate that unscheduled intermittent FMLA leave is difficult for
employers because employee absences can be unpredictable and occur with
little or no notice. However, it is precisely the unpredictable nature
of many serious health conditions that makes the ability to take
unscheduled intermittent FMLA leave so important for employees.\43\
---------------------------------------------------------------------------

\43\ See Joan C. Williams, One Sick Child Away From Being Fired:
When ``Opting Out'' Is Not an Option, University of California,
Hastings College of the Law, 2006, at 31.
---------------------------------------------------------------------------

J. Impact of Unscheduled Intermittent FMLA Leave on Productivity and
Profitability

Although employer comments suggest that unscheduled intermittent
leave is a problem, others pointed to data from the national surveys
that suggest intermittent FMLA leave is not a significant problem. Two
types of data were submitted as evidence that employers are overstating
the impact of intermittent FMLA leave: data on productivity and
profits, and data on the use of intermittent FMLA leave.
For example, the AFL-CIO stated:

[A]lthough intermittent leave has now become a focal point of
employer complaints about the FMLA, in our survey just 12 percent of
all respondents reported having taken intermittent leave. This
finding supports that available evidence, which shows that
``intermittent leave is used infrequently and has imposed minimal
burdens on employers.'' Anne Wells, Note, Paid Family Leave:
Striking a Balance Between the Need of Employees and Employers, 77
S. Cal. L. Rev. 1067, 1081 & nn.94-98 (2004). In fact, Westat found
that ``[a]bout a fourth of leave-takers (27.8%) had at least one
intermittent leave during the [2000] survey reference period.'' 2000
Westat Report at 2-18.

Doc. R329A, at 7-8.
As was noted previously, the use of averages tends to minimize the
impact on some employers. The fact that relatively small averages of
workers in the Westat employer survey and the AFL-CIO survey used
intermittent FMLA leave may obscure the fact that some employers in
some industries or workgroups are experiencing disruptive rates of
unscheduled intermittent leave use.
Moreover, some commenters indicated that the use of unscheduled
intermittent FMLA leave by a few workers can significantly disrupt the
operations of their employers depending on their positions, duties, and
the type of work being performed. As one HR manager stated, the
regulatory ``definition of `key employee' * * * has to do with income
level. The reality is our transit drivers are key employees because
without them, the bus does not run. So I think I would change the
definition of what is `key'. A policeman is key. A fireman is key. A
transit driver is key.'' Doc. 2627A, at 3. ``[M]any positions only have
one person or one person per shift in a job class. When this person is
absent for any reason, specific duties do not get carried out for the
company.'' Infinity Molding & Assembly, Doc. 5192A, at 1.
Some commenters asserted that the problems being cited by the
employers result more from management practices than the FMLA. For
example:
Cummins Inc. noted, ``[i]t has been our experience that
facilities that maintain stringent attendance management policies often
experience the highest number of FMLA intermittent leave requests.''
Doc. 10340A, at 2.

[[Page 35632]]

Madison Gas and Electric Company stated ``[t]he belief
that unscheduled, intermittent FMLA is increased due to poor management
and labor-relations issues is valid. Employees may concentrate on
chronic health issues more heavily if their work situation is not
fulfilling or becomes difficult. It is very interesting when reviewing
FMLA leave data to see an employee with a certain condition taking
large amounts of intermittent, unscheduled FMLA leave and another with
the same condition taking very little time.'' Doc. 10288A, at 5.
As mentioned in Chapter IV, other comments indicate that certain
provisions in collective bargaining agreements (CBAs), in conjunction
with the FMLA, may provide an opportunity for employees to work
particular times or shifts, and avoid others. These include: (1)
provisions that provide that bargaining unit workers can receive
premium pay (e.g., for working a holiday or a particular shift) without
having to complete a 40 hour work week; and, (2) provisions that
workers have to be paid a full day of pay regardless of the actual
amount of time they are at work. For example:
``Common practice is to take FMLA through the week but
work on the weekends at 1.5 to 2.0 [times] the salary.'' A Human
Resource Manager Comment, Doc. 4917, at 1.
``We even had one individual during our busy period of
time (where overtime was abundant) come in four hours before the start
of their shift (2 hours at double time and 2 hours at time and one
half) and then at the start of their regular shift go home [on] FMLA.
In that way she would earn seven (7) hours of pay and leave while not
working the shift (2nd shift) that she hated.'' An Employee Comment,
Doc. 6A, at 4.
``Take, for example, a Yardmaster who frequently calls in
at the start of his or her shift stating [that] he or she will be using
* * * intermittent FMLA leave. * * * Under the Yardmaster collective
bargaining agreement, Yardmasters cannot work part of a shift and if a
replacement is called, the replacement must be paid for the entire
shift regardless of how long he or she is needed. Thus, the absent
employee may say he or she only needs two hours of FMLA leave and is
charged accordingly but ends up with eight hours off from work because
the replacement works the entire shift. * * * Another similar scenario
is presented when an employee's health care provider indicates he or
she cannot work more than four hours per day, for example, due to
exhaustion * * * Again, a replacement must be called and paid for the
entire shift under the labor contract.'' Union Pacific Railroad, Doc.
10148A, at 8.
``Due to the `no penalty' clause in FMLA, absent employees
acquire `super seniority' in many cases. For example: Our labor
agreement allows us to deny holiday pay under certain conditions.
Although the entire workforce is covered under the labor agreement,
FMLA privileges afford special treatment to employees absent for FMLA
reasons.'' Interbake Foods, Doc. 10012A, at 2.
``In the railroad industry, workers from the railroad's
pool or extra board are called in roughly two or three hours before
they are needed (as prescribed in the pertinent labor agreement).
Unfortunately, a railroad worker so inclined can use the existing
regulatory scheme to repeatedly use very small increments of FMLA leave
to avoid unwanted assignments--disrupting railroad operations and
unfairly impacting his or her co-workers. For example, a worker could
call in to the railroad at 1 a.m. and take FMLA leave (e.g., for a
chronic migraine), thereby preventing the railroad from assigning him
or her to a 3 a.m. train run (or whatever assignment that worker may
find unpleasant). That same worker can then call back a short period
later (as soon as the worker feels that he or she has safely avoided
that assignment), knowing that he or she would be assigned a later
train run--thus obtaining a more favored assignment[.]'' Association of
American Railroads, Doc. 10193A, at 6.

