[Federal Register: November 17, 2008 (Volume 73, Number 222)]
[Rules and Regulations]
[Page 67933-68133]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no08-23]
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Part II
Department of Labor
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Wage and Hour Division
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29 CFR Part 825
The Family and Medical Leave Act of 1993; Final Rule
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB35
The Family and Medical Leave Act of 1993
AGENCY: Employment Standards Administration, Wage and Hour Division,
Department of Labor.
ACTION: Final rule.
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SUMMARY: This document provides the text of final regulations
implementing the Family and Medical Leave Act of 1993 (``FMLA''), the
law that provides eligible employees who work for covered employers the
right to take job-protected, unpaid leave for absences due to the birth
of the employee's son or daughter and to care for the newborn child;
because of the placement of a son or daughter with the employee for
adoption or foster care; in order to care for a son, daughter, spouse,
or parent with a serious health condition; or because of the employee's
own serious health condition that makes the employee unable to perform
the functions of his or her job. The final regulations also address new
military family leave entitlements included in amendments to the FMLA
enacted as part of the National Defense Authorization Act for FY 2008,
which provide additional job-protected leave rights to eligible
employees of covered employers who provide care for covered
servicemembers with a serious injury or illness and because of
qualifying exigencies arising out of the fact that a covered military
member is on active duty or has been notified of an impending call or
order to active duty in support of a contingency operation.
EFFECTIVE DATE: These rules are effective on January 16, 2009.
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). Copies of this rule may be obtained in alternative
formats (Large Print, Braille, Audio Tape or Disc), upon request, by
calling (202) 693-0675. TTY/TDD callers may dial toll-free 1-877-889-
5627 to obtain information or request materials in alternative formats.
Questions of interpretation and/or enforcement of the agency's
regulations may be directed to the nearest Wage and Hour Division (WHD)
District Office. Locate the nearest office by calling the WHD's toll-
free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5
p.m. in your local time zone, or log onto the WHD's Web site for a
nationwide listing of WHD District and Area Offices at: http://
www.dol.gov/esa/contacts/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Background
A. What the FMLA Provides
The Family and Medical Leave Act of 1993, Public Law 103-3, 107
Stat. 6 (29 U.S.C. 2601 et seq.), was enacted on February 5, 1993, and
became effective for most covered employers on August 5, 1993. As
enacted in 1993, FMLA entitled eligible employees of covered employers
to take job-protected, unpaid leave, or to substitute appropriate
accrued paid leave, for up to a total of 12 workweeks in a 12-month
period for the birth of the employee's son or daughter and to care for
the newborn child; for the placement of a son or daughter with the
employee for adoption or foster care; to care for the employee's
spouse, parent, son, or daughter with a serious health condition; or
when the employee is unable to work due to the employee's own serious
health condition.
On January 28, 2008, President Bush signed into law H.R. 4986, the
National Defense Authorization Act for FY 2008 (``NDAA''), Public Law
110-181. Section 585(a) of the NDAA expanded the FMLA to allow eligible
employees of covered employers to take FMLA-qualifying leave
``[b]ecause of any qualifying exigency (as the Secretary [of Labor]
shall, by regulation, determine) arising out of the fact that the
spouse, or a son, daughter, or parent of the employee is on active duty
(or has been notified of an impending call or order to active duty) in
the Armed Forces in support of a contingency operation.'' See 29 U.S.C.
2612(a)(1)(E) (referred to herein as ``qualifying exigency leave'').
The NDAA also provided that ``an eligible employee who is the spouse,
son, daughter, parent, or next of kin of a covered servicemember shall
be entitled to a total of 26 workweeks of leave during a [single] 12-
month period to care for the servicemember.'' See 29 U.S.C. 2612(a)(3)-
(4) (referred to herein as ``military caregiver leave''). In addition
to establishing these two new leave entitlements (referred to together
throughout this document as the ``military family leave provisions''),
section 585(a) of the NDAA included conforming amendments to
incorporate the new military family leave entitlements into the FMLA's
current statutory provisions relating to the use of FMLA leave and to
add certain new terms to the FMLA's statutory definitions. The NDAA
amendments were enacted January 28, 2008. The amendments require the
Secretary of Labor to define ``any qualifying exigency'' through
regulation. See 29 U.S.C. 2612(a)(1)(E).
To be eligible for FMLA leave, an employee must have been employed
for at least 12 months by the employer and for at least 1,250 hours of
service with the employer during the 12 months preceding the leave, and
be employed at a worksite at which the employer employs at least 50
employees within 75 miles of the worksite. See 29 U.S.C. 2611(2).
Employers covered by the FMLA must maintain any preexisting group
health coverage for an eligible employee during the FMLA leave period
under the same conditions coverage would have been provided if the
employee had not taken leave 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 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 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.
Title I of the FMLA is administered by the U.S. Department of Labor
and applies to private sector employers of 50 or more employees, public
agencies and certain federal employers and entities, such as the U.S.
Postal Service and Postal Regulatory Commission. Title II is
administered by the U.S. Office of Personnel Management and applies to
civil service employees covered by the annual and sick leave system
established under 5 U.S.C. Chapter 63, plus certain employees covered
by other federal leave systems. Title III established a temporary
Commission on Leave to conduct a study and report on existing and
proposed policies on leave and the costs, benefits, and impact on
productivity of such policies.\1\ Title IV
[[Page 67935]]
(also administered by the Department of Labor) contains miscellaneous
provisions, including rules governing the effect of the FMLA on more
generous leave policies, other laws, and existing employment benefits.
Title V originally extended leave provisions to certain employees of
the U.S. Senate and House of Representatives, but such coverage was
repealed and replaced by the Congressional Accountability Act of 1995,
2 U.S.C. 1301.
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\1\ 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.''
See http://www.dol.gov/esa/whd/fmla/fmla/1995Report/family.htm. In
1999, the Department updated the employee and establishment surveys
conducted in 1995 and published a report in January 2001,
``Balancing the Needs of Families and Employers: Family and Medical
Leave Surveys, 2000 Update.'' See http://www.dol.gov/esa/whd/fmla/
fmla/toc.htm.
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B. Regulatory History
The FMLA required the Department to issue initial regulations to
implement Titles I and IV of the FMLA within 120 days of enactment, or
by June 5, 1993, with an effective date of August 5, 1993. The
Department issued a Notice of Proposed Rulemaking (``NPRM'') on March
10, 1993 (58 FR 13394), inviting comments until March 31, 1993, on a
variety of questions and issues. After considering the comments
received from a wide variety of stakeholders, including employers,
trade and professional associations, advocacy organizations, labor
unions, state and local governments, law firms, employee benefit firms,
academic institutions, financial institutions, medical institutions,
Members of Congress, and others, the Department issued an interim final
rule on June 4, 1993 (58 FR 31794), which became effective on August 5,
1993, and which also invited further public comment on the interim
regulations. Based on this second round of public comments, the
Department published final regulations on January 6, 1995 (60 FR 2180),
which were amended on February 3, 1995 (60 FR 6658) and on March 30,
1995 (60 FR 16382) to make minor technical corrections. The final
regulations went into effect on April 6, 1995.
On December 1, 2006, the Department published a Request for
Information (``RFI'') in the Federal Register (71 FR 69504) requesting
the public to comment on its experiences with, and observations of, the
Department's administration of the law and the effectiveness of the
FMLA regulations. The RFI's questions and areas of focus were derived
from stakeholder meetings, a number of rulings of the U.S. Supreme
Court and other federal courts, the Department's 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 three annual reports to the Congress
on the FMLA's costs and benefits.\2\ The Department received more than
15,000 comments in response to the RFI from workers, family members,
employers, academics, and other interested parties.\3\ This input
ranged from personal accounts, legal reviews, industry and academic
studies, and surveys to recommendations for regulatory and statutory
changes to address particular areas of concern. The Department
published its Report on the comments received in response to the
Department's RFI in June 2007 (see 72 FR 35550 (June 28, 2007)).
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\2\ These OMB reports may be found at the following Web sites:
2001 report: http://www.whitehouse.gov/omb/inforeg/
costbenefitreport.pdf; 2002 report: http://www.whitehouse.gov/omb/
inforeg/2002_report_to_congress.pdf; 2004 report: http://
www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf.
\3\ Comments are available for viewing at 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 http://www.regulations.gov.
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On February 11, 2008, the Department published an NPRM in the
Federal Register (73 FR 7876) inviting public comments for 60 days on
proposed changes to the FMLA's implementing regulations. The proposed
changes were based on the Department's experience of nearly 15 years
administering the law, the two previous Department of Labor studies and
reports on the FMLA issued in 1996 and 2001, several U.S. Supreme Court
and lower court rulings, and a review of the public comments received
in response to the RFI. The NPRM also sought public comment on issues
to be addressed in final regulations to implement the 2008 amendments
to the FMLA providing for military family leave pursuant to section
585(a) of the NDAA. The Department's NPRM included a description of the
relevant military family leave statutory provisions, a discussion of
issues the Department had identified under those provisions, and a
series of questions seeking comment on subjects and issues for
consideration in developing the final regulations.
In response to the NPRM, the Department received 4,689 comment
submissions (the majority via the Federal eRulemaking Portal at http://
www.regulations.gov) during the official comment period from a wide
variety of individuals, employees, employers, trade and professional
associations, labor unions, governmental entities, Members of Congress,
law firms, and others. Two submissions attached the views of some of
their individual members: The American Federation of Teachers (528
individual comments) and MomsRising.org (4,712 individual comments).
Additional comments submitted via the Regulations.gov eRulemaking
Portal after the comment period closed were not considered part of the
official record and were not considered. (Comments may be viewed on the
Regulations.gov Web site at http://www.regulations.gov/fdmspublic/
component/main?main=DocketDetail&d=ESA-2008-0001.)
Nearly 90 percent of the comments received in response to the NPRM
were either: (1) Very general statements; (2) personal anecdotes that
do not address any particular aspect of the proposed regulatory
changes; (3) comments addressing issues that are beyond the scope or
authority of the proposed regulations, ranging from repeal of the Act
to expanding its coverage and benefits; or (4) identical or nearly
identical ``form letters'' sent in response to comment initiatives
sponsored by various constituent groups, such as the American Postal
Workers Union and several of its affiliated local unions, the
Associated Builders and Contactors, MomsRising.org, the National
Organization of Women, the Society for Human Resource Management,
Teamsters for a Democratic Union, and Women Employed. The remaining
comments reflect a wide variety of views on the merits of particular
sections of the proposed regulations. Many include substantive analyses
of the proposed revisions. The Department acknowledges that there are
strongly held views on many of the issues presented in this rulemaking,
and it has carefully considered all of the comments, analyses, and
arguments made for and against the proposed changes.
The major comments received on the proposed regulatory changes are
summarized below, together with a discussion of the changes that have
been made in the final regulatory text in response to the comments
received. In addition to the more substantive comments discussed below,
the Department received some minor editorial suggestions (e.g.,
suggested grammatical revisions and correction of misspelled words),
some of which have been adopted and some of which have not. A number of
other minor editorial changes have been made to improve the clarity of
the regulatory text.
II. Summary of Comments on Changes to the FMLA Regulations
This summary begins with a general overview of how the new military
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family leave entitlements have been incorporated into the existing FMLA
regulatory framework, followed by a section-by-section presentation of
the major comments received on the Department's other proposed
revisions. As proposed in the NPRM, the section headings in the final
rule have been reworded from a question into the more common format of
a descriptive title, and several sections have been restructured and
reorganized to improve the accessibility of the information. In
addition, proposed sections of the regulations have been renumbered in
the final rule to allow for the addition of new regulatory sections
addressing the military family leave entitlements as described below.
Incorporation of New Military Family Leave Entitlements Into the FMLA
Regulations
In crafting these final regulations on military family leave, the
Department was mindful of the special circumstances underlying the need
for such leave. In recognition of the military families who may have
the need to take FMLA leave under these new entitlements, the
Department worked to finalize these regulations as expeditiously as
possible. In addition, because many of the NDAA provisions providing
for military family leave under the FMLA adopt existing provisions of
law generally applicable to the military, the Department engaged in
extensive discussions with the Departments of Defense and Veterans
Affairs before finalizing these regulations. The Department also
consulted with a number of military service organizations. These
discussions focused on creating regulatory requirements under the FMLA
that reflect an understanding of and appreciation for the unique
circumstances facing military families when a servicemember is deployed
in support of a contingency operation or injured in the line of duty on
active duty, as well as providing appropriate deference to existing
military protocol. The Departments of Defense and Veterans Affairs are
fully cognizant of the central role each of them will play in ensuring
that military families are able to avail themselves of the new
entitlements when needed and to comply with the statutory and
regulatory requirements for the taking of job-protected leave under the
FMLA when a servicemember is deployed or seriously injured or ill. The
Department also acknowledges the critical role employers play in
helping the men and women serving in the military, especially those in
the National Guard and Reserves. In workplaces around the country,
employer support is vital to the implementation of the military family
leave provisions in a manner that recognizes and contributes to the
success of the members of the military and their families.
In the NPRM, the Department specifically requested comments on
whether the new military family leave entitlements should be
incorporated into the broader FMLA regulatory framework, or whether
completely separate, stand-alone regulatory sections should be created
for one or both of the new entitlements. The Department proposed to
adopt many of the same or similar procedures for taking military family
leave as are applied to other types of FMLA leave and suggested a
number of sections to which conforming changes would need to be made in
order to reflect these new leave entitlements. For example, the
Department cited Sec. Sec. 825.100 and 825.112(a) as sections that
would need to be updated to reflect the military family leave
entitlements. Among other items, the Department also suggested that the
poster and general notice discussed in proposed Sec. 825.300(a), the
eligibility notice in proposed Sec. 825.300(b), and the designation
notice in proposed Sec. 825.300(c) would need to incorporate
appropriate references to the military family leave entitlements. The
Department also requested comments on any other regulatory sections
that should be revised in light of the military family leave
entitlements.
After reviewing the public comments, the Department concurs with
the majority of comments that stated that the procedures used when
taking military family leave should be the same as those used for other
types of FMLA leave whenever possible. The Department believes that
this approach is beneficial to both employees and employers--each of
whom should find it easier to apply the same or similar procedures for
taking and administering FMLA leave regardless of the qualifying
reason. Accordingly, the Department has, when feasible, incorporated a
discussion of the new military family leave entitlements into the
proposed regulatory provisions that concern the taking of FMLA leave
for other qualifying reasons. The Department also has created four new
regulatory sections--numbered as Sec. Sec. 825.126, 825.127, 825.309
and 825.310--which address specific employee and employer
responsibilities for purposes of military family leave.
The Department received a few comments regarding the incorporation
of the military family leave entitlements into the proposed FMLA
regulatory framework. The National Partnership for Women & Families and
MomsRising.org both stated:
Because the military leave provisions have different time
requirements, different certification requirements, and different
definitions than the rest of the FMLA, we strongly recommend that
the regulations for these provisions not be incorporated in the rest
of the FMLA regulations. Rather, these regulations should have their
own sections within the FMLA regulations and can refer to the rest
of the FMLA when necessary. This organization will reduce confusion
and will allow DOL to issue the military leave regulations much more
promptly.
The Pennsylvania Governor's Office of Administration also recommended
``that the regulations for [the military family leave entitlements] be
separate from the FMLA regulations.''
On the other hand, a number of commenters urged that the
Department, as much as possible, incorporate the new regulations
regarding military servicemember leave into the existing FMLA
regulations. For example, TOC Management Services argued:
The DOL should take its cue from Congress, which chose to
incorporate the provisions of H.R. 4986 into the existing FMLA
statutes * * *. By organizing the statutes this way, Congress has
clearly shown an intent to have the new FMLA provisions be an
integrated part of the FMLA; not a stand-alone provision within the
other FMLA provisions. Although carving out a section to address the
new military servicemember leave provisions would be the most
convenient option for the DOL, it would ultimately lead to
confusion. Employees and employers reading through the regulations
to determine their leave rights/obligations may not be aware that
there is an entirely separate section dealing with military
servicemember leave. For instance, an employee may read Sec.
825.112 to determine whether they qualify for leave to care for
their injured servicemember spouse and end their inquiry after
reading through that section. It would be confusing to have an
entirely different section regarding qualifying reasons for leave
that relates only to military servicemembers. To the extent
possible, the DOL should follow Congress's lead in incorporating the
new provisions into the existing ones.
Similarly, the Illinois Credit Union League stated that, ``[because]
the military and medical provisions are companion regulations, they
should be incorporated into one statutory scheme to ensure consistency.
To act otherwise would be to assure a regulatory legal patchwork * *
*.'' WorldatWork also suggested that the Department ``should
incorporate the notice provisions provided in this section with the
notice provisions provided elsewhere in the FMLA regulations.
Consistency will help in administration.''
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The Department has decided to incorporate, wherever feasible, the
new military family leave entitlements into the proposed FMLA
regulations governing the taking of job-protected leave for other
qualifying reasons. The Department believes that completely separating
the military family leave provisions from the provisions governing the
taking of other types of FMLA leave would create unnecessary confusion
and complexity for employees and employers. By integrating the military
family leave provisions into the proposed FMLA regulations where
applicable and appropriate, employees and employers will be better able
to understand their rights and obligations under the new entitlements.
Because Congress chose to incorporate the new entitlements into the
existing FMLA statutory framework rather than create a new entitlement
separate from the rest of the FMLA, ensuring that the totality of the
FMLA regulations reflects the new military family leave provisions is
both necessary and consistent with congressional intent.
In most cases, these changes are modest technical changes that
acknowledge the military leave entitlements in the context of the FMLA.
For example, some references to certification in the regulations have
been altered to clarify whether they refer only to ``medical
certifications'' of a serious health condition or if they refer also to
``certifications'' under the military family leave provisions. In some
places, certain references to an employee's entitlement to 12 workweeks
of leave are changed to simply reference the employee's leave
entitlement, including the entitlement of up to 26 workweeks for
military caregiver leave. Minor changes such as this occur in
Sec. Sec. 825.101, 825.112, 825.122, 825.124, 825.200, 825.202-
825.207, 825.213, 825.300, 825.301, 825.305-825.308, 825.400, and
825.500. In some instances, the changes are more substantial, such as
in the notice provisions in Sec. Sec. 825.302 and 825.303, and the
general description of the FMLA in Sec. 825.100. In addition, several
new terms related to the military family leave provisions have been
added to the definitions in Sec. 825.800. Where significant, the
specific changes required to incorporate the new military family leave
entitlements into the proposed FMLA regulations are discussed in
greater detail in the section-by-section analysis of the final
regulations which follows.
The Department also recognizes that the NDAA amendments to the FMLA
created certain new concepts that are applicable only to the taking of
military family leave. Accordingly, the final rule includes four new
regulatory sections, numbered Sec. Sec. 825.126, 825.127, 825.309, and
825.310, which address those unique aspects of the military family
leave entitlements. These four sections are discussed in greater detail
below in the section-by-section analysis. Generally speaking,
Sec. Sec. 825.126 and 825.127 discuss an employee's entitlement to
qualifying exigency and military caregiver leave respectively. Sections
825.309 and 825.310 of the final rule cover the certification
requirements for taking qualifying exigency and military caregiver
leave respectively. The proposed FMLA provisions beginning with Sec.
825.309 and ending with Sec. 825.311 have been renumbered in the final
rule as Sec. Sec. 825.311-825.313 to allow for the addition of these
two new military family leave certification provisions.
Section-by-Section Analysis of Final Regulations
Section 825.100 (The Family and Medical Leave Act)
The Department proposed no substantive changes to this section.
Section 825.100 in the final rule is amended to include a description
of the military family leave provisions in the general discussion of
the FMLA. Section 825.100(a) reflects that the FMLA has been amended,
and also adds the new qualifying reasons for taking leave. Section
825.100(b) adds the serious injury or illness of a covered
servicemember for whom the employee is eligible to provide care under
the FMLA as another reason that precludes an employer from recovering
health benefits from an employee who does not return to work. Section
825.100(d) now includes references to military caregiver leave and
qualifying exigency leave in the overview of certification.
Section 825.101 (Purpose of the Act)
The Department proposed no substantive changes to this section.
Section 825.101(a) in the final rule is amended to include a reference
to the military family leave provisions in the general discussion of
the purpose of the FMLA.
Sections 825.102-825.103 (Reserved)
The NPRM proposed to delete and reserve Sec. Sec. 825.102
(Effective date of the Act) and 825.103 (How the Act affected leave in
progress on, or taken before, the effective date of the Act), because
they are no longer needed. The final rule reserves these sections.
Section 825.104 (Covered Employer)
The Department proposed no changes to this section, which discusses
employer coverage under the FMLA, and received no comments on this
section. The final rule adopts the section as proposed.
Section 825.105 (Counting Employees for Determining Coverage)
The Department proposed no substantive changes to this section,
which addresses how to count employees for purposes of determining
coverage. The only change proposed was to update the dates used in the
example in paragraph (f). The final rule adopts the section as
proposed.
TOC Management Services stated that it believes the rule is
confusing because it states in paragraph (c) that there is no employer/
employee relationship when an employee is laid off. It noted that there
may be a continuing obligation to that employee, such as under a
collective bargaining agreement, because the employee has an
expectation of recall in the event that business picks up again. It
also stated that many employers mistakenly use the word ``layoff'' when
the action truly is an administrative termination or downsizing and the
employee has no expectation of recall.
The Department has not heard from any other commenters that this
rule is confusing. Moreover, the fact that an employer may have
continuing contractual obligations to an individual on layoff does not
mean that it has a current employer-employee relationship with that
person within the meaning of the FMLA. Employees who are laid off
typically are eligible for unemployment insurance benefits, which
demonstrates the lack of an ongoing employer/employee relationship as
it is commonly understood. Therefore, the Department is not making any
changes to the section and is adopting the rule as proposed.
Section 825.106 (Joint Employer Coverage)
Section 825.106 addresses joint employment. The proposed rule added
a new paragraph at Sec. 825.106(b)(2) to address joint employment in
the specific context of a Professional Employer Organization (``PEO'').
PEOs are unlike traditional placement or staffing agencies that supply
temporary employees to clients. PEOs operate in a variety of ways, but
typically provide payroll and administrative benefits services for the
existing employees of an employer/client. The proposed rule stated that
PEOs that contract with clients merely to perform administrative
[[Page 67938]]
functions are not joint employers with their clients; however, where
the PEO has the right to hire, fire, assign, or direct and control the
employees, or benefits from the work they perform, such a PEO would be
a joint employer.
The commenters generally applauded the Department's recognition of
the differences between PEOs and traditional staffing agencies, but
they had a number of suggestions for further improvements and
clarifications. See, e.g., Strategic Outsourcing, Inc.; TriNet Group;
National Association of Professional Employer Organizations
(``NAPEO''); American Federation of Labor and Congress of Industrial
Organizations (``AFL-CIO''); and Fulbright & Jaworski. But see Harrill
& Sutter (stating proposed change is completely unnecessary and
probably harmful because companies will begin to call themselves PEOs
regardless of facts). Based on the comments received, the Department
has made a number of additional changes, as described below.
First, many of the commenters expressed concern regarding the
proposed rule's focus on a PEO's ``right'' to make certain employment
decisions rather than the ``actual'' role it exercises when evaluating
whether the PEO is a joint employer. They were concerned particularly
in light of the fact that several states' laws require PEOs to reserve
such rights in their contracts with client employers. The commenters
had different suggestions for further clarification on this point. For
example, NAPEO noted that PEOs ``contractually assume or share certain
employer obligations and responsibilities.'' Therefore, NAPEO conceded
that the ``reality of PEO arrangements is that PEOs do co-employ client
worksite employees.'' NAPEO recommended, however, that the regulation
designate PEO clients as the primary employers for FMLA purposes. See
also TriNet Group. Both NAPEO and TriNet Group stated that PEOs do not
create the jobs for which they provide administrative services; rather,
the client employer creates those jobs and the PEO has no authority to
move an employee to another client. Therefore, they believed that the
primary employer duty of job restoration should be the responsibility
of the entity that creates the job opportunity. The AFL-CIO similarly
stated that ``it makes no sense to consider PEOs as primary employers.
In fact, designating the PEO as the primary employer for purposes of
job restoration threatens to deprive employees of their key post-leave
FMLA right.'' See also Greenberg Traurig (PEOs do not fit the model of
a primary employer because they do not hire and place employees at a
work location and thus should not be responsible for reinstatement).
On the other hand, Strategic Outsourcing, Inc. objected to NAPEO's
per-se rule designating the clients of PEOs as the primary employers,
stating that the PEO industry has changed throughout its history and
will continue to evolve, and that there is great variety among PEOs as
to the scope of services they deliver. ``[A]ny per-se rule that fails
to take into account the unique facts of each case will inevitably
result in improper application of the FMLA.'' Therefore, Strategic
Outsourcing, Inc. asked the Department to focus on the economic
realities of the situation, both to determine whether a joint
employment relationship exists and, if so, to determine which employer
is the primary employer. ``Such an approach would allow for the
multifarious forms PEOs take, and would avoid making the application of
the FMLA dependent on state law and nuances of contractual terms.''
Fulbright & Jaworski similarly noted that the FMLA borrows the
definition of ``employ'' from the FLSA, which utilizes an economic
realities analysis. Moreover, it disagreed with NAPEO's suggestion,
stating that PEOs that do not exercise control over a client's
employees and that do not hire and fire should not be considered joint
employers. See also Duane Morris (disagreeing with NAPEO's assertion
that PEOs are always joint employers); Greenberg Traurig (suggesting
that the regulation follow the case law ``which emphasizes that it is
the economic realities of the relationship and actual practices that
determine the employer/employee relationship''); Kunkel Miller & Hament
(referencing a number of court decisions holding that PEOs/employee
leasing companies were not joint employers).
Jackson Lewis concluded that the joint employment concept ``is
entirely inapposite to the relationship between a PEO and its client
companies'' because, although a PEO assumes a number of employer
responsibilities, it does not have the day-to-day control over the
employees, cannot meaningfully affect the terms and conditions of their
employment, and does not benefit from the work of those employees.
Proskauer Rose similarly stated that, although each relationship must
be evaluated in its totality, with no single factor controlling, ``the
joint employer doctrine should rarely, if ever, be applied to PEOs,''
and that the right to hire and fire ``should be irrelevant to the joint
employer analysis unless the PEO actually exercises that right.'' In
contrast, the Equal Employment Advisory Council emphasized that the
proposed language (stating that where the PEO ``has the right to hire,
fire, assign, or direct and control the employees, or benefits from the
work that the employees perform, such a PEO would be a joint employer
with the client company'') makes a ``critical'' point that ``must be
retained, since an organization maintaining one or more of these types
of control indeed would be a `joint employer' under the FMLA and other
laws.''
Some of these commenters also addressed the issue of how employers
must count their employees, if the PEO is a joint employer, to
determine whether there are 50 employees within 75 miles. See, e.g.,
Proskauer Rose, Greenberg Traurig, and NAPEO. They noted that the size
of the average PEO client (17 employees) falls squarely within the
statutory exception to coverage, and they stated that a small company
that would otherwise be exempt from the FMLA should not be deprived of
the exception just because it partners with a PEO.
Finally, a number of commenters stated that the Department used
confusing terminology in the proposed rule that did not keep clear the
distinction between a traditional temporary placement or staffing
agency and an employee leasing agency or PEO. See, e.g., American
Staffing Association.
The Department agrees with the commenters that suggested that the
economic realities analysis is the proper standard for assessing
whether a PEO is a joint employer. See Sec. 825.105(a). The FMLA
incorporates the FLSA definition of ``employ,'' which is ``to suffer or
permit to work.'' 29 U.S.C. 2611(3), incorporating 29 U.S.C. 203(g). As
the Supreme Court has repeatedly recognized, that definition is
strikingly broad. See, e.g., Rutherford Food Co. v. McComb, 331 U.S.
722, 730 (1947). Whether an employment relationship exists must be
determined in light of the economic realities of the situation.
Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33 (1961).
An economic realities analysis does not depend on ``isolated factors
but rather upon the circumstances of the whole activity.'' Rutherford
Food Co., 331 U.S. at 730. The Department also applied this economic
realities principle when it promulgated regulations to clarify the
definition of ``joint employment'' under the Migrant and Seasonal
Agricultural Worker Protection Act, 29 U.S.C. 1802(5), which also
incorporates the FLSA definition of ``employ.'' See 62 FR 11734 (Mar.
12, 1997); 29 CFR Part 500.
Therefore, the final rule modifies Sec. 825.106(b)(2) of the
proposed rule by
[[Page 67939]]
adding a sentence to clarify that the ``determination of whether a PEO
is a joint employer also turns on the economic realities of the
situation and must be made based upon all the facts and
circumstances.'' The final rule retains the proposed sentence
clarifying that a PEO is not a joint employer if it simply performs
administrative functions, such as those related to payroll and benefits
and updating employment policies. The final rule modifies the proposed
sentence pertaining to the right to hire, fire, assign, or direct and
control to clarify that ``such rights may lead to a determination that
the PEO would be a joint employer with the client employer, depending
upon all the facts and circumstances.'' The final rule also adds a
sentence at the end of Sec. 825.106(c) to clarify that, unlike the
situation involving traditional placement agencies, the client employer
most commonly would be the primary employer in a joint employment
relationship with a PEO.
With regard to how to count employees in the joint employment
context, some of the comments demonstrated confusion about which
employees an employer must count. There appeared to be a misperception
that if a PEO jointly employs its client employers' employees, each
client employer therefore also must jointly employ (and count) both the
office staff of the PEO and the employees of the PEO's other unrelated
clients. That would only be true, however, if the economic realities
showed that the PEO office staff or the employees of the other
unrelated clients were economically dependent on the client employer,
something which is unlikely. Therefore, the final rule adds a new
sentence in Sec. 825.106(d) to clarify employee counting in the PEO
context.
Finally, the final rule makes minor editorial changes in response
to the comments noting that the terminology used was confusing with
regard to leasing agencies. The Department deleted that terminology,
and the final rule refers only to temporary placement agencies and
PEOs, the two main categories of employment agencies. Of course, the
labeling or categorization of a particular employer does not control
the outcome; all the facts and circumstances in each situation must be
evaluated to assess whether joint employment exists and, if so, which
employer is the primary employer.
Section 825.107 (Successor in Interest Coverage)
No changes were proposed in this section of the current rule, and
no substantive comment was received. The final rule adopts this section
as proposed.
Section 825.108 (Public Agency Coverage)
The Department proposed no changes to this section, which addresses
what constitutes a ``public agency'' for purposes of coverage. The
current regulation states that, where there is any question about
whether a public entity is a public agency as distinguished from a part
of another public agency, the U.S. Bureau of the Census's ``Census of
Governments'' will be determinative. In contrast, the regulations
implementing the Fair Labor Standards Act use this test as just one
factor in determining what constitutes a separate public agency. See 29
CFR Sec. 553.102. Because the FMLA incorporates the FLSA's definition
of ``public agency'' (see 29 U.S.C. 2611(4)(A)(iii), incorporating 29
U.S.C. 203(x)), the proposal asked whether the FMLA regulation should
be conformed to the test in the FLSA regulations. The final rule makes
this regulation consistent with the FLSA regulation.
Very few commenters addressed this issue. The AFL-CIO stated that
the ``FLSA test is more appropriate'' because the FLSA factors include
employment-specific criteria rather than relying primarily on
governance and taxation issues as the Census does. In contrast,
Catholic Charities, Diocese of Metuchen stated that a change was not
necessary because the Census test was ``sufficient for determining
whether a public agency is a separate and distinct entity.'' It stated
that, because the test focuses on whether the agency has independent
fiscal powers and looks at the type of governing body that the agency
has and the functions that this body performs, the factors are clear
and concise and less subjective than the FLSA case-by-case
determination. See also Harrill & Sutter (no need for an amendment
because, although the FMLA definition of ``public agency'' incorporates
the FLSA definition, the definition of ``employer'' is broader and
refers simply to conduct affecting commerce); Robert Jusino (agencies
should promulgate their rules by using standardized tests and
definitions unless the FLSA multiple factors tests is significantly
superior).
The final rule amends this section to be consistent with the FLSA
regulation, pursuant to which the Census is just one factor. Because
the FMLA incorporates the FLSA's definition of ``public agency,'' the
Department believes that the regulatory tests should be consistent.
Moreover, as the AFL-CIO noted, the FLSA test allows employment-related
factors to play a greater role than they do in the Census analysis,
which the Department believes is appropriate.
Section 825.109 (Federal Agency Coverage)
The NPRM proposed to update the existing regulations that identify
the Federal agencies covered by Title I of the FMLA and the Department
of Labor's regulations to reflect changes in the law resulting from the
Congressional Accountability Act of 1995, 2 U.S.C. 1301, and a
nomenclature change in the Postal Regulatory Commission required by
section 604(f) of the Postal Accountability and Enhancement Act, Public
Law 109-435, Dec. 20, 2006, 120 Stat. 3242. No substantive comments
were received on this section and it is adopted in the final rule as
proposed.
Section 825.110 (Eligible Employee)
Section 825.110 addresses the requirement that employees are
eligible to take 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 in the 12-month period preceding the leave. The proposed rule
added a new paragraph at Sec. 825.110(b)(1) to provide that, although
the 12 months of employment need not be consecutive, employment prior
to a continuous break in service of five years or more need not be
counted. The Department also proposed a new paragraph (b)(2) setting
forth two exceptions to the five-year rule for: (1) A break in service
resulting from an employee's fulfillment of National Guard or Reserve
military service obligations; and (2) where a written agreement,
including a collective bargaining agreement, exists concerning the
employer's intention to rehire the employee after the break in service.
In those situations, the proposed rule provided that prior employment
must be counted regardless of the length of the break in service. The
proposed rule also stated, in paragraph (b)(4), that an employer may
consider employment prior to a break in service of more than five
years, provided that it does so uniformly with respect to all employees
with similar breaks. The proposed rule stated in paragraph (c)(2) that
an employer must credit an employee returning from his or her National
Guard or Reserve obligation with the hours of service that would have
been performed but for the military service when evaluating the 1,250-
hour requirement, and paragraph (b)(2)(i) stated that the period of the
military service also must be counted toward the
[[Page 67940]]
12-month requirement. Proposed paragraph (d) clarified that an
ineligible employee on non-FMLA leave may become eligible for FMLA
leave while on leave (by meeting the 12-month requirement), and that
any portion of the leave taken for a qualifying reason after the
employee becomes eligible would be protected FMLA leave. The proposed
rule also deleted portions of current paragraphs (c) and (d), based
upon the Supreme Court's decision in Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81 (2002), because they improperly ``deemed'' employees
eligible for FMLA leave. Finally, the proposal moved the notice
provisions in current paragraph (d) to Sec. 825.300(b) and deleted
current paragraph (e), which relates to counting periods of employment
prior to the effective date of the FMLA. The final rule adopts the
changes made in the proposed rule with one modification that extends
the period for breaks in service from five years to seven years.
Many commenters addressed various aspects of the proposed rule.
Numerous employee representatives opposed the proposed five-year cap on
breaks in service in order for prior employment to count toward the 12-
month requirement. They asserted that the proposal was contrary to the
statutory text, which does not have any time limit for the 12-month
requirement; that the legislative history is clear that the months of
employment do not need to be consecutive; and that the current
regulation is appropriate and therefore any change would be arbitrary
and contrary to the remedial purpose of the law. See, e.g., AFL-CIO;
American Postal Workers Union; Maine Department of Labor; Legal Aid
Society--Employment Law Center; Sargent Shriver National Center on
Poverty Law; and Harrill & Sutter. The AFL-CIO stated that most
employers retain records for seven years as a routine business
practice, and that employees also might have records for longer than
five years. It further stated that employer objections regarding the
administrative burdens associated with combining previous periods of
employment were not credible in light of the advances in electronic
compilation and retrieval of data. Therefore, the AFL-CIO suggested
that, if any limit is imposed, it should be lengthened to seven years
to conform to standard recordkeeping practices. The American Postal
Workers Union similarly commented that a five-year cap strikes the
wrong balance between employees' need for FMLA leave and employers'
ability to identify prior periods of service. It stated that in most
cases there will be no question whether an employee had a period of
prior service sufficient to qualify the employee for protection, and
that the increasing use of electronic recordkeeping will minimize the
burden on employers. The National Partnership for Women & Families, the
Coalition of Labor Union Women, and Women Employed all emphasized that
the proposed change would cause particular hardships for women, who
more frequently take extended time off to raise children or to care for
ill family members and then return to their jobs; the National
Partnership suggested six or seven years might have a less harmful
effect. The Cleveland-Marshall College of Law, Employment Law Clinic,
commented that an employer is not required to rehire a separated
employee; therefore, the issue arises only if the employer has made a
conscious decision to rehire a former employee after determining that
the burden of hiring an employee who qualifies for FMLA rights sooner
is outweighed by the value that the former employee would have to the
employer.
Numerous employers expressed the opposite view and stated that
having some cap on the length of the gap was at least a step in the
right direction. For example, the Equal Employment Advisory Council
(``EEAC'') noted that with the passage of time, manufacturing methods,
technology, equipment, customers, marketing methods and product lines
may change dramatically, and an employee who has been gone for a number
of years is functionally no different from a new employee. Therefore,
EEAC commented that having an established cutoff beyond which a break
in service will be ignored balances the interests of employers and
employees and allows employers to focus benefits on employees who
exhibit loyalty. However, EEAC and many other employers stated that
allowing a five-year gap was too long. They suggested that the
Department should allow a gap of three years, because that would be
consistent with the length of the FMLA record keeping requirement and,
thus, there would be appropriate documentation available. They
commented that allowing a five-year gap would cause administrative
problems by putting pressure on employers to retain records for that
longer period, which would be burdensome and yet of little practical
value to employees because so few would return to their employer after
that long a gap. See, e.g., EEAC; Chamber of Commerce of the United
States of America (the ``Chamber''); HR Policy Association; Fisher &
Phillips; Food Marketing Institute; and Catholic Charities, Diocese of
Metuchen.
Other employers suggested that there should be an even shorter
period. For example, the National Coalition to Protect Family Leave
stated that the eligibility determination should be based simply upon
continuous service for a 12-month period, and it opposed any
aggregation of service other than pursuant to the two exceptions in
paragraph (b)(2). See also College and University Professional
Association for Human Resources; Spencer Fane Britt & Browne;
Metropolitan Transportation Authority (NY); and National Business Group
on Health. Jackson Lewis commented that the Department should reject an
absolute time period, and instead look to each employer's normal
``break in service'' policies applicable to seniority, eligibility for
benefits, and accrual of paid leave time; however, if an absolute limit
is necessary, it suggested a cap of two years. Jackson Lewis regarded
it as unfair that a returning employee who left employment five years
ago would be entitled to FMLA leave before a colleague who had recently
devoted 12 consecutive months of service to the company, and that the
unfairness would be compounded unless the rules also accounted for FMLA
leave taken in the last few months of that individual's previous
employment.
Some employers stated that allowing a five-year gap brings clarity
to the decision and strikes the right balance between allowing an
employee to count previous periods of employment and protecting an
employer from the burden of tracking former employees for potentially
long periods of time. They viewed the proposal as consistent with the
Act, which does not require the 12 months of employment to be
consecutive, but which also recognizes that there must be balance and
that the goals must be accomplished in a way that takes account of
employers' legitimate interests. See, e.g., Burr & Forman; TOC
Management Services; Retail Industry Leaders Association; Association
of Corporate Counsel's Employment and Labor Law Committee; Society of
Professional Benefit Administrators; Cummins Inc.; Domtar Paper
Company.
Finally, a number of employers suggested that the Department should
clarify that employers are required to maintain employee records for
only three years and provide further guidance on what it means that the
employee is responsible for putting forth some proof of the prior
[[Page 67941]]
employment for the earlier years. See, e.g., the Chamber; College and
University Professional Association for Human Resources; Hewitt
Associates; Retail Industry Leaders Association; Fisher & Phillips.
Hewitt Associates asked: What would happen if the employer actually has
the data from the earlier years; what if the data would be difficult to
retrieve; and how can an employer challenge the employee's proof?
Vercruysse Murray & Calzone asked whether it would be sufficient for an
employee to merely assert, by affidavit or otherwise, that he or she
was employed for a specific period of time five years ago, or to
present a document evidencing previous employment, even though that
document may not contain sufficient information to establish the actual
duration of the previous employment. EEAC suggested that employees
should be required to provide proof such as pay stubs, W-2 forms, or
other documentary evidence beyond the employee's mere word that he or
she is a former employee. In contrast, the AFL-CIO commented that an
employee should only have to prove prior employment where the employer
does not have records, because it stated that most employers keep
employment and tax records for several years beyond the three years the
FMLA requires.
Only a few commenters addressed the two exceptions to the five-year
rule in proposed Sec. 825.110(b)(2), which are applicable where the
break in service is for National Guard or Reserve service or where
there is a written agreement regarding the employer's intention to
rehire the employee. Those commenters generally agreed with or did not
oppose the exceptions. See, e.g., HR Policy Association; National
Coalition to Protect Family Leave; EEAC. Burr & Forman stated that the
military exception is unnecessary because the same administrative
burdens apply when an employee is gone for over five years for military
reasons, and the proposed rules already provide sufficient protection
by counting military service both toward the 12-month requirement and
toward the 1,250 hour requirement in determining employee eligibility.
With regard to proposed Sec. 825.110(c)(2), which counts the hours
the employee would have worked for the employer but for the National
Guard or Reserve service, EEAC stated that it should be deleted because
it was beyond the Department's authority to legislate FMLA eligibility
for employees who have been absent for military service and thus lack
the minimum 1,250 hours of service within the previous year, as
statutorily required. EEAC recognized that the Department's proposal
codifies guidance previously issued concluding that, because the
Uniformed Services Employment and Reemployment Rights Act (``USERRA'')
entitles returning service members to the rights and benefits they
would have had if they had been continuously employed, they are
entitled to count the time. EEAC disagreed, however, with the
Department's reconciliation of the two statutes.
Several commenters addressed the clarification in proposed Sec.
825.110(d) providing that an employee who is on non-FMLA leave may
become eligible for FMLA leave while on leave (by meeting the 12-month
requirement), and that any portion of the leave taken for a qualifying
reason after the employee becomes eligible would be protected FMLA
leave, while any leave taken before the employee passed the 12-month
mark would not be FMLA leave. The AFL-CIO approved of this
clarification, which is consistent with the court's decision in Babcock
v. Bell South Advertising and Publishing Corporation, 348 F.3d 73 (4th
Cir. 2003), stating that this is the interpretation of the regulation
that best effectuates the 12-month eligibility requirement of the FMLA.
See also Society of Professional Benefit Administrators (agreeing that
the proposal would clarify a very confusing issue for employers);
Domtar Paper Company.