K. Specific Industries Report Difficulties With Unscheduled FMLA Leave

Some industries, and operations within industries, may have more
problems with employees' use of unscheduled FMLA leave than others.
``[E]conomic theory and empirical research indicate that the costs of
absenteeism vary depend[ing] on the characteristics of firm production
functions.'' National Coalition to Protect Family Leave, Doc. 10172A,
Criterion Economics, Attachment at 18. ``A regulation that reduces
labor productivity, for example, will have a larger impact on economic
welfare in industries where production requires `fixed proportions' of
capital and labor (e.g., air transport, which requires at least one
pilot and one co-pilot per airplane) than in industries where capital
can easily be substituted for labor.'' Id., at 6. Further, ``[i]n some
industries, employee absenteeism will have a relatively small effect on
firms' overall ability to operate, and therefore entail a relatively
modest financial impact. In other sectors, absenteeism hinders
production substantially by, for example, diminishing the productivity
of other workers and equipment.'' Id., at 8.
The RFI record suggests that intermittent FMLA leave can have
significant impacts on time-sensitive business models. For example, the
United States Postal Service reported ``[i]n a time-sensitive
environment * * * unscheduled leave presents significant operational
challenges.'' Doc. 10184A, at 9. The United Parcel Service stated
``employers typically can arrange coverage for an employee who might
require intermittent leave to take his mother to regularly scheduled *
* * treatments. However, it is a huge burden for management to cover
for an employee who is certified for intermittent leave for chronic * *
* [conditions] and who calls in with no advance notice * * * especially
in time-sensitive / service-related industries.'' Doc. 10276A, at 5.
In many situations, the absence of just a few employees can have a
significant impact. For example, ``[w]ith respect to unscheduled
intermittent leaves, some employers find they have to over staff on a
continuing basis just to make sure they have sufficient coverage on any
particular day (such as hourly positions in manufacturing, public
transportation, customer service, health care, call centers, and other
establishments that operate on a 24/7 basis). Some employers are
required to work employees overtime to cover the absent employee's
work. Both of these options result in additional costs[.]'' Spencer
Fane Britt & Browne LLP, Doc. 10133C, at 19.
The Department also received many comments discussing the benefits
that FMLA leave has for workers in these industries, and some of the
issues employees face trying to take FMLA leave in these industries.
See Chapter XI.H.3; see also Chapter I. As noted earlier, often these
benefits are immeasurable and priceless. Although they will not be
repeated here, they should be taken into account.
Comments received in response to the RFI suggest at least four
types of business operations appear to have particular difficulty with
unscheduled intermittent FMLA leave: (1) Assembly line manufacturing;
(2) operations with peak demand; (3) transportation operations; (4) and
operations involving public health and safety.

[[Page 35633]]

1. Assembly Line Manufacturing
One commenter explained, if a single worker is missing or has to
leave, the line may have to be shut down until a replacement arrives.

My company is a manufacturing facility * * * Unfortunately, the
production process is often slowed down or brought to a halt when an
employee is out on FMLA. Not all of our product lines have employees
cross-trained to work there. Intermittent FMLA affects the
employee's productivity if they are not able to work a full day to
produce the product needed to meet the customer demands. Employees
often do ``double duty'' to cover a team member who is out on FMLA,
which in turn causes stress and feelings of resentment.

Cooper Bussmann, Doc. 247, at 1.
The National Association of Manufacturers summarized the problem
for U.S. manufacturers in this way. `In the `24/7' environment of
modern manufacturing, a night shift only makes sense when the day shift
is fully staffed to take up and continue their efforts. Manufacturing
and shipping schedules can be met only when staffing requirements can
be predictably and reliably filled. But making sense of personnel
requirements and scheduling needs has been made significantly more
difficult by the current interpretations of the FMLA by the DOL[.]''
Doc. 10229A, at 3.
Some comments said that problems such as those reported above are
merely scheduling issues and are not really problems with the FMLA, and
that employers should expect some workers to be absent each day and
should hire, staff, and schedule accordingly. For example, the Center
for WorkLife Law stated that ``[e]mployers should not rely on co-
workers to cover for absent employees as a matter of course. Rather,
co-workers should be used to pick up the slack when no other option is
available. Most employees will need to take FMLA leave at some point
during their career, and good management practices dictate that
employers recognize this eventuality and plan for it.'' Doc. 10121A, at
7.
Employer commenters had a different view.