Other commenters opposed the proposal and suggested that
eligibility for FMLA leave should attach only to leave that actually
begins after the employee meets the 12-month and 1,250-hour
requirements, regardless of whether and when the employee gives notice
by requesting leave, and should not attach to a block of leave or
intermittent leave that begins before the employee becomes eligible and
continues after the employee becomes eligible. See, e.g., National
Coalition to Protect Family Leave; EEAC; National Business Group on
Health; and Food Marketing Institute. EEAC stated that, in situations
where employers provide more generous leave benefits than the FMLA
requires by providing leave for those who lack the minimum 12 months of
service, the employer then must provide future FMLA benefits that it
would not otherwise be required to provide. It stated this ``creates a
perverse incentive for employers (1) not to provide leave in excess of
the FMLA requirements and (2) to act swiftly to terminate employees
before they become eligible for FMLA protection.'' EEAC also noted that
it results in an employee with only nine months of service who is
allowed to take three months of approved leave becoming eligible for
three more months of leave at the 12-month mark, while an employee with
nine years of service is eligible for only three months total. See also
Spencer Fane Britt & Browne; Vercruysse Murray & Calzone (also
commenting that the proposal would create significant administrative
burdens for employers because they would have to revisit employees'
eligibility for FMLA leave during the middle of their non-FMLA leave,
and when an employee reaches 12 months of service the employer will
have to issue an Eligibility Notice a second time). This commenter also
asked what happens if the employer's policies do not require group
health benefits to be continued during the period of a non-FMLA
absence. Hewitt Associates stated that employers might fear that
replacing an employee during the first non-FMLA portion of the leave
would run afoul of the FMLA's prohibition against interfering with an
employee's right to take leave, thereby effectively extending the
FMLA's protections through the first non-FMLA portion of the leave and
providing an employee with greater than 12 weeks of leave. Therefore,
Hewitt Associates suggested that the Department clarify that the
employee would have no expectation of, or right to, these FMLA non-
interference protections during the first non-FMLA phase of the leave.
Finally, Jackson Lewis urged the Department to provide that any non-
FMLA leave that would otherwise qualify counts towards an employee's
annual entitlement of 12 weeks of FMLA leave.
A number of the commenters also asked the Department to create
consistency between the language in Sec. 825.110(d), which states that
eligibility is determined when the leave commences, and Sec.
825.110(e), which states that the determination of whether an employer
has 50 employees within 75 miles is made when the employee gives notice
of the need for leave. See, e.g., National Coalition to Protect Family
Leave; Associated Builders and Contractors; International Franchise
Association. The National Coalition to Protect Family Leave stated that
it applauded the Department's interest in promoting as much advance
notice of an employee's need for leave as possible to allow both the
employer and the employee to plan, but it believed that the statute
requires the 50/75 eligibility determination to be made when the
employee actually takes leave rather than when advance notice is given.
On the other hand, EEAC stated that it ``understands the Department's
[[Page 67942]]
reasoning for selecting a different date,'' and it simply sought
clarification that the employer could reevaluate the 50/75
determination at the beginning of each new FMLA leave year, consistent
with other provisions.
Finally, a number of commenters applauded the Department for the
deletions from existing Sec. 825.110(c) and (d) in response to the
Supreme Court's decision in Ragsdale. See, e.g., EEAC; HR Policy
Association; and Association of Corporate Counsel's Employment and
Labor Law Committee. The National Association of Letter Carriers,
however, objected to the deletion of the requirement that the employer
must project when an employee will become eligible for leave or advise
the employee when the employee becomes eligible, stating that the
requirement minimizes disputes.
With regard to the cap in proposed Sec. 825.110(b)(1) on gaps in
service in order for the prior employment to count toward an employee's
12-month requirement, the final rule modifies the proposal by extending
the permissible gap to seven years. The court in Rucker v. Lee Holding
Co., 471 F.3d 6 (1st Cir. 2006), in permitting the five year gap at
issue in that case, recognized that the statutory language is ambiguous
as to whether previous periods of employment count toward the 12-month
requirement, and it stated that the appropriate way to resolve this
important policy issue was through agency rulemaking. The Department
believes that a seven-year cap draws an appropriate balance between the
interests of employers and employees. It recognizes and gives effect to
the legislative history's clear statement that the 12 months of
employment need not be consecutive, while limiting the burden on
employers of attempting to verify an employee's claims regarding prior
employment in the distant past. In light of the legislative history,
the Department rejects the comments suggesting that no gap should be
permitted. By allowing a gap of up to seven years, the rule takes
account of the comments noting that employees sometimes take extended
leaves from the workforce to raise children or to care for ill family
members and emphasizing that women are particularly likely to fill this
role. The final rule also recognizes that many employers keep records
for seven years for tax or other standard business reasons; thus,
allowing a seven-year gap will not impose a burden on those employers.
The FMLA, however, only requires employers to keep records for three
years, and the burden of proving eligibility is always on the employee.
Accordingly, if an employer retains records only for the required three
years, it may base its initial determination of the employee's
eligibility for leave on those records. If it therefore advises the
employee in the eligibility notice that the employee is not eligible
for FMLA leave, the employee will have to submit sufficient proof of
his or her periods of employment in years four through seven to
demonstrate eligibility. Such proof might include W-2 forms; pay stubs;
a statement identifying the dates of prior employment, the position the
employee held, the name of the employee's supervisor, and the names of
co-workers; or any similar information that would allow the employer to
verify the dates of the employee's prior service. Any application for
employment the employee had completed also might provide additional
relevant information.
The final rule also adopts the two exceptions to the cap set forth
in paragraph (b)(2) for breaks in service resulting from an employee's
fulfillment of National Guard or Reserve military service obligations
and breaks where a written agreement exists concerning the employer's
intention to rehire the employee after the break in service. The final
rule also adopts the provision in paragraph (b)(4) stating that an
employer may consider prior employment falling outside the cap,
provided that it does so uniformly with respect to all employees with
similar breaks. There were very few comments addressing these
provisions and they generally were supportive. The Department believes
these exceptions are quite limited and will not impose any burden on
employers. The final rule does make conforming changes in paragraphs
(b)(2) and (b)(4) to reflect the change from five years to seven years.
The final rule also includes the proposed provisions regarding
counting the time an employee would have worked for the employer but
for the employee's fulfillment of National Guard or Reserve military
obligations toward the 12-month and 1,250-hour requirements. USERRA
requires that service members who conclude their tours of duty and are
reemployed by their employer must receive all benefits of employment
that they would have obtained if they had remained continuously
employed, except those benefits that are considered a form of short-
term compensation, such as accrued paid vacation. Therefore, the
Department believes that USERRA requires this outcome.
The final rule clarifies in Sec. 825.110(d), as did the proposed
rule, that an employee may attain FMLA eligibility while out on a block
of leave when the employee satisfies the requirement for 12 months of
employment. Some commenters indicated that this would result in newly-
hired employees being treated more favorably than long-term employees.
Any such peculiar situations that may occur, however, are not the
result of the FMLA, but rather would result from the employer's own
policies. An employer that voluntarily allows a new employee with no
FMLA rights to go out on leave for a family or medical condition could
similarly voluntarily allow a more senior employee with the same
condition to extend a leave beyond the legally required 12 weeks.
Nothing in the FMLA prohibits an employer from treating employees who
have exhausted their FMLA rights more favorably than the law requires.
Moreover, the Department believes that this clarification of the
current rule is the best interpretation of the statutory language,
which defines an ``eligible employee'' as one ``who has been employed
for at least 12 months.'' 29 U.S.C. 2611(2)(A). Because an employee
remains employed while out on employer-provided leave, the employee
becomes eligible under the statutory definition upon reaching the 12-
month threshold. Of course, as the proposed and final rules also
clarify, any leave that employers voluntarily provide before an
employee attains eligibility under the FMLA is not FMLA leave.
Therefore, the FMLA protections do not apply to such leave, and
employers may apply their normal policies to such leave. Employers may
not, however, count any such non-FMLA leave toward the employee's 12-
week FMLA entitlement. Finally, as the Department explained in Opinion
Letter FMLA2006-4-A (Feb. 13, 2006), the FMLA only requires an employer
to ``maintain'' group health insurance coverage at the same level and
under the same conditions as prior to the FMLA leave; it does not
require an employer to provide insurance if it did not do so at the
commencement of the FMLA leave.
The final rule also adopts the proposed changes in paragraphs (c)
and (d), deleting the ``deeming'' provisions. In light of the Supreme
Court's decision in Ragsdale, the Department believes that it does not
have regulatory authority to deem employees eligible for FMLA leave who
do not meet the 12-month/1,250-hour requirements, even where the
employer fails to provide the required eligibility notices to employees
or provides incorrect information. As noted in Sec. 825.300(e),
however, such failures may have the effect of interfering with,
restraining or denying the employee the exercise of FMLA
[[Page 67943]]
rights and result in harm, in which case the employee would have
statutory remedies. Section 825.300(b) also requires employers to
provide employees with an eligibility notice, and if the employee is
not yet eligible for leave, the notice must inform the employee of the
number of months the employee has been employed by the employer or
other reason why the employee is ineligible.
Finally, the Department is making no changes in Sec. 825.110(e),
which states that the determination of whether an employer employs 50
employees within 75 miles is made when the employee gives notice of the
need for leave. The Department continues to believe that retaining the
standard in the current rule encourages as much advance notice of an
employee's need for leave as possible and allows both the employer and
the employee to plan for the absence. This is consistent with the
statutory requirement that, when the need for leave is foreseeable,
employees must provide at least 30 days' advance notice or such notice
as is practicable if the leave must begin in less than 30 days.
Therefore, consistent with the proposed rule, the Department is making
no changes to this provision.
Section 825.111 (Determining Whether 50 Employees Are Employed Within
75 Miles)
The NPRM proposed one change to Sec. 825.111(a)(3) of the current
rule, relating to the location of an employee's worksite when the
employee is jointly employed by two or more employers and is stationed
at a fixed worksite for at least one year. The proposed rule stated
that after one year at the fixed worksite, the employee's worksite for
purposes of determining employee eligibility is the actual physical
place where the employee works, rather than the primary employer's
office from which the employee is assigned or reports. The proposed
change responded to the court's decision in Harbert v. Healthcare
Services Group, Inc., 391 F.3d 1140 (10th Cir. 2004), in which the
court held that the current regulation is arbitrary and capricious as
applied to an employee with a long-term fixed worksite. The court held
that the current regulation contravened the plain meaning of the term
``worksite''; contradicted Congressional intent that employers with
fewer than 50 employees within 75 miles who could cover for an absent
employee should not have to provide FMLA leave; and created an
arbitrary distinction between sole and joint employers. Although the
court acknowledged the legislative history stating that the term
``worksite'' should be construed in the same manner as the term
``single site of employment'' under the Worker Adjustment and
Retraining Notification (``WARN'') Act and its implementing
regulations, the court held that that definition ``governs only
employees without a fixed place of work.''
The final rule adopts the proposed rule, stating in Sec.
825.111(a)(3) that, for purposes of determining an employee's
eligibility, the worksite of a jointly employed employee is the primary
employer's office from which the employee is assigned or reports
``unless the employee has physically worked for at least one year at a
facility of a secondary employer, in which case the employee's worksite
is that location.''
The commenters expressed a variety of divergent views about the
proposed change. The National Coalition to Protect Family Leave
supported the proposed change to follow the court's decision in
Harbert, stating that it concurred with the court's reasoning that
there should be a distinction ``between a jointly employed employee who
is assigned to a fixed worksite, versus a jointly employed employee who
has no fixed worksite and changes worksites, be it regularly or
irregularly.'' Vercruysse Murray & Calzone stated that the proposed 12-
month rule establishes the same type of arbitrary standard struck down
by the court, and that the standard ``should be whether or not the
leased employee is assigned to a fixed worksite, not how long the
leased employee has been assigned to a fixed worksite.'' Thus, only if
the leased employee's worksite is variable should the worksite be the
location from which the employee receives his or her assignments or
reports. Burr & Forman stated that the 12-month period is too short and
recommended that an employee's worksite change from the primary
employer's office to the customer's premises only after the temporary
employee has worked on the premises for two years, to reduce the burden
on small, start-up employers that use a significant number of temporary
employees and would have to count them when determining the eligibility
of their own direct employees.
Jackson Lewis commented that the Department's proposal was
``ineffective and misguided'' and it urged the Department to define
``worksite'' as ``the physical location where the person works, both
for single and jointly employed workers.'' Jackson Lewis noted that the
purpose behind the requirement for 50 employees within 75 miles was to
protect employers that cannot readily replace absent workers who are
assigned to smaller, remote locations. It stated that the length of
time that a jointly employed employee has been working at a small,
remote location has nothing to do with whether his or her primary
employer can find a replacement employee; it also found it anomalous
that an employee assigned to such a location for a short period of time
may remain entitled to FMLA leave (because that employee's worksite is
the primary employer's office), while an employee assigned for more
than a year is less likely to receive FMLA leave.
The AFL-CIO opposed the proposed modification for different
reasons, stating that the current regulation is a permissible
construction of the statute, as the dissent found in Harbert. It stated
that defining the worksite in a joint employment situation as the
primary employer's office appropriately maintains the focus on the
entity most likely to have the ability to find a replacement worker. It
added that shifting the worksite after 12 months to the physical
location where the employee performs his or her work does not
effectuate the statutory purpose behind the 50/75 rule, since that
worksite belongs to an employer who bears no responsibility for hiring
and transferring the employee. The AFL-CIO concluded that the proposal
creates an arbitrary distinction between jointly employed employees who
have a fixed worksite for at least a year and those who do not,
resulting in an employee who is eligible for FMLA leave on one day
becoming ineligible for leave the next day because the worksite has
shifted to a new location where the employee cannot satisfy the 50/75
rule. The AFL-CIO agreed, however, that the current rule creates a
reasonable distinction between sole and joint employers, which is in
harmony with the purpose of the Act, because it alleviates the burden
on small businesses to find replacement workers in situations where
they would not normally bear that burden. The National Partnership for
Women & Families similarly opposed this change, stating that the
legislative history of the FMLA shows clearly that the term
``worksite'' was to be defined as it is under the WARN Act. It stated
that while ``the WARN Act regulations do not specifically address
situations where employees are placed in a temporary worksite long
term, there is no sound reason to consider these employees differently
than other temporary employees.'' It further stated that the Department
has not explained why one year should be the cut off, and asserted that
it is contradictory to count the
[[Page 67944]]
assigning employer as the primary employer with the majority of FMLA
responsibilities but to count the worksite of the employee as that of
the employer to which he or she is assigned.
Hewitt Associates requested further guidance regarding the worksite
of ``virtual'' or telecommuting employees under the rule, particularly
for employees who work out of their home and may receive assignments
from various locations. Catholic Charities, Diocese of Metuchen wanted
clarity regarding the example in Sec. 825.111(a)(2), which states that
construction workers sent from New Jersey to Ohio to work at a
construction site opened in Ohio would continue to have the
headquarters in New Jersey as their ``worksite.'' This commenter stated
the regulations should clarify whether the ``worksite'' of these
workers might eventually change from New Jersey to Ohio if these
workers are employed in Ohio for a long period of time.
The commenters' divergent views reflect the difficulty of crafting
a simple resolution that fits perfectly in all situations. The
Department continues to believe that its proposed rule, which modifies
the current rule only with regard to jointly employed employees who
have been assigned to a fixed worksite for at least 12 months, is the
best solution. The general definition of ``worksite'' remains the same
and, in accordance with the legislative history, it is consistent with
the WARN Act standards. The Department does not believe it would be
appropriate to adopt the Jackson Lewis suggestion that the definition
for all employees should be the actual physical location of their work,
because the WARN Act's regulatory definition for employees with no
fixed worksite refers to such employees' home base, from which their
work is assigned, or to which they report. The Department also does not
believe it is appropriate to adopt the suggestion of Vercruysse Murray
& Calzone that how long the employee has been assigned to a fixed site
is irrelevant, because a series of one-week or one-month assignments do
not constitute fixed worksites.
Because the WARN Act regulation is silent, however, as to joint
employment and long-term fixed worksites, the proposal created an
exception for those few cases where an employee who is jointly employed
is assigned to a fixed worksite for more than one year. As the Harbert
court held, the plain meaning of the term ``worksite,'' the general
FMLA principle that an employer with fewer than 50 employees within 75
miles should not have to find temporary replacements for employees on
leave, and the interest in having consistency between sole and joint
employers counsel in favor of a different rule in that situation. When
a temporary employee has worked for a secondary employer for such an
extended length of time, the employer depends upon the temporary
employee to the same degree as it does its direct employees, and it
faces the same difficulties in obtaining a fully adequate replacement
employee. Therefore, the final rule adopts the proposed rule's change
with regard to jointly employed employees who have physically worked
for at least one year at a facility of a secondary employer, in which
case the worksite is that location.
Finally, with regard to the commenters' requests for clarification,
both the proposal and the final rule add the term ``telecommuting'' in
Sec. 825.111(a)(2) to the existing rule's use of the term
``flexiplace.'' This further clarifies that ``virtual'' employees who
work out of their home do not have their personal residence as their
worksite; rather, they are considered to work in the ``office to which
they report and from which assignments are made.'' Because the current
definition of ``worksite'' remains unchanged for employees who are not
jointly employed, the worksite for construction employees who travel
from their headquarters to a construction site remains their home base,
i.e., the company's headquarters.
Section 825.112 (Qualifying Reasons for Leave, General Rule)
The Department proposed no substantive changes to this section,
which addresses the qualifying reasons that entitle an eligible
employee to take FMLA leave. The proposal did, however, move several
paragraphs of the current rule to other sections to improve the
organization (for example, to place all provisions that address leave
taken for the birth of a child in one section, and all provisions
related to leave for adoption or foster care in another section). The
final rule adopts the rule as proposed with additional modifications to
reflect the military leave entitlements.
Very few commenters addressed this section. WorldatWork stated that
it agreed with the proposed reorganization, both specifically with
regard to this section as well as with regard to other sections that
were similarly reorganized to put a particular topic in one spot.
WorldatWork noted that it will make the regulations much easier to read
and make it easier to find relevant topics. In contrast, Harrill &
Sutter opposed the change, stating that people have been working with
the FMLA regulations for 13 years, and a change is going to lead to
more confusion. TOC Management Services again commented that the
Department should eliminate the statement that the employer/employee
relationship ends when an employee is placed on layoff status and
clarify the statement made in Sec. 825.112(c) that an employee must be
recalled or otherwise be re-employed before being eligible for FMLA
leave.
The Department believes that the reorganization of sections to put
information related to particular topics in one spot is an improvement.
Many commenters approved of the reorganization overall, without
commenting on specific sections. See, e.g., National Coalition to
Protect Family Leave; the Chamber; Equal Employment Advisory Council.
Thus, the Department does not believe that this reorganization will
lead to confusion. Furthermore, as explained previously with regard to
Sec. 825.105, the Department believes that the employment relationship
ends for purposes of the FMLA when an employee is laid off. Proposed
Sec. 825.112(c) is identical to paragraph (f) of the current
regulation. The Department is not aware of any confusion regarding this
section and other commenters did not identify problems with its
implementation. Therefore, the Department is adopting the rule as
proposed. In addition, in Sec. 825.112(a), new paragraphs (a)(5) and
(a)(6) have been added to reflect the two new qualifying reasons for
taking leave under the military family leave provisions.
Introduction to Sections 825.113, 825.114, and 825.115 (Serious Health
Condition, Inpatient Care, and Continuing Treatment)
The FMLA defines ``serious health condition'' as either ``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). ``Continuing treatment'' is not defined
in the Act and Congress did not establish any ``bright-line'' rules of
what conditions were covered.
The appropriate meaning of the term ``serious health condition''
has been the topic of debate for many years. The Department's Report on
the RFI (see 72 FR at 35563-70 (June 28, 2007)) and the NPRM (see 73 FR
7885-89 (Feb. 11, 2008)) both contained a discussion of this debate and
the positions taken by the courts and the Department in opinion letters
in defining ``serious health condition.'' The proposed rule
[[Page 67945]]
reorganized the structure of the regulations defining ``serious health
condition'' for clarity, but maintained the substance of the current
regulation's definition with some modifications to clarify the time
period in which continuing treatment following a period of incapacity
must take place and the frequency of periodic treatment for chronic
conditions. The Department concluded, after extensive consideration,
that there was no alternative approach to the existing regulatory
definition that would more effectively cover the types of conditions
Congress intended to cover under the FMLA without also including some
conditions that many believe should not be covered.
An overwhelming majority of comments from employers and employer
groups voiced disappointment that the proposed rule failed to address
their concerns that the rule is an overly broad definition of serious
health condition. See, e.g., U.S. Postal Service; Food Marketing
Institute; National Association of Convenience Stores; National
Association of Manufacturers. For example, the National Restaurant
Association commented that it ``does not believe that the intent of
Congress in enacting FMLA was to include such minor illnesses within
its coverage. Unfortunately, however, the DOL proposals, while
acknowledging this area of concern, fail to address the issue.''
Hoffinger Industries commented, ``a definitive, more precise definition
of Serious Health Condition should be developed that will not allow an
employee to transform a short-term acute condition into a qualifying
serious health condition.'' The Equal Employment Advisory Council said
it was ``disappointed that the Department is not proposing to * * *
narrow * * * the definition of `serious health condition' * * *. In our
view, this provision grants FMLA coverage in many, many situations in
which a health condition is not actually `serious.' '' The Retail
Industry Leaders Association commented, ``[t]he definition of a serious
health condition has provided FMLA coverage for many non-serious
conditions where Congress intended no such coverage * * *. RILA member
companies are disappointed that the DOL has retained essentially the
current definition of serious health condition.'' The Chamber
commented, ``[t]hese minor changes fall well short of the revisions
necessary to clarify the current definition of serious health
condition, which employers believe is overbroad and inconsistent with
the intent behind the Act.''
Comments from employee representatives generally favored the
proposal's retention of the current definition of ``serious health
condition,'' but did not support the few proposed changes to the
definition. For example, the AFL-CIO commented, ``[w]e support the
Department's substantive treatment of serious health condition because
it does not--despite the urging of many employers--rewrite the
definition against Congress's intent * * * [but the changes proposed
interfere] with the legitimate decisions of health care providers * * *
[and] will likely result in a financial hardship for a significant
number of employees.'' The National Partnership for Women & Families
supported the Department's decision not to make ``major changes'' to
the definition of serious health condition, but expressed concern that
the Department lacked data to show the effect of the changes it did
propose. The National Postal Mail Handlers Union and the Coalition of
Labor Union Women objected to the proposed changes because they
believed the changes would result in employees being required to have
additional medical appointments. Finally, the Communications Workers of
America supported the retention in the proposed rule of an objective
test to define ``serious health condition,'' but objected to the
additional requirements the Department proposed for defining continuous
treatment and chronic serious health conditions.
Section 825.113 (Serious Health Condition)
Proposed Sec. 825.113, ``Serious health condition,'' provided the
general rules and accompanying definitions governing what constitutes a
serious health condition. Proposed Sec. 825.113(a) provided the basic
definition of what constitutes a serious health condition currently
found in Sec. 825.114(a). Proposed Sec. 825.113(b) incorporated the
definition of ``incapacity'' from current Sec. 825.114(a)(2)(i).
Proposed Sec. 825.113(c) incorporated the definition of ``treatment''
found in current Sec. 825.114(b) with minor editorial changes. The
final rule makes no changes to the proposed text for these three
paragraphs.
Proposed Sec. 825.113(d) incorporated language from current Sec.
825.114(c), which addresses the types of treatments and conditions not
ordinarily expected to be covered by the definition of a serious health
condition. The language states, in part: ``Ordinarily, unless
complications arise, the common cold, the flu, ear aches, upset
stomach, * * * etc., are examples of conditions that do not meet the
definition of a serious health condition.'' This provision has been the
focus of longstanding debate as to whether the conditions enumerated
can or cannot be serious health conditions. The NPRM contained a
discussion of the history of both the Department's and the courts'
interpretation of this language. 73 FR 7886-87 (Feb. 11, 2008). In the
NPRM, the Department maintained that this provision merely illustrates
the types of conditions that would not ordinarily qualify as serious
health conditions. Id. at 7886. The Department also stated its belief
that this language (1) does not categorically exclude the listed
conditions; and (2) does not create its own definition separate and
apart from the objective regulatory definition of serious health
condition in current Sec. 825.114(a) (and proposed Sec. Sec.
825.113(a), 825.114, 825.115). Id. The Department received significant
comments from both employer and employee groups regarding the retention
of this provision in the regulations, which are discussed below. The
final rule makes no substantive changes to proposed Sec. 825.113(d).
In their comments, a number of employer groups agreed with the
Department's view that the list should be preserved because it serves a
baseline purpose as explanatory language similar to that in a preamble.
For example, Southwest Airlines commented that ``[i]t is clear that the
list is not a per se rule of exclusions, but rather provides helpful,
useful examples of minor conditions that in the absence of
complications do not qualify as serious health conditions under the
FMLA. The list aids all who are involved in the medical certification
process and with the administration of FMLA leaves.''
Many employer groups, however, differed as to when a non-serious
health condition can become a serious health condition. The Society for
Human Resource Management and the National Coalition to Protect Family
Leave both argued that ``the situations where any condition on this
list rises to the level of a serious health condition should be
construed narrowly'' and suggested that the Department ``add language
to the regulation specifying that some sort of serious complication
must result in order for an otherwise `non-serious' health condition to
be considered a serious health condition.'' The U.S. Postal Service and
the Chamber both expressed concern that the rule as proposed would
result in continued confusion on the part of both employers and the
courts as to when otherwise minor conditions rise to the level of
serious health conditions. The Chamber
[[Page 67946]]
urged the Department to ``explicitly exclude minor ailments from the
definition of serious health condition, even where such conditions may
require a regimen of continuing, supervised treatment.''
Comments received from employees and employee groups overwhelmingly
supported the Department's decision to retain the existing definition
of serious health condition instead of creating a per se list of
covered conditions. The AARP and the National Partnership for Women &
Families both commented that the current definition of serious health
condition allows employees the opportunity to be covered by the FMLA
depending on how the specific illness affects that particular employee,
rather than depending on how the illness affects individuals generally.
See also American Association of University Women. The Communications
Workers of America commented that ``an objective test provides the
fairest way to define the statute's coverage of [serious health
conditions], especially because every individual's experience with a
medical condition or disease can vary widely.''
PathWaysPA addressed the Department's decision to retain the list
of conditions that ordinarily are not serious health conditions in
proposed Sec. 825.113(d) and argued that the provision was surplusage.
This commenter stated that ``no `list' of conditions should be defined
as unable to qualify for FMLA certification.'' The AFL-CIO agreed with
the Department's interpretation in the NPRM of this provision, stating
that ``employers have long complained that certain illnesses should
never qualify as serious health conditions and have argued that Section
825.114(c) supports such a restrictive definition. Courts have rejected
this argument * * *. The Department has taken an important step towards
foreclosing argument on this point by explaining in the NPRM that the
definition of serious health condition does not `categorically exclude'
the `common ailments and conditions' enumerated * * *.''
The Department carefully considered the comments received on the
definition of serious health condition and has concluded that there is
no regulatory alternative that would address the concerns raised by the
business community regarding coverage of what some perceive to be minor
ailments without excluding absences that should be FMLA-protected. The
final rule reflects the Department's conclusion that the objective test
defining what constitutes a serious health condition under the FMLA (in
both the proposed and final versions of Sec. Sec. 825.113(a), 825.114,
and 825.115) is the controlling regulatory standard, and the list of
common ailments such as colds and flu (in proposed and final Sec.
825.113(d)) is helpful as identifying ailments that ordinarily will not
qualify for FMLA leave because they generally will not satisfy these
regulatory criteria.
On a different matter, the Associated Builders and Contractors and
the Navy Federal Credit Union commented that the phrase ``resulting
from stress'' should be removed from the last sentence of proposed
Sec. 825.113(d). The Society for Human Resource Management and the
National Coalition to Protect Family Leave agreed, commenting that
``[t]he cited phrase improperly suggests that stress alone can cause
mental illness * * *. Also, by placing allergies in sequence, it
suggests that mental illness can be developed from allergies.'' The
Department has deleted the phrase ``resulting from stress'' in Sec.
825.113(d) of the final rule to clarify that a mental illness,
regardless of its cause, can be a serious health condition under the
FMLA if all the regulatory requirements are met. No other changes to
the text of Sec. 825.113 have been made in the final rule.
Section 825.114 (Inpatient Care)
Section 825.114 of the proposed rule defined what constitutes
inpatient care, adopting language from the current regulations. The
definition of ``inpatient care'' in current Sec. 825.114(a)(1)
incorporates a definition of ``incapacity,'' which was removed from
proposed Sec. 825.114 and replaced by a cross-reference to the stand-
alone definition of ``incapacity'' in proposed Sec. 825.113(b).
The Equal Employment Advisory Council commented, ``[w]e hope that
setting `incapacity' apart will emphasize for both employees and health
care providers that actual inability to work is a fundamental
prerequisite for FMLA protection.'' There were no substantive comments
on this section of the proposal, and the Department made no changes to
the proposed text of this section in the final rule.
Section 825.115 (Continuing Treatment)
Proposed Sec. 825.115 defined ``continuing treatment'' for
purposes of establishing a serious health condition, incorporating the
five different definitions contained in current Sec. 825.114(a)(2)(i)-
(v) with some changes. Proposed Sec. 825.115(a) (``Incapacity and
treatment'') incorporated language from current Sec. 825.114(a)(2)(i),
which provides that the continuing treatment requirement is satisfied
if, in connection with a period of incapacity of more than three
consecutive calendar days, the employee or family member has one visit
to a health care provider and a regimen of continuing treatment, such
as a course of a prescription medication, or two visits to a health
care provider. The proposal made one change to the current definition,
specifying in proposed Sec. 825.115(a)(1) that the two visits to a
health care provider must occur within 30 days, unless extenuating
circumstances exist. The Department indicated in the NPRM that it did
not believe the 30-day time limit should be applied to proposed Sec.
825.115(a)(2) (treatment on one occasion resulting in regimen of
continuing treatment), but invited comments on the issue. Proposed
Sec. 825.115(b), titled ``Pregnancy or prenatal care,'' incorporated
language from current Sec. 825.114(a)(2)(ii) without change except for
a cross-reference to the new consolidated section in proposed Sec.
825.120, addressing leave for pregnancy and childbirth. Proposed Sec.
825.115(c), ``Chronic conditions,'' retained the definition in current
Sec. 825.114(a)(2)(iii) with one change, specifying that the term
``periodic treatment'' be defined as treatment two or more times a
year. Proposed Sec. 825.115(d), ``Permanent or long-term conditions,''
incorporated language from current Sec. 825.114(a)(2)(iv) without
change. Proposed Sec. 825.115(e), ``Conditions requiring multiple
treatments,'' incorporated language from current Sec.
825.114(a)(2)(v), which provides coverage for any period of absence to
receive multiple treatments by a health care provider for restorative
surgery after an accident or other injury, or for a condition that
would likely result in a period of incapacity of more than three
consecutive calendar days in the absence of medical intervention or
treatment for conditions such as cancer, severe arthritis, and kidney
disease. The Department did not receive substantive comments regarding
proposed Sec. 825.115(b), (d), or (e) and the final rule adopts these
sections as proposed. The Department has made additional changes to
Sec. 825.115(a) and (c), which are discussed below.
Although the Department did not propose to change the period of
incapacity required to satisfy the ``incapacity and treatment''
definition of continuing treatment in proposed Sec. 825.115(a), many
employers and employer groups urged the Department to expand the period
of incapacity from the current requirement of ``more than three
consecutive calendar days.'' The
[[Page 67947]]
Society for Human Resource Management, the National Coalition to
Protect Family Leave, and other employer groups commented that the
current requirement for a period of incapacity of more than three
consecutive calendar days has played a significant role in permitting
otherwise minor medical conditions to satisfy the definition of serious
health condition. These commenters suggested that extending the period
of incapacity to five consecutive scheduled work days or seven
consecutive calendar days would significantly reduce the instances in
which these minor ailments receive FMLA protection. The Pennsylvania
Governor's Office of Administration also suggested a five consecutive
day period of incapacity, commenting specifically on the difficulty it
has encountered in trying to protect three-day absences. The Chamber
commented that ``[t]he brevity of the three-day period creates
significant administrative burdens for employers'' and suggested that
the period be extended to five business days or seven calendar days.
The Society for Human Resource Management, the National Coalition to
Protect Family Leave, and others suggested that a longer period of
incapacity would be consistent with the waiting period employed in many
short-term disability plans. Additionally, the Society for Human
Resource Management and others stated that the final rule should
clarify that ``more than three consecutive, calendar days'' refers to
whole or complete calendar days.
Employee groups, on the other hand, strongly supported maintaining
the ``more than three calendar days'' minimum requirement for
incapacity. For example, 9to5, the National Association of Working
Women commented, ``[t]he current definition reflects the practical
reality that serious health conditions requiring family or medical
leave can sometimes be of a fairly short duration * * * such as
pneumonia, acute appendicitis, or kidney stones.'' The National
Partnership for Women & Families supported the Department's decision to
maintain the standard of more than three ``calendar days'' rather than
``workdays.''
After reviewing the comments, the Department continues to believe
it is more appropriate to keep the basic regulatory requirement of a
minimum period of incapacity of ``more than three consecutive calendar
days'' than to adopt a ``work day'' or ``business day'' test or to
increase the number of calendar days required. In the Department's
view, a test based on calendar days of incapacity measures the severity
of an illness better than a test based on days absent from work. This
is particularly true for employees who do not work a traditional, fixed
five-day week. The Department recognizes the legitimate employer
concerns about the ability to verify employee incapacity over weekends,
but to increase the minimum number of days of incapacity required would
invariably exclude some employees the statute currently protects. The
final rule does make one minor clarification, as suggested by the
Society for Human Resource Management and others, that the test cannot
be met by partial days. To eliminate any possible misunderstanding of
the existing requirement, the word ``full'' is added to the test in the
final rule (i.e., a period of incapacity of more than three
consecutive, ``full'' calendar days).
Many employer groups offered different views about the proposed
change in Sec. 825.115(a)(1) that the two treatments occur within 30
days. Those employer groups opposed to it urged that the regulations
require that the minimum of two treatments occur during the ``more than
three day'' period of incapacity. Several groups, including the Society
for Human Resource Management and the National Coalition to Protect
Family Leave, commented that the Department should reconsider its
position and adopt the Tenth Circuit's ruling in Jones v. Denver Public
Schools, 427 F.3d 1315 (10th Cir. 2005), that the two visits must occur
within the period of incapacity. The Society for Human Resource
Management and the National Coalition to Protect Family Leave stated,
``[u]nder the Department's proposal, the employer's hands would be tied
for 30 days, which would create uncertainty for all parties * * *.''
They also stated, however, that if the 30-day requirement becomes part
of the final regulations, the 30-day period should run from the first
day the employee is incapacitated and the second visit should always be
at the direction of the health care provider. The Portland (OR) Office
of Management and Finance commented that the proposal would ``allow
employees to obtain FMLA protection simply by scheduling a second
doctor's appointment.'' The Pennsylvania Governor's Office of
Administration commented that the 30-day period would force employers
to retroactively designate leave as FMLA-protected. Other employers,
however, supported the proposed 30-day period for the two treatments.
The National Association of Manufacturers, the National Roofing
Contractors Association, AT&T, and other employer groups commented that
the proposal would clarify what is currently a vague area in the rules.
See also National Business Group on Health.
A number of employee groups, for different reasons, opposed the
proposed requirement in Sec. 825.115(a)(1), that the two treatments
occur within 30 days. The AFL-CIO commented that the 30-day period was
arbitrary and would prove a significant obstacle to employees seeking
FMLA leave. Commenters including the Association of Professional Flight
Attendants, the National Postal Mail Handlers Union, and the National
Treasury Employees Union offered the examples of conditions that would
incapacitate employees for more than three days, but generally do not
require follow-up appointments within 30 days. The National Employment
Lawyers Association noted that it can often take more than 30 days to
schedule an appointment with a specialist and suggested that a three to
six months time period would be more appropriate. Finally, the American
Postal Workers Union objected to any temporal limitation on treatment
appointments, arguing that any limitation was inconsistent with the
statute, which requires only continuing treatment by a health care
provider.
A number of employee and employer groups asked for clarification of
the ``extenuating circumstances'' exception to the 30-day rule and
suggested that a definition of ``extenuating circumstances'' should be
included in the regulatory text. The Society for Human Resource
Management and the National Coalition to Protect Family Leave asserted
that leaving ``extenuating circumstances'' undefined would result in
``extensive litigation.'' See also Hewitt Associates. The National
Partnership for Women & Families commented that the preamble example of
scheduling difficulties as extenuating circumstances was not reflected
in the regulation. See also Association of Professional Flight
Attendants; National Postal Mail Handlers Union. The National Retail
Federation recommended deleting the ``extenuating circumstances''
exception altogether.
Employee and employer groups also generally agreed with the
Department's decision not to apply a 30-day time limit to Sec.
825.115(a)(2), which addresses treatment by a health care provider on
at least one occasion that results in a regimen of continuing treatment
(e.g., a course of prescription medication). See, e.g., Society for
Human Resource Management. The American Postal Workers Union asserted
that applying a 30-day time frame under Sec. 825.115(a)(2)
[[Page 67948]]
would be unreasonable. The National Association of Manufacturers
commented that in situations covered under Sec. 825.115(a)(2), the
treatment visit with the health care provider should take place during
the initial period of incapacity. Vercruysse Murray & Calzone commented
that employees should be required to receive the regimen of continuing
treatment during the initial period of incapacity because to permit the
regimen of treatment to commence after the employee returns to work
would allow employees to retroactively qualify for FMLA leave.
Finally, some commenters asked whether a phone call or email
contact with a health care provider could qualify as a visit or
treatment under either prong of Sec. 825.115(a). See, e.g., Spencer
Fane Britt & Browne; Society for Human Resource Management, Northern
California Human Resources Association, Legislative Affairs Committee.
The Department continues to believe that the proposed ``30-day''
limit in Sec. 825.115(a)(1) is useful because the current regulation,
Sec. 825.114(a)(2)(i)(A), provides no guidance as to the time frame
during which the two treatments by a doctor must occur. The Department
recognizes that many of the comments from employers and employer groups
favor the adoption of the ruling by the United States Court of Appeals
for the Tenth Circuit in Jones v. Denver Public Schools, 427 F.3d 1315
(10th Cir. 2005), that both treatments must occur during the period of
the incapacity in order for the condition to qualify as a serious
health condition. Nonetheless, the Department believes a 30-day test is
a more appropriate guideline than a test limited to just the period of
incapacity because it is consistent with usual treatment plans, and
guards against employers making quick judgments that deny FMLA leave
when employees otherwise should qualify for the law's protections. To
clarify when the 30-day period begins, Sec. 825.115(a)(1) of the final
rule states that the 30-day period begins with the first day of
incapacity. By starting the 30-day period on the first day of
incapacity, the final rule provides a clearly defined period during
which the continuing treatment must occur.
Some employer groups expressed the concern that under the proposed
rule an employee retroactively would be able to transform a minor
condition into a serious health condition by going to a health care
provider for the first time as much as 30 days after the initial
incapacity in an effort to foreclose any proposed disciplinary action.
The Department notes that a single visit to a health care provider will
not satisfy the requirements of Sec. 825.115(a) unless the health care
provider determines that additional treatment (either visits or a
regimen of treatment) is medically necessary, and therefore employees
will not be able to ``transform'' a condition into a FMLA-protected
serious health condition as suggested by these commenters. Nonetheless,
a new paragraph (3) of Sec. 825.115(a) has been added to the final
rule to provide that the first visit (in the case of Sec.
825.115(a)(1)) and the only visit (in the case of Sec. 825.115(a)(2))
must occur within seven days of the first day of incapacity. As with
the requirement for two treatment visits within 30 days, the Department
believes that the need to make an initial visit to a health care
provider within seven days of the day on which the incapacity begins is
an appropriate indicator of the seriousness of the medical condition.
The Department considered whether the first visit should be required
during the initial period of incapacity. As some employer commenters
pointed out, the initial treatment visit will normally occur during the
incapacity and the treatment regimen (such as prescription medication)
will be prescribed at that time. See, e.g., National Association of
Manufacturers. The Department is cognizant, however, that it can often
take several days to get an appointment with a health care provider,
particularly in rural areas and communities with limited numbers of
providers, and therefore believes that a seven-day outer limit for the
first visit or only visit is more appropriate. Additionally, in
response to comments about whether a phone call or email contact with
the health care provider qualifies as treatment, Sec. 825.115(a)(3)
also clarifies that treatment means an in-person visit to a health care
provider for examination, evaluation, or specific treatment, and does
not include, for example, a phone call, letter, email, or text message.
The 30-day test is intended to gauge the health care provider's
assessment of the severity of the illness. Accordingly, in response to
comments from employers who suggested that employees may schedule
follow-up appointments simply to meet the test of a second visit, a new
paragraph (4) is added to Sec. 825.115(a) of the final rule to clarify
that the health care provider, and not the employee or the patient,
must make the determination as to whether a second visit during the 30-
day period is needed. The Department anticipates that in many cases the
health care provider will determine at the initial treatment visit
whether an additional visit is required and, if so, when it should
occur. There will, however, be some situations in which the health care
provider initially determines that such follow-up treatment is not
necessary, but because the condition does not resolve or deteriorates,
the health care provider later determines that an additional treatment
visit is needed within the 30-day time period. Providing the other
requirements of the definition are met, the Department intends the
final rule to cover all situations in which the health care provider
determines that additional treatment is necessary within the 30-day
period.
Finally, in response to the comments from both employer and
employee groups regarding the ``extenuating circumstances'' exception
to the 30-day limit, the final rule includes a new paragraph (5) in
Sec. 825.115(a) that provides an explanation of ``extenuating
circumstances.'' The new paragraph provides that the term ``extenuating
circumstances'' means circumstances that prevent the follow-up visit
from occurring as planned by the health care provider, and includes an
example of such circumstances.
As discussed in the NPRM, the Department did not propose
substantive changes to the construction of chronic serious health
conditions under the regulations. See 73 FR 7888-89 (Feb. 11, 2008).
The Department, however, did propose in Sec. 825.115(c) to define the
term ``periodic treatment,'' which is used in the definition of a
chronic serious health condition, as treatment ``at least twice a
year.''
Several employers and employer groups supported defining ``periodic
visits'' as ``at least twice a year.'' See, e.g., TOC Management
Services; National Association of Manufacturers; Southwest Airlines.
The U.S. Postal Service called the proposal ``reasonable'' and
commented that ``the potential benefit of such monitored medical care
strikes a comfortable balance with the minimal burden involved.''
Other employer commenters suggested requiring more frequent
treatment than twice per year. The Portland (OR) Office of Management
and Finance suggested that the Department consider requiring biannual
visits for employees with no more than two days of absence per month
and quarterly visits for employees absent more frequently. A labor
attorney, Scott MacDonald, suggested that treatment ``at least once
every four months'' would be more appropriate and that if the twice per
year standard were maintained it should be clarified as ``at least once
[[Page 67949]]
every six months.'' The Southern Company and the Society for Human
Resource Management suggested that the appropriate standard should be
four treatment visits per year. Catholic Charities, Diocese of Metuchen
and the National Association of Convenience Stores suggested that
treatment only twice per year indicates that the condition is not
serious. See also Illinois Credit Union League. Finally, Spencer Fane
Britt & Browne argued that requiring only two treatment visits per year
``will render just about any condition to be a `chronic' one and
totally eliminates the need for the condition to be `serious' in
nature.'' They suggested that chronic conditions should not be
separately included in the definition of serious health condition and
that incapacity due to such conditions should only be covered when it
exceeds three calendar days as required by Sec. 825.115(a).
On the other hand, many employees and employee groups viewed the
requirement of treatment visits of ``at least twice a year'' as
excessive. The AFL-CIO commented that after an initial series of
treatment visits at the onset of a chronic condition, many individuals
may only visit their health care providers once per year. The National
Postal Mail Handlers Union commented that requiring a second visit in a
year, regardless of whether the employee's condition has changed, would
impose an unnecessary burden on both the employee and the health care
system. The National Partnership for Women & Families also expressed
concern about the additional cost the proposed requirement would impose
on employees. See also A Better Balance: The Work and Family Legal
Center.