Given the need for U.S. manufacturers to control costs and
compete in a global market, we do not have the luxury of having a
`pool' of surplus employees to cover for unplanned absences. Six to
seven years ago we were able to have a few employees in a floater
pool for flexibility, but [with] the utilization of lean
manufacturing techniques [that enables] us to compete with foreign
competition, we no longer have those `extra' employees. I know most,
if not all, of the manufacturing people that I interact with in our
State no longer have this luxury.

Ed Carpenter, Human Resources Manager, Tecumseh Power Company, Doc.
R123, at 1.

Companies with production lines have no useful work for an
employee who reports to work a few hours late. For example, a
manufacturing facility begins its production line at the start of
the shift. Within the first hour or two of the shift, the company
needs to fill all job positions so that the production line can
begin operations. An employee with a chronic condition * * * has an
episode that causes him to take 2-4 hours of unscheduled FMLA leave
* * * By the time the employee reports to work * * * all jobs on the
production line have already been filled and there is no work for
the employee. If the employee is permitted to `bump' the person
assigned to do his tasks, then the employer is still left with
another employee with nothing to do.

Clark Hill Inc, Doc. 10151A, at 2.
Honda's comments indicate that employers could incur substantial
costs even when there are floaters available to keep the line moving.

[B]ecause all work stations must be covered in assembly-line
manufacturing, employers must have extra workers to cover possible
unscheduled, intermittent leave * * * Such absences increase the
costs of manufacturing by increasing the number of extra employees
who have no regular work but are ``floaters'' to cover for
unscheduled absences * * * Furthermore, because those ``floaters''
or ``fill-in'' workers are not as experienced or knowledgeable, they
may not be able to keep up with the normal pace * * * Because they
move from department to department depending upon the need, they
cannot be expected to have proficiency of an associate regularly
assigned to that process. Therefore, production units may be lost,
and, to make up for the lost units, the whole department or shift
may have to work overtime. The employees in attendance are
inconvenienced, and the employer has incurred increased costs for
the same number of units.

Doc. 10255A, at 4-5.
2. Operations With Peak Demand
Commenters noted that in contrast to assembly line manufacturing,
some operations primarily experience problems with unscheduled
intermittent FMLA leave during their periods of peak demand. At other
times, such leave can be more easily accommodated. Two examples are
electric utilities during power outages, and call centers.

Although power interruptions are, in many cases, unavoidable,
Exelon's customers expect the restoration of power as quickly and
safely as possible. Indeed, in some cases, a customer's safety and
wellbeing are dependent upon the prompt restoration of service. * *
* The nature of Exelon's business requires employees to work
overtime, particularly employees who are responsible for restoring
electrical service to customers or who are responsible for
responding to customer inquiries regarding electrical service. When
employees with these duties are unable to work overtime [because of
FMLA medical certifications], their co-workers have to pick up the
burden * * * Simply put, when a customer is without power in the
middle of the night, Exelon does not have the option of deciding to
restore the customer's power the next morning, when the employee
needing FMLA leave from overtime is able to come to work.

Exelon, Doc. 10146A, at 1 and 3.

Our company has several divisions, with the one being impacted
the most by FMLA our call center. The call center is staffed by call
volume and based on the expected minutes of an employee's time on
the phone during a shift. Intermittent FMLA in this division causes
problems with phone coverage. This frequently means that we * * *
have to offer overtime to employees who will cover someone's shift
(whenever enough notice is given), resulting in increased wage
expenses. Another scenario is that our service level agreements with
our customers suffer the consequences of our center being
understaffed. This has a more long-term effect that may result in
our customers not renewing contracts with our call center.

Leslile Masaitis, Doc. 224, at 1.

Moreover, it is impossible to calculate or repair the loss of
goodwill that results from frustrated customers who are kept waiting
for [call center] service and from disappointed customers whose
needs remain unmet because of the absences. In one office, in one
month alone in 2006, intermittent FMLA absence resulted in over
8,900 unanswered calls.

Verizon, Doc. 10181A, at 4.
3. Transportation Operations
The Department received a number of comments indicating there are
unique FMLA issues for the transportation industry. Typically, the
plane, bus, or train cannot leave until the crew is present. Many
commenters pointed out that any delay in staff can result in a delay
that inconveniences many passengers and customers. Moreover, if the
individual taking FMLA leave arrives after the departure, there may be
no work for that individual for several hours.

Our customers depend on us to get them to work, school or
medical appointments on time. When drivers are late to work * * *
their route must quickly be given to another driver, and the bus
must get out on the road. This can mean that a busload of people is
late. * * * Employers in time-sensitive industries such as public
transportation whose existence depends on being able to make pull-
out (getting the buses out on the road, particularly at peak
ridership times); arriving at destinations on time; meeting up with
other buses on schedule, etc., are really in a bind when an employee
can circumvent rules by calling in to the dispatcher and

[[Page 35634]]

simply saying ``I'm running late because of FMLA.''

Metro Regional Transit Authority, Akron, Ohio, Doc. 10118A, at 1.

Unforeseen, intermittent FMLA leave is not only having a
negative impact upon our operations, but also upon our customers,
the general public. When bus operators report off work, in many
instances, at the last possible moment, a bus may be late or not
show at all. Additionally, extra operators must be scheduled to work
in anticipation of coworkers calling off work. These costs are
critical to nonprofit organizations that rely, to some degree, upon
government funding. The current provisions for intermittent leave
present a significant burden to schedule-driven operations.

The Port Authority of Allegheny County, PA, FL135, at 2.

Three workgroups represent 82% of all FMLA leave at Southwest
and each of them has operational job responsibilities: Ramp,
Operations and Provisioning Agents; Reservations Sales Agents; and
Flight Attendants * * * When these employees take FMLA, it directly
impacts Southwest's ability to operate our published flight
schedule, much less on time and with efficiency. When these
employees are absent, flights do not take off without another
employee taking their place * * * the replacement staffing costs
alone represent approximately $20 million annually * * * Southwest
estimates that it must employ and pay as many as 200 additional
Reserve Flight Attendants each month to cover intermittent FMLA.

Southwest Airlines Co., Doc. 10183A, at 3, 5.

An office worker who shows up one hour late for work may find
some extra paperwork on his desk which he can handle during the day
without affecting others. A flight attendant who reports at 10 a.m.
for a 9 a.m. departure has almost certainly created significant
operational problems. He has either (a) forced 100-400 passengers to
wait and miss later connections, or (b) caused the airline to
reposition another flight attendant onto the aircraft because, by
federal regulation, an aircraft cannot board passengers or take off
without a minimum number of flight attendants. The ripple effects of
such delays also can affect an infinite number of passengers, as
well as numerous coworkers * * * in cases where airline employees
work on planes that have left the airport, it is physically
impossible for an employee to report to work on a plane that has
taken off.

Air Conference, Doc. 10160A, at 4, 11.

There are 55 employees in our workforce. * * * Three are [on]
FMLA [leave]. * * * Buses don't leave the garage without drivers.
Buses are not properly maintained without enough mechanics.
Therefore we have to hire more people to get the job done while we
wait to see if the four that are off will ever come back. If they
do, we have to lay off the people that we hired and trained to do
the job.

The Transit Authority, Huntington, WV, FL 3, at 1.
4. Operations Involving Public Health and Safety
The RFI record indicates that unscheduled intermittent leave can
have an adverse impact on operations involving public safety. There are
numerous examples in the record describing the impact of such leave on
police, fire, correctional and health operations.
a. Hospitals, Clinics and Long-Term Care Facilities
Unscheduled leaves of absence, whether covered by the FMLA or
not, naturally present staffing and operational difficulties,
particularly for hospitals and other health care facilities that
must provide treatment and services for patients' medical needs * *
* for many years, the health care industry has been confronted with
a serious nursing shortage. Therefore, hospitals and other health
care facilities must supplement their regular nursing staffs through
the use of nurse agencies in order to satisfy patient:nurse ratios
in order to provide optimal patient care and treatment. It can be
very difficult, however, to have an agency nurse assigned to a
facility in a timely manner when a nurse experiences an
unforeseeable absence, particularly in situations requiring nurses
with specific expertise in a clinical area. In addition, when non-
licensed (i.e., non-nursing) clinical staff experience unforeseeable
absences, nurses and other staff members are often required to cover
their duties, as it can be equally difficult to schedule a
replacement employee in a timely manner to meet patient needs.
Clearly, these situations impose significant stress on a workforce
responsible for delivering optimal patient care.

Medstar Health, Doc. 10144A, at 11-12.
The Commonwealth of Pennsylvania expressed concern about the use of
unscheduled intermittent FMLA leave making it difficult for hospitals
to maintain necessary staffing levels. ``Some of our 24/7 direct care
operations also experience difficulty in meeting federally mandated
staffing standards of the Commission of Accreditation of Healthcare
Organizations because of the intermittent use of FMLA.'' Doc. 10042A,
at 3. Allina Hospitals and Clinics expressed concern about the impact
of unscheduled FMLA leave on patient care. ``The great majority of
Allina's employees work at hospitals and clinics and are involved in
direct patient care * * * These provisions make it very difficult to
ensure that hospitals and clinics will be adequately staffed. * * *
Yet, Allina has had to allow emergency room staff, surgical support
staff, nurses, physicians and ambulance drivers to take this extensive,
unplanned leave * * * regardless of the impact on patient care.'' Doc.
641, at 1.
The concern about patient care was also mentioned in the
comments by Hinshaw and Culbertson. ``[W]e have conducted a formal
survey of our clients with respect to the questions raised in the
Federal Register * * * The general concern with unscheduled leave * * *
and intermittent leave * * * [is] patient safety (at healthcare
entities) can become a problem when staffing is low or when temporary
employees are used[.]'' Doc. 10075A, at 1 and 3.
Long term care (LTC) ``employers distribute work among its
staff or hire agency staff to care for patients. Full time employees
may be offered incentives beyond overtime pay, or staff may be brought
in from affiliated employment sites, which means that travel costs must
be covered. LTC employees provide direct care to frail, elderly and
disabled individuals who are in need of clinically complex, special
care. Therefore, when employees take FMLA leave, adequate numbers of
trained replacement staff are especially important. Notably, some
states have specific minimum requirements for nurse to patient staff
ratios in LTC facilities in order for Medicare/Medicaid beneficiaries
to reside in these facilities. On the federal level, facilities must
have `sufficient staff' to provide nursing care to residents.
Therefore, having adequate staff on hand not only is necessary to
promote good patient care, but it is a state and federal mandate.''
American Health Care Association, Doc. 10321.
b. Other 24/7 Operations
Franklin County Human Resources cited correctional institutions and
nursing homes. ``Unscheduled leave is where the hardship lies in
continuing normal operations. This is critical for a 24-hour operation.
This is more difficult in our more service-based departments that
include a Jail and Nursing Home. In these operations, we must have a
proper number of nurses and corrections officers * * * [and]
unscheduled absences * * * places demands on other employees they were
not prepared for.'' Doc. FL59, at 5.
The Indiana State Personnel Department cited correctional
institutions and mental health facilities. ``Operations of 24/7
facilities housing correctional offenders or persons with mental
illnesses are adversely impacted by unscheduled intermittent FMLA leave
due to legal requirements for specific staff/resident ratios and
related safety issues.'' Doc. 10244A, at 3.