The Department recognizes employers' concerns regarding requiring
only two treatment visits per year, and their desire for some clearer
way to assess the seriousness of a chronic health condition, but is
concerned that imposing some greater standard could effectively render
ineligible many employees who are entitled to the protections of the
law. On the other hand, the Department does not agree with comments
from employee groups that because many chronic conditions are stable
and require limited treatment, the twice per year standard is
unreasonable since that effectively ignores the requirement for
``periodic'' visits in the current regulations. The need for two
treatment visits per year is a reasonable indicator that the chronic
condition is a serious health condition. The Department believes the
requirement for two visits per year thus strikes a reasonable balance
between no minimum frequency at all, as supported by many employee
groups, or four or more times per year, as suggested by many employer
groups, for employees who use FMLA leave for chronic serious health
conditions. As with the requirement of two treatment visits within 30
days under Sec. 825.115(a), the determination of whether two treatment
visits per year are necessary is a medical determination to be made by
the health care provider. Because the need for treatment visits is a
function of the condition, the Department does not agree with comments
suggesting the rule will increase the burden or cost to employees. The
Department also notes that ``two visits to a health care provider''
every year is not the sole criterion in the regulations for determining
a covered chronic serious health condition.
As discussed in the NPRM, the legislative history of the Act
clearly indicates that Congress intended to cover chronic serious
health conditions (73 FR 7888, Feb. 11, 2008); the Department therefore
specifically rejects the suggestion that chronic serious health
conditions should not be separately included in Sec. 825.115.
Sections 825.116-825.118 (Reserved)
The proposed rule moved the provisions in current Sec. 825.116
defining the phrase ``needed to care for'' a family member to Sec.
825.124, which is discussed below. The proposal moved the provisions in
current Sec. 825.117 regarding the ``medical necessity'' for taking
and scheduling intermittent or reduced schedule leave to Sec. Sec.
825.202 and 825.203, which are discussed below. Current Sec. 825.118
defining ``health care provider'' was renumbered as Sec. 825.125 in
the proposed rule. Sections 825.116-825.118 were designated as
``reserved'' in the proposal to reflect these organizational changes.
The final rule adopts the proposed organizational changes.
Section 825.119 (Leave for Treatment of Substance Abuse)
The Department proposed no substantive changes in this new section,
which consolidates in a single location the provisions in current
Sec. Sec. 825.112(g) and 825.114(d) related to substance abuse. It
reaffirms that FMLA leave is available for the treatment of substance
abuse when it qualifies as a serious health condition, but not for an
absence because of the employee's use of the substance, and that the
FMLA does not prevent an employer from taking action against an
employee for violating the employer's uniformly-applied substance abuse
policy. The final rule adopts the rule as proposed.
Very few commenters addressed this reorganization. TOC Management
Services suggested that the rule should clarify that an absence because
of a family member's use of the substance, rather than for treatment,
also does not qualify for FMLA leave. The National Retail Federation
stated that the clarification regarding permitted employment actions
for violation of a substance abuse policy was helpful. Robert Jusino
commented that an employer should be barred from taking adverse action
against an employee for breaking company policy.
The Department continues to believe that the rule, which is simply
a consolidation of existing sections, is clear and sets forth the
appropriate distinction between an absence for treatment for a serious
health condition and an absence because of an employee's use of the
substance. The general lack of comments supports that view. Therefore,
the final rule is adopted as proposed.
Section 825.120 (Leave for Pregnancy or Birth)
The current regulations contain guidance pertaining to pregnancy
and birth throughout a number of different sections. Proposed Sec.
825.120 collected the existing guidance from these various regulatory
sections into one comprehensive section. Proposed Sec. 825.120(a)(1),
titled ``[g]eneral rules,'' restated language from current Sec.
825.112(b) that both the mother and father are entitled to FMLA leave
for the birth of their child. Proposed Sec. 825.120(a)(2) restated
language from current Sec. 825.201 explaining that FMLA-protected
leave following the birth of a healthy child (``bonding time'') must be
completed within a year from the birth. Proposed Sec. 825.120(a)(3)
incorporated language from current Sec. 825.202(a) that husbands and
wives who work for the same employer may be limited to a combined 12
weeks of FMLA leave for the birth or placement for adoption or foster
care of a healthy child, or to care for an employee's parent with a
serious health condition. See 29 U.S.C. 2612(f). Proposed Sec.
825.120(a)(4) combined language from current Sec. Sec.
825.114(a)(2)(ii), 825.114(e), and 825.112(a) and (c) to make clear
that a mother may be entitled to FMLA leave for both prenatal care and
incapacity related to pregnancy, and the mother's serious health
condition following the birth of a child. Proposed Sec. 825.120(a)(5)
summarized a husband's right to take leave when needed to care for his
pregnant spouse because of her serious
[[Page 67950]]
health condition. Proposed Sec. 825.120(a)(6) was added to make clear
that both spouses may each take their full 12 weeks of leave to care
for a child with a serious health condition, regardless of whether the
spouses work for the same employer. Finally, proposed Sec. 825.120(b)
combined language from current Sec. Sec. 825.203(b) and 825.204(a),
which provides that intermittent or reduced schedule leave may only be
taken to care for a healthy newborn child with the employer's
agreement, and, in such cases, the employer may temporarily transfer
the employee to an alternative position that better accommodates the
leave schedule. See 29 U.S.C. 2612(b)(1). The final rule adopts Sec.
825.120 as proposed with one minor clarification discussed below.
Additionally, the final rule clarifies language in the regulatory text
of Sec. 825.120(a)(2).
The U.S. Postal Service commented that proposed Sec.
825.120(a)(5), regarding a father's right to use FMLA leave to provide
care for his spouse in connection with the pregnancy or birth,
overstates these rights. The Department has modified the language of
this provision to clarify that a husband is entitled to FMLA-protected
leave if he is needed to care for his spouse who is incapacitated due
to her pregnancy (e.g., if the pregnant spouse is unable to transport
herself to a doctor's appointment). As stated in the NPRM (73 FR 7888
(Feb. 11, 2008)), and as with all care for covered family members under
the FMLA (see current Sec. 825.116(a) and final Sec. 825.124(a)),
such care may include providing psychological comfort and reassurance.
This provision merely codifies a husband's right to FMLA leave to care
for his pregnant spouse under the current regulations--it neither
expands nor contracts that right. As with any leave to care for a
covered family member with a serious health condition, the employer has
the right to request medical certification to verify the employee's
need for leave. The wording of this provision has been changed in the
final rule from ``father'' to ``husband'' to clarify that FMLA leave to
care for a pregnant woman is available to a spouse and not, for
example, to a boyfriend or fianc[eacute] who is the father of the
unborn child.
On a related note, Southwest Airlines suggested that the 12-week
combined limit on leave to care for a healthy newborn taken by spouses
employed by the same employer in Sec. 825.120(a)(3) should apply
equally to unmarried parents who work for the same employer. The
Department notes that this provision is based on section 102(f) of the
statute, which was intended to eliminate employer incentives to refuse
to hire married couples and applies only to ``a husband and wife.'' See
29 U.S.C. 2612(f); S. Rep. No. 103-3, at 28 (1993); H. Rep. No. 103-8,
at 38 (1993).
No other changes have been made to Sec. 825.120 in the final rule.
Section 825.121 (Leave for Adoption or Foster Care)
The Department also proposed a single consolidated section on FMLA
rights and obligations with regard to adoption and foster care in
proposed Sec. 825.121. The current regulations contain guidance
pertaining to adoption and foster care throughout a number of sections.
Proposed Sec. 825.121(a)(1) provided that leave for adoption or foster
care may begin prior to the actual birth or adoption. Proposed Sec.
825.121(a)(2) contained language from current Sec. 825.201 explaining
that FMLA-protected leave for adoption or foster care must be completed
within a year from the placement. Proposed Sec. 825.121(a)(3)
incorporated language from current Sec. 825.202(a) that husbands and
wives working for the same employer are limited to a combined 12 weeks
of leave for purposes of bonding with the healthy adopted or foster
child, to care for the healthy child following the birth of the child,
and to care for an employee's parent with a serious health condition.
See 29 U.S.C. 2612(f). Proposed Sec. 825.121(a)(4) was added to
clarify that both spouses may each take their full 12 weeks of FMLA
leave to care for an adopted or foster child with a serious health
condition, regardless of whether the spouses work for the same
employer. Proposed Sec. 825.121(b), ``Use of intermittent and reduced
schedule leave,'' combined language from current Sec. Sec. 825.203(b)
and 825.204(a), which provides that intermittent or reduced schedule
leave after placement of a healthy child for adoption or foster care
may only be taken with the employer's agreement and, in such cases, an
employer may temporarily transfer the employee to an alternative
position that better accommodates the leave. See 29 U.S.C. 2612(b)(2).
Proposed Sec. 825.121(b) also clarified that if intermittent or
reduced schedule leave is needed for a serious health condition of the
adopted or foster child, no employer agreement is necessary.
The Department received very few comments on this provision. The
final rule clarifies language in the regulatory text at Sec.
825.121(a)(2). Otherwise, the final rule adopts Sec. 825.121 as
proposed.
Section 825.122 (Definitions of Spouse, Parent, Son or Daughter, Next
of Kin of a Covered Servicemember, Adoption, Foster Care, Son or
Daughter on Active Duty or Call to Active Duty Status, Son or Daughter
of a Covered Servicemember, and Parent of a Covered Servicemember)
The proposed rule, at Sec. 825.122, made minor changes to the
definition of ``parent'' in current Sec. 825.113, clarifying that a
parent can be a biological, adoptive, step or foster mother or father,
as well as an individual who stood in loco parentis to the employee.
The proposal also added a definition of ``adoption,'' incorporated the
statement in current Sec. 825.112(d) that the source of the adoption
is not relevant to FMLA leave eligibility, and moved the current rule's
definition of ``foster care'' from Sec. 825.112(e) to this section. In
the definition of ``son or daughter'' in Sec. 825.122(c), the proposal
also specified that an adult child must be incapable of self-care
because of a disability ``at the time leave is to commence.'' This
addition was intended to eliminate the confusion about coverage that is
caused when eligibility decisions are based on facts and circumstances
that occur after the leave commences. Finally, the proposed rule stated
in Sec. 825.122(f) that an employer could require an employee to
provide documentation to confirm a family relationship, such as a
sworn, notarized statement or a submitted and signed tax return.
The final rule makes the clarifying changes to the definition of
``parent,'' adds the definition of ``adoption,'' and moves the
definition of ``foster care,'' as set forth in the proposal. The final
rule clarifies in paragraph (c) that whether an adult child has a
disability is based upon the facts as they exist when the leave
commences, as proposed. Paragraph (c) also makes clear that the
definition of ``son or daughter'' is for purposes of FMLA leave taken
for birth or adoption, or to care for a family member with a serious
health condition. The final rule does not adopt the changes proposed in
paragraph (f) to the documentation necessary to confirm the necessary
family relationship, but rather retains the current regulation and
moves the text to new paragraph (j). Lastly, to address terms that are
unique to the military family leave provisions, the final rule contains
definitions of ``next of kin of a covered servicemember'' in paragraph
(d), ``son or daughter on active duty or call to active duty status''
in paragraph (g), ``son or daughter of a covered servicemember'' in
paragraph (h), and, ``parent of a covered
[[Page 67951]]
servicemember'' in paragraph (i), respectively.
A number of commenters addressed the change in proposed Sec.
825.122(c) stating that an adult child must be incapable of self-care
because of a disability ``at the time that FMLA leave is to commence.''
The preamble to the proposed rule explained that the clarifying change
was made in response to the court's decision in Bryant v. Delbar, 18
F.Supp.2d 799 (M.D. Tenn. 1998), in which the court analyzed whether an
adult child had a disability for FMLA coverage purposes based on facts
and circumstances that occurred well after the leave commenced. The
Department stated that a coverage decision should not take into account
such after-the-fact developments.
A few commenters supported this clarification, including the Equal
Employment Advisory Council; Retail Industry Leaders Association; and
TOC Management Services. A few other commenters found the proposal
unclear. For example, the National Treasury Employees Union (``NTEU'')
described the Department's preamble as going farther than the proposed
regulation, because the preamble stated that ``the new language is
intended to specify that `the determination' of whether an adult child
has a disability is to be made at the time leave is to commence.'' NTEU
opposed such a change, because the need for leave to care for a
qualifying adult child might arise on relatively short notice, and it
thought the ``proposal would make it too easy for an employer to deny
FMLA rights by insisting on immediate pre-leave certification of three
difficult facts: That the adult child needs care for a serious health
condition, is incapable of self-care, AND has a disability within the
meaning of the Americans with Disabilities Act.'' The AFL-CIO stated
that it was concerned that the regulation could be read to mean that,
where an employee takes non-FMLA leave to care for an adult child who
``does not have a disability when the leave commences, the employee
does not have the right to convert the absence into FMLA leave if the
adult child subsequently satisfies the definition.'' It wanted
clarification that subsequent leave might qualify as FMLA leave,
consistent with the Department's clarification that an employee who has
not worked 12 months for the employer at the start of the leave has the
right to treat the leave as FMLA-qualifying once the employee meets the
12-month eligibility requirement. See Sec. 825.110(d).
Proposed Sec. 825.122(f) added a notarized statement or submitted
tax return as reasonable documentation to establish the family
relationship. A number of commenters objected to the proposed change
from the current regulation, which states that an employee may confirm
the requisite family relationship with a simple statement. For example,
the AFL-CIO stated that the regulations have allowed a simple statement
for 15 years, and in the ``absence of any evidence that simple non-
notarized statements have proven problematic, this change is nothing
more than one more hurdle for employees to qualify for FMLA leave.''
NTEU described the additional requirement as ``needless'' and an
``obstacle'' and stated that it ``imposes a substantial new burden on
an employee needing to care for a family member.'' The National
Partnership for Women & Families similarly commented that ``DOL has not
offered any data or rationale as to why this change is necessary, nor
has it received widespread complaints regarding abuse of the definition
of family member. This change could simply serve to make it more
difficult for certain employees to take leave and should not be made.''
See also AARP; Family Caregiver Alliance; American Association of
University Women.
Many of the same commenters objected on privacy grounds to
submitting a tax return, and they questioned whether an employer could
require a tax return even if the employee had provided other
documentation. In addition, Hewitt Associates expressed concern about
the use of an employee's tax return to establish the family
relationship. In light of ``the heightened sensitivity around data
privacy, the use of a tax return to prove a family relationship will
likely require careful employer safeguards for such a limited purpose.
Furthermore, such a provision may need to be reconciled with the tax
code, particularly 26 U.S.C. 6103 which concerns the confidentiality of
tax returns.'' Hewitt Associates also noted that, although the preamble
to the proposed rule suggested that a tax return might be helpful with
regard to establishing an in loco parentis relationship, such a
document actually would be ineffective where the employee is requesting
leave for an in loco parentis parent, because that relationship was
established when the employee was a child. Given the availability of
other forms of documentation, Hewitt Associates suggested eliminating
this clause from the regulations. A number of individual employee
commenters also opposed this provision, stating that it was an
unnecessary invasion of personal privacy. See, e.g., Tom Landis; Cindy
Whitmore; Nathan Grant.
A few employers favored the proposed changes. See, e.g., National
Association of Manufacturers; AT&T; Pennsylvania Governor's Office of
Administration. They did not indicate, however, that there had been any
problem or abuse involving the current rule's simple statement
requirement. The Equal Employment Advisory Council (``EEAC'') offered a
rationale for the requirement for a notarized statement, commenting
that it ``underscores the gravity of claiming federal protection for an
absence from work and also confirms for employees that an actual family
relationship must exist.'' EEAC acknowledged, however, that ``most
employees would not even think of lying to their employer about a
family relationship to obtain leave,'' but stated that the proposed
change would help ``employers to combat the potential for abuse by the
few who would.''
With regard to the proposed change clarifying that an adult child
must be incapable of self-care because of a disability ``at the time
FMLA leave is to commence,'' the Department did not intend to suggest
that the employer's final determination as to whether the adult child
was covered had to be made on the date the leave commenced, and that an
employee could not subsequently communicate further information, such
as in response to an employer request for a medical certification or if
the child's condition changed. The intent of the proposal, as explained
in the preamble, was to avoid a situation where the decision regarding
whether there was coverage at one point in time was affected by events
that did not occur until a much later date.
Thus, the focus is on the adult child's condition at the time of
the parent's leave. The current rule states that a child who is 18 or
older must be incapable of self-care ``because of a physical or mental
disability,'' and it further defines the term ``disability'' as a
``physical or mental impairment that substantially limits one or more
of the major life activities of an individual.'' The current rule cites
the EEOC regulations implementing the ADA (at 29 CFR 1630.2) defining
those terms, including the term ``substantially limits,'' which relates
generally to the nature, severity, duration and long-term impact of the
impairment. The proposal did not make any changes in this area from the
current rule.
Therefore, for example, if a 25-year-old son breaks a leg in a car
accident and is expected to recover in a short period of time, he would
not normally be incapable of self-care because of a
[[Page 67952]]
physical or mental disability. The proposal clarifies that any leave
the parent took to care for the adult child would not be FMLA-protected
if the disability standard is not met. If the 25-year-old later
suffered a stroke that left him with substantial and permanent mobility
impairments, he likely would meet the regulatory standard. At that
point, any subsequent leave the parent took to care for the adult child
who is incapable of self-care due to a physical or mental disability
would be protected by the FMLA. However, that protection would not
extend retroactively to the parent's leave taken when the 25-year-old
son had only a broken leg.
The Department believes that the proposed regulatory text, which
refers to an adult child incapable of self-care due to a disability
``at the time FMLA leave is to commence,'' clarifies the requirements.
That language mirrors the language in Sec. 825.110(d), which addresses
whether an employee has 12 months of service ``as of the date the FMLA
leave is to start.'' Therefore, the Department is adopting the proposal
as written, to clarify that circumstances that occur later affecting an
adult child's disability status do not affect whether previous leave
qualifies for FMLA protection.
Paragraph (c) in the final rule provides that if the FMLA leave is
taken for birth or adoption, or to care for a family member with a
serious health condition, then ``son or daughter'' means a biological,
adopted, or foster child, a stepchild, a legal ward, or a child of a
person standing in loco parentis, who is either under age 18, or age 18
or older and ``incapable of self-care because of a mental or physical
disability'' at the time that FMLA leave is to commence.
The Department has decided not to adopt the proposal's requirement
for a notarized statement regarding the family relationship. Given the
absence of evidence of actual problems with the current rule's simple
statement requirement, and the comments stating that it would cause
needless expense and delay for employees to have to obtain a notarized
statement and intrusion into personal privacy to provide a tax return,
the Department has decided to retain the current rule. Of course, an
employer can require an employee to assert in the statement that the
requisite family relationship exists. In other words, the employer may
require the employee to state that he or she wants leave to care for a
spouse, a son or daughter, or a parent, as defined in the regulations.
This assertion will ensure that the employee fully understands that one
of the specific family relationships must exist in order to qualify for
FMLA leave.
In addition, to reflect the military family leave provisions, Sec.
825.122 now contains a definition of ``next of kin of a covered
servicemember'' in paragraph (d), with a cross-reference to Sec.
825.127(b)(3), which also contains this definition of ``next of kin of
a covered service member'' and provides examples and further detail.
Section 825.122 of the final rule also contains a definition of ``son
or daughter on active duty or call to active duty status'' with a
corresponding cross-reference to Sec. 825.126(b)(1), which contains
this definition, as well as a definition of ``son or daughter of a
covered servicemember'' with a corresponding cross-reference to Sec.
825.127(b)(1), which contains this definition. In addition, final Sec.
825.122 includes a definition of ``parent of a covered servicemember''
in paragraph (i), with a corresponding cross-reference to Sec.
825.127(b)(2) containing this definition. These definitions are
discussed in more detail in the preamble accompanying Sec. Sec.
825.126 and 825.127.
Section 825.123 (Unable To Perform the Functions of the Position)
The Department proposed no substantive changes to this section,
which implements the statutory requirement that an individual must be
unable to perform the functions of a job in order to qualify for FMLA
leave. The proposal stated, as the current rule does, that an
individual must be ``unable to work at all'' or be unable to perform
``one or more of the essential functions of the job'' in order to
qualify, and that an employer may provide a statement of the employee's
essential functions to the employee's health care provider. The
proposal also clarified in paragraph (b) that a sufficient medical
certification must specify what functions the employee is unable to
perform. The final rule adopts the proposed rule, but clarifies that a
certification will be sufficient if it specifies what functions of the
position the employee is unable to perform such that an employer can
determine whether the employee is unable to work at all or is unable to
perform any one of the essential functions of the employee's position.
A few commenters addressed the unchanged definition in this
section. The Chamber stated that the Department should change the rule
so that an employee qualifies for FMLA leave only when the employee is
unable to work at all or unable to perform the majority of his or her
essential functions. This commenter described it as a ``loophole'' that
employees can take leave when their condition prohibits them from
performing only one aspect of the job and they are able to perform many
other essential functions. The National Coalition to Protect Family
Leave suggested that the Department change the definition to ``unable
to perform the essential functions of the employee's position, unless
modified by the employer to accommodate a temporary restriction.'' See
also Associated Builders and Contractors; International Franchise
Association; Jackson County (MO) Department of Corrections. The
National Coalition to Protect Family Leave stated that employers should
be allowed to require an employee to work in either the same job minus
the restricted duties or in some other position, whether or not a part
of a formal ``light duty'' program. This commenter approved of the
clarification that the certification must specify what essential
function the employee cannot perform. Southwest Airlines and the Equal
Employment Advisory Council also supported this change. The Illinois
Credit Union League stated that there should be consistency between the
use of the term ``function'' and ``essential functions,'' but it
emphasized that an employer should not be required to identify
essential job functions, because employers are not required to draft
job descriptions, and essential functions may change.
The National Association of Letter Carriers objected to the
requirement that the health care provider specify the particular
functions the employee cannot perform, stating that this is more
onerous than section 103 of the Act, which requires only a statement
that the employee is unable to perform the functions of the position.
See also National Treasury Employees Union. Another commenter, Scott
MacDonald, Esq., noted that unless the employer includes all of the
essential functions on the form, it will be impossible for the medical
care provider to indicate whether the employee is unable to perform any
of them.
The Department believes that the proposed rule, which made only a
minor change to the current rule, is the best interpretation of the
statutory provision authorizing FMLA leave when an employee is ``unable
to perform the functions of the position of such employee.'' 29 U.S.C.
2612(a)(1)(D). The Department continues to believe that if an employee
cannot perform one or more essential functions of the job, the Act
gives that employee the right to take leave, even if the employer is
willing to provide a light duty job or modify the job in a way that
would allow the employee to continue working. While
[[Page 67953]]
employers may not require employees to perform modified or light duty
work in lieu of taking FMLA leave, employees may voluntarily agree to
such arrangements. See also Sec. 825.220(d). The Department believes
that the additional clarification in this section that a sufficient
medical certification must identify the function(s) that the employee
cannot perform will not be burdensome, that it is consistent with
medical certification requirements of current and proposed Sec.
825.306, and that it is a reasonable interpretation of the statutory
requirements that a certification provide both appropriate medical
facts regarding the employee's condition and a statement that the
employee is unable to perform the functions of the position. See 29
U.S.C. 2613(b)(3) and (4)(B). In response to the concern of some
commenters, the Department notes that the rule gives employers the
option of providing a list of essential functions when it requires a
medical certification; an employer is not required to do so. Finally,
in order to explain why the term ``functions'' and not ``essential
functions'' is used in paragraph (b), the final rule clarifies that a
certification will be sufficient if it provides information regarding
the functions the employee is unable to perform so that an employer can
then determine whether the employee is unable to perform one or more
essential functions of the job. This revision reflects the fact that
the determination of whether a particular job duty is an essential
function is a legal, not a medical, conclusion, and is in accord with
the medical certification requirements in Sec. 825.306 and the
Department's prototype medical certification form.
Section 825.124 (Needed To Care for a Family Member or a Covered
Servicemember)
The FMLA provides leave ``[i]n order to care for the spouse, or a
son, daughter, or parent, of the employee, if such spouse, son,
daughter, or parent has a serious health condition.'' 29 U.S.C.
2612(a)(1)(C). The legislative history indicates that the ``phrase `to
care for' * * * [is to] be read broadly to include both physical and
psychological care.'' S. Rep. No. 103-3, at 24 (1993); H.R. Rep. No.
103-8, at 36 (1993). The statute also provides leave to care for a
covered servicemember. 29 U.S.C. 2612(a)(3). The current regulations
define the phrase ``needed to care for'' a family member in Sec.
825.116. The proposed rule moved this section to Sec. 825.124 without
making any substantive changes, other than to clarify that the employee
need not be the only individual, or even the only family member,
available to provide care to the family member with a serious health
condition. The final rule adopts this provision as proposed, with minor
revisions to reflect the new military caregiver leave entitlement.
A number of employers commented that employees should only be
entitled to FMLA leave to care for a family member when they are
actually providing care. For example, the Manufacturers Alliance/MAPI
and the Metropolitan Transportation Authority (NY) commented that if an
employee has arranged for others to care for the family member, the
employee is not needed to provide care and should not be entitled to
FMLA leave. Southwest Airlines commented, ``[l]eave to care for a
family member should not include, for example, an employee who lives
out of state from the family member and who does not travel to the
family member needing the care during the employee's entire FMLA leave.
The logical meaning of `to care for' a family member, whether it be
physical or psychological care, is active caregiver participation by
the employee needing the leave.''
The Equal Employment Advisory Council recommended ``that the
Department further revise this section by reiterating in Sec.
825.124(c), with a cross reference to Sec. 825.202 and Sec. 825.203,
that in order to qualify for intermittent leave to care for a family
member, that leave must be medically necessary.'' (Emphasis in
original.) Burr & Forman commented that the regulations should clarify
that FMLA leave cannot be used to perform the job duties of either the
ill family member (during the period in which the ill family member
seeks treatment) or another family member (who then provides care to
the ill family member).
On the other hand, AARP and many employee groups supported the
Department's clarification that employees may take FMLA leave to care
for a family member even if they are not the only caregiver available.
The Family Caregiver Alliance commented that, in many cases, having
more than one caregiver available for support and relief helps ensure
the health and safety of the caregivers, as well as the care receiver.
The National Partnership for Women & Families commented that the
legislative history makes clear that Congress anticipated that both
parents may take leave to care for a child, or that multiple siblings
may take leave to care for a parent, and that such leave may be taken
on either an overlapping or sequential basis.
Finally, Working America/Working America Education Fund included
with its comments a number of short quotes from its members that help
put a human face on the wide variety of situations in which employees
need to care for a family member: ``As a Hospice social worker, I have
found FMLA to be extremely important to allow family members to care
for loved ones in their final days.'' ``I have a friend who first took
care of one dying parent and then was the sole caretaker of her second,
remaining terminally ill parent. She took FMLA to care for her
remaining parent and did not lose her sanity or her job.'' ``I had to
use the FMLA a few times after my mother developed Alzheimers. We live
200 miles apart. I needed to go see her occasionally so that she didn't
forget me and that I didn't just let go of her as well.'' ``* * * I am
a widowed mother of five children. If one of them were to become
seriously ill, I would need to take care of them.'' These examples
illustrate the difficulty in trying to include in the regulations
prescriptive requirements for family leave when that leave may be
needed in many different circumstances.
The Department acknowledges the difficulties employers face in
meeting the FMLA's requirements to provide employees with the
opportunity to use leave to care for family members. Nonetheless, the
Department continues to believe that the FMLA does not permit adding
requirements for family leave, such as a requirement that the employee
furnish information about the availability of other caregivers. An
employee is entitled to use FMLA leave to care for a spouse or covered
family member, assuming the eligibility and procedural requirements are
met, no matter how many other family members, friends, or caregivers
may be available to provide this care. However, as a number of employer
commenters stated, such FMLA leave may be taken only to care for the
family member with a serious health condition or the covered
servicemember with a serious illness or injury. An employee may not use
FMLA leave to work in a family business, for example. No regulatory
changes are necessary to address this, however, as both the statute and
Sec. Sec. 825.112(a)(3) and 825.124 make clear that FMLA leave is
available only ``to care for'' a covered relative.
Finally, in order to qualify for intermittent leave to care for a
family member or covered servicemember, the intermittent leave must be
medically necessary as required by the statute. 29 U.S.C. 2612(b)(1).
The cross-reference in Sec. 825.124(c) to Sec. Sec. 825.202-825.205
for the rules governing the use of intermittent or reduced schedule
leave addresses this matter sufficiently.
[[Page 67954]]
Section 825.125 (Definition of Health Care Provider)
The proposed rule, at Sec. 825.125, modified the definition of
``health care provider'' by clarifying the status of physician
assistants (``PAs''). The proposal added PAs to the list of recognized
health care providers and deleted the requirement that they operate
``without supervision by a doctor or other health care provider.'' The
proposal made corresponding changes to proposed Sec. 825.115
(Continuing treatment) and Sec. 825.800 (Definitions). The current
rule's definition of ``health care provider'' (at Sec. 825.118) does
not expressly mention PAs. However, as the preamble to the proposed
rule noted, they generally fall within the current definition under
Sec. 825.118(b)(3), which includes any health care provider from whom
an employer or the employer's group health plan's benefits manager will
accept certification of the existence of a serious health condition to
substantiate a claim for benefits. The final rule adopts the proposed
rule's definition of ``health care provider.''
Most of the commenters that addressed this issue supported the
proposed change. For example, the American Academy of Physician
Assistants (``AAPA'') noted that the current regulations cause
confusion because PAs are not named as health care providers, and yet
they are usually covered as providers because the ``overwhelming
majority of private and public insurance plans reimburse medical care
by PAs.'' The AAPA stated that PAs are covered providers of physician
services through Medicare, Medicaid, Tri-Care, Federal Employee Health
Benefit plans and most private insurance plans; they may diagnose and
treat injured workers through nearly all state workers' compensation
programs; and the Department of Transportation regulations define PAs
as ``medical examiners'' for purposes of performing the medical exam
and signing the certificate of physical examination for truck drivers.
The AAPA also stated that the current regulatory references to a PA
working ``under direct supervision of a health care provider'' cause
confusion because they suggest that the FMLA imposes supervisory
requirements that are not required by state law. Finally, the AAPA
stated that clarifying the status of PAs will avoid disruption in the
continuity of care for workers who seek FMLA-related medical treatment
or certification from a PA. Other commenters also expressed approval
for the proposed change. See National Retail Federation; Retail
Industry Leaders Association; HIV-Policy Collaborative; and Redfield
Medical Clinic.
The Metropolitan Transportation Authority (NY) opposed the change,
stating that it does not believe that a PA ``has sufficient training or
expertise to make the medical determinations necessary under the Act.''
The Society of Professional Benefit Administrators commented that the
change ``will have a significant impact on plans by ratcheting up the
potential for physician billing abuse,'' and ``would serve to disclose
employees [sic] medical information to scrutiny by non-professionals
which may have the potential of infringing on a patient's right to
privacy and interfere in their relationships with their doctors.'' The
American Association of Occupational Health Nurses suggested adding
occupational and environmental health nurses, who are registered
nurses, as health care providers because they interface with workers,
human resource personnel, safety personnel and others in administering
the FMLA in many workplaces.
The Department believes that the express inclusion of PAs in the
definition of ``health care provider'' is an appropriate clarification,
not a significant change. As the AAPA noted, PAs generally already are
included within the definition because the vast majority of group
health plans accept them when substantiating a claim for benefits.
Moreover, other government agencies recognize them as providers of
health care services. Both of these facts demonstrate that PAs do have
the necessary training to make the determinations required by the Act.
The Department does not believe that this clarification will have an
impact on potential billing abuse or the disclosure of medical
information. Therefore, the final rule includes PAs as health care
providers in Sec. 825.125(b)(2), and it makes conforming changes in
Sec. Sec. 825.115 and 825.800. The final rule does not add
occupational and environmental health nurses to the list of health care
providers. Registered nurses are not currently included on the list,
and the rulemaking record does not demonstrate that these registered
nurses should be treated differently than other nurses.
Section 825.126 (Leave Because of a Qualifying Exigency)
The NDAA provides a new qualifying reason for taking FMLA leave
which allows eligible employees of covered employers to take leave for
any qualifying exigency arising out of the fact that a spouse, son,
daughter, or parent is on active duty or has been notified of an
impending call or order to active duty in support of a contingency
operation. The Department has organized the discussion of this new
leave entitlement into two major categories: (1) An employee's
entitlement to qualifying exigency leave; (2) the specific
circumstances under which qualifying exigency leave may be taken.
Entitlement to Qualifying Exigency Leave
Under the NDAA, an eligible employee of a covered employer may take
leave for a qualifying exigency arising out of the fact that the
employee's spouse, son, daughter, or parent is on active duty or has
been notified of an impending call or order to active duty in the Armed
Forces in support of a contingency operation. 29 U.S.C. 2612(a)(1)(E).
Specifically, the statute defines ``active duty'' as duty under both a
``call or order to active duty'' and under a provision of law referred
to in 10 U.S.C. 101(a)(13)(B). 29 U.S.C. 2611(14). In the NPRM, the
Department proposed to add the NDAA's definition of ``active duty'' to
proposed Sec. 825.800 by cross-referencing 10 U.S.C. 101(a)(13)(B).
The Department suggested that the statutory definition did not require
additional clarification and thus did not further explain the various
provisions of law that are specifically referenced in 10 U.S.C.
101(a)(13)(B).
The Department has added the statutory definition of ``active
duty'' to Sec. 825.800 in the final rule as proposed. In addition, in
response to public comments requesting that the Department further
explain the types of active duty service by the spouse, son, daughter,
or parent of an employee that would trigger an entitlement to
qualifying exigency leave, Sec. 825.126(b)(2) of the final rule
specifically enumerates the provisions of law referred to in 10 U.S.C.
101(a)(13)(B): Sections 688, 12301(a), 12302, 12304, 12305, and 12406
of Title 10 of the United States Code, chapter 15 of Title 10 of the
United States Code, and any other provision of law during a war or
during a national emergency declared by the President or Congress. This
section of the regulations also makes clear that these existing
provisions of military law refer only to duty under a ``call or order
to active duty'' by members of the Reserve components and the National
Guard, and also to certain retired members of the Regular Armed Forces
and retired Reserve. Consistent with the statutory definition, this
leave entitlement does
[[Page 67955]]
not extend to family members of the Regular Armed Forces on active duty
status because members of the Regular Armed Forces either do not serve
``under a call or order to active duty'' or are not identified in the
provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The final
rule also provides that a ``call or order to active duty'' for purposes
of leave taken because of a qualifying exigency refers to a Federal
call to active duty, as opposed to a State call to active duty.
Many of the public comments received by the Department with regard
to the military family leave provisions did not discuss the definition
of ``active duty'' for purposes of qualifying exigency leave. A number
of commenters, however, recognized the limiting nature of the statutory
definition provided by Congress. See Society for Human Resource
Management; Bank of the Commonwealth. The law firm of Spencer Fane
Britt & Browne noted that this limited definition was logical:
In case of the Regular Armed Forces, those servicemembers are
employed by the Federal government itself as a conscious career
choice and have accepted the terms and conditions of that
employment. In the case of Reservists and the National Guard, those
individuals may work elsewhere, but are willing to serve the Federal
government if necessary and are willing to allow their lives to be
disrupted by a call to active duty. They have not, however, accepted
the terms and conditions of employment with the Federal government
except as it may be necessary in connection with a call to active
duty. It is the unexpected disruption to their lives that appears to
be the focus of exigency leave.
This view is consistent with the statement of Representative Jason
Altmire on the floor of the U.S. House of Representatives, who
introduced the provision providing leave for a qualifying exigency:
[W]hat this legislation does is allow family members of our
brave men and women serving in the Guard and Reserve to use Family
and Medical Leave Act time to see off, to see the deployment, or to
see the members return when they come back, and to use that,
importantly, to deal with economic issues, and get the household
economics in order.
153 Cong. Rec. H15326 (see daily ed. Dec. 12, 2007).
Several commenters urged the Department to provide additional
detail and explanation in the final rule as to the statutory references
contained in the NDAA, noting that most employers are not familiar with
the specific statutory references and that both employees and employers
would likely be confused without an explanation of who is covered. See
National Coalition to Protect Family Leave; National Association of
Manufacturers; Colorado Department of Personnel & Administration;
Willcox & Savage. The Bank of the Commonwealth noted that without
specific guidance there is a risk of discrimination complaints being
brought by servicemembers in military towns. In contrast, the Equal
Employment Advisory Council concurred with the Department's original
position that the definition of ``active duty'' needed no further
clarification.
The Department also concludes that the statutory language found in
10 U.S.C. 101(a)(13)(B) is unambiguous. Congress expressly incorporated
an existing provision of law regarding active duty when defining an
employee's entitlement to qualifying exigency leave under the FMLA. As
such, Congress provided that leave for a qualifying exigency is
intended for use by employees who have a spouse, son, daughter, or
parent called to active duty as a part of the Reserve components and
the National Guard, or as certain retired members of the Regular Armed
Forces and retired Reserve Employees who have a spouse, son, daughter,
or parent on active duty status as a member of the Regular Armed Forces
are not entitled to qualifying exigency leave.
Had Congress intended qualifying exigency leave to extend to family
members of those in the Regular Armed Forces, it would have provided a
different statutory definition that referenced alternative provisions
of Title 10 to define ``active duty.'' For example, a definition of
``active duty'' that cited to both 10 U.S.C. 101(a)(13)(A) and (B),
rather than to (B) only, would have provided clear coverage to all
members of the Armed Forces. Alternatively, a reference to the
provisions of 10 U.S.C. 101(d) would have also provided a broader
definition of ``active duty.'' In comparison, the provisions of the
NDAA allowing an eligible employee to take leave to care for a
``covered servicemember'' (also referred to as ``military caregiver
leave'') do provide a broader definition of the military service
covered by that leave entitlement. In that instance, the NDAA defines a
``covered servicemember,'' in part, as ``a member of the Armed Forces
(including National Guard or Reserves).'' This distinction further
highlights the limitation Congress imposed for who should be eligible
to take qualifying exigency leave.
The Department also concurs with the commenters that more specific
guidance regarding the statutes listed under 10 U.S.C. 101(a)(13)(B)
would be helpful. The Department understands that most employers and
employees will be unfamiliar with the military terminology used by the
NDAA in establishing the new FMLA military family leave entitlements.
For this reason, the final rule does not simply rely on a statutory
cross-reference to establish the definition of the term ``active
duty.'' Rather, the final rule provides in Sec. 825.126(b)(2) a brief
explanation of each of the statutes listed in 10 U.S.C. 101(a)(13)(B)
to provide more detailed guidance on the definition of ``active duty.''
Some commenters asked about situations where a State (e.g., a
governor) calls the National Guard or Reserve to active duty. Spencer
Fane Britt & Browne urged the Department to ``[c]larify that a call to
active duty is a Federal call to active duty as opposed to a State call
to active duty of a State's own National Guard or state militia.'' The
Department agrees that the exclusion of State calls to active duty is
clear in the NDAA. The statutes referred to in 10 U.S.C. 101(a)(13)(B)
refer exclusively to Federal calls to active duty in support of a
contingency operation. The final rule therefore clarifies that a call
to active duty for purposes of leave taken because of a qualifying
exigency refers to a Federal call to active duty. State calls to active
duty are not covered unless under order of the President of the United
States pursuant to one of the provisions of law identified in Sec.
825.126(b)(2).
The NDAA also provides a definition of the term ``contingency
operation.'' The statute defines the term as having the same meaning
given such term in section 10 U.S.C. 101(a)(13). 29 U.S.C. 2611(15). In
the NPRM, the Department considered adding the definition of
``contingency operation'' in proposed Sec. 825.800 as defined in the
NDAA and cross-referencing 10 U.S.C. 101(a)(13). The Department
suggested that the definition did not require additional clarification.
The Department has added the statutory definition of ``contingency
operation'' to Sec. 825.800 in the final rule as proposed. In
addition, in response to public comments requesting greater clarity,
Sec. 825.126(b)(3) of the final rule defines ``contingency operation''
by fully restating the statutory language of 10 U.S.C. 101(a)(13).
Specifically, this statutory reference provides that a military
operation qualifies as a contingency operation if it (1) is designated
by the Secretary of Defense as an operation in which members of the
armed forces are or may become involved in military actions,
operations, or hostilities against an enemy of the United States or
against an opposing
[[Page 67956]]
military force; or (2) results in the call or order to, or retention
on, active duty of members of the uniformed services under section 688,
12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the United
States Code, chapter 15 of Title 10 of the United States Code, or any
other provision of law during a war or during a national emergency
declared by the President or Congress. The provisions listed under (2)
above are the same as those used to define ``active duty'' and
generally refer to members of the National Guard and Reserve. In
addition, this section specifies that the active duty orders of a
covered military member will generally specify if the covered military
member is serving in support of a contingency operation by citation to
the relevant section of Title 10 of the United States Code and/or by
reference to the specific name of the contingency operation.
As with the comments received by the Department with regard to the
definition of ``active duty,'' many of the comments regarding the
definition of ``contingency operation'' urged the Department to be as
specific as possible in the final regulations. In fact, some of the
comments addressed both terms together. See Food Marketing Institute;
Colorado Department of Personnel & Administration; Bank of the
Commonwealth; Society for Human Resource Management.
As with the definition of ``active duty'' in Sec. 825.126(b)(2),
the final rule in Sec. 825.126(b)(3) references the specific statutes
listed in 10 U.S.C. 101(a)(13). Because a covered military member's
active duty orders will generally specify whether he or she is serving
in support of a contingency operation by reference to the appropriate
section of Title 10 of the United States Code and/or by reference to
the specific name of the contingency operation, the Department believes
that it will be fairly easy for employees and employers to determine
whether a particular covered military member's active duty status
qualifies the family member for qualifying exigency leave by examining
the covered military member's active duty orders. As discussed in
relation to Sec. 825.309, which addresses certification requirements
for qualifying exigency leave, a copy of such orders must be provided
to an employer upon the first request when an employee requests leave
because of a qualifying exigency. Furthermore, the certification
section provides that an employer can verify a covered military
member's active duty status in support of a contingency operation with
the Department of Defense.
As the military operations that qualify family members of covered
military members for qualifying exigency leave under FMLA may change
over time, the Department does not believe that it is helpful to
provide further specificity in the final regulations regarding the
operations that currently qualify as contingency operations.
Furthermore, because the Secretary of Defense may designate military
operations as contingency operations, the Department believes that the
Department of Defense, and not the Department of Labor, is in the best
position to determine which operations qualify. Requiring a copy of a
covered military member's active duty orders, or other appropriate
documentation from the military, when qualifying exigency leave is
first requested will permit an employer to verify a covered military
member's duty in support of a contingency operation without requiring
revision to the FMLA regulations each time the list of contingency
operations is revised by the Department of Defense.
In addition, in the NPRM the Department noted that the military
leave provisions of the NDAA did not alter the FMLA's existing
definitions of ``son or daughter.'' Specifically, the Department asked
for comments on the application of the FMLA's current definition of
``son or daughter'' to the new military family leave entitlements.
Under the current FMLA definition, a son or daughter must either be (1)
under 18 years of age; or (2) 18 years of age or older and incapable of
self-care because of a mental or physical disability. 29 U.S.C.