[[Page 35635]]

c. Emergency 911 Operations and Public Safety
The situation is particularly ominous when the employee works in
a safety-sensitive position, such as 911 operators, or other
employees requiring face-to-face relief, because if the person's
shift is not able to be covered by a colleague who in some instances
is required to work overtime, then the public may receive a slow
response to an emergency call. Moreover, on certain holidays, during
public events or declared emergencies * * * the NYPD must be able to
double the size of its staff. Yet, the inordinate number of
employees who call in sick for allegedly FMLA qualifying reasons on
holidays * * * and during public emergencies * * * places the NYPD
in a precarious situation of trying to balance between an individual
employee's rights and public safety concerns. Moreover, when more
than 20% of the employees on a shift call in claiming the need for
an FMLA-related reason on the same day--which happens frequently on
holidays such as New Year's Eve--the employer, in this case, the
NYPD, may be left short-staffed and unable to provide the necessary
safety-sensitive services to the public.

New York City, Doc. 10103A, at 5.
New York City provided many other examples of ``public
safety sensitive positions'' including police officers, firefighters,
sheriffs and sanitation workers. Id., at 2, n.1.
A manager of a 911 center also expressed similar concerns.
``The work in the 9-1-1 Center is very specialized and requires
hundreds of hours of training. I cannot hire `temps' from an office
service to replace absent employees. The majority of absences require
that I hire overtime, and often, that overtime is forced on employees.
Currently, five of the seven employees assigned to day shift are on
FMLA. Three other employees in the division (of 27 employees) are also
on FMLA and another three have recently submitted FMLA paperwork for
approval. With one exception, these medical conditions have not
required hospitalization. Instead, these employees are given free
license to call in sick on a day-to-day basis. And they do. Frequently.
The remaining employees are working an enormous amount of short notice
overtime and are denied their own personal and family time in order to
cover these absences. The number of overtime hours being worked leads
to overtired people making critical life and death decisions in an
emergency driven environment.'' Doc. 5193, at 1.
The Fairfax County Public Schools provided the example of
school bus drivers. ``[T]he essence of a school bus driver's job is to
deliver children to school on time and safely. A few bus drivers have
used chronic conditions such as CFS, depression, or sleep problems as
an excuse not to report on time and not to call in when they will be
late. They claim that their ``condition'' precludes them from providing
notice or from being on time. These behaviors mean that children are
often left waiting on street corners in all weather for some other bus
driver.'' Doc. 10134A, at 2.

L. The Impact of FMLA Leave Use in the Workplace

The 2000 Westat Report found that during a worker's FMLA leave,
employers most frequently assign their work temporarily to other
employees.

Most Frequently Used Method To Cover Work When an Employee Takes Leave
for a Week or Longer
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Temporarily Assign Work to Other Employees................. 74.5
Hire Outside Temporary Replacement Workers................. 18.0
Put Work on Hold Until Employee Returns.................... 2.4
Some Other Method.......................................... 4.3
------------------------------------------------------------------------
Source: 2000 Westat Report, Table A2-6.5.

These results are consistent with the Society for Human Resource
Management's more recent findings:

Employer approaches to covering work when an employee is on
unscheduled intermittent leave vary based upon such factors as the
nature and size of the employer's business, the employee's position,
the number of individuals available to provide coverage in the
employee's department, and business needs in that department.
Employers may cover the leave-taker's work with: (i) Hiring a
temporary worker; (ii) asking current employees to work overtime;
(iii) spreading the work among current employees; or (iv)
rearranging other employees' schedules to provide coverage.
Sometimes, however, employers are unable to cover the work,
particularly in situations involving unscheduled intermittent
leaves. These situations can and do result in missed deadlines, lost
production, and other business losses.

Doc. 10154A, at 7.
The 2003 Society for Human Resource Management survey found that
assigning some work temporarily to other employees and hiring temporary
outside replacements were the two most common methods used to cover the
work of an employee absent on FMLA leave, with average ratings of 4.42
and 2.86 out of a possible 5, respectively. Id., at 13.
Westat's employee survey also found that 32.1 percent of employees
worked more hours than usual, and 22.9 percent worked a shift not
normally worked when co-workers took leave.\44\ Moreover, 36.1 percent
of workers felt that providing 12 weeks of unpaid leave for family and
medical reasons was an unfair burden to employees' co-workers, and 15.1
percent of employees felt that their co-workers taking leave had a
negative impact on them.\45\
---------------------------------------------------------------------------

\44\ See 2000 Westat Report, Table 4.22 at 4-19.
\45\ See id. at Table 4.20 at 4-18, and Table 4.23 at 4-20. It
should be noted that 17.4 percent of workers felt co-workers taking
leave had a positive impact and 67.4 percent felt it had no impact
on them. Moreover, 63.9 percent did not feel that providing 12 weeks
of unpaid leave was an unfair burden to co-workers.
---------------------------------------------------------------------------