2611(12). The Department explained that applying this definition for
purposes of leave taken for a qualifying exigency would severely
restrict the availability of the leave and would appear to contradict
the intent of Congress. The Department sought comment on whether it
would be appropriate to define the term ``son or daughter'' differently
for purposes of FMLA leave taken because of a qualifying exigency.
The final rule does not alter the FMLA's definition of ``son or
daughter,'' but rather establishes a separate definition of ``son or
daughter on active duty or call to active duty status'' for the purpose
of leave for a qualifying exigency. Section 825.126(b)(1) defines a
``son or daughter on active duty or call to active duty status'' as an
employee's biological, adopted, or foster child, stepchild, legal ward,
or a child for whom the employee stood in loco parentis, who is on
active duty or call to active duty status, and who is of any age. See
also Sec. Sec. 825.122 and 825.800.
The Department received a large number of comments requesting that
the Department apply a broader definition of ``son or daughter'' for
purposes of leave for a qualifying exigency in order to adhere to the
intent of law. See Senator Dodd and Representative Woolsey et al.;
Catholic Charities, Diocese of Metuchen; National Partnership for Women
& Families; TOC Management Services. The National Association of
Manufacturers did not object to the Department providing a new
definition for ``son or daughter,'' as long as the Department clarified
that the definition applies only to the military provisions. In
contrast, Infinisource, Inc., asserted that the NDAA ``did not
explicitly expand'' the definition of ``son or daughter'' and thus it
should not be altered for purposes of military family leave.
The Department agrees with the overwhelming majority of comments
that the existing FMLA definition of ``son or daughter'' could not have
been intended to apply to the qualifying exigency leave provision.
Using the existing FMLA definition of ``son or daughter'' would
eviscerate the qualifying exigency leave provision because for all
practical purposes a parent would not be able to take leave for a
qualifying exigency if the parent's son or daughter were deployed
overseas as a member of the National Guard or Reserve because the
majority of such sons or daughters would not be under age 18 and those
older would most likely not be incapable of self-care due to a
disability. This is clearly not the result intended by Congress. The
NDAA allows an employee to take leave for circumstances ``arising out
of the fact that the spouse, or a son, daughter, or parent of the
employee is on active duty.'' Therefore, it is more consistent with the
intent of the military leave amendments to define ``son or daughter on
active duty or call to active duty status'' as an employee's
biological, adopted, or foster child, stepchild, legal ward, or a child
for whom the employee stood in loco parentis, who is on active duty or
call to active duty status, and who is of any age. This definition
applies specifically only to qualifying exigency leave and does not
alter the definition of son or daughter for purposes of taking FMLA
leave for other qualifying reasons.
Types of Qualifying Exigencies
In describing qualifying exigency leave, the NDAA simply states
that leave can be taken ``[b]ecause of any qualifying exigency (as the
Secretary shall, by regulation, determine) arising out of the fact that
the spouse, or a son,
[[Page 67957]]
daughter, or parent of the employee is on active duty (or has been
notified of an impending call or order to active duty) in the Armed
Forces in support of a contingency operation.'' 29 U.S.C.
2612(a)(1)(E).
In the NPRM, the Department presented a lengthy discussion
regarding the appropriate definition of qualifying exigency and posed a
number of specific questions arising from that discussion. The
Department reproduced in the NPRM the only statements made in Congress
specifically addressing qualifying exigency leave. Three Members of the
U.S. House of Representatives made brief statements on the House floor.
Representative Jason Altmire, who introduced the provision providing
for qualifying exigency leave, stated:
This amendment allows the immediate family of military personnel
to use Family Medical Leave Act time for issues directly arising
from deployment and extended deployments. The wife of a recently
deployed military servicemember could use the Family and Medical
Leave Act to arrange for childcare. The husband of a servicemember
could use the Family Medical Leave Act to attend predeployment
briefings and family support sessions. The parents of a deployed
servicemember could take Family Medical Leave Act time to see their
raised child off or welcome them back home. This amendment does not
expand eligibility to employees not already covered by the Family
Medical Leave Act * * *.
153 Cong. Rec. H5132 (see daily ed. May 16, 2007) (statement of
Representative Altmire).
[W]hat this legislation does is allow family members of our
brave men and women serving in the Guard and Reserve to use Family
and Medical Leave Act time to see off, to see the deployment, or to
see the members return when they come back, and to use that,
importantly, to deal with economic issues, and get the household
economics in order * * *.
153 Cong. Rec. H15323 (see daily ed. Dec. 12, 2007) (same).
It will allow military families to use family and medical leave
time to manage issues such as childcare and financial planning that
arise as a result of the deployment of an immediate family member.
153 Cong. Rec. H15341 (see daily ed. Dec. 12, 2007) (same).
Representative Tom Udall stated:
For every soldier who is deployed overseas, there is a family
back home faced with new and challenging hardships. The toll extends
beyond emotional stress. From raising a child to managing household
finances to day-to-day events, families have to find the time and
resources to deal with the absence of a loved one * * *. The
Altmire-Udall amendment would allow spouses, parents or children of
military personnel to use Family and Medical Leave Act benefits for
issues related directly to the deployment of a soldier. Current FMLA
benefits allow individuals to take time off for the birth of a child
or to care for a family member with a serious illness. The
deployment of a soldier is no less of a crisis and certainly puts
new demands on families. We should ensure that the FMLA benefits
given in other circumstances are provided to our fighting families
during their time of need.
153 Cong. Rec. E1076 (see daily ed. May 17, 2007) (statement of
Representative Udall).
Representative George Miller stated that:
Under the amendment * * * a worker can take family and medical
leave to deal with the issues that arise as a result of a spouse,
parent, or child's deployment to a combat zone like Iraq or
Afghanistan. Under this amendment family members can use the leave
to take care of issues like making legal and financial arrangement
and making child care arrangements or other family obligations that
arise and double when family members are on active duty deployments
* * *. These deployments and extended tours are not easy on
families, and two-parent households can suddenly become a single-
parent household and one parent is left alone to deal with paying
the bills, going to the bank, picking up the kids from school,
watching the kids, providing emotional support to the rest of the
family. You have got to deal with these predeployment preparations.
153 Cong. Rec. H5336 (see daily ed. May 17, 2007) (statement of
Representative Miller).
Based on these Congressional statements, the Department expressed
an initial view that, given the statute's inclusion of the word
``qualifying,'' not every exigency would entitle a military family
member to leave. The Department further stated in its proposal that the
NDAA requires a nexus between the eligible employee's need for leave
and the covered military member's active duty status and specifically
solicited comment on the degree of nexus that should be required.
The Department asked for comment on whether the types of qualifying
exigencies should be limited to those items of an urgent or one-time
nature arising from deployment as opposed to routine, everyday life
occurrences. The Department suggested that leave for qualifying
exigencies should be limited to non-medical related exigencies since
the leave entitlement for qualifying exigencies was in addition to the
existing qualifying reasons for FMLA leave, which already permit an
eligible employee to take FMLA leave to care for a son or daughter,
parent, or spouse with a serious health condition.
The Department also sought comment on whether it would be
appropriate to develop a list of pre-deployment, deployment, and post-
deployment qualifying exigencies. The Department asked whether
particular types of exigencies should qualify, such as making
arrangements for child care, making financial and legal arrangements to
address the covered military member's absence, attending counseling
related to the active duty of the covered military member, attending
official ceremonies or programs where the participation of the family
member is requested by the military, attending to farewell or arrival
arrangements for a covered military member, and attending to affairs
caused by the missing status or death of a covered military member.
Finally, the Department sought comment on whether there were any other
exigencies that should qualify and whether any list developed by the
Department should be a per se list of qualifying exigencies.
Section 825.126(a) of the final rule defines qualifying exigency by
providing a specific and exclusive list of reasons for which an
eligible employee can take leave because of a qualifying exigency.
These reasons are divided into seven general categories: (1) Short-
notice deployment, (2) Military events and related activities, (3)
Childcare and school activities, (4) Financial and legal arrangements,
(5) Counseling, (6) Rest and recuperation, (7) Post-deployment
activities, and (8) Additional activities.
For Short-notice deployment, Sec. 825.126(a)(1) allows qualifying
exigency leave to address any issue that arises from the fact that a
covered military member is notified of an impending call or order to
active duty seven or less calendar days prior to the date of
deployment. Leave taken for this purpose can be used for a period of
seven calendar days beginning on the date the covered military member
is notified of an impending call or order to active duty.
For Military events and related activities, Sec. 825.126(a)(2)
allows qualifying exigency leave to attend any official ceremony,
program, or event sponsored by the military and to attend family
support and assistance programs and informational briefings sponsored
or promoted by the military, military service organizations, or the
American Red Cross that are related to the active duty or call to
active duty status of a covered military member.
For Childcare and school activities, Sec. 825.126(a)(3) allows an
eligible employee to take qualifying exigency leave to arrange
childcare or attend certain school activities for a biological,
adopted, or foster child, a stepchild, or a legal ward of the covered
military
[[Page 67958]]
member, or a child for whom the covered military member stands in loco
parentis, who is either under age 18, or age 18 or older and incapable
of self-care because of a mental or physical disability at the time
that FMLA leave is to commence. Qualifying exigency leave may be taken
under this section (1) to arrange for alternative childcare when the
active duty or call to active duty status of a covered military member
necessitates a change in the existing childcare arrangement; (2) to
provide childcare on an urgent, immediate need basis (but not on a
routine, regular, or everyday basis) when the need to provide such care
arises from the active duty or call to active duty status of a covered
military member; (3) to enroll the child in or transfer the child to a
new school or day care facility when enrollment or transfer is
necessitated by the active duty or call to active duty status of a
covered military member; and (4) to attend meetings with staff at a
school or a day care facility, such as meetings with school officials
regarding disciplinary measures, parent-teacher conferences, or
meetings with school counselors, when such meetings are necessary due
to circumstances arising from the active duty or call to active duty
status of a covered military member.
For Financial and legal arrangements, Sec. 825.126(a)(4) allows
qualifying exigency leave to make or update financial or legal
arrangements to address the covered military member's absence while on
active duty or call to active duty status, such as preparing and
executing financial and healthcare powers of attorney, transferring
bank account signature authority, enrolling in the Defense Enrollment
Eligibility Reporting System (``DEERS''), obtaining military
identification cards, or preparing or updating a will or living trust.
It also allows leave to act as the covered military member's
representative before a federal, state, or local agency for purposes of
obtaining, arranging, or appealing military service benefits while the
covered military member is on active duty or call to active duty status
and for a period of 90 days following the termination of the covered
military member's active duty status.
For Counseling, Sec. 825.126(a)(5) allows qualifying exigency
leave to attend counseling provided by someone other than a healthcare
provider for oneself, for the covered military member, or for the
biological, adopted, or foster child, a stepchild, or a legal ward of
the covered military member, or a child for whom the covered military
member stands in loco parentis, who is either under age 18, or age 18
or older and incapable of self-care because of a mental or physical
disability at the time that FMLA leave is to commence, provided that
the need for counseling arises from the active duty or call to active
duty status of a covered military member.
For Rest and recuperation, Sec. 825.126(a)(6) provides qualifying
exigency leave to spend time with a covered military member who is on
short-term, temporary rest and recuperation leave during the period of
deployment. Eligible employees may take up to five days of leave for
each instance of rest and recuperation.
For Post-deployment activities, Sec. 825.126(a)(7) allows
qualifying exigency leave to attend arrival ceremonies, reintegration
briefings and events, and any other official ceremony or program
sponsored by the military for a period of 90 days following the
termination of the covered military member's active duty and to address
issues that arise from the death of a covered military member while on
active duty status, such as meeting and recovering the body of the
covered military member and making funeral arrangements.
Finally, Sec. 825.126(a)(8) provides qualifying exigency leave for
Additional Activities, which allows leave to address other events which
arise out of the covered military member's active duty or call to
active duty status provided that the employer and employee agree that
such leave shall qualify as an exigency, and agree to both the timing
and duration of such leave.
The Department received a wide array of comments regarding how to
define ``qualifying exigency.'' Several commenters requested a per se
list, or at least as exhaustive a list as possible. See National
Business Group on Health; Jackson Lewis; Catholic Charities, Diocese of
Metuchen; Association of Corporate Counsel's Employment and Labor Law
Committee; Equal Employment Advisory Council. Jackson Lewis argued that
without a per se list administering such leave would be extremely
difficult because employers would be forced to ``interrogate employees
regarding the circumstances surrounding their requests for qualifying
exigency leave.'' ORC Worldwide requested a per se list, but suggested
that it be non-exhaustive. In contrast, other commenters stated that a
per se list would not be practicable or provide employers enough
flexibility, but that examples or flexible criteria would be helpful.
See TOC Management Services; the Chamber; National Association of
Manufacturers. Others urged the Department to reject the use of a per
se list, and instead to provide general guidelines or broad categories
and examples or non-exhaustive lists of the types of situations that
would be qualifying exigencies. See National Military Family
Association; National Partnership for Women & Families, in joint
comments with the National Military Family Association; Senator Dodd
and Representative Woolsey et al. Senator Dodd and Representative
Woolsey et al. suggested specific categories:
(1) Military events and meetings; (2) childcare and childcare
arrangements; (3) counseling for self, family and children, (4)
legal, financial and other critical household obligations; and (5)
family needs and obligations related to the servicemember's
departure, return, or period leave * * *.
Others did not specifically suggest or reject the idea of a per se
list, but requested that the Department provide a clear definition. See
Burr & Forman; Colorado Department of Personnel & Administration;
Infinisource.
The comments were equally divided as to whether qualifying
exigencies should be limited to one-time events or should include
recurring or routine events also. The National Partnership for Women &
Families, in joint comments with the National Military Family
Association, urged the Department to include both urgent and routine
events as qualifying exigencies, stating that ``[t]here is nothing in
the statute that limits this leave solely to urgent matters.''
Infinisource, the National Coalition to Protect Family Leave, the
Society for Human Resource Management, Delphi, and Jackson Lewis urged
the Department to limit it to urgent, one-time, non-routine exigencies.
These commenters also suggested that it not include medical exigencies.
Delphi, the National Coalition to Protect Family Leave, and the Society
for Human Resource Management also emphasized that causation should be
an important factor in defining qualifying exigency.
The comments were more consistent as to the timing of the
exigencies that should qualify. Most commenters who addressed this
issue agreed that qualifying exigencies should include events that
occur pre-deployment, during deployment, and post-deployment. See
National Military Family Association; National Partnership for Women &
Families, in joint comments with the National Military Family
Association; Association of Corporate Counsel's Employment and Labor
Law Committee. The exception was the National Business Group on Health,
which
[[Page 67959]]
referred only to exigencies pre- and post-deployment, but not during
deployment.
The Department believes it is critical that employees fully
understand their rights and employers fully understand their
obligations under this new leave entitlement. Accordingly, the final
rule specifically identifies the circumstances under which qualifying
exigency leave may be taken. The Department believes this approach is
preferable because it provides the clearest guidance to both employees
and employers regarding the circumstances under which qualifying
exigency leave may be taken. By organizing the list of qualifying
exigencies into categories covering Short-notice deployment, Military
events and related activities, Childcare and school activities,
Financial and legal arrangements, Counseling, Rest and recuperation,
Post-deployment activities, and Additional activities, the final rule
reflects the broad areas of common exigencies highlighted by many
commenters.
At the same time, the Department also recognizes the need to
provide some flexibility for both employees and employers to address
unforeseen circumstances. The Department understands that there may be
additional circumstances beyond those specified in the Department's
final rule for which the use of qualifying exigency leave might be
appropriate. For this reason, Sec. 825.126(a)(8) of the final rule
allows job-protected leave to address other events which arise out of
the covered military member's active duty or call to active duty status
in support of a contingency operation, provided that the employer and
employee agree that such leave shall qualify as an exigency, and agree
to both the timing and duration of such leave. This provision ensures
that employees have the ability to take job-protected FMLA leave for
unforeseen circumstances, but also requires effective communication
between employees and employers regarding such leave so that it does
not adversely impact or burden the employer's business operations.
While many members of the National Guard and Reserve receive their
orders as far as several months in advance, thereby allowing abundant
time to plan for the covered military member's absence, there may be
some situations where some members of the National Guard and Reserve
receive their notices or orders only a few days in advance. The
Department recognizes that in these circumstances, a number of personal
arrangements must be made by the covered military member and his or her
family member in a very short period of time. Section 825.126(a)(1) of
the final rule therefore allows leave to address any issue that arises
from the fact that a covered military member is notified of an
impending call or order to active duty seven or less calendar days
prior to the date of deployment. Leave taken for this purpose can be
used for a period of seven calendar days beginning on the date the
covered military member is notified of an impending call or order to
active duty. During this seven day period, an employee may take FMLA
leave without demonstrating that the need for leave otherwise qualifies
as an exigency under one of the other provisions of Sec. 825.126(a).
The employee also may take FMLA leave during this seven day period for
any other exigency specifically enumerated in the other provisions of
Sec. 825.126(a). For example, if an employee's spouse receives orders
to active duty in support of a contingency operation on October 5, and
will be deployed on October 9, the employee would be eligible for leave
under this section on October 5, 6, 7, 8, 9, 10, and 11 and may take
such leave in order to make or update financial or legal arrangements,
to spend time with the military member, or for any other reason related
to the call or order to active duty. Leave taken by the employee
outside of these seven days must qualify under one of the other
exigencies listed in Sec. 825.126(a).
Section 825.126(a)(2) of the final rule allows qualifying exigency
leave for military events and related activities to attend any official
ceremony, program, or event sponsored by the military and to attend
family support or assistance programs and informational briefings
sponsored or promoted by the military, military service organizations,
or the American Red Cross that are related to the active duty or call
to active duty status of a covered military member. This provision is
self-explanatory. The Department believes that activities sponsored by
the military, a military service organization, or the American Red
Cross which relate to the active duty or call to active duty status of
the military member are precisely the types of activities Congress
intended to cover when extending job-protected FMLA leave to the family
members of covered military members. Among other things, this provision
is intended to cover leave taken for arrival and departure ceremonies,
pre-deployment briefings, briefings for the family during the period of
deployment, and post-deployment briefings which occur while the covered
military member is on active duty or call to active duty status.
The Department received a large number of comments regarding the
use of exigency leave to arrange for and provide childcare. Several
commenters distinguished between arranging or planning for childcare,
where the need is directly caused by the covered military member's call
to active duty status, and routine situations, such as a babysitter
canceling, or having to arrive late or leave early to drop off or pick
up a child, arguing that the former should qualify as an exigency while
the latter should not. See Equal Employment Advisory Council; National
Association of Manufacturers; National Coalition to Protect Family
Leave. In contrast, the National Partnership for Women & Families, in
joint comments with the National Military Family Association, and
Senator Dodd and Representative Woolsey et al. urged the Department to
permit a broader set of childcare related circumstances to be
qualifying exigencies, such as: Finding child care, enrolling in new
schools, changing a work schedule to pick up or drop off children,
arranging for summer care, attending school functions, attending
counseling for the child, and transporting the child to and from
medical or tutoring appointments and afterschool activities.
Section 825.126(a)(3) of the final rule allows qualifying exigency
leave for a broad array of childcare and school activities in accord
with the floor statements by the Members of the U.S. House of
Representatives who sponsored this provision. In formulating the list
of childcare and school activities that are qualifying exigencies, the
Department identified childcare and school activities that require
attention because the covered military member is on active duty or call
to active duty status, rather than routine events that occur regularly
for all parents. Section 825.126(a)(3)(i) allows qualifying exigency
leave to arrange for alternative childcare when the active duty or call
to active duty status of a covered military member necessitates a
change in the existing childcare arrangement. This could include, for
example, leave to enroll a child in a summer camp or similar kind of
summer day care at the end of the school year if a covered military
member is still on active duty or call to active duty status. It would
also cover circumstances where the absence of a covered military member
because of active duty status disrupts the preexisting childcare
arrangement, such as when the covered military member is no longer
present to transport a child to and/or from childcare and the employee
must take qualifying exigency leave to make new arrangements.
Section 825.126(a)(3)(ii) allows qualifying exigency leave to
provide
[[Page 67960]]
childcare on an urgent, immediate need basis (but not on a routine,
regular, or everyday basis) when the need to provide such care arises
directly or indirectly from the active duty or call to active duty
status of a covered military member. This provision would permit, for
example, an eligible employee to take leave to care for the child of a
covered military member on active duty if the child has become sick and
needs to be immediately picked up from daycare or school. The employee
could provide immediate childcare on a temporary basis, but would be
expected to find alternative childcare if the child's illness
continues.
Section 825.126(a)(3)(iii) allows an employee to enroll in or
transfer a child to a new school or day care facility when enrollment
or transfer is necessitated by the active duty or call to active duty
status of a covered military member. Such leave may be used, for
example, to enroll a child into a new school or day care facility
during the school year when the child has moved or relocated due to the
active duty or call to active duty status of a covered military member.
Lastly, Sec. 825.126(a)(3)(iv) allows qualifying exigency leave to
attend meetings with staff at a school or a daycare facility, such as
meetings with school officials regarding disciplinary measures, parent-
teacher conferences, or meetings with school counselors, when such
meetings are necessary due to circumstances arising from the active
duty or call to active duty status of a covered military member. The
Department has heard firsthand from military family organizations how
children are impacted by the absence of a parent who is on active duty
and believes that it is appropriate to permit family members of these
covered military members to take FMLA leave in order to attend school
meetings when such meetings are necessary due to circumstances arising
from the active duty or call to active duty status of a covered
military member. The Department does not, however, intend for this
leave to be used to meet with staff at a school or daycare facility for
routine academic concerns.
The Department received many comments regarding the ability to take
leave to make financial and legal arrangements. Several commenters
stated that making financial or legal arrangements to address the
covered military member's leave should be included. See U.S. Postal
Service; National Coalition to Protect Family Leave; Association of
Corporate Counsel's Employment and Labor Law Committee; Senator Dodd
and Representative Woolsey et al.. The National Coalition to Protect
Family Leave suggested that the final determination ``should be subject
to an overriding case-by-case determination by the employer,'' and also
suggested that preparation of the following legal documents should be
qualifying exigencies: ``last will and testament, living trust,
financial and health care powers of attorney, safety deposit box,
beneficiary designations on financial accounts and insurance plans/
policies, signatory authorizations on bank accounts, [and] change of
address on mail delivery so that bills and other important
communications are forwarded to the appropriate person.'' TOC
Management Services emphasized that there should be a nexus between the
financial or legal arrangement and the covered military member's
deployment. As an example, it pointed to an employee who needs leave to
go to a bank only open during work hours when the employee's deploying
spouse's signature is necessary to withdraw money, in which case there
is a sufficient nexus, versus an employee who needs leave to shop for a
new car that is needed because of the spouse's deployment, in which
case there is not a sufficient nexus. Senator Dodd and Representative
Woolsey et al. suggested that leave should be allowed to prepare a
will, refinance a mortgage, or designate a power of attorney, as well
as to address legal or financial situations that arise during or after
deployment. In addition, the National Partnership for Women & Families,
in joint comments with the National Military Family Association,
suggested that the Department should include ``[a]cting as
servicemember's representative in front of federal or state agencies or
the military in order to obtain benefits'' as an example of a
qualifying exigency.
As suggested by the floor statements of Representatives Jason
Altmire, Tom Udall, and George Miller, the Department agrees that
Congress intended employees to be able to take qualifying exigency
leave to make certain financial or legal arrangements. Therefore, Sec.
825.126(a)(4)(i) allows qualifying exigency leave to make or update
financial or legal arrangements to address the covered military
member's absence while on active duty or call to active duty status,
such as preparing and executing financial and healthcare powers of
attorney, transferring bank account signature authority, enrolling in
the Defense Enrollment Eligibility Reporting System (``DEERS''),
obtaining military identification cards, or preparing or updating a
will or living trust. While this list of examples is not exclusive, it
does illustrate that leave under this provision is intended to address
issues directly related to the covered military member's absence, and
not routine matters such as paying bills. Section 825.126(a)(4)(ii)
allows such leave to be taken to act as the covered military member's
representative before a federal, state, or local agency for purposes of
obtaining, arranging, or appealing military service benefits while the
covered military member is on active duty or call to active duty
status, and for a period of 90 days following the termination of the
covered military member's active duty status.
Many commenters discussed the inclusion of counseling as a
qualifying exigency. Fisher & Phillips stated that ``attending
counseling related to the service member's active duty is a medical
issue, and * * * this form of leave is not designed for medical
issues.'' Similarly, the Illinois Credit Union League stated that
``counseling should not constitute an example of an exigency, as it is
a recurrent activity and is medically related.'' On the other hand, the
National Partnership for Women & Families, in joint comments with the
National Military Family Association, offered that attending counseling
for children, for oneself, or for the covered military member should be
listed as examples of qualifying exigencies. The U.S. Postal Service
also listed ``attending counseling related to the covered military
member's active duty'' as a non-medical exigency. Senator Dodd and
Representative Woolsey et al. commented that a ``servicemember deploys
to Iraq, leaving behind a wife, children, and parents. This deployment
places a significant mental strain on each of these individuals, and
these family members should be permitted to use leave to attend mental
health counseling, alone or as a group.''
The Department expects that most counseling will fall under the
existing FMLA but recognizes that there may be circumstances wherein
military families may seek counseling that is non-medical in nature.
Section 825.126(a)(5) allows qualifying exigency leave to attend
counseling provided by someone other than a healthcare provider for
oneself, for the covered military member, or for the biological,
adopted, or foster child, a stepchild, or a legal ward of the covered
military member, or a child for whom the covered military member stands
in loco parentis, who is either under age 18, or age 18 or older and
incapable of self-care because of a mental or physical disability at
the time
[[Page 67961]]
that FMLA leave is to commence, provided that the need for counseling
arises from the active duty or call to active duty status of a covered
military member. This provision is intended to cover counseling not
already covered by the FMLA because the provider is not recognized as a
health care provider as defined in Sec. Sec. 825.125 and 825.800. For
example, this could include counseling provided by a military chaplain,
pastor, or minister, or counseling offered by the military or a
military service organization that is not provided by a health care
provider. In any instance where the need for counseling arises from a
serious health condition, the employer has a right to require a WH-380
certification. See Sec. 825.305.
A few comments expressed concern about allowing qualifying exigency
leave for rest and recuperation and similar leave. The Chamber
recommended that ``an employer should not be required to provide an
employee a 45-day non-emergency leave of absence to vacation with a
military service member who is on a Rest and Recuperation (``R&R'')
leave overseas.'' See also ORC Worldwide; HR Policy Association. The
Independent Bakers Association, in contrast, suggested that ``R&R
should be included'' as an exigency ``as it does occur during active
duty.''
Given the importance of fostering strong relationships among
military families, and the limited opportunities available for covered
military members to spend time with their families while on active
duty, the Department believes it is appropriate for qualifying exigency
leave to be used for a limited time while a covered military member is
on leave from active duty. Section 825.126(a)(6) of the final rule
allows qualifying exigency leave for rest and recuperation to spend
time with a covered military member who is on short-term, temporary
leave while on active duty in support of a contingency operation. This
temporary leave covers rest and recuperation leave taken during the
period of deployment. The final rule limits the use of leave under this
provision to a period of up to five days of leave for each instance of
rest and recuperation.
The Department also received comments regarding coverage of certain
post-deployment activity. The National Military Family Association
urged the Department to ``make clear that post-deployment goes beyond
the service member's return home'' and suggested, for example, that
``the spouse of a National Guard member should be able to use FMLA
leave to attend a post-deployment reintegration weekend, sponsored by
the unit, 90 days after the unit returned home.'' Senator Dodd and
Representative Woolsey et al. noted that ``[p]rior to and up to 90 days
following the deployment, the military will likely provide a number of
deployment briefings or screenings aimed at providing servicemembers
and their families with information related to the deployment, as well
as mental and physical health screenings[,]'' and that the
participation of family members in such briefings ``is critical.'' The
Military Family Research Institute at Purdue University expressed
concern that ``there is little acknowledgement that the post-deployment
period also requires completion of a substantial set of logistical
tasks, as well as substantial personal adjustments and extensive
training.'' This commenter stated further that:
Service members in both the active and reserve components are
required to attend reintegration briefings and mandatory assessments
of physical and mental health following return from deployment, and
family members are encouraged to attend many of the reintegration
activities, some of which are held away from home and may require
overnight stays. In the reserve component, service members are
placed on active duty for the purpose of attending these activities
* * * it would be appropriate to consider this active duty related
to a contingency operation * * *. [I]t would be in the best interest
of families for the regulation * * * to acknowledge that post-
deployment reintegration training and assessments are important * *
* [and] have a great deal to do with the well-being of service
members and family members.
The Department recognizes the importance of post-deployment
activities for military families. Section 825.126(a)(7) allows leave to
attend arrival ceremonies, reintegration briefings and events, and any
other official ceremony or program sponsored by the military for a
period of 90 days following the termination of the covered military
member's active duty status. This provision also allows an employee to
take leave to address issues that arise from the death of a covered
military member on active duty, such as meeting and recovering the body
of the covered military member and making funeral arrangements. The
Department is mindful of the statutory language of the NDAA that leave
for a qualifying exigency must arise out of the fact that a covered
military member ``is'' on active duty or has been notified of an
impending call to active duty status in support of a contingency
operation. The present tense used in the statutory language places
certain limitations on the Department's ability to allow for activities
that occur once the covered military member is no longer on active
duty. A reasonable reading of the statute, however, allows for a
limited number of post-deployment activities, the need for which
immediately and foreseeably arise once the servicemember is on active
duty or has been notified of an impending call to active duty status in
support of a contingency operation. Providing an unlimited post-
deployment leave entitlement, however, would strain the statutory
limitation and could impose unreasonable burdens on employers years
after the period of active duty has ended.
Relying on the comments by the National Military Family Association
and Senator Dodd and Representative Woolsey et al., the Department
believes a period of 90 days following the covered military member's
return from active duty status is a sufficient amount of time to cover
relevant post-deployment activities. The Department also notes that as
part of the Yellow Ribbon Reintegration Program, which was established
by the NDAA, the Department of Defense (``DOD'') will provide
reintegration programs for National Guard and Reserve members and their
families at approximately 30-, 60-, and 90-day intervals following
demobilization, release from active duty, or full-time National Guard
Duty. Because the Yellow Ribbon Reintegration Program was also
established by the NDAA, it is appropriate that the reintegration
programs created under the Yellow Ribbon Reintegration Program be
included as events for which employees can take leave under the
military family leave provisions. The 90-day time frame in Sec.
825.126(a)(7) is intended to cover any programs considered to be 90-day
reintegration programs sponsored by the DOD. Programs that are a part
of the DOD's 90-day reintegration event should be considered a
qualifying exigency under Sec. 825.126(a)(7) even when such programs
may fall a few days outside the period of 90 days following the
termination of the covered military member's active duty.
Section 825.127 (Leave To Care for a Covered Servicemember With a
Serious Injury or Illness) (i.e., ``Military Caregiver Leave'')
Section 585(a) of the NDAA amends the FMLA to allow an eligible
employee who is the spouse, son, daughter, parent, or next of kin of a
``covered servicemember'' to take 26 workweeks of leave during a 12-
month period to care for the servicemember. The provisions in the NDAA
providing for military caregiver leave became effective
[[Page 67962]]
January 28, 2008. In order to provide guidance to employees and
employers about this new leave entitlement as soon as possible, the
NPRM sought public comment on a number of issues related to the
development of regulations to implement the military caregiver leave
provisions, and stated that the next step in the rulemaking process
would be to issue final regulations. In the interim, the Department has
required that employers act in good faith in providing military
caregiver leave under the new legislation by using existing FMLA-type
procedures as appropriate. In order to address issues unique to the
taking of this leave, the final rule creates a new Sec. 825.127, which
explains: (1) An employee's entitlement to military caregiver leave;
and (2) the specific circumstances under which military caregiver leave
may be taken.
Entitlement to Military Caregiver Leave
Under the NDAA, an eligible employee who is the spouse, son,
daughter, parent, or next of kin of a covered servicemember shall be
entitled to a total of 26 workweeks of leave during a ``single 12-month
period'' to care for the servicemember. The NPRM requested comment on a
number of issues relating to an eligible employee's entitlement to such
leave. For example, the Department sought public comment on the
definition of a ``covered servicemember,'' as well as on the scope of
injuries or illnesses for which care may be provided under the new
leave entitlement. The Department also sought public comment on the
required family relationship between the employee seeking to take
military caregiver leave and the covered servicemember, including how
the Department should define the terms ``next of kin'' and ``son or
daughter'' for purposes of such leave.
Section 825.127(a) of the final rule explains that an eligible
employee may take FMLA leave to care for a covered servicemember with a
``serious injury or illness'' incurred in the line of duty on active
duty for which the servicemember is (1) undergoing medical treatment,
recuperation, or therapy; or (2) otherwise in outpatient status; or (3)
otherwise on the temporary disability retired list. This section
incorporates the NDAA's statutory definition of a ``covered
servicemember'' and clarifies that the definition of a ``covered
servicemember'' includes current members of the Regular Armed Forces,
current members of the National Guard or Reserves, and members of the
Regular Armed Forces, the National Guard and the Reserves who are on
the temporary disability retired list (``TDRL''). Under the final
regulations, former members of the Regular Armed Forces, former members
of the National Guard and Reserves, and members on the permanent
disability retired list are not considered covered servicemembers.
Section 825.127(b) of the final regulations defines who may take leave
to care for a ``covered servicemember.'' This section sets forth
definitions for ``son or daughter of a covered servicemember,''
``parent of a covered servicemember'' and ``next of kin''--all of which
are new terms applicable only to the taking of military caregiver leave
by an eligible employee.
Who Is a Covered Servicemember
In order for an eligible employee to be entitled to take FMLA leave
to care for a servicemember, the NDAA requires that the servicemember
be a ``covered servicemember'' who is receiving treatment for a
``serious injury or illness'' that ``may render the member medically
unfit to perform the duties of the member's office, grade, rank, or
rating.'' A ``covered servicemember'' is defined by statute as a member
of the Armed Forces, including a member of the National Guard or
Reserves, who is undergoing medical treatment, recuperation, or
therapy, is otherwise in ``outpatient status,'' or is otherwise on the
temporary disability retired list, for a ``serious injury or illness.''
29 U.S.C. 2611(16). A ``serious injury or illness'' is defined by the
NDAA as an injury or illness incurred by the covered servicemember in
line of duty on active duty in the Armed Forces that may render the
member medically unfit to perform the duties of the member's office,
grade, rank, or rating. 29 U.S.C. 2611(19).
In light of the NDAA's focus on a servicemember's ability to
perform his or her military duties when determining whether the
servicemember is a ``covered servicemember'' with a ``serious injury or
illness,'' the Department sought comments on whether eligible employees
were entitled to take FMLA leave to care for a servicemember whose
serious injury or illness was incurred in the line of duty, but does
not manifest itself until after the servicemember has left military
service. The Department asked how, in such circumstances, one would
determine whether the injury or illness renders, or may render, the
former servicemember medically unfit to perform the duties of the
member's office, grade, rank, or rating, when the servicemember is no
longer in the military.
The majority of the comments received by the Department on this
issue took the position that the clear statutory language of the NDAA
amendments does not provide for the taking of military caregiver leave
for a servicemember whose injury or illness manifests itself after the
servicemember has left military service. For example, the National
Association of Manufacturers stated that ``by statutory definition, a
`serious injury or illness' is one `that may render the member
medically unfit to perform the duties of the member's office, grade,
rank, or rating'. A person who is discharged from the service is no
longer a `member' of the service and is not included in the
definition.'' Jackson Lewis concurred with this view stating that the
statutory language ``requires that the condition render the
servicemember `medically unfit to perform the duties of the member's
office, grade, rank, or rating.' This language suggests the condition
must present while the servicemember is still active in the military.''
Jackson Lewis presented, as a ``practical matter,'' the additional
complications that would result in the FMLA medical certification
process if such coverage was permitted:
Given the complications that have arisen in the past 15 years
over the certification process for serious health conditions,
imagine the difficulty of requiring physicians and employers to
determine, potentially years later, whether a condition was
triggered in the line of duty and whether its belated presentation
renders the service member unfit to perform his or her office,
grade, or rank from months or years prior.
Id. The U.S. Postal Service stated that the NDAA provisions ``clearly
limit the definition of `covered servicemember' to those who are
current members of the Armed Forces. Accordingly, a servicemember who
resigns or retires from the Armed Services is not a covered
servicemember.'' This commenter recognized, however, that a ``retired
servicemember would nonetheless be covered if he or she were on the
Temporary Disability Retired List.''
A minority of commenters took the position that FMLA leave should
be available to care for a covered servicemember whose injury or
illness manifests itself after the servicemember has left military
service. Senator Dodd and Representative Woolsey et al. stated:
``Congress certainly did not intend to disqualify injuries that
servicemembers incurred in the line of duty, simply because those
injuries did not develop or were not diagnosed until after they left
the service.'' The National Partnership for Women & Families, in joint
comments with the National
[[Page 67963]]
Military Family Association, also asserted that ``nothing'' in the NDAA
indicates that ``retired or discharged servicemembers'' should be
denied coverage.
The Department concludes that the statutory language providing for
military caregiver leave does not extend the right to take FMLA leave
to providing care to retired military servicemembers (unless such
individuals are on the temporary disability retired list) or to
discharged military servicemembers. While Congress expressly provided
that leave could be taken to care for a servicemember on the temporary
disability retired list, Congress did not include language indicating
its desire to include other discharged or retired members of the Armed
Forces, National Guard, or Reserves as ``covered servicemembers.''
Moreover, the standard provided by Congress for determining if a
covered servicemember has a serious injury or illness (i.e., whether
the condition ``may render the member medically unfit to perform the
duties of the member's office, grade, rank, or rating'') cannot be
readily applied to those who are no longer serving in the Regular Armed
Forces, National Guard or Reserves. Accordingly, Sec. 825.127(a) of
the final rule provides that the term ``covered servicemember'' does
not include individuals retired or discharged from service, unless they
are placed on the temporary disability retired list.
In addition to requiring that the member of the military for whom
care is needed has a serious injury or illness, the NDAA also requires
that the member be (1) undergoing medical treatment, recuperation, or
therapy; (2) otherwise in outpatient status; or (3) on the temporary
disability retired list. See 29 U.S.C. 2611(16). In the NPRM, the
Department suggested that, since determining whether a member of the
military is in ``outpatient status'' or on the temporary disability
retired list for a serious illness or injury would likely be relatively
straightforward, no further clarification of those portions of the
definition of covered servicemember would be needed. As to whether a
servicemember was ``undergoing medical treatment, recuperation, or
therapy'' for a serious injury or illness, the Department's initial
view, as stated in the NPRM, was that all treatment, recuperation, or
therapy provided to a servicemember for a serious injury or illness,
and not just that provided by the military, should be covered. However,
the Department sought public comments on this issue. Additionally, the
Department asked whether there should be a temporal proximity
requirement between the covered servicemember's injury or illness and
the treatment, recuperation, or therapy for which care is required. The
Department also asked if it should rely on a determination made by the
Department of Defense (``DOD'') as to whether a servicemember is
undergoing medical treatment, recuperation, or therapy for a serious
injury or illness.
Comments from employers and employer groups regarding the coverage
of servicemembers who receive treatment, recuperation or therapy from a
non-military source were mixed. The U.S. Postal Service believed that
allowing coverage for an illness or injury treated solely by a private
health care provider, wholly outside the system of care provided by the
military, is ``inconsistent'' with the definitions provided in the NDAA
and is also ``contrary to the express language of the [NDAA] and to its
legislative history.'' On the other hand, the Equal Employment Advisory
Council stated that certification provided by the DOD should be
sufficient to certify a ``serious injury or illness'' so long as the
military branches are ``capable'' of providing the certification
regardless of whether the treatment, recuperation, or therapy is being
supplied by an Armed Forces or a ``civilian provider.''
The National Partnership for Women & Families, in joint comments
with the National Military Family Association, believed any treatment,
recuperation, or therapy, and not just that provided by the military,
should qualify. They argued that: (1) The statute makes no distinction
between servicemembers treated by the military and those who are not;
(2) servicemembers are, in fact, treated by both the military and
private facilities; and (3) wounded servicemembers may not be located
near a military treatment facility (which will make it more difficult
for the servicemembers and their family members). The Military Family
Research Institute at Purdue University also argued that care provided
by non-military sources should be covered, noting that ``[m]embers of
the reserve component are expected to receive some or all of their care
from providers in civilian communities.''
Both the DOD and the Department of Veterans Affairs (``VA'') have
informed the Department that individuals who would be deemed ``covered
servicemembers'' under the NDAA do not receive care solely from DOD
health care providers, and that such ``covered servicemembers'' also
may receive care from either VA health care providers or DOD TRICARE
military health system authorized private health care providers.\4\ It
is the Department's understanding based on discussions with the DOD and
the VA that members of the National Guard and Reserves and
servicemembers on the temporary disability retired list are more likely
to receive care from DOD TRICARE authorized private health care
providers than from DOD or VA health care providers, especially if the
servicemember resides in a rural or remote area.
---------------------------------------------------------------------------
\4\ TRICARE is the health care program serving active duty
service members, National Guard and Reserve members, retirees, their
families, survivors and certain former spouses worldwide. As a major
component of the Military Health System, TRICARE brings together the
health care resources of the uniformed services and supplements them
with networks of civilian health care professionals, institutions,
pharmacies and suppliers to provide access to high-quality health
care services while maintaining the capability to support military
operations. To be eligible for TRICARE benefits, one must be
registered in the Defense Enrollment Eligibility Reporting System
(DEERS). See http://tricare.mil/mybenefit/home/overview/
WhatIsTRICARE. The Military Health System is a partnership of
medical educators, medical researchers, and healthcare providers and
their support personnel worldwide. This DOD enterprise consists of
the Office of the Assistant Secretary of Defense for Health Affairs;
the medical departments of the Army, Navy, Marine Corps, Air Force,
Coast Guard, and Joint Chiefs of Staff; the Combatant Command
surgeons; and TRICARE providers (including private sector healthcare
providers, hospitals, and pharmacies). See http://mhs.osd.mil/
aboutMHS.aspx.
---------------------------------------------------------------------------
After due consideration of the comments, and taking into account
the information provided by the DOD and VA regarding the current
provision of medical care to servicemembers intended to be covered by
the NDAA, the Department believes that military caregiver leave should
not be limited to caring for only those servicemembers who receive
medical treatment, recuperation or therapy from a DOD health care
provider. Accordingly, Sec. 825.127 of the final rule does not require
that a servicemember be receiving medical treatment, recuperation, or
therapy from a DOD health care provider in order to be a ``covered
servicemember.'' As discussed more fully under Sec. 825.310 addressing
certification for military caregiver leave, the final rule provides
that a request to take military caregiver leave may be supported by a
certification that is completed by any one of the following health care
providers: (1) A DOD health care provider; (2) a VA health care
provider; (3) a DOD TRICARE network authorized private health care
provider; or (4) a DOD non-network TRICARE authorized private health
care provider. As part of a sufficient certification, these health care
providers may be asked to certify that the servicemember is undergoing
medical treatment,
[[Page 67964]]
recuperation, or therapy for a serious injury or illness.
With respect to whether there should be a temporal proximity
requirement between the covered servicemember's injury or illness and
the treatment, recuperation, or therapy for which care is required,
most employers and employer groups argued that such a requirement
should be imposed. The Equal Employment Advisory Council, the Illinois
Credit Union League, the International Public Management Association
for Human Resources (in joint comments with the International Municipal
Lawyers Association), and the Pennsylvania Governor's Office of
Administration all believed that there should be a ``one year''
temporal proximity requirement. The International Public Management
Association for Human Resources, in joint comments with the
International Municipal Lawyers Association, wrote that providing a
time-frame will ``bring needed certainty to the law,'' and that,
``[f]or long-term recoveries, employees remain entitled to the 12 weeks
of leave provided under the FMLA.'' AT&T argued that the DOD or the VA
``should also determine if there should be a temporal proximity
requirement between the servicemember's injury or illness and the
treatment, recuperation or therapy.''
On the other hand, the College and University Professional
Association for Human Resources wrote that ``[n]othing in the statutory
language appears to support a temporal limitation between injury and
treatment, but the NDAA does require the servicemember be `a member of
the Armed Forces'. This seems to suggest that the individual must have
some continued connection to the military.'' The Association of
Corporate Counsel's Employment and Labor Law Committee also did not
advocate a temporal proximity requirement because it viewed such a time
limitation as ``artificial'' and argued it could deny leave to family
of servicemembers who are undergoing care for an injury caused in the
line of duty. This commenter argued, however, that ``because it is
important to establish a causal connection between the care provided
and the military service, we do believe that the Department should
limit the definition to include only care provided by the Armed Forces,
including Veterans hospitals and those to whom the Armed Forces has
delegated the task of providing health care.'' This commenter viewed
the latter type of limitation ``to be much more fair to employees than
a temporal proximity requirement as it is more closely aligned with the
goals of the statute--to provide leave to family members when their
loved one is seeking treatment for an injury sustained in the line of
duty.''
Employee groups also generally argued against the imposition of any
temporal proximity requirement. The National Partnership for Women &
Families, in joint comments with the National Military Family
Association, stated that ``[a]s long as a health care provider
certifies that the servicemember's injury or illness led to the
treatment, recuperation or therapy, the leave should qualify under the
injured servicemember FMLA provisions.'' Finally, Senator Dodd and
Representative Woolsey et al., also stated that the Department should
not impose a temporal proximity requirement because ``the relevant
question is whether the servicemember, at the time of diagnosis or
treatment, might not be able to perform the duties that he or she had
when he or she was on active duty, in light of the diagnosed injury or
illness.''
Given that the entitlement to military caregiver leave is limited
to providing care to current members of the Regular Armed Forces, the
National Guard, and Reserves or those on the temporary disability
retired list, the Department does not believe that a temporal proximity
requirement is necessary. As long as the servicemember's injury or
illness is a serious one which may render the member medically unfit
and was incurred in the line of duty on active duty, and the
servicemember is a current member of the Armed Forces, the National
Guard, or Reserves undergoing medical treatment, recuperation or
therapy, in outpatient status, or on the temporary disability retired
list because of the injury or illness, an eligible family member may
take FMLA leave to provide care to the servicemember. In most cases,
the Department believes that the need to care for the servicemember and
the date of the onset of injury or illness will be close in time. While
the Department recognizes that the NDAA includes servicemembers who are
on the temporary disability retired list, the Department notes that an
individual may remain on the temporary disability retired list no
longer than five years before he or she is either returned to active
duty service or assigned permanent disability (in which case the
individual would no longer be a ``covered servicemember'' under the
NDAA). See http://www.tricare.mil/mhsophsc/mhs_supportcenter/glossary/
Tg.htm. Moreover, because the NDAA provides that an eligible employee
may only take FMLA leave during a ``single 12-month period'' to care
for a covered servicemember with a particular serious injury or
illness, the Department does not believe that further limiting the time
period between the date of the injury or illness and the need to
provide care is necessary.
The Department also received comments that addressed whether the
military caregiver leave provisions only extend to family members
providing care to members of the National Guard and Reserves, or
whether eligible employees also may take such leave to care for members
of the Regular Armed Forces with a serious injury or illness.
Commenters, including Spencer Fane Britt & Browne, the National
Coalition to Protect Family Leave, and the Society for Human Resource
Management, noted that the NDAA provision defining the term ``serious
injury or illness'' provides that ``[t]he term `serious injury or
illness', in the case of a member of the Armed Forces, including a
member of the National Guard or Reserves, means an injury or illness
incurred by the member in line of duty on active duty in the Armed
Forces * * *'' 29 U.S.C. 2611(19) (emphasis added). These commenters
asked the Department to reconcile the language of this provision which
specifically includes both Regular Armed Forces and members of the
National Guard and Reserves with the requirement that the injury or
illness be incurred while on ``active duty''--a term which is also
defined by the NDAA and, as discussed above with respect to qualifying
exigency leave, is limited to members of the National Guard and
Reserves.
While these commenters noted that the NDAA definition of ``active
duty'' is limited to National Guard and Reserve members, the commenters
argued that, in the context of military caregiver leave, ``Congress
obviously did not intend to limit [such] leave to only those in the
National Guard or Reserve.'' The law firm of Willcox & Savage contended
that Congress' inclusion of the term ``active duty'' in the definition
of ``serious injury or illness'' creates an ``internal and
irreconcilable inconsistency'' because limiting the definition of
``active duty'' to the National Guard and Reserves is not
``consistent'' with the language ``including a member of the National
Guard and Reserves'' in the definition of serious injury or illness.
Like Spencer Fane Britt & Browne and the National Coalition to Protect
Family Leave, Willcox & Savage believed that the Department should
``clarify'' this ``internal irreconcilable inconsistency'' in its final
regulations.
The Department agrees that applying the NDAA's definition of
``active duty''
[[Page 67965]]
to the provisions regarding military caregiver leave renders other
language in those provisions superfluous. Specifically, applying the
narrow definition of ``active duty'' found in section 585(a)(1) of the
NDAA (29 U.S.C. 2611(14)) would undermine the specific statutory
language in the military caregiver leave provisions defining a covered
servicemember as ``a member of the Armed Forces, including a member of
the National Guard and Reserves'' (29 U.S.C. 2611(16)) and defining a
``serious injury or illness'' in the case of a ``a member of the Armed
Forces, including a member of the National Guard and Reserves'' (29
U.S.C. 2611(19)). As the law firm of Willcox & Savage wrote, the
inclusion of the specific language ``including a member of the National
Guard and Reserves'' in the NDAA's definition of ``serious injury or
illness'' suggests that Congress intended broader coverage for military
caregiver leave than for qualifying exigency leave. Unlike qualifying
exigency leave, where the need for FMLA leave to address pre-
deployment, during deployment, and post-deployment situations may be
unique to National Guard and Reserve families who are typically not
accustomed to having their family member deployed, the need for FMLA
leave to care for a seriously injured or ill servicemember is the same
whether the servicemember is a member of the Regular Armed Forces or
the National Guard or Reserves. Accordingly, the Department has
concluded that the better reading of the NDAA provisions providing for
military caregiver leave extends such leave to family members providing
care to members of the Regular Armed Forces, as well as members of the
National Guard and Reserves, with a serious injury or illness. Section
825.127(a) reflects this conclusion.
Several commenters, including Spencer Fane Britt & Browne and the
National Coalition to Protect Family Leave, also argued that the
inclusion of the term ``active duty'' in the definition of ``serious
injury or illness'' indicates that the injury or illness must be
incurred while the servicemember is serving under a call to active duty
under one of the statutory provisions cited in 10 U.S.C. 101(a)(13)(B),
and that this language meant that injuries or illnesses incurred by
National Guard or Reserve members who have not actually been called to
active duty by the federal government should not be considered a
``serious injury or illness'' for the purpose of taking FMLA leave. The
Society for Human Resource Management also asserted its belief that
``caregiver leave apparently was not intended to cover illnesses/
injuries incurred by National Guard or Reserve members who have not
actually been called to active duty by the federal government, e.g.,
where a State has a state-related emergency and the National Guard is
called to duty by the Governor of the State.''
For the reasons discussed immediately above, the Department has
decided not to apply the NDAA definition of ``active duty'' to the
provisions regarding military caregiver leave because to do so renders
other language in those provisions superfluous. Additionally, the
Department believes it is important to remember that the NDAA military
caregiver leave provision amending the FMLA was based upon the
recommendation of the July 2007 Report of the President's Commission on
Care for America's Returning Wounded Warriors, ``Serve, Support,
Simplify: Report of the President's Commission on Care for America's
Returning Wounded Warriors'' (2007) (commonly referred to as either the
Wounded Warriors Report or the Dole-Shalala Report). This report
addressed the need for care of wounded warriors serving in the National
Guard or Reserves as well as those serving in the Regular Armed Forces.
Finally, consultations with the DOD have indicated that the NDAA
statutory definition of ``active duty'' applicable to qualifying
exigency leave is not one commonly used by the military when
determining whether a servicemember has incurred an injury or illness
in the line of duty. In light of this information, and after due
consideration of the comments regarding the definition of ``active
duty'' in the context of military caregiver leave, the Department
believes that the DOD, or its authorized health care representative, is
in the best position to determine whether an injury was ``incurred in
line of duty on active duty in the Armed Forces'' since those terms are
terms of art used by the military in other contexts. Accordingly, as
discussed in greater detail below with respect to the certification
requirements for taking military caregiver leave, the Department has
provided that an employer may request that an employee seeking to take
military caregiver leave obtain appropriate certification that a
servicemember's serious injury or illness was incurred in line of duty
on active duty. This approach allows an employer to verify that a
particular injury qualifies for FMLA leave under the military caregiver
leave provisions while providing appropriate deference to the
military's existing processes for determining whether an injury was
incurred in line of duty on active duty in the Armed Forces.
Who Is Entitled To Take Military Caregiver Leave
With respect to who may take military caregiver leave, the NDAA
provides that such leave is available to an eligible employee who is
the ``spouse, son, daughter, parent, or next of kin of a covered
servicemember.'' The Department sought comments on two specific issues
related to who is entitled to take military caregiver leave. First, the
Department asked whether the existing FMLA definition of ``son or
daughter'' should be applied to military caregiver leave. Second, the
Department asked a series of questions regarding how it should
interpret ``next of kin'' as that term does not apply to other types of
FMLA leave.
Under the existing FMLA definition of son or daughter, a son or
daughter must either be (1) under 18 years of age or; (2) 18 years of
age or older and incapable of self-care because of a mental or physical
disability. 29 U.S.C. 2611(12). Applying this definition to the
military caregiver leave entitlement would mean that most, if not all,
adult children would not be entitled to take military caregiver leave
to care for a parent who is a covered servicemember. This is so even
though the same adult child could care for their parent (covered
servicemember) if the parent's serious injury or illness also qualified
as a serious health condition under the FMLA. Recognizing that applying
the current definition of ``son or daughter'' for purposes of military
caregiver leave would severely undermine the clear intent of the NDAA
military caregiver provisions, the Department sought comment on whether
it would be appropriate to define the term ``son or daughter''
differently for purposes of FMLA leave taken to care for a covered
servicemember.
The majority of commenters--whether employer- or employee-focused--
believed it would be appropriate for the Department to apply a
different definition of ``son or daughter'' for leave taken to care for
a covered servicemember. For example, the National Partnership for
Women & Families, in joint comments with the National Military Family
Association, the National Coalition to Protect Family Leave, the
National Retail Federation, the Pennsylvania Governor's Office of
Administration, and the Legal Aid Society-Employment Law Center, all
agree that the term ``son or daughter''
[[Page 67966]]
should be defined to include adult children for purposes of military
family leave.
The comments submitted by Senator Dodd and Representative Woolsey
et al. stressed that it is appropriate and ``in fact crucial'' that the
Department define ``son or daughter'' differently for military
caregiver leave:
As DOL itself commented, it is absurd to extend leave only to
those sons or daughters of injured servicemembers who are under the
age of 18 or ``incapable of self-care.'' Moreover, Congress
demonstrated its intent for the terms ``son'', ``daughter'', and
``parent'' to have unique meanings under the military family
provisions of the FMLA, because it designated the ``employee'' as
the ``son, daughter, [or] parent'' of ``a covered service member'',
whereas the originally enacted FMLA provisions inversely designate
the ``employee'' as a person who takes leave to ``care for [his or
her] * * * son or daughter, or parent''.
The National Association of Manufacturers also commented that applying
the FMLA definition of ``son or daughter'' to the military family leave
provisions would not fulfill the intent of the law. Additionally, TOC
Management Services wrote that limiting the leave for children less
than 18 years of age would ``essentially defeat the spirit of the
law.'' While agreeing that a different definition of son or daughter
should be applied to the military caregiver leave provisions, the
National Coalition to Protect Family Leave recommended ``[t]he
definition of `son or daughter' should be retained `as is' for all
other forms of FMLA leave, including FMLA leave due to the serious
health condition of a son or daughter.''
The Department agrees with these commenters. Applying the existing
FMLA definition of ``son or daughter'' to the military caregiver leave
provision would significantly undermine the NDAA's extension of FMLA
leave to the son or daughter of a covered servicemember. Under nearly
all circumstances, doing so would mean that an adult son or daughter
would not be able to take leave to care for a covered servicemember
parent. The Department does not believe such a result was intended.
Accordingly, Sec. 825.127(b)(1) of the final rule establishes a
separate definition of ``son or daughter of a covered servicemember''
for the purpose of military caregiver leave. Section 825.127(b)(1)
defines a ``son or daughter of a covered servicemember'' as ``the
covered servicemember's biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the covered servicemember
stood in loco parentis, and who is of any age.'' See also Sec. Sec.
825.122 and 825.800. The Department also notes that this definition is
not intended to apply to leave taken for other FMLA-qualifying reasons.
The law firm of Spencer Fane Britt & Browne requested that the
Department also clarify the definition of ``parent'' for purposes of
military caregiver leave. The firm argued that a parent should only be
entitled to take military caregiver leave to care for a covered
servicemember son or daughter when the son or daughter is under the age
of 18, or 18 years or older and incapable of self-care because of a
mental or physical disability, because those restrictions currently
apply to leave taken by a parent to care for a child with a serious
health condition. To allow otherwise would be ``inherently unfair to
employees with adult children who are not serving in the military,''
according to this commenter. The Department does not agree with Spencer
Fane Britt & Browne's proposal to define ``parent'' in such a manner
for purposes of military caregiver leave. However, this commenter's
proposal did raise an issue that the Department believes must be
addressed in the final regulations. Under the existing FMLA definition
of parent, a parent means a biological, adoptive, step or foster father
or mother, or any other individual who stood in loco parentis to the
employee when the employee was a son or daughter. 29 U.S.C. 2611(7).
However, in the context of military caregiver leave, the parent who
seeks to take leave is the parent of the covered servicemember, not the
parent of the employee. Accordingly, Sec. 825.127(b)(2) establishes a
separate definition of ``parent of a covered servicemember'' for the
purpose of military caregiver leave. Section 825.127(b)(2) defines
``parent of a covered servicemember'' as the ``covered servicemember's
biological, adoptive, step or foster father or mother, or any other
individual who stood in loco parentis to the servicemember.'' See also
Sec. Sec. 825.122 and 825.800. This term does not include parents ``in
law.''
The NDAA also provides that a covered servicemember's ``next of
kin'' is eligible to take FMLA leave to care for the servicemember and
defines the term ``next of kin'' as the ``nearest blood relative'' of a
covered servicemember. 29 U.S.C. 2611(18). In the NPRM, the Department
sought comments on a number of issues relating to who should qualify as
an eligible next of kin, including (1) whether the Department should
adopt for FMLA purposes a list of individuals the DOD generally
considers to be the ``next of kin'' of a servicemember; (2) whether a
servicemember's next of kin should be limited to a single individual or
include relatives of close consanguinity; (3) whether a covered
servicemember could designate his or her next of kin for FMLA purposes,
including whether the Department should deem the servicemember's
Committed and Designated Representative (``CADRE'') as the next of kin
for FMLA purposes; and (4) whether an employer should be able to
confirm an employee's status as the next of kin.
Comments from employees and groups representing employees generally
argued in favor of creating a definition of next of kin that was as
comprehensive as possible. For example, the National Partnership for
Women & Families, in joint comments with the National Military Family
Association, proposed using a combination of the DOD list provided in
the NPRM, state law definitions, and the Department of Veterans Affairs
definition of domestic partners and partners, and also permitting more
than one individual to take leave as a servicemember's next of kin. See
also Legal Aid Society-Employment Law Center. Similarly, comments from
Senator Dodd and Representative Woolsey et al. asked the Department to
define the term next of kin in an ``expansive and flexible'' manner.
Comments from employers largely urged the Department to adopt a
rule that would ``simplify'' the administration of military caregiver
leave and provide ``clarity.'' U.S. Postal Service; see also University
of Texas System; WorldatWork. Many employers and employer
representatives, however, either expressed concern about the
appropriateness of relying on the DOD list for this purpose or argued
that the DOD list should only be adopted to the extent that it complied
with the statutory requirement that a servicemember's next of kin be a
blood relative. See, e.g., National Coalition to Protect Family Leave;
Association of Corporate Counsel's Employment and Labor Law Committee;
Hewitt Associates; Equal Employment Advisory Council; but see
Independent Bakers Association and Public Management Association for
Human Resources in joint comments with the International Municipal
Lawyers Association (supporting use of DOD list). Employers and
employer groups also urged the Department to avoid relying on state law
interpretations to define a servicemember's next of kin because such an
approach would be overly burdensome to employers with multi-state
operations and might be perceived as unfair since an individual's
eligibility
[[Page 67967]]
for FMLA leave would vary state by state. See, e.g., National School
Boards Association; Fisher & Phillips; Association of Corporate
Counsel's Employment and Labor Law Committee; TOC Management Services;
HR Policy Association; Spencer Fane Britt & Browne.
Many commenters representing employers asked the Department to
specify that only one individual is eligible to take military caregiver
leave as a servicemember's next of kin, with several noting the
potential burden of allowing multiple individuals to take 26 weeks of
leave. See, e.g., Association of Corporate Counsel's Employment and
Labor Law Committee; National Association of Manufacturers; Burr &
Forman. On the other hand, the National Coalition to Protect Family
Leave and the Society for Human Resource Management urged the
Department to avoid a ``literal interpretation of `nearest blood
relative' '' and to adopt a ``more practical interpretation'' such as
by defining next of kin as the ``nearest blood relative willing and
able to care for the injured service member.'' The law firm of Spencer
Fane Britt & Browne supported allowing multiple individuals to serve as
next of kin provided that all such individuals were the same level of
relationship to the servicemember.
A majority of commenters were in favor of permitting a
servicemember to designate his or her next of kin in some
circumstances. Senator Dodd and Representative Woolsey et al. stated
that ``most of all, the intent of Congress was for the servicemember,
and not the government'' to choose the family member who is in the
``best position'' to serve as his or her next of kin. These Members
stressed that ``whatever approach'' the Department chooses, a
servicemember ``should not be compelled'' to rely on a next of kin who
lives far away, is estranged from the servicemember, or is not equipped
to tend for the servicemember. See also National School Boards
Association (permit servicemember to designate any one person as next
of kin); Spencer Fane Britt & Browne (make list of next of kin subject
to any CADRE designation). The National Partnership for Women &
Families, in joint comments with the National Military Family
Association, supported recognizing a servicemember's designation of his
or her next of kin, although they argued that any such designation
should ``not mean that other family members cannot take leave.'' The
National Coalition to Protect Family Leave, the Society for Human
Resource Management, and the Chamber were in favor of relying on a
servicemember's CADRE designation as long as the NDAA's ``statutory
restrictions with respect to blood relatives'' were retained. Southwest
Airlines suggested that designation be allowed as an ``alternative''
and ``only'' in the event that the covered servicemember does not have
a nearest blood relative who falls within a specified next of kin list.
Several commenters, including the Equal Employment Advisory
Council, the National Partnership for Women & Families in joint
comments with the National Military Family Association, and the U.S.
Postal Service, stated that employers should be able to seek
confirmation of next of kin status in accordance with the existing FMLA
procedures for documenting other types of familial relationships. Other
commenters requested that the Department establish unique procedures
for confirming an employee's next of kin status. See, e.g., Society for
Human Resource Management and Spencer Fane Britt & Browne (both
suggesting verification by DOD in most cases).
Section 825.127(b)(3) of the final rule defines a servicemember's
``next of kin'' as the servicemember's nearest blood relative, other
than the covered servicemember's spouse, parent, son, or daughter, in
the following order of priority: blood relatives who have been granted
legal custody of the servicemember by court decree or statutory
provisions, brothers and sisters, grandparents, aunts and uncles, and
first cousins, unless the covered servicemember has specifically
designated in writing another blood relative as his or her nearest
blood relative for purposes of military caregiver leave under FMLA, in
which case the designated individual shall be deemed to be the covered
servicemember's next of kin. The final rule permits an employer to
confirm an employee's status as a covered servicemember's next of kin
through the procedures for confirming familial relationships set forth
in Sec. 825.122(j).
The Department believes that the final rule provides the
flexibility intended by Congress when providing that a servicemember's
next of kin may take military caregiver leave while also giving meaning
to the statutory requirement that the next of kin be the
servicemember's ``nearest blood relative.'' In the first instance, this
approach provides employees and employers with a clear rule to apply by
defining a list of familial relationships, in order of priority, which
will qualify an individual as a servicemember's nearest blood relative.
As suggested by a number of commenters, this list incorporates those
portions of the DOD list of next of kin that reflect blood
relationships and does not rely on the interpretation of state law. The
list also adds a servicemember's aunts, uncles and first cousins as
eligible next of kin based on the suggestions of commenters. The
Department has decided against relying on state law interpretations of
next of kin because it believes both employers and employees will be
best served by a consistent definition that does not vary by the
location of the employer, the employee or the covered servicemember.
The final rule also makes clear that the next of kin of a covered
servicemember is a relative other than the spouse, parent, son, or
daughter of the covered servicemember, as those individuals are
separately covered by the express terms of the statute. A number of
commenters suggested that a person who is not the servicemember's
spouse, son, daughter, or parent should only be considered ``next of
kin'' if ``none'' of the foregoing family members are available to
provide care. AT&T; see also Spencer Fane Britt & Browne. Because an
employee is not required to certify that he or she is the ``only''
individual available to provide care for a family member when taking
FMLA leave for other qualifying reasons, the Department declines to
impose such a requirement when an employee requests leave as a
servicemember's next of kin.
The final rule also provides that all family members sharing the
closest level of familial relationship to the servicemember shall be
considered the servicemember's next of kin, unless the servicemember
has specifically designated an individual as his or her next of kin for
military caregiver leave purposes. In the absence of a designation,
where a servicemember has three siblings, all three siblings will be
considered the servicemember's next of kin. The Department notes that
in such a case all siblings are equally close to the covered
servicemember in terms of consanguinity and the Department believes
that it would be inappropriate to force the injured servicemember to
choose a caregiver from among his or her siblings. The Department
believes this approach is preferable to specifically incorporating a
``willing and able component'' into the definition of ``next of kin''
because the Department believes it would be difficult for an employee
to prove--and for an employer to verify--that, in fact, the employee is
the only next of kin ``willing and able'' to provide care to the
covered servicemember. The Department does not anticipate that
[[Page 67968]]
permitting multiple individuals to serve as ``next of kin'' will prove
overly burdensome for employers since it is unlikely that all such
individuals will work for the same employer or request leave at the
same time.
The final rule also recognizes that, in some circumstances, a
servicemember may consider, and so designate, another blood relative to
be his or her ``nearest blood relative'' based on the closeness of
their personal relationship. As suggested by many of the comments, the
Department believes that such individuals should be considered the
servicemember's next of kin for military caregiver leave purposes.
Because the statute defines a servicemember's next of kin as the
``nearest blood relative'' without specifying whether nearness should
be determined by blood or other relationship, the Department believes
that the term ``next of kin'' may appropriately include any one blood
relative designated by the servicemember as the next of kin based on
closeness of relationship. Allowing a servicemember to designate his or
her next of kin for military caregiver leave purposes, but limiting the
availability of such a designation to one individual strikes an
appropriate balance between those comments that suggested that only one
individual should be eligible to take FMLA leave as next of kin and
those that urged the Department to recognize the servicemember's choice
of caregiver.
The final rule provides that an employer who wants proof of an
individual's status as a covered servicemember's ``next of kin''--
either to confirm that the employee and servicemember share one of the
familial relationships specified in Sec. 825.127(b)(3) or to confirm
that the employee has been specifically designated as the
servicemember's next of kin--may seek reasonable documentation of the
familial relationship from the employee under Sec. 825.122(j). Where
an employee is seeking to take leave as a servicemember's designated
next of kin, such documentation may take the form of a simple statement
from the servicemember indicating that the employee has been designated
as the servicemember's next of kin for purposes of military caregiver
leave. In those cases where the servicemember has not specifically
designated a next of kin for military caregiver leave purposes, a
simple statement from the employee or other documentation outlining the
employee's familial relationship to the servicemember will suffice.
The Department has taken this approach because it believes that it
is beneficial to both employees and employers to adopt, wherever
possible, similar procedures for administering military caregiver leave
and leave taken for other FMLA qualifying reasons. Furthermore, the
Department believes that the procedures for confirming family
relationships should be no more burdensome when an employee seeks to
take FMLA leave to care for a covered servicemember than when an
employee seeks to take FMLA leave for some other qualifying reason.
Adopting the same approach for confirming familial relationships for
all types of FMLA leave also adequately addresses employers' concerns
about potential misuse of FMLA leave by employees. Under Sec.
825.216(d) of the final rule, an employee who fraudulently obtains FMLA
leave from an employer is not protected by the FMLA's job restoration
or maintenance of health benefits provisions. This provision is
unchanged from the current regulations and serves as a check on an
employee's ability to seek FMLA leave based on a fraudulent assertion
of familial relationship.
Circumstances Under Which Military Caregiver Leave May Be Taken
The NDAA provides eligible employees with a total of 26 workweeks
of leave during a ``single 12-month period'' to care for a covered
servicemember. 29 U.S.C. 2612(a)(3). In the NPRM, the Department sought
comment on how this new leave entitlement should be administered,
including whether such leave was a one-time entitlement and whether
eligible employees may take more than one period of military caregiver
leave to care for multiple covered servicemembers with a serious injury
or illness, or the same covered servicemember with multiple serious
injuries or illnesses. The Department also sought comment on how the
``single 12-month period'' should be determined. Finally, the
Department sought comment on how military caregiver leave should be
designated, particularly when such leave also might qualify as leave to
care for a family member with a serious health condition.
Section 825.127(c) of the final rule explains that an eligible
employee may take no more than 26 workweeks of military caregiver leave
in any ``single 12-month period.'' This section also provides that the
26-workweek entitlement is to be applied as a per-servicemember, per-
injury entitlement, meaning that an eligible employee may take 26
workweeks of leave to care for one covered servicemember in a ``single
12-month period'' and then take another 26 workweeks of leave in a
different ``single 12-month period'' to care for another covered
servicemember or to care for the same covered servicemember with a
subsequent serious injury or illness. The final rule provides that the
``single 12-month period'' begins on the first day the eligible
employee takes military caregiver leave and ends 12 months after that
date, and explains how to calculate an employee's FMLA leave
entitlement during this ``single 12-month period'' when an employee
requests military caregiver leave and leave for another FMLA-qualifying
reason. Section 825.127(c)(4) provides that an employer should
designate leave that qualifies as both military caregiver leave and
leave taken to care for a family member with a serious health condition
as leave to care for a covered servicemember in the first instance.
Most of the comments received agreed that the 26-workweek
entitlement for military caregiver leave is different than the 12-
workweek entitlement for other FMLA-qualifying reasons in that the 26
weeks is not a yearly entitlement that ``renews'' each year. See, e.g.,
The Southern Company; Catholic Charities, Diocese of Metuchen; Equal
Employment Advisory Council; and Colorado Department of Personnel &
Administration. A majority of the comments relied on the clause in
section 585(a)(2)(B)(3) of the NDAA that military caregiver leave
``shall only be available during a single 12-month period'' (29 U.S.C.
2612(a)(3)) as evidence that Congress intended the 26 weeks to be a
one-time entitlement. See, e.g., Society for Human Resource Management;
Association of Corporate Counsel's Employment and Labor Law Committee;
U.S. Postal Service; Berens & Tate. Commenters varied, however, on
whether this ``one-time entitlement'' would nonetheless allow an
eligible employee to take multiple periods of 26 workweeks of leave in
order to care for different covered servicemembers or to care for a
single servicemember who suffers multiple serious injuries or
illnesses.
In its comments, the Society for Human Resource Management
contended that the military caregiver leave must be a ``one-time
opportunity'' because the sentence restricting leave to ``a single 12-
month period'' would not have been necessary otherwise. Additionally,
this commenter pointed to the immediately preceding sentence in the
statute that states the 26 weeks of leave may be taken ``during a 12-
month period'' and wrote: ``This is different from regular FMLA leave
which may be taken `during any 12-month period'. The use of the word
`a' as opposed to `any'
[[Page 67969]]
strongly suggests that Congress intended to differentiate caregiver
leave from all other types of FMLA leave regarding its availability.''
(Emphasis in original.) The Association of Corporate Counsel's
Employment and Labor Law Committee also argued that Congress intended
the military caregiver leave provisions of the NDAA to be a ``one-time
entitlement'' and stated that ``if this was not the intent, Congress
would not have included the phrase `single twelve-month period' in this
section.'' The law firm of Berens & Tate argued that permitting
eligible employees to take leave in separate 12-month periods for
separate covered servicemembers would have a ``devastating'' impact on
employers and would create an ``enormous problem'' for employers trying
to staff their workforce, especially during times of war.
On the other hand, comments submitted on behalf of Senator Dodd and
Representative Woolsey et al. stated that the extension of FMLA leave
for ``those caring for injured servicemembers has often been referred
to as a `one-time entitlement', but leave would be available once per
servicemember, per injury.'' (Emphasis in original.) The National
Partnership for Women & Families, in joint comments with the National
Military Family Association, and a few employers, also argued that the
Department should permit eligible employees to take more than one
period of military caregiver leave if such leave was needed to care for
more than one covered servicemember with a serious injury or illness,
or to care for the same covered servicemember who sustains a second
serious injury or illness. One such commenter, AT&T, provided the
following example:
For example, if the service member is injured and requires care
while he/she recuperates, the family member would be entitled to 26
weeks within a 12-month period. However, after recovery if the
service member is re-deployed and suffers another injury, assuming
it occurs after the previous 12-month period had expired, the family
member could possibly be entitled to an additional 26 weeks at that
time.
The Department agrees that the military caregiver leave provisions,
while a one-time entitlement, should be applied on a per-covered-
servicemember, per-injury basis. As to the per-servicemember component,
the Department agrees with the law firm of Willcox & Savage that to
apply the statute otherwise would ``negate its central purpose.'' The
Department believes that the entitlement should also extend per-injury
based on the ``reality,'' as noted in the joint comments from the
National Partnership for Women & Families and the National Military
Family Association, that servicemembers are injured and treated and
then re-injured again on active duty. This per injury entitlement is
limited to subsequent serious injuries and illnesses. This means, for
example, if a covered servicemember incurs a serious injury or illness
during his or her first deployment and then incurs another serious
injury or illness during a second deployment, an eligible employee
would be entitled to two separate 26-workweek entitlements during
separate ``single 12-month periods'' to care for the covered
servicemember. Alternatively, if the covered servicemember incurs a
serious injury or illness and subsequently manifests a second serious
injury or illness at a later time, an eligible employee would be
entitled to an additional 26-workweek entitlement to care for the
covered servicemember in a separate ``single 12-month period.'' In each
of these examples, in order for the eligible employee to receive an
additional 26-workweek entitlement for a covered servicemember's
subsequent injury, the covered servicemember must still be a member of
the Armed Forces, or the National Guard or Reserves, including those on
the temporary disability retired list. However, the per-injury
entitlement does not mean that an eligible employee receives multiple
26-workweek entitlements for multiple injuries incurred and
simultaneously manifested by a covered servicemember in a single
incident. For example, if a covered servicemember incurs a serious leg
injury and a serious arm injury in an accident, an eligible employee
would not be entitled to separate 26-workweek entitlements for each
serious injury. Additionally, if a covered servicemember experiences a
later aggravation or complication of his or her earlier serious injury
or illness for which an eligible employee took 26 workweeks of leave,
the employee would not be entitled to an additional 26 workweeks of
leave for the aggravation or complication of the initial serious injury
or illness. Finally, if an eligible employee is caring for a covered
servicemember whose serious injury or illness extends beyond the
employee's 26-workweek leave entitlement, the employee is not eligible
for an additional 26-workweek entitlement to continue to care for the
covered servicemember. The Department notes, however, that in this
situation the covered servicemember's other eligible family members
could take such leave. Additionally, even after an employee has
exhausted his or her military caregiver leave entitlement, the employee
may be entitled to use his or her normal 12-week FMLA leave entitlement
to provide care to the servicemember due to the same injury or illness.
The Department believes, given the reason the military caregiver
provision was enacted we must capture those instances, hopefully rare,
when such circumstances arise to ensure leave to care for these
servicemembers is available despite the burden the per-covered-
servicemember, per-injury interpretation may place on some employers.
The Department notes further that the statute and thereby the final
rule provide that an eligible employee is limited to no more than 26
weeks of FMLA leave in any ``single 12-month period,'' even where such
leave is requested to care for multiple servicemembers.
A number of commenters asked the Department to make clear that an
employee cannot ``carry-over'' unused weeks of military caregiver leave
from one 12-month period to another. The Equal Employment Advisory
Council recommended ``that the regulations clarify that an eligible
employee who takes leave to care for a covered servicemember, but does
not use the entire 26-workweek entitlement, be required to forfeit the
balance of his or her remaining servicemember leave entitlement at the
end of the single 12-month period.'' The Colorado Department of
Personnel & Administration also recommended that the Department make
``clear'' that there is no ``carryover'' of the leave from year to
year. The Department agrees with these comments. Therefore, Sec.
825.127(c)(1) of the final rule provides that once an eligible employee
begins taking leave to care for a covered servicemember with a
particular serious injury or illness, he or she may take up to 26
workweeks of leave during the 12 months following the first date leave
is taken. If the employee does not use his or her entire entitlement
during this ``single 12-month period,'' the remaining workweeks of
leave are forfeited. However, because the final rule also permits an
eligible employee to take 26 workweeks of leave in different ``single
12-month periods'' to care for multiple servicemembers or to care for
the same servicemember with a subsequent serious injury or illness,
this section also makes clear that an employee may be eligible to take
additional periods of 26 workweeks of leave in subsequent ``single 12-
month periods'' if the leave is to care for a different covered
servicemember or to
[[Page 67970]]
care for the same servicemember with a subsequent serious injury or
illness.
In the NPRM, the Department also sought comment on how the ``single
12-month period'' should be measured and whether an employer should be
permitted to choose a method for establishing the ``single 12-month
period,'' as an employer is able to do for other FMLA-qualifying
reasons. The Department also sought comment on how this provision
should be implemented if different methods are used to establish the
12-month period for leave taken to care for a covered servicemember
versus leave for other FMLA-qualifying reasons. Finally, the Department
asked for comment on how an employee's leave entitlement should be
calculated when an employee takes military caregiver leave and FMLA
leave for other qualifying reasons during the ``single 12-month
period'' used for military caregiver leave.
Section 825.127(c)(1) of the Department's final regulations states
that the ``single 12-month period'' for military caregiver leave begins
on the first day the eligible employee takes military caregiver leave
and ends 12 months after that date, regardless of the method used by
the employer to determine the employee's 12 workweeks of leave
entitlement for other FMLA-qualifying reasons. This section further
provides that an eligible employee is entitled to a combined total of
26 workweeks of military caregiver leave and leave for any other FMLA-
qualifying reason in a ``single 12-month period,'' provided that the
employee may not take more than 12 workweeks of leave for any other
FMLA-qualifying reason.
A majority of the commenters agreed that an employee's leave
balance for military caregiver leave should be calculated from the date
on which the eligible employee is first needed to care for the covered
servicemember (i.e., the date when an eligible employee first takes
leave). Senator Dodd and Representative Woolsey et al. stated that the
12-month period should begin when the employee ``first utilizes''
military family leave, ``even if'' the employer establishes the 12-
month period for standard FMLA leave on a different basis. Similarly,
the College and University Professional Association for Human Resources
noted that unlike leave for other FMLA-qualifying reasons in which an
employer may choose the type of leave year, there ``is no such
flexibility'' with respect to military caregiver leave, and that
``[b]ecause such leave is a one-time entitlement, the leave year must
be measured forward from the first day of leave. This is the only way
to ensure the employee may use his or her full 26 weeks.''
However, other commenters stated that an employer should be able to
choose the 12-month period for this type of leave, as is the case with
leave taken for other FMLA qualifying reasons. The City of Medford (OR)
commented that the Department should allow an employer to establish the
12-month period ``in the same manner that it does for employees
currently on FMLA leave.'' Similarly, the International Franchise
Association stated that the Department ``must make it clear'' that an
employer is entitled to apply its normal 12-month period in calculating
military caregiver leave.
The Department has determined that the most appropriate method for
establishing the ``single 12-month period'' for purposes of military
caregiver leave is a period that commences on the date an employee
first takes leave to care for a covered servicemember with a serious
injury or illness. Establishing the ``single 12-month period'' based on
the date of the covered servicemember's injury or illness instead of
from the employee's first leave to care for the servicemember might
limit the employee's ability to utilize the 26-week entitlement because
the employee may not commence caring for the servicemember until a much
later date. Similarly, applying the employer's normal FMLA leave year
to leave to care for a covered servicemember would also result in
employees being unable to utilize their 26-week entitlement if the
employee's first use of leave did not coincide with the commencement of
the employer's FMLA leave year.
In choosing this method, the Department is cognizant of the
concerns expressed by employers and human resource professionals
regarding the complexity and administrative burden of tracking leave
under two different 12-month leave periods. However, the Department
does not believe that the potential administrative burden caused by a
relatively short period of overlapping 12-month periods outweighs the
possibility that other approaches might diminish an eligible employee's
entitlement of up to a full 26 weeks of military caregiver leave. As
the law firm Spencer Fane Britt & Browne noted, an employer ``will only
face such an execution challenge for a period of a year or so (or until
there is no overlap between the two 12-month periods) for each employee
who takes [covered servicemember] leave.'' The Department realizes that
under the per-servicemember, per-injury interpretation, it is possible
that an eligible employee may have more than one entitlement of 26
weeks with a single employer. However, the Department believes these
occurrences will be rare and for most eligible employees the 26 weeks
of military caregiver leave will be a one-time entitlement.
A number of commenters asked that the Department provide examples
of how employers should ``reconcile'' the use of leave to care for a
covered servicemember with other FMLA leave if two different leave
years are used. The following example explains how an employer would
calculate an employee's entitlement to military caregiver leave when it
utilizes a calendar year method for other FMLA qualifying reasons:
The employer uses the calendar year method (January 2009-
December 2009) for determining an employee's leave balance for FMLA
leave taken for all qualifying reasons other than military caregiver
leave. An employee first takes military caregiver leave in June
2009. Between June 2009 and June 2010 (the ``single 12-month
period'' for military caregiver leave), the employee can take a
combined total of 26 workweeks of leave, including up to 12 weeks
for any other qualifying FMLA reason if he has not yet taken any
FMLA leave in 2009.
If, however, the employee had already taken five weeks of FMLA
leave for his own serious health condition when he began taking
military caregiver leave in June 2009, he would then be entitled to
no more than seven weeks of FMLA leave for reasons other than to
care for a covered servicemember during the remainder of the 2009
calendar year (i.e., the 12 weeks yearly entitlement minus the five
weeks already taken). Although his entitlement to FMLA leave for
reasons other than military caregiver leave is limited by his prior
use of FMLA leave during the calendar year, the employee is still
entitled to take up to 26 weeks of FMLA leave to care for a covered
servicemember from June-December 2009.
Beginning in January 2010, the employee is entitled to an
additional 12 weeks of FMLA leave for reasons other than to care for
a covered servicemember. If the employee takes four weeks of FMLA
leave for his own serious health condition in January 2010, this
would reduce both the number of available weeks of FMLA leave
remaining in calendar year 2010 (i.e., the 12 weeks yearly
entitlement minus the four weeks already taken) and the number of
weeks of FMLA leave available for either military caregiver leave or
other FMLA qualifying reasons during the ``single 12-month period''
of June 2009-June 2010.
Once the employee exhausts his or her 26-workweek entitlement,
he or she may not take any additional FMLA leave for any reason
until the ``single 12-month period'' ends. Thus, for example, if the
employee took 20 workweeks of military caregiver leave from June-
December 2009, four workweeks of leave in January 2010 for his or
her own serious health condition, and another two
[[Page 67971]]
workweeks of military caregiver leave in March 2010, the employee
will have exhausted his or her 26-workweek entitlement for the
``single 12-month period'' of June 2009-June 2010. While the
employee would still have eight weeks of FMLA leave available in
calendar year 2010, the employee could not take such leave until
after June 2010, when the ``single 12-month period'' ends.
The Department also sought comment in the NPRM on how to designate
leave that may qualify as both military caregiver leave and leave to
care for a spouse, parent, or child with a serious health condition.
Specifically, the Department asked whether the employer or employee
should be able to determine how such leave is counted and whether such
leave should be subject to retroactive designation in any circumstance.
The Department has decided that the same designation rules should
apply to leave taken to care for a covered servicemember and leave
taken for other FMLA-qualifying reasons. Section 825.300(d)(1) of the
final rule provides that, in all circumstances, 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. The final rule
extends this requirement, as well as the rules regarding retroactive
designation, to the designation of military caregiver leave in Sec.
825.127(c)(4). This section of the final rule also provides that, in
the case of leave that qualifies as both military caregiver leave and
leave to care for a family member with a serious health condition, the
employer must designate such leave as military caregiver leave in the
first instance.
The Department received a multitude of comments addressing the
initial designation of leave that may qualify as both military
caregiver leave and leave to care for a family member with a serious
health condition. Comments submitted on behalf of Senator Dodd and
Representative Woolsey et al. stated that an employee should have the
right to choose whether the leave counts as leave taken to care for a
family member with a serious health condition or military caregiver
leave. While the Society for Human Resource Management argued that the
employee should be the individual who determines whether he or she is
applying for military caregiver leave or leave for any other FMLA-
qualifying reason, to ``minimize the potential for disputes,'' this
commenter also asked the Department to require an employee to
specifically apply for military caregiver leave through the use of
``specific language.'' The Association of Corporate Counsel's
Employment and Labor Law Committee argued that when leave may count as
either military caregiver leave or leave taken to care for a spouse,
parent, or child with a serious health condition, the employer should
be able to determine how much leave should be designated, ``including
allowing the two types of leave to run concurrently.'' This commenter
wrote that if this approach is not adopted, the ``default'' should be
to apply the military caregiver leave first. The law firm Jackson Lewis
also believed ``the best practical solution'' is to apply military
caregiver leave first, because ``[o]therwise, there is the potential
for additional administrative uncertain[t]y in what is already a
confusing, two track time-table for calculating the different types of
leave.'' The National Partnership for Women & Families, in joint
comments with the National Military Family Association, argued that
``[l]eave that qualifies under both provisions of the FMLA should count
towards both leave ceilings simultaneously; if retroactive designation
is required in order to accomplish the simultaneous use of leave,
retroactive designation should be allowed.''