The comments submitted for the RFI supplement this record by
providing greater details and insights on this issue. For example,
Darby Associates commented that ``[a]n important cost dimension is
reflected in the burdens imposed upon fellow employees. These are not
trivial * * * The record indicates that fellow employees who `fill in'
for unscheduled leave-takers are often obliged to miss professional
appointments and family engagements. Employees also cite added
workplace stress, resentment and uncertainty. There are considerable
costs to employees that must work overtime or more intensely to cover
for another employee `out' on FMLA leave. This is especially true for
unscheduled intermittent leave * * * employees are very unhappy when
they believe that a fellow employee is gaming the system and forcing
them to work extra when the person is abusing FMLA laws.'' Doc. 10172A,
Attachment at 26.
The record indicates if the morale of workers covering for the
absent workers on FMLA leave begins to suffer, these workers may in
turn seek and need their own FMLA certifications, causing an even
larger impact on productivity and attendance. For example:
Workers ``also report that employees on unforeseen,
intermittent leave indicate that they can and will misuse the system
when they want to. As a result, more and more employees are applying
for unforeseen, intermittent leave so they can take time off of work
whenever they choose.'' YellowBook, Doc. 10021A, at 1.
``Productivity and services inevitably declined and morale
suffered. Some of the over worked employees developed their own serious
health conditions.'' City of Portland, Doc. 10161A, at 2.
``In larger companies, once employees understand that FMLA
will allow the use of time off of work, without penalty and providing
job protected leave, they have become savvy

[[Page 35636]]

with the use of FMLA to their benefit and they do not hesitate to let
their co-workers know how it works.'' First Premier Bank, Doc. 10101A,
at 4.
``We have had an employee request a week of vacation
during the holidays and the request was denied because we had so many
other employees off. Then the employee just called off for the entire
week using FMLA, and then went on her vacation to Florida * * * Once
one employee `gets away with it', all employees are lined up at their
doctors office to acquire intermittent FMLA leave.'' Akers Packaging
Service, Doc. 5121, at 1.
The issue of leave ``contagion'' as a behavior pattern is discussed
in research cited in the RFI by Harold Gardner, et al., titled Workers'
Compensation and Family and Medical Leave Act Claim Contagion. It
notes:

Economists and psychologists have been interested in why groups
tend to engage in repeated behavioral patterns * * * The social
barrier theory suggests that future claims will increase as prior
claims break social barriers to claim filing. An example of a social
barrier effect is a driver who wants to speed but does not because
he fears the consequences of being caught or the increased
probability of an accident. These concerns create a psychological
barrier that he may not be able to cross even though there may be no
police presence. If several speeding motorists pass the driver, he
now finds it more psychologically acceptable to speed. ``Contagion''
occurs when an individual observes others taking an action that has
not been possible for him to take because of a psychological
barrier, and seeing others break the barrier itself increases his
own ability to break it as well * * * an alternative economic view
is claimant learning by proxy * * * A workers' compensation claim by
one member of a workgroup makes others more aware of its provisions
for medical payments, disability pay, and rehabilitation services. A
worker gains claimant capital through another workers' claims, by
proxy. In other words, workers learn about the benefits of workers'
compensation claims when their co-workers make workers' compensation
claims, and this information lowers future barriers of filing
claims.

71 FR 69514.
According to CCH's 2006 Unscheduled Absence Survey, ``the rate of
unscheduled absenteeism climbed to its highest level since 1999,
costing some large employers an estimated $850,000 per year in direct
payroll costs, and even more when lost productivity, morale and
temporary labor costs are considered.'' CCH estimates that 18 percent
of unscheduled absences are due to personal needs, 12 percent due to
stress, and 11 percent due to an entitlement mentality.\46\
---------------------------------------------------------------------------

\46\ CCH, 2006 CCH Unscheduled Absence Survey, available online
at: www.cch.com/press/news/2006/20061026h.asp.
---------------------------------------------------------------------------

As discussed in Chapter IV, several commenters noted the misuse of
intermittent FMLA leave for the purpose of avoiding mandatory overtime,
and argued that this can have an adverse impact on their co-workers who
are forced to cover for absent workers. However, some academic research
postulates the negative attendance effects on those who are working to
cover the absence of a person on FMLA leave may be related to new
serious health conditions that arise--not additional misuse:

The loss of firm-specific human capital of the initial claimant
places an increased burden on the workers in the group who remain
because they must ``pick up the slack.'' The remaining workers may
also be diverted from their assigned work if they have to train the
replacement worker in those skills he needs to function as part of
the group * * * The increased burden creates a higher stress
environment. The stress felt by these workers may spread to other
workers * * * Job-related stress has been found to be positively
correlated with increased levels of coronary disease and mental
illnesses * * * Stress can exacerbate preexisting conditions or
cause new medical condition because of greater physiological
pressure on the body created by psychological factors. Workers must
exert more physical and mental effort to pick up the slack with the
departure of the original claimant's firm-specific human capital.
The higher stress environment will lead to more illnesses and
therefore more claims being filed under * * * FMLA * * * Stressed
workers are more likely to be absent, as they leave the work
environment temporarily to cope with the stress.

Harold Gardner, et al., Workers' Compensation and Family and
Medical Leave Act Claim Contagion, Journal of Risk and Uncertainty,
Volume 20, Jan. 2000.\47\
---------------------------------------------------------------------------

\47\ See also National Institute for Occupational Safety and
Health, STRESS* * *At Work, NIOSH Publication No. 99-101, available
online at: www.cdc.gov/niosh/stresswk.html.
---------------------------------------------------------------------------

Thus, based on the record, although some amount of contagion (i.e.,
the use of FMLA leave increases as more and more workers in a facility
begin to take it) appears to be taking place, the causes of the
increase are not certain. In addition to alleged misuse, the increase
in the use of unscheduled intermittent FMLA leave seen in the data
submitted by some employers could be due to other factors, such as
workers suffering from the adverse health effects associated with the
stress of staffing shorthanded operations.