The Department believes that in the case of military caregiver
leave, as with other types of FMLA leave, it is the employer's
responsibility to designate the leave, paid or unpaid, as FMLA-
qualifying, and to give notice of the designation to the employee. For
military caregiver leave that also qualifies as leave taken to care for
a family member with a serious health condition, the final rule
provides that an employer must designate such leave as military
caregiver leave first. The Department believes that applying military
caregiver leave first will help to alleviate some of the administrative
issues caused by the running of the separate ``single 12-month period''
for military caregiver leave. The final rule also prohibits an employer
from counting leave that qualifies as both military caregiver leave and
leave to care for a family member with a serious health condition
against both an employee's entitlement to 26 workweeks of military
caregiver leave and 12 workweeks of leave for other qualifying reasons.
The Department has taken this approach because designating and counting
one block of leave against two different leave entitlements would
impose additional, unnecessary burdens on employees. For example, in
order to appropriately designate such leave as both military caregiver
leave and leave taken because of a serious health condition, an
employee might be required to provide two separate certifications when
taking one block of leave.
As to retroactive designation of leave, the majority of employers
and employer groups commented that the Department should allow the
employer to change the initial designation of the leave retroactively.
For example, the Society for Human Resource Management, the National
Coalition to Protect Family Leave, and Spencer Fane Britt & Browne
argued that an employer should be permitted, but not required, with the
consent of an employee, to retroactively change the following: (1) A
military caregiver leave designation to another applicable FMLA leave
designation if doing so would be more favorable to the employee; or (2)
another applicable FMLA leave designation to a military caregiver leave
designation if doing so would be more favorable to the employee. A few
commenters representing employers, however, expressed concern that
permitting retroactive designation could complicate calculation of the
``single 12-month period.'' For example, Jackson Lewis noted that if
leave is retroactively designated as leave for a serious health
condition when it was first approved as military caregiver leave, it is
unclear whether the ``single 12-month period'' would begin on the date
the leave was first designated as military caregiver leave or when the
military caregiver leave is set to begin. Jackson Lewis noted that the
same problem would be present if the leave was first designated as
leave for a serious health condition and then later designated as
military caregiver leave. Finally, comments submitted on behalf of
Senator Dodd and Representative Woolsey et al. stated that an employee
should have the right to change the designation retroactively.
The Department believes that an employer should be permitted to
retroactively designate military caregiver leave pursuant to Sec.
825.301(d) in the same situations under which retroactive designation
is permitted for other types of FMLA leave. Given the circumstances
surrounding the need for military caregiver leave, the Department is
aware that an employer may not have enough information from an employee
to designate leave until after the leave has commenced and/or ascertain
whether the leave qualifies as military caregiver leave or leave for a
family member with a serious health condition under the FMLA. At the
same time, the Department recognizes the comments submitted by Jackson
Lewis and the ``complications'' that could arise by the
[[Page 67972]]
substitution of one type of leave for another given the ``single 12-
month period'' under military caregiver leave and the Department's
requirement that this period be measured from the day the employee
first needs leave--regardless of the employer's normal 12-month period
for other FMLA-qualifying leave. Thus, as is the case for other types
of FMLA leave, an employer may retroactively designate leave as
military caregiver leave in appropriate circumstances, but is not
required to do so.
The Department also requested comments on the NDAA provisions
permitting an employer to limit the aggregate amount of leave to which
eligible spouses employed by the same employer may be entitled in some
circumstances. The NDAA provides that a husband and wife employed by
the same employer are limited to a combined total of 26 workweeks of
leave during the relevant 12-month period if the leave taken is to care
for a covered servicemember or a combination of leave taken to care for
a covered servicemember and leave for the birth or placement of a
healthy child or to care for a parent with a serious health condition.
Because the NDAA did not alter the existing 12-week limitation that
applies to leave taken by spouses employed by the same employer for
leave taken for the birth or placement of a healthy child or to care
for a parent with a serious health condition, the Department sought
comment on how this new limitation on the leave entitlement of spouses
employed by the same employer would interact with the existing
limitation, particularly if different 12-month periods are used to
determine eligibility for leave taken to care for a covered
servicemember and leave for other reasons. The Department received few
comments on these provisions of the NDAA.
Section 825.127(d) of the final rule incorporates the NDAA's
statutory limitation on the amount of leave spouses employed by the
same employer may take during the ``single 12-month period'' by
providing that a husband and wife who are eligible for FMLA leave and
are employed by the same covered employer may be limited to a combined
total of 26 weeks of leave during the ``single 12-month period''
described in Sec. 827.127(c) if the leave is taken for birth of the
employee's son or daughter or to care for the healthy child after
birth, for placement of a healthy son or daughter with the employee for
adoption or foster care, or to care for the child after placement, to
care for the employee's parent with a serious health condition, or to
care for a covered servicemember with a serious injury or illness. This
section also clarifies that this limitation--like the existing 12-week
limitation on leave taken by spouses employed by the same employer for
other FMLA qualifying reasons--applies even though the spouses are
employed at two different worksites of an employer located more than 75
miles from each other, or by two different operating divisions of the
same company. On the other hand, as is the case for the existing 12-
week limitation, if one spouse is ineligible for FMLA leave, the other
spouse would be entitled to a full 26 weeks of FMLA leave to care for a
covered servicemember.
The Department is aware this approach may result in two different
12-month periods being used to calculate the 26-workweek limitation and
the 12-workweek limitation, and that in some circumstances, spouses
employed by the same employer may be eligible to take more than 26
workweeks of FMLA leave in succession as a result. The Department does
not believe, however, that the potential administrative burden caused
by a relatively short period of overlapping 12-month periods outweighs
the possibility that other approaches might diminish the spouses'
entitlement to up to a combined total of 26 workweeks of military
caregiver leave and their entitlement to a combined total of 12
workweeks of FMLA leave for other qualifying reasons.
Subpart B--Employee Leave Entitlements Under the Family and Medical
Leave Act
Section 825.200 (Amount of Leave)
Section 825.200 explains the basic leave entitlement provided under
the Act, and provides instructions for how to determine the 12-month
period during which the FMLA leave entitlement may be used, and how to
calculate the amount of leave used. Eligible employees are entitled to
a set number of ``workweeks'' of FMLA leave, and an employee's normal
``workweek'' prior to the start of the FMLA leave is the basis for
determining how much leave an employee uses when taking leave on an
intermittent or reduced leave schedule basis.
The only change that the Department proposed in this section was to
clarify how to count holidays in cases where an employee takes leave in
increments of less than a full workweek. Specifically, the Department
proposed to clarify in Sec. 825.200(f) (Sec. 825.200(h) in the final
rule) that, if an employee needs less than a full week of FMLA leave,
and a holiday falls within that partial week of leave, the hours that
the employee does not work on the holiday cannot be counted against the
employee's FMLA leave entitlement if the employee would not otherwise
have been required to report for work on that day. The Department did
not propose any change in the treatment of holidays which occur during
a full week of FMLA leave, and which are counted against the employee's
FMLA entitlement. This is a clarification and does not represent a
change in the Department's enforcement position. The Department has
adopted the proposed clarification.
Many commenters, including the National Coalition to Protect Family
Leave and the Chamber of Commerce of the United States of America (the
``Chamber''), supported the proposed clarification of the treatment of
holidays falling during a partial week of FMLA leave as appropriate and
instructive. See also Hewitt Associates; National Business Group on
Health; American Association of Occupational Health Nurses; City of
Medford (OR). The AFL-CIO also supported the proposed clarification as
consistent with the statutory mandate to count ``only the leave
actually taken.'' See 29 U.S.C. 2612(b)(1). However, the AFL-CIO and
other groups, such as the National Partnership for Women & Families,
opposed the continuation of the current rule that holidays are counted
against an employee's FMLA entitlement when they fall within full
workweeks of leave, asserting that it is inconsistent with the method
of counting holidays when less than a full week of leave is used. See
also National Treasury Employees Union. In these commenters' view,
holidays should never be counted because employees are not required to
be at work on those days, and therefore should not have to use FMLA
leave.
Other commenters argued that holidays should count against an
employee's FMLA entitlement even when less than a full week of leave is
used. For example, the Equal Employment Advisory Council opposed the
proposed change as administratively burdensome and vulnerable to
employee abuse, and recommended instead that holidays which fall during
a partial week of leave be charged as FMLA leave when the employee has
taken FMLA leave on the days before and after the holiday. Jackson
Lewis suggested that employees be charged FMLA leave for all holidays,
regardless of when they fall, and that employees should have to provide
medical evidence of health on the holiday if they do not want the day
charged as FMLA
[[Page 67973]]
leave. Burr & Forman argued that the proposed rule makes leave
calculation unnecessarily more complex by excluding such holidays,
especially for employers who have ``holiday shutdowns,'' and could
result in arbitrarily allowing some employees a greater length of time
in which to take intermittent leave. See also Illinois Credit Union
League.
The Department acknowledges employer concerns regarding not
counting holidays against the FMLA entitlement when FMLA leave is taken
in less than a full workweek, but believes that the proposed
clarification is consistent with the statutory intent that leave be
measured in terms of ``a total of 12 workweeks of leave'' but that it
may also be taken ``intermittently or on a reduced leave schedule''
when medically necessary or by agreement. See 29 U.S.C. 2612(a),
(b)(1). Holidays regularly occur during normal workweeks, and should be
counted when they fall within weekly blocks of leave. On the other
hand, the Department believes that where leave is taken in less than a
full workweek, the employee's FMLA leave entitlement should only be
diminished by the amount of leave actually taken. The Department
believes that maintaining the existing rule, together with the proposed
clarification, is the most reasonable and practical approach.
The Department made one additional change to Sec. 825.200(c) of
the final regulation in response to a request by Hewitt Associates to
provide additional examples of how to calculate an employee's leave
entitlement when the employer uses the ``rolling backward leave year,''
as permitted by Sec. 825.200(b)(4). The Department agrees that
additional explanation of this method of calculating the leave year
would be helpful, and has therefore expanded the example currently
found in Sec. 825.200(c). Moreover, an additional example of the
``rolling leave year'' calculation can be found in Wage and Hour
Opinion Letter No. FMLA-2005-3-A (Nov. 17, 2005).
The Department also made a number of changes to Sec. 825.200 in
the final rule to reflect the new military family leave provisions.
Paragraph (a) is amended to make clear that the 12 workweeks of FMLA
leave entitlement does not apply to military caregiver leave, for which
26 workweeks of leave in a ``single 12-month period'' may be taken. A
new Sec. 825.200(a)(5) is added to include qualifying exigency leave
in the list of qualifying reasons for leave limited to a total of 12
workweeks. In addition, a new paragraph (f) is added to explain and
detail the amount of time available under the military caregiver leave
entitlement, specifically that an eligible employee's leave entitlement
is limited to a total of 26 workweeks of leave during a ``single 12-
month period'' to care for a covered servicemember with a serious
injury or illness. Lastly, a new paragraph (g) is added to explain the
limitations on the total amount of leave that can be taken during the
``single 12-month period'' described in paragraph (f).
Section 825.201 (Leave To Care for a Parent)
The Department proposed to reorganize this and other sections in
order to make the regulations more clear and accessible. The text of
current Sec. 825.201, which covers when leave for the birth or
placement for adoption or foster care of a child must conclude, has
been incorporated into new Sec. Sec. 825.120 and 825.121, as discussed
above. Proposed Sec. 825.201 now covers only leave taken to care for a
parent, and highlights the statutory limitations on taking such leave
in situations when both a husband and wife work for the same employer
and seek leave to be with a healthy child following a birth or
placement for adoption or foster care, or to care for a parent with a
serious health condition, which were previously set forth in Sec.
825.202. The final rule adopts the proposed changes.
The Department received very few comments on this section, and none
opposed the proposed reorganization. Those comments that the Department
did receive concerned issues specifically addressed by the statute. For
example, Hewitt Associates requested that the Department provide
additional explanation regarding the ``same employer'' limitation when
a husband and wife both seek leave to care for a parent. Southwest
Airlines requested that the Department extend the ``same employer''
limitation to unmarried couples, not just to spouses. The Department
notes that the effect of the restrictions on FMLA leave for spouses
employed by the same employer are determined case-by-case and the
restrictions themselves are statutory and beyond the Department's
authority to alter. See 29 U.S.C. 2612(f). The final rule also includes
a cross-reference to Sec. 825.127(d), which addresses the spousal
limitation for military caregiver leave.
Section 825.202 (Intermittent Leave or Reduced Leave Schedule)
The Department proposed to reorganize this and other sections in
order to make the regulations more clear and accessible, but did not
propose significant changes to the substance. We proposed to
consolidate leave provisions relating to intermittent or reduced
schedule leave in cases of medical necessity and for the birth or
placement of a child into a new Sec. 825.202 (from current Sec. Sec.
825.203 and 825.117), and to shift issues of scheduling, counting, and
certification requirements for such leave into other sections, with
appropriate cross-references. See proposed Sec. 825.120 (Leave for
pregnancy or birth), Sec. 825.121 (Leave for adoption or foster care),
Sec. 825.203 (Scheduling of intermittent or reduced schedule leave),
Sec. 825.205 (Increments of leave for intermittent or reduced schedule
leave), and Sec. 825.306 (Content of medical certification). The NPRM
also proposed to move language from current Sec. 825.203(b) governing
the use of intermittent or reduced schedule leave after the birth,
adoption, or placement of a child, to proposed Sec. 815.202(c),
entitled ``Birth or placement,'' together with cross-references to
proposed Sec. Sec. 825.120 and 825.121, which also deal with
pregnancy, birth, adoption, and foster care placement. Finally, we
proposed adding the subheadings ``Definition,'' ``Medical necessity,''
and ``Birth or placement'' to Sec. 825.202(a), (b), and (c),
respectively. The final rule adopts Sec. 825.202 as proposed, with two
minor changes to Sec. 825.202(b). The final rule also incorporates
appropriate references to military caregiver leave and includes a new
paragraph (d) providing for intermittent or reduced schedule leave for
a qualifying exigency.
Proposed Sec. 825.202(b) defines ``medical necessity'' for
intermittent leave, combining existing language from current Sec.
825.117 and illustrations from current Sec. 825.203(c). It also
includes a cross-reference to proposed Sec. 825.306, which explains
what constitutes sufficient information on the medical certification
form. As noted above, most commenters generally supported the
reorganization of the regulations. The Equal Employment Advisory
Council also noted that the reorganization served as a ``clarification
of threshold requirements'' for intermittent leave. The Department has
adopted the proposed changes.
In addition to the changes proposed in the NPRM, the Department has
determined that the parenthetical phrase in the first sentence of
proposed Sec. 825.202(b) ``(as distinguished from voluntary treatments
and procedures)'' is confusing and unnecessary, and therefore has
deleted it from the final rule. Under the FMLA, it is a threshold
requirement that there be a medical need for leave due to a serious
health
[[Page 67974]]
condition, regardless of whether the underlying medical procedure was
viewed as ``voluntary'' or ``required.'' Other language regarding
``voluntariness'' was initially included in the definition of ``serious
health condition'' in the Interim Final Rule published in 1993, 58 FR
31794, 31817 (June 4, 1993), but was deleted from the Final Regulations
issued in 1995. As the Department explained at that time, ``[t]he term
`voluntary' was considered inappropriate because all treatments and
surgery are voluntary.'' 60 FR 2180, 2195 (Jan. 6, 1995).
The Department has also adopted the suggestion of two commenters,
the Society for Human Resource Management and the National Coalition to
Protect Family Leave, to modify the third sentence of Sec. 825.202(b).
Specifically, both groups suggested that the Department delete the word
``related'' from the phrase ``treatment of a related serious health
condition,'' which they viewed as unnecessary and potentially
problematic. The Department agrees and has made the proposed change.
Both groups also suggested that the Department delete the ``recovery''
clause at the end of the same sentence, since ``recovery'' is already
included elsewhere as part of the definition of ``incapacity'' in
proposed Sec. 825.113(b). The Department declines to make this change,
since the language simply carries forward existing rights and criteria
for using intermittent or reduced schedule leave (from current
regulatory text at Sec. 825.203(c)) and appears to be clear and well-
understood by all parties.
Lastly, a new paragraph (d) is added to the final rule to address
intermittent or reduced schedule leave for qualifying exigency leave.
Section 825.203 (Scheduling of Intermittent or Reduced Schedule Leave)
In addition to reorganizing this section as noted above, the
Department proposed in the NPRM to clarify that employees who take
intermittent leave for planned medical treatment when medically
necessary have a statutory obligation to make a ``reasonable effort''
to schedule such treatment so as not to disrupt unduly the employer's
operations. Section 825.117 of the current regulations requires merely
that ``[e]mployees needing intermittent FMLA leave or leave on a
reduced leave schedule must attempt to schedule their leave so as not
to disrupt the employer's operations,'' which the Department believes
does not fully describe the employee's obligation under the law. See 29
U.S.C. 2612(e)(2) (requiring that employees who need foreseeable leave
for planned medical treatment must ``make a reasonable effort to
schedule the treatment so as not to disrupt unduly the operations of
the employer''). The Department has adopted the proposed change. See
also Sec. 825.302(e).
Most commenters welcomed this clarification. See National Coalition
to Protect Family Leave; TOC Management Services; American Foundry
Society; National Association of Wholesaler-Distributors. The National
Association of Wholesaler-Distributors commented that the proposal
``accurately implements the language of the FMLA and clarifies that an
employee who needs intermittent or reduced schedule leave for planned
medical treatment must make a `reasonable effort' to schedule the leave
so that the leave does not unduly disrupt the employer's business.''
Some commenters, such as the Equal Employment Advisory Council and
Hewitt Associates, asked the Department to provide a definition of
``reasonable effort.'' The Equal Employment Advisory Council suggested,
for example, that an employee be required to prove that a doctor's
office is not open on Saturday in order to justify a weekday doctor
visit. Jackson Lewis asked for ``a vehicle to hold employees
accountable'' for meeting their obligations in this regard.
The Department believes that the statutory standard ``reasonable
effort'' does not require further definition. In general, employees
must try to arrange treatment on a schedule that accommodates the
employer's needs, but such treatment schedules may not always be
possible, depending on the nature of the employee's medical condition,
the urgency, nature, and extent of the planned treatment, and the
length of the recovery time needed. The scheduling of planned medical
treatment is ultimately a medical determination within the purview of
the health care provider. While the employee must make a reasonable
effort in scheduling the leave, if the health care provider determines
that there is a medical necessity for a particular treatment time, the
medical determination prevails. If it is just a matter of scheduling
convenience for the employee, the employee must make a reasonable
effort not to disrupt unduly the employer's business operations.
Section 825.204 (Transfer of an Employee to an Alternative Position
During Intermittent Leave or Reduced Schedule Leave)
Section 825.204 explains when an employer may transfer an employee
to an alternative position in order to accommodate intermittent leave
or a reduced leave schedule. The NPRM proposed no substantive changes
in this section, but added subheadings of (a) ``Transfer,'' (b)
``Compliance,'' (c) ``Equivalent pay and benefits,'' (d) ``Employer
limitations,'' and (e) ``Reinstatement of employee'' for clarity. The
Department also solicited comments on whether this regulatory provision
should be changed and, if so, how, noting that many commenters who
responded to the December 2006 RFI wanted the option to transfer or
otherwise alter the duties of employees using unscheduled or
unforeseeable intermittent leave, in addition to those who request
foreseeable leave for planned medical treatment. See 72 FR 35608 (June
28, 2007).
A significant number of commenters representing employers,
including the Equal Employment Advisory Council, the National Coalition
to Protect Family Leave, and the Society for Human Resource Management,
supported allowing employers to transfer employees who take any
intermittent leave, regardless of the purpose or foreseeability of the
need for leave. See also TOC Management Services; Food Marketing
Institute; National Retail Federation; Metropolitan Transportation
Authority (NY); Spencer Fane Britt & Browne. These commenters argued
that some employees are frequently absent on short notice, which the
commenters claimed can be disruptive and can make scheduling extremely
difficult, and contended that their ability to manage these absences
would be enhanced if they could transfer such employees. The
Association of American Railroads argued that ``unforeseeable use of
intermittent leave is, if anything, a more appropriate circumstance for
transfer or reassignment because unforeseeable absences may undermine
the employer's ability to carry out its business.'' The U.S. Postal
Service contended that Congress did not intend to permit unforeseeable
intermittent leave for chronic conditions, and that employers should be
free to transfer employees who frequently use unscheduled, intermittent
leave, in addition to those who seek foreseeable leave for planned
medical treatment as provided in the statute.
Commenters representing employees and employee groups were
uniformly opposed to any expansion of the employer's right to transfer
employees who take intermittent FMLA leave for reasons other than
planned medical treatment. See, e.g., Communications Workers of
America; National Federation of Federal Employees; and
[[Page 67975]]
National Partnership for Women & Families. The AFL-CIO contended that
such a change would run contrary to the plain language of the statute,
which expressly permits transfers in cases of intermittent or reduced
schedule leave ``that is foreseeable based on planned medical
treatment.'' 29 U.S.C. 2612(b)(2). The AFL-CIO asserted that this
implies a prohibition on transfers in any other situation. The National
Treasury Employees Union agreed, contending that the Department is
without authority to expand this provision since Congress itself
determined the scope of the transfer option and chose to limit it to
cases involving ``planned medical treatment.''
The AFL-CIO and the National Partnership for Women & Families both
argued that the distinction also makes sense from a policy standpoint,
since an employer would be able to plan for an employee's absences due
to planned medical treatment, but would be unable to do so where an
employee needs unforeseeable intermittent leave. Both the AFL-CIO and
the Communications Workers of America also expressed concern that
allowing employers to transfer employees in such situations might
increase the possibility of retaliation by employers.
The Department believes that by expressly permitting transfers in
cases of intermittent or reduced schedule leave ``that is foreseeable
based on planned medical treatment,'' 29 U.S.C. 2612(b)(2), the
statutory language strongly suggests that this is the only situation
where such transfers are allowed. Additionally, the statute clearly
requires that such transfers be temporary in nature, and that the
employee be reinstated to the original position upon completion of the
recurring leave period. See 29 U.S.C. 2612(b)(2), 2614(a)(1). The
Department acknowledges that this standard may seem to discount the
fact that some employees may take intermittent leave regularly,
frequently, and predictably--even if unforeseeably--and do so on the
advice or recommendation from their physician, which some would argue
is akin to planned medical treatment. See Report on the Department of
Labor's Request for Information, Chapters IV, VIII, and XI, 72 FR at
35571, 35608, and 35619 (June 28, 2007). While this may be the case,
the Department finds no statutory basis to permit transfers to an
alternative position for those taking unscheduled or unforeseeable
intermittent leave. Accordingly, the Department declines to expand the
situations in which an employer may temporarily transfer an employee to
an alternative position.
Section 825.205 (Increments of FMLA Leave for Intermittent or Reduced
Schedule Leave)
Section 825.205 explains how to count increments of leave in cases
of intermittent or reduced schedule leave. The Department did not
propose any substantive changes to this section, but did propose to
move language from current Sec. 825.203(d) to paragraph (a) of this
section, and to add the title ``Minimum increment.'' It also proposed
to renumber current paragraphs (b) through (d) as Sec. 825.205(b)(1),
(2), and (3) for purposes of clarity, and to add the title
``Calculation of leave'' to paragraph (b), but did not propose any
changes to the text of those sections. The preamble to the NPRM
discussed the extensive comments the Department had received in
response to the Request for Information ``expressing concerns about the
size of the increments of intermittent leave that may be taken;'' the
impacts of the use of unscheduled intermittent leave, particularly on
time-sensitive business models; the many suggestions to the record to
allow employers to require that intermittent leave be taken in greater
increments (e.g., two or four hour blocks, or one day or one week
blocks) and conversely, the commenters who defended the current rule on
minimum increments of leave. The preamble to the NPRM also requested
comment on whether to create an exception to the minimum increment rule
in situations where physical impossibility prevents an employee from
commencing work mid-way through a shift, and asked for comment on
whether and how to clarify the application of FMLA leave to overtime
hours. The final rule incorporates the proposed changes with additional
clarifications, as well as new language addressing physical
impossibility, calculation of leave, overtime, and a cross-reference to
the special rules for intermittent or reduced schedule leave taken by
employees of schools, as described in more detail below.
Paragraph (a) of proposed Sec. 825.205 set forth the general rule
from current Sec. 825.203(d) that employers may account for
intermittent or reduced schedule leave in the smallest increments used
by their payroll systems to account for absences or use of leave, so
long as it is one hour or less. The Department again received many
comments from employers expressing their concerns about the size of
increments of intermittent leave that may be taken, especially when
such leave is unforeseeable. At the same time, we also received many
comments from employees stressing the importance of their ability to
take such leave in small amounts of time when suffering from serious
health conditions, or when caring for family members with serious
health conditions.
Employers and their representatives argued that it was difficult to
manage their workforce needs adequately when employees were permitted
to take very small amounts of leave (e.g., in minutes), when they may
have policies for the use of other forms of leave in larger increments,
especially when other employees were required to fill in for those who
were absent, and that larger increments of leave would reduce the
current administrative and staffing burdens placed on employers. See,
e.g., National Association of Manufacturers; Domtar Paper Company;
Society for Human Resource Management; National Newspaper Association;
and Food Marketing Institute. Both the Equal Employment Advisory
Council and the Chamber cited members who track leave in increments as
small as six minutes, which they contend is especially difficult for
FMLA administration. The National Coalition to Protect Family Leave
asserted that the current regulation penalizes employers with
sophisticated payroll systems capable of tracking the increments of
leave down to one minute. The Chamber argued that increasing the
minimum increment would greatly ease recordkeeping burdens on
employers, reduce the opportunity for abuse of FMLA leave, and improve
predictability for employers. The National Association of Manufacturers
stated that a larger increment would lower the incidence of what it
believes to be employees improperly using FMLA leave to cover late
arrivals. These employers argued strongly that the minimum increment
should be enlarged, and suggested various minimums ranging from two
hours to four hours or a half day. See, e.g., the Chamber (half day or
1 hour); Equal Employment Advisory Council (half day); National
Association of Manufacturers (four-hour or two-hour increments); Domtar
Paper Company (four hours); Society for Human Resource Management (half
day or two hours); National Coalition to Protect Family Leave (same).
Indeed, the Delphi Corporation pointed out that an employee could use
FMLA leave to cover late arrivals of almost two hours per day, every
day, without ever exhausting the employee's annual leave entitlement.
The Equal Employment Advisory Council similarly noted that ``[a]n
employee in fact could take one day off a week as intermittent leave
and still have plenty of FMLA leave left at
[[Page 67976]]
the end of the year.'' Finally, some commenters sought clarification of
the ``one hour or less'' language in both the current and proposed
regulation. The National Coalition to Protect Family Leave requested
that the Department clarify that ``in all cases, regardless of an
employer's payroll system'' an employer may track leave in increments
of ``at least an hour.'' The National Coalition believed it is
``arbitrary'' to require employers to track leave in the smallest
increments that its payroll system tracks when that system may not be
used to track FMLA or other leave usage. They noted that the current
requirement by the Department penalizes employers who have more
sophisticated payroll systems that can track payroll in increments as
small as one minute, as compared to employers who do not use such
systems.
By contrast, employee organizations opposed any increase in the
increment of intermittent leave, arguing that it would harm employees
by forcing them to take more leave than is medically necessary and
would unfairly diminish their FMLA entitlement. See, e.g., National
Partnership for Women & Families; American Association of University
Women; AFL-CIO; American Association of Occupational Health Nurses.
9to5 cited the example of an employee using intermittent FMLA leave in
two-hour increments to take her daughter to cancer treatments, and
contended that requiring such an employee to use leave in half-day or
larger increments would unnecessarily diminish her FMLA entitlement.
They also asserted that the longer absences might be even more
disruptive to the workplace than shorter ones. The Communications
Workers of America argued that employers are not burdened by being
required to account for FMLA leave in the same increment used for other
absences, but that employees would be burdened by increasing the
increment of intermittent leave.
The Department has carefully considered all comments on this issue,
and has decided to adopt Sec. 825.205 as proposed with additional
clarifying language. Both the current and proposed standard permit
employers to limit the increment of leave for FMLA purposes to the
shortest period of time the employer uses to account for other types of
use of leave, provided it is one hour or less. The current regulation
at Sec. 825.203(d) provides: ``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.'' As explained above, the Department moved essentially this same
language to proposed Sec. 825.205(a) which provided: ``Minimum
increment. When an employee takes leave on an intermittent or reduced
leave schedule, 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.'' As the
Department stated in the preamble to the current regulations in 1995:
``In providing guidance on this issue in the Interim Final Rule, 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 * * * however, this section will be clarified to provide
explicitly that the phrase `one hour or less' is dispositive.'' 60 FR
2202 (Jan. 6, 1995). The preamble to the current regulation further
stated that the ``employer's own recordkeeping system in accounting for
other forms of leave or absences * * * controls with regard to
increments of FMLA leave of less than one hour.'' Id.
Because the comments indicate some confusion in practice between
the current Sec. 825.203(d) regulatory language, as carried over to
proposed Sec. 825.205(a), and the preamble discussion of current Sec.
825.203(d), the Department adopts the final rule with the following
modifications. The Department restates its original view that ``one
hour or less is dispositive.'' Employers are not required to account
for FMLA leave in increments of six minutes or even fifteen minutes
simply because their payroll systems are capable of doing so, and the
regulatory language in the final Sec. 825.205(a) does not so require.
What matters is how the employer actually accounts for the leave. The
final regulation eliminates the confusing and inconsistent references
to either payroll systems or recordkeeping systems and eliminates the
term ``absences'' to further lessen any confusion and focuses on ``use
of leave.'' The final regulation adjusts the proposed language to make
clear the employer must account for the intermittent or reduced
schedule leave under FMLA ``using an increment no greater than the
shortest period of time that the employer uses to account for use of
other forms of leave provided it is not greater than one hour.''
Accordingly, while employers may choose to use a smaller increment to
account for FMLA leave than they use to account for other forms of
leave, they may not use a larger increment for FMLA leave. Thus, if an
employer uses different increments to account for different types of
leave (e.g., accounting for sick leave in 30-minute increments and
vacation leave in one-hour increments), the employer could not account
for FMLA leave in an increment larger than the smallest increment used
to account for any other type of leave (i.e., 30 minutes).
Additionally, under no circumstances can an employer account for FMLA
leave in increments of greater than one hour, even if such increments
are used to account for non-FMLA leave. Employers may choose to account
for FMLA leave taken in any increment not to exceed one hour as long as
they account for leave taken for other reasons in the same or larger
increment. The Department has also modified the final rule to recognize
policies which account for use of leave in different increments at
different points in time, thus, permitting employers to maintain a
policy that leave of any type may only be taken in a one-hour increment
during the first hour of a shift (i.e., a policy intended to discourage
tardy arrivals). As a further point of clarity, the final rule changes
the current and proposed rules' language of ``provided it is one hour
or less'' to ``provided it is not greater than one hour.'' The
Department emphasizes that in all cases employees may not be charged
FMLA leave for periods during which they are working. For example, if
an employee needs FMLA leave due to the flare-up of a condition 30
minutes before the end of the employee's shift, the employee may not be
charged with more than 30 minutes of FMLA leave, even if the employer
otherwise uses one hour as its shortest increment of leave, because the
employee has already worked the first 30 minutes of the last hour of
his or her shift. If such a flare up occurred at the beginning of a
shift, however, the employee could be required to take up to one hour
of FMLA leave in accordance with the employer's leave policy, provided
the employee does not work during that hour.
The final rule also makes explicit that employers may use a smaller
increment to account for FMLA leave, a flexibility that was implicit in
the permissive wording of the current regulation. Finally, the final
rule provides additional flexibility in accounting for FMLA leave by
allowing for leave systems that utilize different increments at
different points of time while adhering to the principle in the current
regulation that FMLA leave users may not be charged leave in a larger
increment than users of non-FMLA leave. The Department remains
committed, however, to the one hour outer limit on use of FMLA leave
and
[[Page 67977]]
therefore declines to adopt any of the comments recommending
intermittent leave be accounted for in larger increments such as two-
hour, four-hour, or half or full-day increments.
The Department has made one other revision in the final rule to
reorganize the text in proposed Sec. 825.205 by moving the final three
sentences from proposed paragraph (a) into paragraph (b) in the final
rule, where related concepts for the calculation of the amount of FMLA
leave used are addressed. The final rule also restores a cross-
reference in paragraph (b) to the special rules for intermittent or
reduced schedule leave taken by employees of schools, Sec. Sec.
825.601 and 825.602.
In the NPRM, the Department also sought comment as to whether, in
situations in which physical impossibility prevents an employee using
intermittent leave or working a reduced leave schedule from commencing
work mid-way through a shift, an exception should be made to allow the
entire shift to be designated as FMLA leave and counted against the
employee's FMLA entitlement. In an opinion letter, the Department had
previously taken the position that where a flight attendant's need for
three hours of intermittent FMLA leave caused her to miss her normal
flight assignment, only the three hours needed could be charged against
her FMLA entitlement, with the remainder of the absence being charged
to another form of paid or unpaid leave. Wage and Hour Opinion Letter
FMLA-42 (Aug. 23, 1994). In the preamble, the Department questioned
whether this interpretation was appropriate, because it may expose
employees to disciplinary action based on the additional hours of non-
FMLA unprotected leave that they must take.
Employers and employer groups strongly supported the creation of
such an exception. See, e.g., the Chamber; Equal Employment Advisory
Council; National Coalition to Protect Family Leave; Society for Human
Resource Management; Southwest Airlines; Hewitt Associates. Commenters
representing transportation employers in particular supported a
physical impossibility exception to the minimum increment of leave
rule. The Association of American Railroads supported the creation of
an exception but suggested that it should apply not just where it is
impossible for the employee to return to the workplace but also where
it is ``unreasonable,'' ``impracticable,'' or barred by a collective
bargaining agreement; it also argued that the exception should include
workers in fixed locations such as train dispatchers who work in a
station or office. The Chicago Transit Authority argued that the
exception should apply to all ``fixed time work assignments, such as
scheduled public transit runs,'' and that the minimum time increment
should be the length of the employee's scheduled run. This, it argued,
would protect the employee's entire absence, and also allow employers
to better plan for and arrange assignments for entire blocks of work.
Spencer Fane Britt & Browne suggested that the exception should be
expanded to apply in three situations: (1) Where it is physically
impossible for the employee to complete the assigned shift; (2) where
another employee was called in to cover the absence; and (3) ``where an
employee is chronically late to work allegedly because of an FMLA
chronic condition.'' In all three cases, Spencer Fane contended that it
is ``inherently unfair'' and ``disruptive'' to permit the FMLA leave-
taker to return to work mid-shift. The New York City (NY) Law
Department suggested that the exception should apply to positions
requiring 24/7 coverage where there must always be someone working, and
that the employee should be charged FMLA leave for the entire shift
even if only a few minutes of leave are needed.
Most commenters on behalf of employees, on the other hand, opposed
creating any exception to the minimum increment rule, and argued that
the 1994 opinion letter was correct. See, e.g., National Partnership
for Women & Families; Center for WorkLife Law. The American Train
Dispatchers Association argued that such a change would ``allow the
carriers to charge [transportation] employees for time that they do not
use for FMLA-related purposes, in contravention of the statute's
language and intent,'' and cited the example of an engineer who needed
four hours of intermittent FMLA leave to accompany his wife to
chemotherapy, but would be charged instead for the entire length of the
engine's trip--up to eight or ten hours. In its view, this result would
violate 29 U.S.C. 2652, which provides that FMLA rights ``shall not be
diminished'' by collective bargaining agreements or employment benefit
plans or programs. The AFL-CIO and the Communications Workers of
America questioned whether employees were being subject to discipline
in such situations and argued that the statutory prohibition against
interference would prohibit employers from imposing discipline on
employees who return from intermittent leave and are ready to work,
regardless of whether the rest of the shift is counted as FMLA leave or
some other form of leave. The Communications Workers of America also
argued that air carriers already routinely handle such situations in
cases of non-FMLA leave by reassigning workers, allowing them to cover
for each other, or assigning them to alternative work schedules or
alternative administrative work. The Center for WorkLife Law argued
that the term ``physical impossibility is vague and overbroad,'' and
the creation of such an exception ``will have a significant and
unnecessary negative effect on caregivers.'' In its view, foreseeable
leave can almost always be handled in advance by assigning the employee
to an alternative route or shift; and employees should always be
allowed to resume work mid-shift if they can reach the worksite.
After reviewing the comments, the Department has decided to include
an exception for physical impossibility, which is set forth in Sec.
825.205(a)(2) of the final rule. The Department believes that the
existing policy exposes employees to the risk of discipline in
situations in which an employee's need for a short FMLA-protected
absence from work actually results in a much longer absence because of
the unique nature of the worksite. Whether it is a train that is 300
miles away, or a plane over the Atlantic Ocean, or a ``clean room'' in
a laboratory that must remain sealed for the entire workshift, some
workplaces exist that prevent employees from joining (or leaving) the
work mid-way through the ``shift.'' Thus, a three-hour FMLA absence may
result in an employee's inability to work for eight hours, or until the
end of the shift or route. Where this occurs, the Department believes
that the entire period of absence should be considered FMLA leave and
should be protected under the Act. The Department does not believe that
a physical impossibility exception contravenes 29 U.S.C. 2612(b) or any
other provision of the Act because only the amount of leave used will
be counted against the employee's FMLA leave entitlement and the FMLA
does not require employers to provide alternative work to employees
when the employee is unable to return to his or her same or equivalent
position due to physical impossibility.
The Department intends the exception to be applied narrowly. The
exception is limited to situations in which an employee is physically
unable to access the worksite after the start of the shift, or depart
from the workplace prior to the end of the shift. Moreover, within
those situations, the exception is limited to the period of time in
which the physical impossibility remains. Thus, although the exception
may apply to a flight attendant, train conductor, ferry
[[Page 67978]]
operator, bus driver, or truck driver whose worksite is on board an
airplane, train, boat, bus, or truck or a laboratory technician whose
workplace is inside a ``clean room'' that must remain sealed for a
certain period of time, the exception will only apply until the vehicle
has returned to the departure site or while the clean room remains
sealed. For example, the physical impossibility exception will apply to
a flight attendant until such time as he or she is able to rejoin his
or her crew at the departure point, which likely is a longer period of
time for a flight attendant who is scheduled to fly cross-country than
it is for one who is scheduled to fly a shuttle between Washington and
New York. Similarly, a physical impossibility will generally exist for
a longer period of time when a driver works for an inter-city bus
company than it would when a driver works for a metropolitan transit
system. In both cases, the physical impossibility remains until the bus
returns to the terminal; such a return, however, may take place much
more frequently in the latter example.
Employers may not use this new exception to prevent employees
taking intermittent FMLA leave from commencing work late or leaving
work early when there is no physical impossibility preventing the
employee from accessing or leaving the workplace during the ``shift.''
Additionally, even where physical impossibility prevents the employee
from accessing the workplace, if the employee is assigned alternative
work (e.g., pursuant to a collective bargaining agreement or employer
policy) only the amount of leave actually taken may be counted against
the employee's FMLA leave entitlement. The Department recognizes that
employers may provide alternative work, particularly where there is
advance notice of the need for leave, and nothing about this exception
prevents employers from providing such work. Employers also have an
obligation not to discriminate between employees who take FMLA leave
and other forms of leave; for example, if they routinely offer
alternative work to employees returning from short periods of non-FMLA
leave, such as sick leave or jury duty, then they must also offer such
work to employees returning from short periods of FMLA leave.
The Department did not propose any changes to Sec. 825.205(b),
which deals with calculation of leave. However, a number of commenters
reported that they or their clients have difficulty calculating leave
entitlement and leave usage, especially for employees who use
intermittent leave, work overtime, or work part-time, seasonal or
irregular schedules. See, e.g., Burr & Forman; TOC Management Services;
Equal Employment Advisory Council; Food Marketing Institute; the
Chamber; National Coalition to Protect Family Leave; National Newspaper
Association. The American Postal Workers Union, Clerk Division, Chicago
Region, complained that seasonal fluctuations in work hours can lead to
employees receiving different amounts of FMLA-protected leave depending
on the time of year in which the leave is taken.
The Department has made several revisions to the section entitled
``Calculation of leave'' to address issues that arise when an
employee's schedule varies. The first clarifies that the method for
determining the amount of FMLA leave taken by an employee is to compare
the number of hours actually worked by the employee in a FMLA workweek
to the number of hours the employee would have worked in that workweek,
but for the FMLA leave taken. The difference is the amount of FMLA
leave taken. That amount is divided by the number of hours the employee
would have worked had the employee not taken leave of any kind,
including FMLA leave. The result represents the proportion (percentage)
of a FMLA workweek that the employee has taken. The resulting
percentage may be converted to hours for tracking purposes; any such
conversion must equitably reflect the employee's leave allotment. An
employee does not ``accrue'' FMLA-protected leave at any particular
hourly rate; an eligible employee is entitled to 12 workweeks of leave
(or 26 workweeks in the case of military caregiver leave) and the total
number of hours contained in those workweeks is necessarily dependent
on the specific hours that would have been worked by the employee. The
Department has also changed the rule for calculating an employee's
leave entitlement when an employee works a schedule that varies so much
from week-to-week that no ``normal'' schedule or pattern can be
discerned, and the employer cannot determine with any certainty how
many hours the employee would have worked, but for the taking of the
FMLA leave. In such circumstances, the Department believes that
calculating a weekly average over the 12 months prior to the leave
period (rather than just the prior 12 weeks as required under the
current rule) should give a truer picture of the employee's actual
average workweek.
In the preamble to the proposed rule, the Department clarified its
position on when overtime hours not worked due to a serious health
condition could be counted against an employee's FMLA leave
entitlement. 73 FR 7894 (Feb. 11, 2008). The issue of overtime is not
addressed in the current regulations, but was discussed in the 1995
preamble to the current rule. See 60 FR 2202 (Jan. 5, 1995) (preamble
accompanying current Sec. 825.203). Many commenters requested both
that the Department's position be clarified and that it be included in
the regulatory text, rather than just addressed in the preamble. See,
e.g., Society for Human Resource Management; National Coalition to
Protect Family Leave; TOC Management Services. The Department agrees,
and has added a new Sec. 825.205(c), which addresses when overtime
hours not worked due to FMLA leave can be counted against an employee's
FMLA entitlement. Consistent with the discussion in the preamble to the
proposal, the final rule states that where an employee would normally
be required to work overtime, but cannot do so because of a FMLA-
qualifying condition, the employee may be charged FMLA leave for the
hours not worked. This new regulatory section is not a change in policy
but is simply intended to clarify in the regulations the Department's
existing policy.
Employer commenters generally supported the proposed clarification.
See, e.g., Pennsylvania Governor's Office of Administration; Domtar
Paper Company; Society for Human Resource Management; National
Coalition to Protect Family Leave; TOC Management Services. For
example, the U.S. Postal Service claimed that ``the ambiguity in the
current regulatory language regarding overtime has hindered efforts to
bring uniformity'' in this area; it embraced the clarification as
``eminently sensible,'' and ``not only fair, but also necessary.''
Some commenters argued that employers should not be restricted to
only counting mandatory or required overtime hours not worked against
an employee's FMLA entitlement. For example, the Society for Human
Resource Management and the National Coalition to Protect Family Leave
argued that employees should be charged FMLA leave in circumstances in
which an employer rotates overtime on a volunteer basis among its
employees but employees are subject to possible disciplinary action for
failing to ``volunteer.'' Spencer Fane Britt & Browne argued that
employers should be able to charge employees FMLA leave for all
overtime hours not worked even where the overtime at issue is
voluntary, and that failing to do so will hurt employee morale.
[[Page 67979]]
Groups representing employees also generally agreed with the
Department's desire to clarify the treatment of overtime, but felt that
the preamble discussion was not as clear as it might have been. The
AFL-CIO simplified the proposed test to ``whether the employee is
required to work the overtime,'' and noted that the key distinction is
between voluntary and mandatory overtime, notwithstanding the
Department's ``apparent rejection of that distinction.'' It also asked
for more examples, as did the National Partnership for Women & Families
and National Federation of Federal Employees. The Department agrees
that the appropriate focus is whether the employee would have been
required to work the overtime hours but for the taking of FMLA leave,
and has added an example to the proposed rule to illustrate this
principle. The American Postal Workers Union commented that the
proposed clarification will compound rather than moderate the
administrative complexity of the rule. Rather than focusing on whether
the employee was required to work, it suggested that employees only be
charged FMLA leave for overtime hours which ``were part of the
employee's regular schedule,'' as opposed to voluntary, ad hoc or ``as
needed'' hours.
Many Postal Service employees also opposed being charged any FMLA
leave for overtime hours not worked. For example, the American Postal
Workers Union Clerk Division, Chicago Region expressed a concern that
being charged for overtime hours could diminish an employee's
entitlement below 12 workweeks, and could be arbitrary and unfair if
the amount of leave charged was to vary according to seasonal overtime
requirements. The Department points out that overtime is factored into
the FMLA entitlement because both the entitlement and the leave usage
rate are based on the employee's required (i.e., scheduled) hours of
work. The Department believes it is fair, therefore, that overtime not
worked be counted against the FMLA entitlement when the employee would
have been required to work the overtime hours but for the use of FMLA
leave.
Finally, employers may not discriminate in the assignment of
mandatory overtime between employees who take FMLA leave and others.
For example, an employer cannot schedule only FMLA leave takers for
required overtime in order to deplete their FMLA leave entitlement,
while allowing other employees to volunteer for overtime.
Section 825.206 (Interaction With the FLSA)
No changes were proposed to this section beyond updating the cross-
references to the FLSA regulations revised in 2004 for salaried
executive, administrative, professional, or computer employees under 29
CFR Part 541, and no comments were received on it. The final rule
adopts Sec. 825.206 as proposed with revisions to address the new
types of leave available under the NDAA amendments.
Section 825.207 (Substitution of Paid Leave)
Section 825.207 addresses the interaction between unpaid FMLA leave
and employer-provided paid leave and echoes the statutory language that
paid leave may be substituted for unpaid FMLA leave. In the NPRM the
Department proposed to change its position on the substitution of paid
vacation and personal leave and to allow employers to apply their
normal leave policies to the substitution of all types of paid leave
for unpaid FMLA leave. The Department thus proposed to delete current
paragraphs (b), (c), (e), and (h) of this section. The proposal
redesignated current paragraphs (f) and (g) as proposed paragraphs (b)
and (c). The Department proposed to modify its discussion of FMLA-
qualifying leave that is covered by an employer's disability benefit
plan in paragraph (d), and to move its discussion of FMLA-qualifying
leave that is covered by workers' compensation to a new paragraph (e).
Finally, the Department proposed to redesignate current Sec.
825.207(i), which addresses the interaction between public employees'
use of compensatory time off and FMLA leave, as paragraph (f) and to
remove the prohibition against substitution of accrued compensatory
time for unpaid FMLA leave. The final rule includes all of the proposed
changes and makes additional modifications in paragraphs (a), (d), and
(e), as discussed below.
Proposed Sec. 825.207(a) clarified that ``substitution'' of paid
leave for FMLA purposes means that the unpaid FMLA leave and the paid
leave provided by an employer run concurrently. The Department also
proposed in this section to allow employers to apply their normal
policies for taking paid leave when an employee substitutes paid leave
for unpaid FMLA leave regardless of the type of paid leave substituted.
The proposal differed from current Sec. 825.207, which prohibits
employers from imposing any limits on the substitution of paid vacation
or personal leave. Under the current regulation, employers may restrict
the substitution of paid sick or medical leave under the FMLA to
situations in which they would otherwise provide such paid leave, but
are not permitted to restrict the substitution of paid vacation or
personal leave in any manner. Employers are also permitted under the
current rule to restrict the substitution of paid family leave to
circumstances for which they would normally provide family leave. The
proposal required that employees who seek to substitute accrued paid
leave of any kind for unpaid FMLA leave must comply with the terms and
conditions of the employer's normal leave policy. It also proposed new
language clarifying that employers are required to notify employees of
any additional requirements for the use of paid leave (e.g., paid leave
only being available in full day increments or upon completion of a
specific leave request form), and stated that if employees do not or
cannot meet those requirements, they remain entitled to unpaid FMLA
leave as guaranteed by the statute. The Department also proposed new
language intended to ensure that employers do not discriminate between
FMLA leave users and others in the provision of paid leave.
Employee representatives generally opposed the proposed revision of
this section on two grounds--first, they claimed that it would hurt
employees, who often cannot afford to take unpaid leave, and second,
they believed that it conflicted with Congressional intent regarding
the substitution of paid leave. See, e.g., National Partnership for
Women & Families; AFL-CIO; American Association of University Women;
Family Caregiver Alliance; Sargent Shriver National Center on Poverty
Law; Women Employed; American Postal Workers Union; and Communications
Workers of America. A Better Balance: The Work and Family Legal Center
claimed that as many as three out of four eligible workers cannot
afford to take leave without pay, and that it can be very difficult for
employees to understand and navigate employer paid leave policies.
Community Legal Services/AIDS Law Project of Pennsylvania argued that
the ability to utilize paid leave for FMLA reasons is critical to low
wage employees, who often live paycheck to paycheck and cannot afford
any delay in pay, whereas it makes little difference to employers,
since they will have to make the accrued leave payments eventually.
The National Partnership for Women & Families and the AFL-CIO,
among others, also argued that the proposed change is contrary to
Congress's intent
[[Page 67980]]
and to the Department's own prior interpretation of the FMLA. They
argued that the plain language of 29 U.S.C. 2612(d)(2)(A) permits
employees to substitute (or employers to require substitution of) ``any
of the accrued paid vacation leave, personal leave, or family leave of
the employee * * * for any part'' of their unpaid FMLA leave. They
further argued that this language supersedes any employer policies
restricting the use of such leave when substituted for FMLA leave, and
that the Department properly construed the law in its current
regulations to override such limitations. See AFL-CIO; National
Partnership for Women & Families. By contrast, they argued, Congress
expressly permitted employers to set their own rules governing sick and
medical leave, and to require employees to comply with such rules, by
providing in subsection (B) that ``nothing in this title shall require
an employer to provide paid sick 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). In their view, ``the text and
structure of the FMLA make abundantly clear that Congress intended that
no limitations be placed on employees' ability to substitute paid
vacation or personal leave while on FMLA leave.''
Other groups representing unionized employees, such as the
International Association of Machinists & Aerospace Workers et al.,\5\
the American Train Dispatchers Association, and the Communications
Workers of America, argued that any change in this provision could
cause a real hardship to workers, especially in transportation and
other industries. They asserted that collective bargaining agreements
frequently require employees to select or ``bid'' for their vacation up
to a year in advance, that winning bids are usually determined by
seniority, and that time off may be restricted or completely foreclosed
during peak summer and holiday travel periods. They argued that the
proposed regulation would have the effect of disallowing the
substitution of paid vacation leave for unpaid FMLA leave if an
employee happens to need FMLA leave before or after his or her pre-
selected vacation period, or on an emergency basis. They also noted
that many agreements require substantial advance notice for using
personal leave. In such settings, they argued, it would be almost
impossible to substitute paid leave for unforeseeable medical
emergencies, premature childbirth, or for unforeseeable intermittent
leave needed as a result of a chronic condition.
---------------------------------------------------------------------------
\5\ Comments submitted by the law firm of Guerrieri, Edmond,
Clayman & Bartos on behalf of the International Association of
Machinists & Aerospace Workers, the Transportation Communications
International Union, the Transport Workers Union, and the United
Transportation Union.
---------------------------------------------------------------------------
Many commenters agreed with the Department's statement in the NPRM
that the differing treatment of ``medical leave,'' ``family leave,''
``sick leave,'' and ``vacation leave'' in current Sec. 825.207 was
confusing and made it difficult for both employers and employees to
know when paid leave may or may not be substituted for unpaid FMLA
leave. See, e.g., TOC Management Services; Equal Employment Advisory
Council; the Chamber; Hewitt Associates. Additionally, employers and
employer representatives strongly supported the Department's proposal
that they be allowed to apply their normal leave rules when paid leave
of any type is substituted for unpaid leave under FMLA. See, e.g.,
Hewitt Associates; American Foundry Society; College and University
Professional Association for Human Resources; Domtar Paper Company. The
National Coalition to Protect Family Leave commented that the
Department's current regulation treats FMLA leave takers more favorably
than employees using non-FMLA leave, and that all employees seeking to
use paid leave voluntarily provided by employers should be required to
comply with the terms and conditions of the paid leave policy. The
National Coalition to Protect Family Leave asserted that this is
consistent with the main statutory goal of the FMLA, that nothing in
the FMLA be construed so that it would ``discourage'' employers from
``adopting or retaining'' more generous leave policies. It further
noted that employers may choose to waive restrictions on leave use in
order to facilitate the substitution of paid leave, but should not be
required to do so.
The National Association of Manufacturers supported the change,
noting that ``[t]here is perhaps no other single proposal that would
permit employers to streamline the leave process while, at the same
time, controlling abuses of the system.'' However, this commenter asked
what would happen if an employer's paid leave policy required the use
of a full day of leave and an employee wished to substitute paid leave
for a two-hour FMLA absence--could the employer require the employee to
use a full day of paid leave or would the employer be required to
provide the employee with two hours of paid leave? See also Retail
Industry Leaders Association. The Equal Employment Advisory Council
also supported the proposal and agreed that it is a ``more accurate
interpretation of the statutory language'' and ``correctly implements
Congressional intent'' regarding the substitution of paid leave.
However, they opposed any additional notice requirements, urging that a
simple cross-reference to an employee handbook or Intranet site should
be adequate notice of the employer's paid leave policy. Finally, they
also specifically supported the Department's proposed clarification of
the term ``substitution'' as meaning that paid leave and unpaid FMLA
leave run concurrently.
The Department has carefully considered all the comments regarding
the proposed change to its position on the substitution of paid leave
and has decided to adopt the regulation as proposed. The language in
both paragraphs of 29 U.S.C. 2612(d)(2), as well as its legislative
history, makes clear that in all cases the substitution of paid leave
pursuant to section 102(d)(2) of the Act is limited to the substitution
of ``accrued'' paid leave. See 29 U.S.C. 2612(d)(2)(A) & (B); H.R. Rep.
No. 103-8, Pt. 1, at 38 (1993); S. Rep. No. 103-3, at 27-28 (1993).
Accrued paid leave is often subject to limits on its use. As explained
in the NPRM, and for the reasons discussed below, the Department
believes that the better interpretation of section 102(d)(2)(B) is that
it was intended to emphasize the limits on the situations in which an
employer must allow the substitution of paid sick or medical leave, but
does not preclude requiring compliance with the normal procedural rules
pursuant to which the leave was accrued for paid personal or vacation
leave. For example, it clarifies that an employer is not obligated to
allow an employee to substitute paid sick leave for unpaid FMLA leave
in order to care for a child with a serious health condition if the
employer's normal sick leave rules allow such leave only for the
employee's own illness. See current Sec. 825.207(c) (explaining that
employers are not required to allow substitution of paid medical or
sick leave to care for a family member if the employer does not
normally allow the use of medical or sick leave for that purpose;
employers are also not required to provide paid sick or medical leave
for serious health conditions that are not normally covered by their
medical or sick leave plans).
The Department has never read the substitution provision as
literally as the employee commenters urge. Indeed, the current
regulations recognize that employers may place restrictions on the use
of ``family leave,'' a type of leave referenced in section 102(d)(2)(A)
of the
[[Page 67981]]
Act, without any explicit limitation on an employer's ability to
restrict its substitution. See current Sec. 825.207(b) (noting that
employers may enforce restrictions in family leave plans that limit the
use of such leave to particular family members). This restriction is
supported by the legislative history, which states that ``[t]he term
`family leave' is used [in the section] to refer to paid leave provided
by the employer covering the particular circumstances for which the
employee is seeking leave * * *.'' H.R. Rep. No. 103-8, Pt. 1, at 38
(1993); see also S. Rep. No. 103-3, at 27 (1993). Under the current
regulations, the Department has also always permitted substitution of
paid time off (``PTO''), a type of leave not referenced in the statute.
See current Sec. 825.207(e).
The legislative history of the substitution provision indicates
that Congress understood that employers commonly restrict the
situations in which employees may take paid sick, medical, and family
leave. As explained in the Senate Committee Report, ``nothing in the
act requires an employer to provide paid sick leave or medical leave in
any situation in which the employer does not normally provide such
leave.'' S. Rep. No. 103-3, at 27-28 (1993); see also H.R. Rep. No.
103-8, Pt. 1, at 38 (1993). As the comments make clear, employers also
often place procedural requirements (as opposed to limiting the
reasons) on an employee's ability to take personal or vacation leave.
The legislative history does not indicate that Congress intended to
prohibit employers from applying their normal procedural requirements
for the use of paid leave to requests to substitute any type of paid
leave (including personal or vacation leave) for FMLA leave. As noted
in the NPRM, this interpretation is consistent with the Department's
recognition in opinion letters that both an employee's right to use
paid leave and an employer's right to require substitution are subject
to the terms pursuant to which the leave was accrued. See Wage and Hour
Opinion Letter FMLA-81 (June 18, 1996) (``[T]he Department interprets
these provisions to mean that the employee has both earned the
[vacation] leave and is able to use that leave during the FMLA leave
period.''); Wage and Hour Opinion Letter FMLA-61 (May 12, 1995) (``The
Department interprets these provisions to mean that the employee has
both earned the leave and is able to use that leave during the FMLA
period * * *. [An] employer could not require [an] employee to
substitute [vacation] leave that is not yet available to the employee
to use under the terms of the employer's leave plan.''); Wage and Hour
Opinion Letter FMLA-75 (Nov. 14, 1995) (``[W]here an employee may only
use leave under the employer's plan during a specified period when the
plant is shut down, the employee has not fully vested in the right to
substitute that leave for purposes of FMLA.'').
Therefore, an employee's right to substitute accrued paid leave is
limited by the terms and conditions pursuant to which the applicable
leave is accrued, as long as those terms are non-discriminatory. An
employer may limit substitution of paid sick, medical or family leave
to those situations for which the employer would normally provide such
paid leave (e.g., such policies may restrict the use of paid leave only
to the employee's own health condition or to specific family members).
Employers must allow substitution of paid vacation, personal leave, or
``paid time off'' for any situation covered by the FMLA. In all cases,
however, the normal procedural rules subject to which the leave was
accrued apply--unless waived by the employer--regardless of the type of
paid leave substituted. For example, if an employer's paid sick leave
policy prohibits the use of sick leave in less than full day
increments, employees would have no right to use less than a full day
of paid sick leave regardless of whether the sick leave was being
substituted for unpaid FMLA leave. Similarly, if an employer's paid
personal leave policy requires two days' notice for the use of personal
leave, an employee seeking to substitute paid personal leave for unpaid
FMLA leave would need to provide two days' notice. Employers, of
course, may choose to waive such procedural rules and allow an
employee's request to substitute paid leave in these situations, but
they are not required to do so. Additionally, employers may choose to
waive procedural requirements even in the absence of an employee
request to do so.
Where an employer's paid leave policy requires the use of such
leave in an increment of time larger than the amount of FMLA leave
requested by an employee, if the employee wishes to substitute paid
leave for unpaid FMLA leave, the employee must take the larger
increment of leave required under the paid leave policy unless the
employer chooses to waive that requirement. The employer is not
required to permit the employee to substitute paid leave for the
smaller increment of unpaid FMLA leave. Thus, in the previously cited
example by the National Association of Manufacturers, where the
employee takes two hours of FMLA leave and requests to substitute paid
leave which must normally be used in full-day increments, the employer
must grant the two hours of unpaid FMLA leave, but may choose to deny
the substitution of paid leave, or to waive its normal minimum
increment and allow the employee to substitute paid leave for the two-
hour FMLA absence. The employee has the right to take two hours of
unpaid FMLA leave, but under the terms of the employer's paid leave
policy does not have a right to substitute paid leave unless he or she
chooses to take the full day of leave (thus fulfilling the requirements
of the employer's paid leave policy). The FMLA guarantees only unpaid
leave, not payment for that leave. Paid leave is offered by employers
as a matter of employer policy and may be limited by an employer's
nondiscriminatory policies.
Where an employee chooses to take a larger increment of leave in
order to be able to substitute paid leave for unpaid FMLA leave, the
entire amount of leave taken shall count against the employee's FMLA
entitlement. This is consistent with the rule in cases where it is
physically impossible for an employee to commence work late or leave
work early, as set forth in final Sec. 825.205(a)(2) above. In both
situations, the entire amount of leave actually taken is protected
under the FMLA and may be counted against the employee's FMLA
entitlement.
In order to assist employees in understanding and complying with
this interpretation, Sec. 825.207(a) requires that employers notify
employees of any additional requirements for the use of paid leave. In
response to comments, the Department has clarified in the final rule
that this information must be included with the rights and
responsibilities notice required under Sec. 825.300(c). At the
employer's option, this information may be included in the text of the
rights and responsibilities notice itself, or the employer may attach a
copy of the paid leave policy to the notice, or provide a cross-
reference to a leave policy in an employee handbook or other source
available to employees, where paid leave policies are customarily set
forth.
The Department proposed to delete current Sec. 825.207(b) and (c),
which provide different rules for substitution of different kinds of
paid leave, and which have been superseded by proposed paragraph (a).
Current Sec. 825.207(f) and (g) were redesignated as proposed Sec.
825.207(b) and (c). Proposed paragraph (b) confirmed that if paid leave
is not substituted for unpaid FMLA leave, the employee remains entitled
to all accrued paid leave, while
[[Page 67982]]
proposed paragraph (c) explained that paid leave used for purposes not
covered by the FMLA could not count against the employee's FMLA leave
entitlement. The final rule adopts these changes.
The Department proposed several revisions to current Sec.
825.207(d), which addresses the interaction between paid disability
benefits and unpaid FMLA leave. Specifically, the Department proposed
to move language from current Sec. 825.207(d)(1), providing that
employers may apply more stringent requirements for receipt of
disability payments, to new Sec. 825.306(c). We proposed to retain the
remaining language from current Sec. 825.207(d)(1), making clear that
substitution of paid leave does not apply where the employee is
receiving paid disability leave. In addition, the Department proposed
to add a new provision stating that although neither the employer nor
the employee may require the substitution of paid leave in such
circumstances, they may voluntarily agree, where state law permits, to
supplement the disability plan benefits with paid leave. The Department
also proposed to move paragraph (d)(2) of this section, which deals
with the interaction of unpaid FMLA leave with a workers' compensation
absence, to a new paragraph (e).
Commenters generally supported the proposed revisions to Sec.
825.207(d), but some requested that the Department modify it further.
Several commenters including TOC Management Services and Bracewell &
Giuliani suggested that this section be broadened to apply to
disability leave for any serious health condition, not just for
childbirth. The Department notes that it has always read the provision
as applying to paid disability leave due to any serious health
condition. See also Repa v. Roadway Express, Inc., 477 F.3d 938, 941
(7th Cir. 2007) (holding that the restriction in Sec. 825.207(d)(1) on
substitution of paid leave for FMLA leave covered under a disability
leave plan is not limited to leave for childbirth). Accordingly, the
final regulation removes the reference to childbirth and refers simply
to disability leave to make clear that the provision applies to any
disability leave that is FMLA-qualifying, whether the disability is
caused by childbirth or another serious health condition.
The National Association of Manufacturers was generally supportive
of the proposal permitting an employer to supplement disability
benefits with paid leave, but asked for clarification on how to
calculate use of FMLA leave in a case where the employee is receiving
disability benefits equivalent to two-thirds of his or her pay, and the
employer and employee agree to use paid leave to supplement those
benefits so that the employee receives his or her full pay. This
commenter asked whether the employee's FMLA leave usage is determined
by the amount of leave taken, or the amount of paid leave used (i.e.,
is 100 percent of the disability leave counted against the employee's
FMLA entitlement, or only one third of the time). In response, the
Department wishes to clarify that paid disability leave due to a FMLA-
qualifying serious health condition is counted against an employee's
FMLA leave entitlement, regardless of whether the employee is using
accrued paid leave to supplement the disability benefits. Any
supplemental payments are the result of a voluntary agreement between
employer and employee. The amount of leave protected under the FMLA,
and thus counted against the employee's FMLA leave entitlement, is
determined by the amount of leave taken due to the serious health
condition, not the amount of paid leave (if any) used to supplement the
disability payments. For example, if an employee needs six weeks of
leave for surgery and recovery due to a FMLA-qualifying serious health
condition and the leave is covered by the employer's disability benefit
plan, which replaces two-thirds of the employee's income during the
leave, and assuming that the employee has not otherwise exhausted his
or her FMLA entitlement, the full six weeks of leave would be FMLA-
protected and would count against the employee's FMLA entitlement.
Neither party can require substitution of accrued paid leave because
the disability leave is not unpaid. The employer and the employee may,
however, agree to use accrued paid leave to supplement the amount paid
under the disability plan, if permitted by state law and by the plan
itself.
The Department has also clarified the final regulatory text in
Sec. 825.207(d) to delete the term ``running concurrently.'' The
Department has deleted this term in order to avoid causing confusion
with the new language in Sec. 825.207(a) specifying that the
``substitution'' of paid leave means paid leave running concurrently
with FMLA leave. Employees on paid disability leave due to a FMLA-
protected condition are not on unpaid FMLA leave and therefore the
statutory provision for the substitution of paid leave does not apply.
The Department proposed to delete current Sec. 825.207(e), which
provides that employers cannot place any limitations on substitution of
paid vacation or personal leave for FMLA purposes, for the reasons
discussed above. The NPRM proposed to redesignate current paragraph
(d)(2), which addresses serious health conditions that are caused by
on-the-job illnesses or injuries covered under workers' compensation,
as a new Sec. 825.207(e).
Several commenters including TOC Management Services, Vercruysse
Murray & Calzone, and Bracewell & Giuliani requested that the
Department add language to proposed Sec. 825.207(e) that would permit
employers to supplement workers' compensation benefits with additional
pay, by agreement and where allowed by state law, as the Department
proposed to do with disability benefits. As these commenters explained,
many states limit workers' compensation benefits to two-thirds of the
employee's salary, and many employees would welcome the opportunity to
supplement their income in this way. In these commenters' view, such an
agreement would allow the employee to recoup the equivalent of 100
percent of his or her regular salary, and to be treated the same as
someone who is receiving disability benefits. The Department agrees
that it is appropriate to allow employers and employees to voluntarily
agree to supplement workers' compensation benefits with accrued paid
leave and has therefore added language to Sec. 825.207(e) providing
for such agreements, where state law permits. As with the disability
benefit supplementation discussed above, any such payment must be by
agreement and is neither required or affected by the FMLA. The
Department wishes to emphasize to employers and employees that the
utilization of paid leave in this context is by agreement and is not
considered a ``substitution'' of paid leave. As discussed above in
connection with the supplementation of disability benefits, the full
amount of workers' compensation leave taken due to a FMLA-protected
serious health condition would be counted against the employee's FMLA
leave entitlement regardless of whether any paid leave is used to
supplement such benefits.
For the reasons noted above, the Department has also eliminated the
term ``running concurrently'' in Sec. 825.207(e) and replaced it with
a statement that workers' compensation leave may be counted against the
employee's FMLA entitlement. As discussed previously, the concept of
``substitution'' of paid leave under the FMLA is not applicable in this
context because the employee's leave is not unpaid. However, if the
workers' compensation benefits cease for any reason and the employee is
still
[[Continued on page 67983]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 67983-68032]] The Family and Medical Leave Act of 1993
[[Continued from page 67982]]
[[Page 67983]]
on leave, the substitution provision may become applicable at that
time.
The NPRM proposed to delete current Sec. 825.207(h), which states
that where paid leave is substituted for unpaid FMLA leave and the
employer's procedural requirements for taking paid leave are less
stringent than the requirements of the FMLA, employees cannot be
required to comply with the higher FMLA standards. As explained in the
NPRM, this section conflicts with section 102(e) of the FMLA, 29 U.S.C.
2612(e), which requires employees to provide 30 days' notice for
foreseeable leave whenever possible, and with section 103 of the FMLA,
29 U.S.C. 2613, which permits employers to require certification of the
need for any FMLA leave for a serious health condition.
Finally, in proposed Sec. 825.207(f) the Department proposed to
revise current Sec. 825.207(i) to allow the substitution of
compensatory time accrued by public agency employees under the Fair
Labor Standards Act (FLSA) for unpaid FMLA leave. Comments on this
issue were mixed. The National Federation of Federal Employees
commented that the proposal would benefit employees by providing them
with another option in lieu of using unpaid leave. However, it
questioned whether the Department has the statutory authority to permit
such substitution, because compensatory time is not one of the forms of
leave referenced in the statute's substitution of paid leave provision.
See 29 U.S.C. 2612(d)(2). The AFL-CIO opposed the change for the same
reason, citing the Department's initial position and Christensen v.
Harris County, 529 U.S. 576 (2000), for its conclusion that
compensatory time is a form of overtime pay rather than a form of
accrued paid leave which may be substituted under the FMLA. It argued
that the proposed change is not authorized by Christensen, and that the
Department should retain the current rule. Public employers, on the
other hand, supported the change as an example of improved consistency
and equity. See, e.g., Colorado Department of Personnel &
Administration; City of Medford (OR); Alaska Department of
Administration; City of American Canyon (CA); Pennsylvania Governor's
Office of Administration.
The Department believes that the proposed revision is not
prohibited by the Act and is consistent with the United States Supreme
Court's decision in Christensen, in which the Court found that public
employers always have the right to cash out a public sector employee's
compensatory time or require the employee to use the time. In addition,
the Department agrees with the commenters that substitution of
compensatory time for otherwise unpaid FMLA leave would be beneficial
both to the employee, by minimizing the financial impact of unpaid
leave, and to the employer, by allowing the two benefits to run
concurrently.
Section 825.208 (Reserved)
Current Sec. 825.208 has been renumbered as proposed Sec.
825.301, and is discussed below. The section was therefore reserved to
avoid extensive renumbering of other sections.
Section 825.209 (Maintenance of Employee Benefits)
No changes were proposed to this section. The Department received
no comments on this section and the final rule adopts this section as
proposed.
Section 825.210 (Employee Payment of Group Health Benefit Premiums)
Section 825.210 addresses an employee's obligation to pay his or
her share of group health plan premiums while on FMLA leave. The
Department proposed to revise paragraph (f) of this section by deleting
the word ``unpaid,'' because an individual who is simultaneously taking
FMLA leave and receiving payments as a result of a workers'
compensation injury is not on unpaid leave. See Sec. 825.207(e). In
addition, the Department proposed to make several technical corrections
by changing the cross-references at the end of Sec. 825.210(d) and (f)
to reflect the renumbering of other sections dealing with employer
notice and workers' compensation. The internal cross-reference at the
end of Sec. 825.210(f) was deleted as unnecessary.
The Department received no comments on this section and the final
rule adopts the section as proposed.
Section 825.211 (Maintenance of Benefits Under Multi-Employer Health
Plans)
No changes were proposed to this section. The Department received
no comments on this section and the final rule adopts this section as
proposed.
Section 825.212 (Employee Failure To Make Health Premium Payments)
Section 825.212 explains that an employer may terminate an
employee's health insurance coverage while the employee is on FMLA
leave if the employee fails to pay the employee's share of the
premiums, the grace period has expired, and the employer provides
sufficient and timely notice to the employee. The Department proposed
to add language to paragraph (c) of this section to make clear that if
an employer allows an employee's health insurance to lapse due to the
employee's failure to pay his or her share of the premium as set forth
in the regulations, the employer still has a duty to reinstate the
employee's health insurance when the employee returns to work, and the
employer may be liable for harm suffered by the employee as a result of
the violation if it fails to do so. This proposal is a clarification
and does not represent a change in the Department's enforcement
position.
Few comments were received on this section. The American
Association of University Women supported the clarification, which they
termed ``common sense.'' The Chamber requested that language be added
to clarify that employers will not be held liable for medical costs
incurred during a lapse in coverage prior to the employee's return to
work, while the National Retail Federation expressed concern regarding
the employer's ability to recoup the cost of maintaining the employee's
insurance coverage. The Department believes that the proposed addition
is clear in stating that employers may only be held liable for their
failure to restore an employee's health insurance upon the employee's
return from FMLA leave. As explained in the NPRM, employers have a
variety of alternatives to terminating an employee's health insurance
when the employee fails to make premium payments, such as payroll
deductions or other deductions after the employee returns to work, to
the extent recovery is allowed under applicable laws, or as set forth
in revised Sec. 825.213 below. Accordingly, the final rule adopts
Sec. 825.212 as proposed.
Section 825.213 (Employer Recovery of Benefit Costs)
This section explains what process an employer may follow to recoup
insurance premiums from an employee when the employee does not return
from leave in certain circumstances. The Department proposed to move
language from current Sec. 825.310(h) to this section, in order to
combine it with other issues involving repayment of health premiums.
This language provides that where an employer requires medical
certification that an employee's failure to return to work was due to
the continuation, recurrence, or onset of a serious health condition,
so that the employee does not have to repay the employer for health
insurance premiums paid during FMLA leave, the employee must bear the
cost of any such certification, and associated travel costs. The
Department received no comments
[[Page 67984]]
on this section and adopts Sec. 825.213 as proposed.
Section 825.214 (Employee Right To Reinstatement)
The Department proposed organizational changes and minor
clarifications to Sec. 825.214. We proposed to add a heading titled
``[g]eneral rule'' to emphasize that the section sets forth the general
rule on reinstatement obligations under the FMLA, to move language from
current Sec. 825.214(b) on limitations on reinstatement to Sec.
825.216(c), and to combine such language with language from Sec.
825.216(d) on concurrent workers' compensation absences during FMLA
leave. The Department did not receive any significant comments on these
proposed changes and adopts the proposed changes without modification.
Section 825.215 (Equivalent Position)
The Department proposed only minor organizational changes to
paragraphs (a), (b), (e), and (f) of this section, as outlined below.
We did not propose any changes to paragraphs (c)(1) and (d). The only
substantive proposed change was in paragraph (c)(2), to allow an
employer to disqualify an employee from a bonus or other payment based
on the achievement of a specified goal such as hours worked, products
sold, or perfect attendance, where the employee has not met the goal
due to FMLA leave, unless the bonus or payment is otherwise paid to
employees on an equivalent non-FMLA leave status. The proposal included
as an example an employee who used paid vacation leave for a non-FMLA
purpose and received the payment and stated that in such a situation,
an employee who substituted paid vacation leave for FMLA leave also
must receive the payment.
The Department adopts the organizational changes to paragraphs (a),
(b), (e), and (f) without modification. Proposed paragraph (c)(2) is
adopted with a slight modification to the language for clarification
purposes. An employer may disqualify an employee from a bonus or other
payment based on the achievement of a specified goal, such as hours
worked, products sold, or perfect attendance, where the employee has
not met the goal due to FMLA leave unless otherwise paid to employees
on an equivalent leave status for a reason that does not qualify as
FMLA leave. Thus, the Department has changed the phrase ``unless
otherwise paid to employees on an equivalent non-FMLA leave status'' to
``unless otherwise paid to employees on an equivalent leave status for
a reason that does not qualify as FMLA leave.'' The final rule uses the
same example as in the proposal. The final rule also modifies paragraph
(c)(1) to include the same limitation on the employer's ability to deny
a pay increase.
The Department proposed to title paragraph (a) ``[e]quivalent
position'' and paragraph (b) ``[c]onditions to qualify.'' The
Department did not receive any significant comments on these proposed
minor changes. Paragraph (a) establishes that an equivalent position is
one that is virtually identical to the employee's former position in
terms of pay, benefits and working conditions, including privileges,
perquisites and status. The regulation further states that the
equivalent position must involve the same or substantially similar
duties and responsibilities, which must entail substantially equivalent
skill, effort, responsibility, and authority. The Equal Employment
Advisory Council maintained that ``virtually identical'' as used in the
regulation means the ``same,'' which renders the use of the term
``equivalent'' in the statute meaningless. It suggested that the
Department replace the term ``virtually identical'' with
``equivalent,'' ``comparable,'' or ``substantially similar.'' The
National Retail Federation suggested that the term ``substantially
similar'' be used rather than ``virtually identical.'' According to
this commenter, retail employers often have only one or two of any
particular position in a store and finding an equivalent position can
be difficult. The Department declines to change the term ``virtually
identical'' in paragraph (a). The Department believes that the
standards articulated in paragraph (a) give effect to the statute's
requirement that an employer restore the employee to the same or
equivalent position. The Department wishes to note that ``virtually
identical'' speaks to pay, benefits and working conditions including
privileges, perquisites and status while ``substantially similar''
speaks to an employee's duties and responsibilities. See current and
proposed Sec. 825.215(a).
Employers, employer organizations, and law firms representing
employers generally supported the proposal in paragraph (c)(2) to allow
employers to deny bonuses based on the achievement of a specified goal
to employees who failed to meet the goal because of FMLA leave. Many
commenters, including the Chamber, Southwest Airlines, College and
University Professors Association, National Business Group on Health,
and AT&T, stated that the current regulation is unfair and has caused
many employers to curtail or eliminate incentive bonuses and awards
programs, particularly those based on attendance. They welcomed the
proposed change as remedying an inequitable situation and suggested
that the change would likely result in increased employee morale. One
commenter, Schreiber Foods, stated that this change would help employee
morale because employees on FMLA leave would not be treated more
favorably than other employees. Several commenters stated that they
believed that the current regulation is unfair to employees who do not
miss any days of work because it gives the same perfect attendance
bonus to employees who have been absent for up to 12 weeks on FMLA
leave. See, e.g., Schreiber Foods, Principle Business Enterprises,
Manufacturers Alliance, and National Business Group on Health.
Similarly, the National Association of Manufacturers and AT&T
emphasized that the current regulation unfairly allows employees on
FMLA leave to receive more favorable treatment than employees who take
non-FMLA leave and are disqualified from attendance and similar
bonuses.
Several employer commenters requested further clarification on how
the proposed regulation would apply. La-Z-Boy Midwest requested that
the Department clarify that it can continue to award perfect attendance
bonuses to employees who have used vacation leave. The law firm
Vercruysse Murray & Calzone took issue with the regulatory requirement
that employers may not disqualify employees on FMLA leave from bonuses
or awards for achievement of a specified goal where such bonuses or
awards are paid to employees on an equivalent non-FMLA leave status.
According to this commenter, this exception ``virtually swallows the
proposed rule'' because employees may choose to take FMLA leave
concurrently with paid vacation or personal time-off leave, which most
employers do not count against perfect attendance bonuses. Id. Further,
according to this commenter, it is not clear under the proposed
regulation what happens when an employee takes FMLA leave and a portion
of the leave is covered by a paid leave program but the other portion
is not covered by any paid leave program.
Employee organizations and unions generally opposed the proposed
change. Working America/Working America Education Fund stated that the
proposed change would discourage employees from taking FMLA leave or
penalize employees if they do take FMLA leave, which it contended would
violate the statute. The AFL-CIO and the National Partnership for Women
&
[[Page 67985]]
Families both referenced Wage and Hour Opinion Letter FMLA-31 (Mar. 21,
1994), which stated that denying a perfect attendance award to an
employee who took FMLA leave when the employee would otherwise qualify
for the award is tantamount to interfering with the employee's exercise
of FMLA rights. A Better Balance: The Work and Family Legal Center
commented that the proposed change runs counter to the principle in
Sec. 825.220(c) which prohibits employers from using FMLA leave as a
negative factor in employment actions and counting such leave against
employees under ``no fault'' attendance policies. The National
Partnership for Women & Families noted that the majority of employees
take FMLA leave because they have to address their own or a family
member's serious health condition, and that employees in such time of
need should not be penalized with loss of income for taking leave that
federal law entitles them to take. The Hastings College of Law's Center
for WorkLife Law suggested that the term ``equivalent non-FMLA leave
status'' in the proposed regulation is open to different
interpretations, but that, whichever interpretation is followed, it
will likely result in a small number of employees who would fall within
this exception and thus only a small number of employees will not be
disqualified from bonuses or awards for taking FMLA leave. This
commenter suggested that a more equitable alternative compliant with
the basic principles of the FMLA would be to pro-rate the bonuses or
awards.
The Department believes that proposed paragraph (c)(2) provides a
fairer result for all employees than the current regulation and
therefore adopts the proposed change. Allowing an employer to
disqualify employees taking FMLA leave from bonuses or awards for the
achievement of a specified goal unless the bonus is awarded to
employees on an equivalent leave status for a reason that does not
qualify as FMLA leave puts employees who take FMLA leave on equal
footing with employees who take leave for non-FMLA reasons. The
Department does not view this as interference because employees taking
FMLA leave are not being treated differently than employees taking
equivalent non-FMLA leave. Accordingly, employees taking FMLA leave
neither lose any benefit accrued prior to taking leave, nor accrue any
additional benefit to which they would not otherwise be entitled. See
29 U.S.C. 2614(a)(2) and (3). The revised regulation does not
contradict the principle in Sec. 825.220(c) that prohibits employers
from using the taking of FMLA leave as a negative factor in employment
actions or counting FMLA leave under ``no fault'' attendance policies.
Penalizing an employee for taking FMLA leave under a ``no fault''
attendance policy is distinct from disqualifying an employee from a
bonus or award for attendance because the former faults an employee for
taking leave itself whereas the latter denies a reward for achieving
the job-related performance goal of perfect attendance. The Department
notes that employers are free to prorate such bonuses or awards in a
non-discriminatory manner; nothing in these regulations prohibits
employers from doing so.
The Department clarifies that safety awards, like attendance
awards, are predicated on the achievement of a specified job-related
performance goal, and therefore safety awards are to be treated
similarly as attendance awards under the revised regulation. Having
concluded that both attendance and safety awards are more appropriately
characterized as being based on the achievement of a work goal, the
Department has concluded that its prior distinction between bonuses or
awards based on performance and those premised on the absence of an
occurrence is no longer useful. Bonuses that are not premised on the
achievement of a goal, such as a holiday bonus awarded to all
employees, may not be denied to employees because they took FMLA leave.
In response to the commenters' concerns, the Department reiterates
that bonus or awards programs based on the achievement of a specified
goal must be administered without discriminating against employees who
exercise their FMLA leave rights. For this reason, the proposal
specifically prohibits an employer from disqualifying an employee from
a bonus or other payment if such bonus or payment is given to employees
on an ``equivalent non-FMLA leave status.'' However, as the comments
illustrate, the term ``equivalent non-FMLA leave status'' is ambiguous
and therefore the Department has modified this language to use the term
``equivalent leave status for a reason that does not qualify as FMLA
leave'' instead. Equivalent leave status refers, for example, to
vacation leave, paid time-off, or sick leave. Leave for a reason that
does not qualify as FMLA leave refers, for example, to vacation or sick
leave that is not for an FMLA purpose (i.e., the vacation or sick leave
is not also FMLA leave). Thus, for example, if an employer policy does
not disallow an attendance bonus to an employee who takes vacation
leave, the employer cannot deny the bonus to an employee who takes
vacation leave for an FMLA purpose (i.e., substitutes paid vacation
leave for FMLA leave). However, if an employer's policy is to
disqualify all employees who take leave without pay from such bonuses
or awards, the employer may deny the bonus to an employee who takes
unpaid FMLA leave. If an employer does not count vacation leave against
an attendance bonus but does count unpaid leave against the attendance
bonus, the employer may deny the bonus to an employee who takes 12
weeks of FMLA leave, two weeks of which the employee substitutes paid
vacation leave, but ten of which the employee takes as unpaid FMLA
leave. The Department believes that this is the fairest result in
keeping with the FMLA's requirements. Because this non-discrimination
principle is equally applicable to pay increases, the final rule
changes Sec. 825.215(c)(1) to state that pay increases based upon
seniority, length of service or performance need not be granted to
employees on FMLA leave unless otherwise granted to employees on an
equivalent leave status for a reason that does not qualify as FMLA
leave.
The Department proposed no substantive changes to paragraphs (e)
and (f) of this section. The NPRM proposed changing the heading of
paragraph (e) to ``[o]ther issues related to equivalent terms and
conditions of employment,'' and adding a heading titled ``[d]e minimis
exception'' to paragraph (f). The NPRM also proposed moving the final
sentence of current paragraph (f), which reminded employers that
putting an employee in a job slated for lay-off when the employee's
original position would not be eliminated would not meet the definition
of an equivalent position, to Sec. 825.216(a)(1) where related issues
are discussed, for organization and clarification purposes. The
Department did not receive any significant comments on these proposed
minor changes and adopts the proposed changes to paragraphs (e) and (f)
without modification.
Section 825.216 (Limitations on an Employee's Right to Reinstatement)
The Department proposed minor changes to Sec. 825.216. The NPRM
proposed incorporating into paragraph (a)(1) the last sentence from
current Sec. 825.215(f), which states that restoration to a job slated
for lay-off would not meet the requirements of an equivalent position.
This was proposed for organizational and clarification purposes, but no
substantive change
[[Page 67986]]
was intended. Similarly, the Department proposed to re-order current
paragraph (b) as paragraph (a)(3) for purposes of organizational
structure and clarity. The Department proposed re-lettering current
paragraph (c) as paragraph (b). The Department proposed a new paragraph
(c) to address an employer's obligations when an employee cannot return
to work after FMLA leave is exhausted because the serious health
condition continues. This section combines language from current
Sec. Sec. 825.214(b) and 825.216(d), because both sections address
limitations on reinstatement when an employee has exhausted his or her
FMLA leave entitlement and is unable to perform the essential functions
of his or her job. No substantive changes were intended. The Department
proposed moving language from current Sec. 825.312(g) and (h) that
address the fraudulent use of FMLA leave and outside employment during
FMLA leave, respectively, and therefore address limitations on
reinstatement, to Sec. 825.216 to proposed paragraphs (d) and (e),
respectively. The Department did not receive any significant comments
on these proposed changes and adopts the proposed changes without
modification.
Sections 825.217-825.219 (Explanation of Key Employees and Their
Rights)
The Department proposed minor changes to Sec. 825.217(b) to update
the reference to the definition of ``salary basis'' now contained in 29
CFR 541.602 (previously codified in 29 CFR 541.118) and to add
``computer employees'' to the list of employees who may qualify for
exemption from the minimum wage and overtime requirements of the FLSA
under those regulations if they meet certain duties and salary tests.
The Department adopts the proposed changes to Sec. 825.217 without
modification.
The Department received very few comments on this proposed change.
The National Retail Federation suggested that the Department use the
term ``information technology employee'' rather than ``computer
employee.'' The Department declines to change the term used because the
FLSA regulations use the term ``computer employees'' and the Department
specifically references the FLSA regulations in this section. The
Department intends that the term ``computer employee'' as used in this
section shall have the same meaning it has in the FLSA regulations.
Although no change was proposed to the definition of ``key
employee,'' both the National Retail Federation and the Illinois Credit
Union League urged the Department not to rely exclusively on the salary
test to determine whether an employee is a ``key employee.'' However,
the regulation simply reflects the statutory definition of a ``key
employee'' as a salaried eligible employee who is among the highest
paid 10 percent of the employees employed within 75 miles. See 29
U.S.C. 2614(b)(2). Therefore, the requested change would require a
statutory amendment.