M. Risk Management Analysis of Unscheduled Intermittent Leave

The techniques of risk management analysis and the concept of
reasonableness can be used to explain how unscheduled intermittent FMLA
leave can have different impacts on different employers, and account
for such divergent comments about the economic impact and cost and
benefits of the FMLA that the Department received in response to the
RFI.\48\
Figure 1, below, presents a standard risk management analysis
matrix to illustrate how risk management principles apply to the issue
of unscheduled intermittent FMLA leave.\49\ It consists of four
combinations of the probability (or rate) that unscheduled intermittent
leave will occur, and consequences (is the cost high or low) associated
with such leave for employers. In Block I, the probability that, or
rate at which, unscheduled intermittent leave occurs is low, and the
cost of such leave for employers is low. In Block II, the probability
that, or rate at which, unscheduled intermittent leave occurs is
higher, but the cost of such leave for employers remains low. In Block
III, the probability that, or rate at which, unscheduled intermittent
leave occurs is relatively low, but the cost of such leave for
employers is high. Finally, in Block IV the probability that, or rate
at which, unscheduled intermittent leave occurs is high, and the cost
of such leave for employers is high.
---------------------------------------------------------------------------

\48\ See the concept of reasonableness discussed in United
States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
\49\ For more information on risk management matrices see, for
example, Corinne Alexander and Maria I. Marshall, The Risk Matrix:
Illustrating the Importance of Risk Management Strategies, Journal
of Extension, April 2006, Volume 44 Number 2, Article Number 2TOT1,
available online at: www.joe.org/joe/2006april/tt1.shtml.

---------------------------------------------------------------------------

[[Page 35637]]

[GRAPHIC] [TIFF OMITTED] TP28JN07.003

Based upon the available evidence, the Department believes that
most FMLA covered establishments are in Block I with respect to the use
of unscheduled intermittent FMLA leave. The data indicate that only a
small portion of the workforce covered by the FMLA takes any form of
FMLA leave, and even a smaller portion takes unscheduled intermittent
FMLA leave. If an absence occurs, the reasonable employer will resolve
these infrequent low cost events on a case-by-case basis by using the
existing workforce (or possibly bringing in temporary help) to cover
for the absent worker, and likely will view unscheduled intermittent
FMLA leave as an expected cost of business. These establishments
probably constitute most of the 81 to 94 percent of covered
establishments that report that intermittent FMLA leave did not
adversely impact either their productivity or profits, or may have had
some positive effect.\50\
---------------------------------------------------------------------------

\50\ See 2000 Westat Report, at 6-12.
---------------------------------------------------------------------------

For the establishments in Block II where the probability (or rate)
of unscheduled intermittent leave is relatively high, but the overall
cost to these establishments remains low because of the low cost
associated with each absence, the reasonable employer may take steps to
manage the leave (e.g., talk to the workers, get the workers to call in
before taking leave), but will most likely continue to resolve these
low cost events on a case-by-case basis. It is likely that these
establishments also report that intermittent FMLA leave does not
adversely impact either productivity or profits.
On the other hand, most of the establishments in the time-sensitive
industries discussed above (see Chapter XI, section K) are probably in
Block III. Although only a small portion of their workforce may take
unscheduled intermittent FMLA leave, or is certified for a chronic
condition, the cost of an absence by a worker is relatively high (e.g.,
the assembly line can not run as fast or it may take longer for the
power to be restored). For the establishments in Block III, the overall
cost is low if unscheduled intermittent leave does not occur, but high
if it does. Here the reasonable employer is likely to take steps to
reduce both the probability and the consequences associated with an
absence. This may include more rigorous absence control systems and
policies to discourage absences, overstaffing (e.g., the use of
floaters or on-call workers), and the use of mandatory overtime to
ensure that the time-sensitive operations are adequately staffed when
some workers are unexpectedly absent. These establishments clearly
incur some additional costs to mitigate the impact that unscheduled
intermittent FMLA leave has on their operations, and likely report a
small negative impact (4.2 to 5.4 percent of establishments) on either
productivity or profits if an absence occurs.\51\
---------------------------------------------------------------------------

\51\ See 2000 Westat Report, Table A2-6.13, at A-2-59. Some of
these establishments may also report that intermittent FMLA leave
has no impact on either productivity or profits if such leave does
not occur very frequently.
---------------------------------------------------------------------------

To the extent the Department received comments about how family-
friendly policies and flexible schedules are good for business (e.g.,
improve morale, employee retention, productivity, etc.), these comments
are most likely from employers in Blocks I and II (pertaining to the
majority of employees covered by the FMLA). However, reasonable
employers in Block IV, who face the high probability of high cost
absences associated with FMLA leave (e.g., a few workers taking leave
that results in an assembly line being shut down for a shift), are not
likely to be persuaded by comments that reflect a lower risk
experience.
For those establishments and workgroups in Block IV with a high
probability (rate) of unscheduled intermittent leave and where the cost
of such leave is high, the comments suggest that none of the measures
previously employed to reduce the risk and costs associated with
unscheduled intermittent FMLA leave appears to work very well.
Traditionally, employers have provided monetary incentives for workers
to report (such as perfect attendance awards) and disincentives for
workers not to report (such as an attendance point system).\52\

[[Page 35638]]

These establishments, whose risk management systems (e.g., absence
control policies, overstaffing, mandatory overtime) appear to be
overwhelmed (e.g., Southwest Research Institute, Doc. 10077A), are
likely the employers reporting that intermittent FMLA leave has a
moderate to large negative impact on their productivity and profits
(1.8 to 12.7 percent of establishments).\53\ In addition, many of their
traditional methods to encourage or control absenteeism (e.g., perfect
attendance awards or no fault attendance polices) are not permitted for
FMLA-protected leave. A reasonable employer in this situation may seek
changes to the regulations or the statute,\54\ may try to make it
difficult for their workers to take unscheduled intermittent FMLA leave
by repeatedly questioning the medical certifications or asking for
recertifications (see Chapter VI.B.1.c, and comments from: the
Association of Professional Flight Attendants, Doc. 10056A; the
International Association of Machinists and Aerospace Workers, Doc.
10269A; and the Communication Workers of America, Doc. R346A), and
whenever possible, may require employees to use paid leave to cover
their absences (see the joint comment on behalf of the International
Association of Machinists and Aerospace Workers, the Transportation
Communications International Union, the Transport Workers Union, and
the United Transportation Union, Doc. 10235A; and the joint comment
from the American Train Dispatchers Association, the Brotherhood of
Locomotive Engineers and Trainmen, the Brotherhood of Railroad
Signalmen, the International Brotherhood of Electrical Workers, the
National Conference of Fireman and Oilers, and the Sheet Metal Workers
International Association, Doc. 10163A.).
---------------------------------------------------------------------------

\52\ The Department received many comments about the use of, or
inability to use, perfect attendance awards due to certain
regulatory provisions and interpretations. The Department
interpreted the regulatory provisions on perfect attendance bonuses
(section 825.220(c)) in Wage and Hour Opinion Letter FMLA-2 (Aug.
16, 1993):
With regard to attendance incentive plans rewarding perfect
attendance, an employee may not be disqualified nor may any award be
reduced for having taken unpaid FMLA leave. In a case where the
bonus is expressed as an amount per hour worked, the employee on
unpaid FMLA leave would receive a lesser amount than an employee who
had not been on FMLA leave, as the employee on FMLA Leave is not
entitled to accrue benefits during FMLA leave. See Sec. 825.220(c).
The Department has restated its position in several opinion
letters since then. See, e.g., Wage and Hour Opinion Letter FMLA-31
(March 21, 1994), and Wage Hour Opinion Letter FMLA-110 (Sept. 11,
2000).
Several commenters suggested that no ``problem'' exists with
respect to perfect attendance bonuses, and that employers ought
simply to provide bonuses other than ``perfect attendance'' bonuses.
See Elaine G. Howell, H.R. Specialist, International Auto
Processing, Inc., Doc. 4752, at 2; International Association of
Machinists and Aerospace Workers, Doc. 10269A, at 3; SEIU Local 668,
Pennsylvania Social Services Union, Doc. FL105, at 3; Faculty &
Staff Federation of Community College of Philadelphia, Local 2026 of
the American Federation of Teachers, Doc. 10242A, at 4; American
Association of University Professors, Doc. R31A, at 3; and National
Partnership for Women & Families, Doc. 10204A, at 10-11.
Several commenters, on the other hand, objected to prohibiting
FMLA-protected leave from counting against an employee for the
purposes of a perfect attendance bonus. See The Southern Company,
Doc. 10293A, at 12; Taft, Stettinius & Hollister LLP, Doc. FL107, at
5; National Public Employer Labor Relations Association, Doc. R358A,
at 3-4; Porter, Wright, Morris & Arthur LLP, Doc. 10124B, at 3-4;
G.S.W. Manufacturing, Inc., Doc FL288, at 2; Fisher & Phillips LLP,
Doc. 10262A, at 7-8; Edison Electric Institute, Doc. 10128A, at 4;
and Carol Hauser, Senior Director of Human Resources, Miami
University, Doc. 10032A, at 9.
\53\ See 2000 Westat Report, Table A2-6.13, at A-2-59.
\54\ A similar analysis can be used to show why workers wanted
Congress to pass the FMLA. Before the FMLA, a serious health
condition could have been a catastrophic high cost event due to the
potential loss of employment and health insurance. When women
entered the workforce in greater numbers in the 1970's and 1980's,
fewer families had an adult available to care for family members
with serious health conditions, and the probability of families
experiencing such a catastrophic event rose. Workers reacted
reasonably by trying to limit this risk through the passage of
legislation such as the FMLA.
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As the risk analysis indicates, FMLA-related tension between
employers and employees is at its highest for those entities in Block
IV. More specifically, the comments confirm this tension arises, for
the most part, due to unscheduled intermittent leave.
The tension can be traced to two competing needs that are true at
the same time: (1) Employers' need for predictable attendance,
particularly in certain industries; and (2) employees' need for
unscheduled intermittent leave for their own or a family member's
serious, chronic health conditions that flare up unpredictably and
require absence from work. In some cases it appears these competing
needs have resulted in employers and employees adopting a more
adversarial approach in their FMLA interactions.

Signed at Washington, DC this 20th day of June, 2007.
Victoria A. Lipnic,
Assistant Secretary, Employment Standards Administration.
Paul DeCamp,
Administrator, Wage and Hour Division.
[FR Doc. 07-3102 Filed 6-27-07; 8:45 am]
BILLING CODE 4510-27-P