The Department did not propose any changes to Sec. Sec. 825.218 or
825.219 and the final rule adopts them without modification.
Section 825.220 (Protection for Employees Who Request Leave or
Otherwise Assert FMLA Rights)
The Department did not propose any changes to paragraph (a). The
Department proposed to modify paragraph (b) in Sec. 825.220 by adding
new language setting forth the remedies for interfering with an
employee's rights under the FMLA. The Department proposed to
specifically reference retaliation in paragraph (c) in order to clarify
that the prohibition against interference includes a prohibition
against retaliation as well as a prohibition against discrimination.
The Department also proposed to clarify in paragraph (c) that the
statutory prohibition against interference applies to employees or
prospective employees who have exercised or attempted to exercise FMLA
rights. The Department proposed to clarify that the waiver provision in
paragraph (d) that states ``[e]mployees cannot waive, nor may employers
induce employees to waive, their rights under FMLA'' applies only to
prospective FMLA rights; it does not prevent employees from settling
past FMLA claims without Department or court approval. The Department
also proposed to modify the language in paragraph (d) regarding light
duty by deleting the final sentence of current paragraph (d) that
states ``[i]n such a circumstance, the employee's right to restoration
to the same or an equivalent position is available until 12 weeks have
passed within the 12-month period, including all FMLA leave taken and
the period of `light duty.' ''
The Department adopts the proposed changes to paragraphs (b) and
(c) without modifications. The Department adopts proposed paragraph (d)
regarding waiver with a modification to the language to make clear that
the waiver prohibition does not prevent the settlement or release of
FMLA claims by employees based on past employer conduct without the
approval of the Department or a court. The Department also adopts
proposed paragraph (d) regarding light duty with modification to the
language for clarification. The final rule clarifies that the waiver
prohibition does not prevent an employee's voluntary and uncoerced
acceptance of a light duty assignment while recovering from a serious
health condition and the employee's acceptance of the light duty
assignment does not constitute a waiver of the employee's prospective
rights, including the right to be restored to the same position the
employee held when the FMLA leave commenced or an equivalent position.
Thus, an employee who voluntarily returns to a light duty position
retains the right to job restoration to the same or equivalent position
until the end of the 12-month period that the employer uses to
calculate FMLA leave.
The Department did not receive a significant number of comments on
the proposal in paragraph (b) to add new language setting forth the
remedies for interfering with an employee's rights under the FMLA. The
AFL-CIO supported the Department's proposal. The Department adopts the
proposal without modification.
In regards to proposed Sec. 825.220(c), the Department indicated
in the proposed rule that it had received several comments requesting
that the Department strengthen or clarify the regulatory provisions
implementing the Act's prohibitions on interference and discrimination.
73 FR 7900 (Feb. 11, 2008). In accordance with such comments, the
Department proposed in paragraph (c) to state explicitly that the Act's
prohibition on interference in 29 U.S.C. 2615(a)(1) includes claims
that an employer has discriminated or retaliated against an employee
for having exercised his or her FMLA rights. Section 2615(a)(1) makes
it unlawful for an employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise any right provided for under the
Act. Although section 2615(a)(2) of the Act also may be read to bar
retaliation (see Bryant v. Dollar General Corp., 538 F.3d 394 (6th Cir.
2008)), the Department believes that section 2615(a)(1) provides a
clearer statutory basis for Sec. 825.220(c)'s prohibition of
discrimination and retaliation. See Colburn v. Parker Hannifin Corp.
429 F.3d 325, 331 (1st Cir. 2005) (recognizing retaliation as a form of
interference prohibited by Sec. 2615(a)(1) of the Act and 29 CFR
825.220(c)). The Department did not receive any comments on this
proposed clarification and adopts the proposal without modification.
The Department proposed to clarify that the waiver provision in
paragraph
[[Page 67987]]
(d) that states ``[e]mployees cannot waive, nor may employers induce
employees to waive, their rights under FMLA'' applies only to
prospective FMLA rights. Courts have disagreed as to whether this
language prohibits only the prospective waiver of FMLA rights, or also
prohibits the retrospective settlement or release of FMLA claims based
on past employer conduct, such as through a settlement or severance
agreement, without Department or court approval. Compare Taylor v.
Progress Energy, 493 F.3d 454 (4th Cir. 2007), cert. denied, -- U.S. --
, 2008 WL 2404107 (June 16, 2008) (interpreting Department's regulation
to prevent employees from settling past claims for FMLA violations with
employers without the approval of the Department or a court) with Faris
v. Williams WPC-I, Inc., 332 F.3d 316 (5th Cir. 2003) (plain reading of
the Department's regulation prohibits prospective waiver of rights only
and not retrospective settlement of claims). The Department disagrees
with the Fourth Circuit's interpretation of the regulation. Therefore,
in the interest of clarity, the Department proposed to make explicit in
paragraph (d) of this section that employees and employers are
permitted to agree voluntarily to the settlement of past claims without
having first to obtain the permission or approval of the Department or
a court.
Nearly all the employers, employer organizations, and law firms
representing employers who commented on this issue supported the
Department's proposed clarification. The Equal Employment Advisory
Council stated that, while the current regulation ``clearly allows''
waivers in settling past claims, they supported the Department's
proposal to make it more explicit. See also Association of Corporate
Counsel's Employment and Labor Law Committee. Several commenters,
including the Chamber, Domtar Paper Company, the National Federation of
Independent Business, Hewitt Associates, and HR Policy Association,
emphasized the economic and efficiency benefits to all parties of
allowing settlements without Department or court approval. Several
commenters such as the National Restaurant Association, the
Manufacturers Alliance, and HR Policy Association, emphasized the
importance of this regulation for severance agreements. The law firm
Burr & Forman requested additional clarification of the term ``past''
in the proposal and specifically requested that severance agreements,
including those where the employee may or may not know of any FMLA
claims, be permitted without Department or court approval.
Employee organizations opposed the proposed clarification. Several
commenters, including A Better Balance: The Work and Family Legal
Center, Human Rights Campaign, Sargent Shriver National Center on
Poverty Law, and Family Caregiver Alliance, emphasized the unequal
position of employees and employers in settling cases or signing
severance agreements, with employees' immediate financial needs forcing
employees to forego their FMLA rights and thereby allowing employers to
escape FMLA liability. According to these commenters, requiring
Department or court approval is an important means of addressing this
inequality. They argued that allowing settlements or severance
agreements without Department or court approval would hamper
enforcement of the FMLA. In addition, many of the commenters, including
the AFL-CIO, the National Partnership for Women & Families, the ACLU,
and Women Employed, reiterated many of the reasons relied on by the
Fourth Circuit in Taylor to support their recommendation that the
Department not allow unsupervised waivers of past FMLA claims.
Specifically, they argued that the Department's proposal contradicts
the Department's position in the 1995 regulation, based on statements
in the 1995 preamble. These commenters urged the Department to reject
the proposal because private settlement of prospective or retrospective
claims undermines Congressional intent in imposing minimum labor
standards. They maintained that the FMLA should be interpreted
consistently with the FLSA, which prohibits employees from waiving
their rights without Department or court approval, instead of with
Title VII and other anti-discrimination laws which allow unsupervised
settlements. They also contended that employers have an incentive to
deny FMLA benefits if they can settle violation claims for less than
the cost of complying with the statute.
The Department's interpretation of the waiver provision is well
known from its participation in Taylor. The Department has never
interpreted current Sec. 825.220(d) as prohibiting the unsupervised
settlement or release of claims based on past employer conduct and has
never enforced it as such. This interpretation is consistent with the
statute. Nothing in the text of the FMLA requires Department or court
approval of a settlement or release of FMLA claims based on past
employer conduct or prohibits waiver of FMLA claims based on past
employer conduct. The statute is silent on this issue. The enforcement
provision in FMLA does not reference the supervised settlement
provision in section 16(c) of the FLSA, 29 U.S.C. 216(c). Instead,
FMLA's enforcement provision directs the Secretary to receive,
investigate, and attempt to resolve FMLA complaints in the same manner
that the Secretary receives, investigates, and attempts to resolve
complaints under sections 6 and 7 of the FLSA (29 U.S.C. 206 and 207).
29 U.S.C. 2617(b)(1). Consistent with this statutory authorization, the
Secretary has established an administrative process pursuant to which
the Wage and Hour Division investigates and attempts to resolve FMLA
complaints in the same way that it handles FLSA complaints. The
supervised settlement practice, however, is unique to the FLSA. See
Barrentine v. Arkansas Best Freight Sys., 450 U.S. 728, 740 (1981);
Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706-07 (1945). The judicial
prohibition against private settlements under the FLSA is based on
policy considerations unique to the FLSA. The FLSA is a remedial
statute setting the floor for minimum wage and overtime pay. It was
intended to protect the most vulnerable workers, who lacked the
bargaining power to negotiate a fair wage or reasonable work hours with
their employers. The judicially-imposed restrictions on private
settlements under the FLSA have not been read into other employment
statutes that reference the FLSA and should not be read into the FMLA.
Even the Age Discrimination in Employment Act (``ADEA''), which
explicitly references section 16(c) of the FLSA (29 U.S.C. 216(c)), see
29 U.S.C. 626(b), has not been interpreted as requiring supervised
settlements. Like the ADEA, the FMLA is not primarily focused on pay,
and protects all segments of the workforce, from low wage workers to
highly paid professionals.
Because of the perceived ambiguity in the 1995 regulation, the
Department now clarifies that it intends, as it has always intended,
for the waiver prohibition to apply only to prospective FMLA rights.
The Department notes that it intended under the proposal to allow
employees to enter severance agreements releasing FMLA claims based on
past employer conduct, in addition to allowing settlement of FMLA
claims in situations where the employee has filed a claim against the
employer. The Department has never interpreted the waiver provision as
applying to the settlement of claims or
[[Page 67988]]
to the release of FMLA claims in severance agreements based on past
employer conduct, whether known or unknown to the employee at the time
of entering the severance agreement. In the interest of further
clarity, the Department has modified the language in the final rule. By
changing the language from settling past FMLA claims to settling or
releasing FMLA claims based on past conduct by the employer, the
Department intends to make clear that an employee may waive his or her
FMLA claims based on past conduct by the employer, whether such claims
are filed or not filed, or known or unknown to the employee as of the
date of signing the settlement or the severance agreement. Thus, an
employee may sign a severance agreement with his or her employer
releasing the employer from all FMLA claims based on past conduct by
the employer. An employee may also settle an FMLA claim against his or
her employer without Department or court approval. The Department
believes this promotes the efficient resolution of FMLA claims and
recognizes the common practice of including a release of a broad array
of employment claims in severance agreements.
The Department also proposed to modify the language in Sec.
825.220(d) regarding light duty. The current regulation states that the
waiver prohibition does not prevent an employee's voluntary and
uncoerced acceptance of a light duty assignment while recovering from a
serious health condition. The regulation further states that ``[i]n
such a circumstance, the employee's right to restoration to the same or
an equivalent position is available until 12 weeks have passed within
the 12-month period, including all FMLA leave taken and the period of
`light duty.' '' The Department is aware that at least two courts have
interpreted this language to mean that an employee uses up his or her
twelve week FMLA leave entitlement while performing work in a light
duty assignment. See Roberts v. Owens-Illinois, Inc., 2004 WL 1087355
(S.D. Ind. 2004); Artis v. Palos Community Hospital, 2004 WL 2125414
(N.D. Ill. 2004). These holdings differ from the Department's
interpretation of the current regulation, as further expressed in a
1995 opinion letter issued by the Department that states that an
employee who voluntarily accepts a light duty position:
Retains rights under FMLA to job restoration to the same or an
equivalent position held prior to the start of the leave for a
cumulative period of up to 12 workweeks. This ``cumulative period''
would be measured by the time designated as FMLA leave for the
workers' compensation leave of absence and the time employed in a
light duty assignment. The period of time employed in a light duty
assignment cannot count, however, against the 12 weeks of FMLA
leave.
Wage and Hour Opinion Letter FMLA-55 (Mar. 10, 1995).
Given the apparent confusion over this provision, the Department
proposed to delete this sentence. In support of the proposal, the
Department stated that the current regulation does not serve the
statute's purpose to provide job protection when FMLA leave is taken.
73 FR 7901 (Feb. 11, 2008). Deleting this language would ``ensure that
employees retain their right to reinstatement for a full 12 weeks of
leave instead of having that right diminished by time spent in a light
duty position.'' Id. The Department stated that it wished to make clear
that ``when an employee is performing a light duty assignment, that
employee's rights to FMLA leave and to job restoration are not affected
by such light duty assignment.'' Id. The Department invited comments on
whether the deletion of this language would negatively impact an
employee's ability to return to his or her original position from a
voluntary light duty position. Id. The Department adopts the proposal
with clarifying modifications.
It is clear from the comments that the proposal was interpreted in
different ways by different groups. Employee organizations and unions,
as well as several employer organizations, interpreted the proposal to
protect an employee's right to reinstatement while in a light duty
position, regardless of the amount of time the employee works in the
light duty position. In other words, these commenters read the proposal
as preserving the employee's right to reinstatement to the employee's
original position or an equivalent position while in a voluntary light
duty position, regardless of how long that period may be. Based on this
interpretation, employee organizations and unions were supportive. See
AARP, National Partnership for Women & Families, the National
Federation of Federal Employees, MomsRising.org. The AFL-CIO cited the
Department's statement in the preamble to the proposed rule--``when an
employee is performing a light duty assignment, that employee's rights
to FMLA leave and to job restoration are not affected by such light
duty assignment''--and concluded that the proposed change would not
negatively impact an employee's ability to return to his or her
original position. See also A Better Balance: The Work and Family Legal
Center. The AFL-CIO recommended, however, that the Department include
the language cited above in the text of the regulation.
Several employer commenters interpreted the proposal similarly and
expressed disapproval. The Southern Company, American Health Care
Association/National Center for Assisted Living, and Hewitt Associates,
stated that the proposed modification of this regulation would
discourage employers from offering light duty positions because the
reinstatement right is not exhausted during a period of light duty,
which creates an open-ended right to reinstatement. These commenters
argued that holding the position open for an indeterminate amount of
time would be too burdensome to employers and therefore employers would
be less likely to offer light duty positions. Under the current version
of the regulation, the employer has certainty that the employee is
entitled to the original (or an equivalent) position for only 12 weeks.
Under the proposal as they interpreted it, the employer will no longer
have this certainty.
In contrast, several employers and employer organizations and law
firms interpreted the Department's proposal as not protecting an
employee's right to reinstatement while in a light duty position. The
National Coalition to Protect Family Leave and the Society for Human
Resource Management commented that, in most instances, employers would
like to return employees to their original position as soon as the
employee is able to do so and therefore the Department's proposed
change should have no impact on an employee's reinstatement rights.
They noted, however, that this may not be the case where an employee
has been unable to perform his or her original position for an extended
period of time and the employer has filled that original position with
another employee. These comments appear to interpret the proposal as
providing no right to reinstatement to the employee's original position
from a light duty position. The National Retail Federation interpreted
the proposal in the same manner and suggested that the proposal will
discourage employees from accepting light duty positions when returning
from FMLA leave because the employee is no longer on FMLA leave when he
or she returns to a light duty position, and therefore is no longer
entitled to a right to reinstatement to the same or equivalent
position.
Other commenters simply expressed uncertainty as to the correct
interpretation of the proposal and the Department's intention. See
Spencer Fane Britt & Browne, Tennessee Valley
[[Page 67989]]
Chapter of the Society for Human Resource Management, and the National
Association of School Boards. The law firm Spencer Fane Britt & Browne
and Tennessee Valley Chapter of the Society for Human Resource
Management questioned how the Department would interpret the employee's
reinstatement rights under the proposal: Would an employee have
reinstatement rights the entire time the employee works in a light duty
position or would an employee have no reinstatement rights? These
commenters urged the Department to adopt the interpretation that an
employee who accepts a light duty position has no reinstatement rights.
The law firm Spencer Fane Britt & Browne argued that an employee waives
his or her right to reinstatement each day that the employee works in
the light duty position. According to this commenter, interpreting the
proposed regulation otherwise would permit an employee to be guaranteed
reinstatement for an indefinite period of time, including a longer
period than the FMLA otherwise allows.
The Department intended its proposal to protect an employee's right
to restoration to the position the employee held when the FMLA leave
commenced or to an equivalent position while in a light duty
assignment. An employee who takes FMLA leave has a right to be restored
to the same position the employee held when the FMLA leave commenced or
an equivalent position. 29 U.S.C. 2614(a)(1). An employee may not
prospectively waive this right. Therefore, when an employee voluntarily
accepts a light duty assignment, the employee does not waive his or her
restoration right while working in the light duty assignment. Likewise,
the time the employee works in the light duty assignment does not count
as FMLA leave. Thus, the employee's right to restoration is essentially
held in abeyance during the period of time an employee performs a light
duty assignment pursuant to a voluntary agreement between the employee
and the employer. At the conclusion of the voluntary light duty
assignment, the employee has the right to be restored to the position
the employee held at the time the employee's FMLA leave commenced or to
an equivalent position, provided that the employee is able to perform
the essential functions of such a position. If the voluntary light duty
assignment ends before the employee is able to perform the essential
functions of such a position, the employee may use the remainder of his
or her FMLA leave entitlement and would be eligible to return to the
same position the employee held when the FMLA leave first commenced or
to an equivalent position, provided that the employee is able to
perform the essential functions of such a position at the end of his or
her FMLA leave. For example, if an employee takes four weeks of FMLA
leave and voluntarily accepts a light duty assignment that the employer
has offered for ten weeks, at the conclusion of that ten week period,
the employee either returns to the same position the employee held when
the FMLA leave commenced or to an equivalent position, or, if the
employee is unable to return to that position the employee may use the
remainder of his or her FMLA leave. At the conclusion of the employee's
FMLA leave, the employee would have a right to be restored to the same
position the employee held when the original FMLA leave commenced or to
an equivalent position as long as the employee is able to perform the
essential functions of the position. The Department notes that whenever
an employee performs his or her own job for less than a full schedule,
the employee is using intermittent or reduced schedule leave and is not
performing light duty for purposes of FMLA.
However, when an employee has already used his or her full 12 weeks
of FMLA leave entitlement in a 12-month period and then voluntarily
accepts a light duty position because the employee is unable to resume
working in his or her original position, that employee no longer has a
right under the FMLA to restoration. If an employee exhausts his or her
FMLA leave entitlement and is still unable to perform the essential
functions of his or her original or equivalent position, the employee
no longer has an FMLA right to restoration.
The Department recognizes that in the case of open-ended light duty
assignments, this could potentially lead to an employee's right to
restoration to his or her original position extending for an indefinite
period. In order to address the administrative difficulties such an
open-ended restoration right would present, the final rule provides
that an employee's right to restoration while in a light duty
assignment expires at the end of the 12-month leave year period that
the employer uses to calculate FMLA leave. The Department believes that
this is a reasonable limitation that is consistent with the statute's
reference to a 12-month period for leave purposes. For example, where
an employer uses a calendar year to calculate FMLA leave, and an
employee takes four weeks of FMLA leave and returns in September to a
light duty assignment that is not limited in duration and which neither
the employer nor the employee chooses to end, the employee has a right
to restoration that extends through the end of that calendar year, but
would not extend beyond that calendar leave year.
While this new provision in the final rule could potentially create
a disincentive for employers to offer light duty positions because it
provides a more open-ended right to reinstatement than the current
regulation allows, nothing prevents employers from offering light duty
positions for a finite period of time. Because the employer provides
the light duty position on a voluntary basis, just as the employee
accepts it on a voluntary basis, an employer may impose time limits as
part of the offer of a light duty assignment. In addition, because the
light duty assignment is voluntary, the employer or the employee may
end the assignment at any time. If the employer offers the light duty
assignment for a limited period of time or decides to end the
assignment at any point, and the employee is not able to return to the
same or equivalent position at the conclusion of that period of time,
the employee may use the remainder of his or her FMLA leave, after
which the employee has a right to restoration to the same position the
employee held when the FMLA leave first commenced or an equivalent
position. If, however, the employee is unable to resume work after
exhausting his or her 12 weeks of leave in a 12-month period, the
employer's FMLA obligation to restore the employee to the original
position ceases. At that point, the employer may, for example,
permanently assign the employee to a different position or terminate
the employee.
Several of the employer commenters reiterated the request made in
response to the Request for Information, 72 FR 35605 (June 28, 2007),
that employers be allowed to require employees to accept a light duty
position that is consistent with the employee's medical restrictions in
lieu of the employee taking FMLA leave. See American Foundry Society,
Schreiber Foods, the Chamber, College and University Professional
Association for Human Resources, Berens & Tate, and Spencer Fane Britt
& Browne. As explained in the preamble to the proposed rule, 73 FR 7900
(Feb. 11, 2008), the Department does not believe that such a
requirement comports with the statutory right to take 12 weeks of FMLA
leave for a serious health condition. The FMLA guarantees employees 12
weeks of unpaid leave for the reasons enumerated in the statute; it
does not permit employers to require
[[Page 67990]]
employees to work a light duty position rather than taking FMLA leave.
Other employer commenters requested that the time an employee works
in a light duty assignment count against the employee's 12-week FMLA
leave entitlement. See National Business Group on Health and Equal
Employment Advisory Council. The National Business Group on Health
pointed to the hardship that an employee working a light duty position
imposes both on the employer and on other employees who are forced to
take on the responsibilities of the employee who is not performing the
functions of his or her original position as justification for counting
the light duty time as FMLA leave. The Equal Employment Advisory
Council distinguished a light duty position that the employer creates
for a particular employee recovering from a serious health condition
from a light duty position that already exists and that the employer
allows the employee to fill. The Equal Employment Advisory Council
recommended that, where the employer created a light duty position for
a particular employee, the time spent working in this light duty
position should count against the employee's FMLA entitlement because
the employee is functionally still on leave; time spent in a light duty
position that already exists should not count against the employee's
FMLA entitlement. Employee commenters, including Community Legal
Services, Inc./AIDS Law Project of Pennsylvania, the Coalition of Labor
Union Women, and Catherine Scott, emphasized the importance of not
counting the time an employee works in a light duty position against an
employee's 12-week leave entitlement.
The Department continues to reject the employers' suggestion on
this issue. The time an employee works in a voluntary light duty
position does not count against the employee's FMLA entitlement. The
Department acknowledges that allowing an employee to work a light duty
position may cause certain burdens to the employer. However, the FMLA
does not require an employer to offer a light duty position; the
employer does so voluntarily. The distinction between a light duty
position created for a particular employee and a light duty position
that already exists is irrelevant for FMLA purposes because, under the
FMLA, the employer offers a light duty position on a voluntary basis.
Subpart C--Employee and Employer Rights and Obligations Under the Act
Section 825.300 (Employer Notice Requirements)
The NPRM proposed to consolidate the employer notice requirements,
which appear in current Sec. Sec. 825.300, 825.301, 825.110 and
825.208, into one comprehensive section addressing an employer's notice
obligations. Current Sec. 825.300 addresses the requirement that
employers post a notice on employee rights and responsibilities under
the law and, where a significant portion of the employer's workers are
not literate in English, provide the notice in a language in which the
employees are literate. This section also addresses the civil money
penalty provision in the law for employers who willfully violate the
posting requirement. Current Sec. 825.301 requires an employer to
include information about the FMLA in any written guidance such as an
employee handbook or other document that the employer provides to its
employees. In the case of an employee's request for FMLA leave, current
Sec. 825.301 also requires the employer to provide the employee with a
written notice that details the specific expectations and obligations
of the employee and the consequences of a failure to meet these
obligations. Additional notice requirements, such as notifying
employees of their FMLA eligibility and designation of their FMLA
leave, appear elsewhere in current Sec. Sec. 825.110 and 825.208.
Proposed Sec. 825.300 consolidated these employer notice
requirements under the major topics of ``general,'' ``eligibility,''
and ``designation'' notices, and ``consequences of failing to provide
notice.'' The final rule adopts the consolidated format, but makes
additional changes to further clarify employer obligations to provide
notice to employees as outlined below. The Department continues to
believe that a key component of making the FMLA a success is effective
communication between employees and employers. Enhanced communication
increases employee awareness of rights and responsibilities and
facilitates the smooth administration of the FMLA. The Department
anticipates that this consolidated format and the notice requirements
contained herein will further this goal.
Several commenters strongly supported consolidating the employer
notice requirements into one general area of the regulations. The Equal
Employment Advisory Council (``EEAC'') noted that, ``[b]y identifying
specifically the `general', `eligibility' and `designation' notice
requirements, the proposal clarifies for both employers and employees
their respective obligations under the FMLA.'' The City of Portland
(OR) agreed that ``[p]lacing all of the notice requirements in
consecutive sections is an improvement'' but felt employee notice
requirements should precede the employer notice sections. See also
WorldatWork; the Chamber. While not agreeing with all the proposed rule
changes, Jackson Lewis agreed with ``the `theme' of shared
responsibility that permeates the Proposed Regulations. By increasing
the emphasis on employers' `general notice' obligations and employees'
obligations to give adequate and timely notice * * * the DOL's proposal
prepares the groundwork for a more reasonable exercise of FMLA rights
and obligations.''
General Notice Requirements
Proposed Sec. 825.300(a) addresses the general notice requirements
that appear in current Sec. Sec. 825.300 and 825.301(a). Proposed
Sec. 825.300(a)(1) retained the requirement from the current rule that
every covered employer post and keep posted in conspicuous places on
its premises where notices to employees and applicants are usually
posted a notice providing information about the FMLA. The Department
proposed to allow electronic posting of the general notice so long as
it otherwise met all of the requirements of the section, and sought
comment on whether the electronic posting alternative would be workable
and would ensure that employees and applicants obtain the required FMLA
information. Additionally, the Department proposed in paragraph (a)(1)
to increase from $100 to $110 the civil money penalty assessment for an
employer's willful failure to post the required notice, consistent with
the requirements of the Debt Collection Improvement Act of 1996
amendment of the Federal Civil Penalties Inflation Adjustment Act of
1990. For purposes of clarity, the Department proposed to separate out
into paragraph (a)(2) the requirement in the current rule that a
covered employer post the general notice even if no employees are
eligible for FMLA leave. Proposed Sec. 825.300(a)(3) required covered
employers with eligible employees to distribute the general notice by
including it in an employee handbook or by distributing a copy to each
employee at least once a year, either in paper or electronic form.
Proposed Sec. 825.300(a)(4) permitted employers to meet their
obligation to both post and distribute the general
[[Page 67991]]
notice by duplicating the text of the prototype notice contained in
Appendix C. The proposal required that, when the employer employs a
significant portion of employees who are not literate in English, the
employer provide the poster and general notice to employees in a
language in which they are literate, and it also retained language in
the current rule requiring notice to sensory-impaired individuals as
required under applicable federal and state law. Additionally, the
Department proposed revisions to its prototype general notice to
provide employees more useful information on their FMLA rights and
responsibilities.
The final rule adopts Sec. 825.300(a) with the following
modifications. Language similar to current Sec. 825.301(a)(1) has been
added to Sec. 825.300(a)(3) of the final rule to clarify that if
employers have employee handbooks or other written materials concerning
benefits and leave, such written materials must include the general
notice information. Where such materials do not exist, the final rule
requires an employer to provide the general notice to new employees
upon being hired, rather than requiring that it be distributed to all
employees annually. Additionally, the final rule in Sec. 825.300(a)(4)
clarifies that employers may meet the general notice requirements by
either duplicating the prototype general notice in Appendix C or by
using another format so long as the information provided, at a minimum,
includes all of the information contained in the prototype general
notice.
Several commenters were concerned that electronic posting of the
general notice as permitted in proposed Sec. 825.300(a)(1) would be
insufficient to alert individuals to their rights and responsibilities
under the law. The National Partnership for Women & Families commented
that, while electronic posting could be beneficial to some employees
and applicants who might work at locations other than the employer's
worksite or who might be applying for a position online, it ``should be
required as an addition, rather than a substitution, to employers
actually posting the FMLA poster.'' See also American Association of
University Women; AFL-CIO; Communications Workers of America. Other
commenters, however, specifically approved of the Department's proposal
to allow electronic posting of the general notice. Verizon commented
that ``[p]ermitting electronic forms of communication recognizes the
reality of the times, encourages efficiency and provides employees with
access to information at the time of their choice.'' See also AT&T;
Willcox and Savage; National School Boards Association; College and
University Professional Association for Human Resources; National
Association of Manufacturers.
Some employers also questioned whether the statute allowed the
Department to require a notice to applicants for employment in proposed
Sec. 825.300(a)(1). Spencer Fane Britt & Browne stated ``we find no
basis in the Act for requiring that employers make applicants aware of
the FMLA and the rights they may have a year down the road'' if the
applicant is hired and remains employed. See also Society for Human
Resource Management; National Coalition to Protect Family Leave;
Willcox and Savage. Other employers felt electronic notification of
applicants would be confusing and burdensome and suggested the
Department eliminate or scale back the requirement. The Northern
California Human Resources Association specifically questioned the
definition of ``applicant'' and noted that ``the number of unqualified
applicants for an open position is significantly high.'' The commenter
asked when the ``disclosure'' should occur and also questioned ``what
FMLA regulations would need to be provided? '' See also Judi Moran;
Hewitt Associates; Southern Company.
The final rule adopts Sec. 825.300(a)(1) as proposed, including
the provision that the posting requirement may be satisfied through an
electronic posting of the general notice as long as it otherwise meets
the requirements of this section. The Department believes that
electronic posting of the notice can facilitate increased employee
awareness while limiting cost burdens on employers. For the posting
requirement to be met, however, all employees and applicants for
employment must have access to the information. Thus, for example, if
an employer has some employees who do not have employer-provided
computer access or who are not otherwise able to access the information
electronically, the employer must post on its premises where it can be
readily seen a paper copy of the information contained in the general
notice, such as a copy of the prototype general notice in Appendix C.
Additionally, electronic posting does not excuse the employer from the
statutory requirement to post in a location viewable by applicants for
employment. 29 U.S.C. 2619(a). Therefore, if the employer posts such
information on an intranet that is not accessible to applicants,
additional posting would be necessary in a conspicuous place where
notices for applicants for employment are customarily posted.
Numerous commenters responded to the proposed annual notification
requirement in Sec. 825.300(a)(3). Employee groups suggested that all
employers, including those who have handbooks, should be required to
distribute the general notice annually to all employees. See National
Partnership for Women & Families; American Association of University
Women; A Better Balance: The Work and Family Legal Center. Several
employers opposed the annual notification requirement, arguing that it
goes beyond the statutory requirement to post a general notice. See
City of Colorado Springs (CO); City of Independence (MO); Catholic
Charities, Diocese of Metuchen; Fisher & Phillips; National Coalition
to Protect Family Leave; National Franchise Association. Spencer Fane
Britt & Browne stated:
We are not even convinced that any required distribution of the
General Notice should be required if it is posted in conspicuous
places for employees to read. The Act's only notice requirement is a
poster. The DOL drafted the poster as required notice to employees
of his/her FMLA rights and obligations. In the Ragsdale decision,
even the Supreme Court questioned, although did not rule on, whether
the DOL's other notice requirements for employers went beyond the
Act.
The Association of Corporate Counsel's Employment and Labor Law
Committee commented that because employers must post the policy in a
conspicuous place, ``it seems unnecessary to require an annual
distribution of the policy, especially given the administrative costs
this will impose on the employer.'' The American Health Care
Association also objected to the annual notice requirement, stating
that employers that do not have handbooks typically will be smaller
employers with limited budgets and no human resources department.
Fisher & Phillips commented that only an employee with a current need
for leave will read the available information and thus the annual
distribution requirement ``simply creates an additional administrative
burden that will not improve the quality of employee's knowledge of
their rights.'' The Metropolitan Transportation Authority (NY)
suggested that ``it should be sufficient for the employer to distribute
such notices [once upon hiring the employee] and to post the notice in
conspicuous locations throughout the workplace.'' Vercruysse Murray &
Calzone objected to the handbook or annual notice requirement beyond
the posting requirement, calling it a ``level of overkill [that] is
virtually
[[Page 67992]]
unprecedented and can result in significant expense to employers who
must reprint handbooks or handbook inserts or distribute hard copies of
the notice to large numbers of employees in workplaces where not all
employees are connected electronically.'' Some employers specifically
addressed electronic distribution of the annual general notice to all
employees under proposed Sec. 825.300(a)(3). AT&T commented that
``expansion of the posting requirements to include annual
[notification] would be workable if done electronically.'' The Southern
Company requested that this section be clarified to provide that the
annual notice requirement can be satisfied by including the notice in
an employee handbook that is maintained electronically as long as all
employees have access to the electronic handbook, stating that this
would be a cost-effective solution that still meets the Department's
goals. Harrill & Sutter, on the other hand, objected to any
distribution that was limited to an electronic posting, stating that
employees forget about such postings.
In light of the numerous comments regarding the administrative
burden and expense of the proposed annual distribution requirement,
particularly for employers with large numbers of employees who do not
have access to a company-provided computer, the final rule modifies
this provision. The final rule requires employers that do not have
employee handbooks or other written materials concerning benefits and
leave that are distributed to all employees to provide the general
notice to each employee when the employee is hired. Under the current
rule, employers that do not have a handbook or similar written material
are only required to advise employees of their FMLA rights and
responsibilities after they request FMLA leave. The additional notice
provided in the final rule, given to employees when they are hired,
will alert employees to their FMLA rights and responsibilities before
they are facing a significant family event like the birth or adoption
of a child or a serious medical emergency affecting the employee or a
family member. Thus, the new general notice requirement will provide
important information to employees at a time when they are not in a
crisis situation and when it is likely that they are receiving other
important information that they will retain for future reference
regarding their new employment. A covered employer with no eligible
employees would not be required to distribute the general notice,
although the employer would have to comply with this requirement even
if it only has one eligible employee. The Department adopts the
provision permitting distribution of the handbook or general notice to
new employees through electronic means for the same reasons that it
adopts the proposal to permit electronic posting of the general notice
discussed above. With regard to the use of an electronic employee
handbook, the Department believes that having the FMLA notice
incorporated into an employee handbook that is maintained
electronically can satisfy this general notice requirement, so long as
all of the requirements of this section are met, i.e., that the
information is accessible to all employees of the employer, that it is
made available to employees not literate in English (if required), and
that the information provided includes, at a minimum, all of the
information contained in the prototype general notice.
A few commenters addressed the provision in proposed Sec.
825.300(a)(4) permitting employers to meet the general notice
requirements by duplicating the text of the prototype general notice
contained in Appendix C. Vercruysse Murray & Calzone commented that
``some employers will simply use the FMLA notice/poster as their FMLA
policy and do away with more specific policies that are currently in
place'' leaving out important information, such as the employer's 12-
month leave period, because it is not contained in the notice/poster.
TOC Management Services also objected to the use of the prototype
notice in employee handbooks, stating that ``handbook policies are more
informative than a generic general notice'' and that to require
employers to use the general notice in their handbook will inevitably
lead to confusion. The final rule in Sec. 825.300(a)(4) clarifies that
employers may use a copy of the prototype general notice in Appendix C
or may use employer-drafted FMLA policy information (including
information specific to the employer's policies) for inclusion in an
employee handbook or for distribution to new employees, so long as it
contains, at a minimum, all of the information included in the
prototype general notice and is consistent with that notice.
A few commenters noted that the Department's proposed general
notice did not include information advising employees of the type of
information the employee will need to provide to the employer when
requesting leave to meet the employee notice standards in Sec. Sec.
825.302 and 825.303. One commenter, Robert Schwartz, who objected to
the employee notice obligations, also objected that the draft general
notice ``simply warns employees that they must furnish `sufficient'
information for the employer to determine if the leave may qualify for
FMLA protection and the expected start date and duration of the leave''
without alerting employees to additional information they will need to
provide. See also Society for Human Resource Management; National
Coalition to Protect Family Leave. In the final rule, the Department
has updated the prototype general notice to indicate more clearly the
type of information an employee may need to provide to his or her
employer for the notice to be ``sufficient.'' See Sec. Sec. 825.302
and 825.303.
Several commenters sought clarification of the requirement in
proposed Sec. 825.300(a)(4) that employers with a ``significant
portion'' of employees not literate in English provide the poster and
general notice in a language in which they are literate. Jackson Lewis
questioned whether the ``employment of more than a few non-English
literate employees'' would trigger the obligation or if ``a workforce
of 25% non-English literate employees'' would trigger it. Catholic
Charities, Diocese of Metuchen commented ``[t]he regulation should
define what constitutes a significant portion. * * * [and] provide
clarification of the measures, if any, that employers are required to
take so as to ensure that workers are informed of the contents of the
poster and general notice when only a small number of employe[es] are
not literate in English.'' The Equal Employment Advisory Council
recommended the Department clarify that the ``alternative notice is
required only where the workforce in a particular location is literate
in a language other than English'' to more readily accommodate those
employers with multiple locations. Finally, the Communications Workers
of America stated that ``the agency should more closely monitor all of
the FMLA notices that employers are providing to employees, including
ensuring that this information is provided in many languages other than
English in appropriate work locations.'' The final rule in Sec.
825.300(a)(4) adopts the proposal on this topic without change.
Nonetheless, the Department notes that employers with multiple
locations may post notices in different languages at different
locations, if the posted notices are provided in languages in which the
employees are literate at each location. Additionally, the final rule
applies the same ``significant portion of workers not
[[Page 67993]]
literate in English'' standard for translation of the notification of
eligibility and rights and responsibilities in Sec. 825.300(b)(2) and
(c)(1).
Finally, two commenters addressed the proposed increase (from $100
to $110) in the Civil Money Penalty (CMP) required under Sec.
825.300(a)(1). One commenter, Tracy Hutchinson, suggested that
penalties for employers who ``ignore the law'' should be much harsher
including jail time. The Coalition of Labor Union Women commented that
the proposed increase was ``inadequate to discourage employers from
ignoring their clear statutory obligation to provide sufficient FMLA
notice to their workers.''
Section 109(b) of the FMLA (29 U.S.C. 2619(b)) provides that any
employer who willfully violates the Act's requirement to post the FMLA
notice as required by section 109(a) may be assessed a CMP not to
exceed $100 for each separate offense. This CMP amount was set by the
Congress as part of the original FMLA of 1993. The Department proposed
to increase the CMP to $110 to meet requirements of the Debt Collection
Improvement Act of 1996, which amended the Federal Civil Penalties
Inflation Adjustment Act of 1990 to require that federal agencies
adjust certain CMPs for inflation. As amended, the law requires each
agency to initially adjust for inflation all covered CMPs, and to
periodically make further inflationary adjustments thereafter. The
statute applies a cap, for the initial adjustment only, which limits
the amount of the first penalty increase to 10 percent of the current
penalty amount. Therefore, although the amount of inflation since June
of 1993 has exceeded 10 percent, the Department's proposal to amend
Sec. 825.300(a) to provide for assessment of a penalty of $110 for
willful violations of the posting requirement is limited by these
statutory constraints and is adopted as proposed.
Eligibility Notice
The Department proposed to consolidate the existing eligibility
notice requirements in current Sec. Sec. 825.110 and 825.301 into one
section in Sec. 825.300(b) and to strengthen and clarify them.
Consistent with the requirement in current Sec. 825.110(d), proposed
Sec. 825.300(b)(1) required an employer to advise an employee of his
or her eligibility status when the employee requests leave under the
FMLA. The Department proposed in Sec. 825.300(b)(1) to extend the time
frame for an employer to respond to an employee's request for FMLA
leave from two business days to five business days of the employee's
request for leave or of the employer acquiring knowledge that the leave
may be for a FMLA-qualifying reason. The Department sought comment on
whether this increased time frame would both impart sufficient
information to employees in a timely manner and be workable for
employers. Proposed Sec. 825.300(b)(2) specified what information an
employer must convey to an employee as to eligibility status, including
whether the employee still has FMLA leave available in the current 12-
month FMLA leave period. It also required, if the employee was
determined not to be eligible or to have no FMLA leave available, that
the employer state the reasons why the employee was not eligible. If
the employee was determined to be eligible, proposed Sec.
825.300(b)(3) required the employer to provide the employee with
specific notice of his or her rights and obligations under the law and
the consequences of failing to meet those obligations, consistent with
current Sec. 825.301(b)(1). The Department proposed to add language at
Sec. 825.300(b)(3)(iii) requiring that, when an employer notifies an
eligible employee of the right to substitute employer-provided paid
leave and the conditions related to any such substitution, the employer
also must inform the employee that he or she may take unpaid FMLA leave
if the employee does not comply with the terms and conditions of the
employer's paid leave policies (see discussion supra at Sec. 825.207).
Proposed Sec. 825.300(b)(3)(v) provided that employers should include
a list of the employee's essential job functions with the eligibility
notice if they will require that those functions be addressed in a
fitness-for-duty certification when the employee returns to work.
Proposed Sec. 825.300(b)(4) retained the language from current Sec.
825.301(b)(2) which provides that the eligibility notice may, but is
not required to, include other information, such as whether the
employer will require periodic reports of the employee's status and
intent to return to work. Proposed Sec. 825.300(b)(5) provided that
the eligibility notice should be accompanied by any required medical
certification forms. Consistent with current Sec. 825.301(c), proposed
Sec. 825.300(b)(6) required that the eligibility notice to be provided
no less often than the first time in each six-month period that the
employee gives notice of the need for leave (if the employee takes
leave in that six-month period) and, if leave has already begun, that
the notice be mailed to the employee's address of record. It also
required that the notice be given within a reasonable time after notice
of the need for leave is given by the employee, and should be within
five business days if feasible. Proposed Sec. 825.300(b)(7) provided
that if the information changed with respect to a subsequent period of
FMLA leave during the six-month period, the employer should, within
five business days, provide notice to the employee of any information
that has changed from a previous eligibility notice. Consistent with
the current Sec. 825.301(c)(2), proposed Sec. 825.300(b)(8) provided
that if an employer requires a medical certification or fitness-for-
duty certification, written notice of the requirement must be given for
each notice of a need for leave, unless the employer communicates in
writing to employees that such information will always be required in
connection with certain absences and then oral notice must still be
given. Proposed Sec. 825.300(b)(9) retained the requirement from
current Sec. 825.300(d) that employers are expected to responsively
answer employees' questions about their rights and responsibilities
under the FMLA. Finally, proposed Sec. 825.300(b)(10) referenced an
optional prototype eligibility notice, included as Appendix D, which
reflected the changes in the proposed regulation and the Department's
attempt to simplify the form for easier use and adaptability.
The final rule adopts proposed Sec. 825.300(b) with several
modifications. Final Sec. 825.300(b)(1) reinserts the qualifying
phrase ``absent extenuating circumstances'' that appears in current
Sec. 825.110(d) and clarifies the frequency that the eligibility
notice must be provided, codifying in the regulations Wage and Hour
Opinion Letter FMLA-112 (Sept. 11, 2000). Final Sec. 825.300(b)(2)
requires that, if an employee is not eligible for FMLA leave, the
employer's notice to the employee need only state at least one reason
why the employee is not eligible. A new Sec. 825.300(b)(3) has been
added to the final rule clarifying when subsequent eligibility notice
must be provided in the same leave year. Proposed Sec. 825.300(b)(3)
has been redesignated as final Sec. 825.300(c) setting forth the
employer's obligation to provide notice of the employee's rights and
responsibilities. The final rule clarifies that this Rights and
Responsibilities notice must be provided at the same time the
eligibility notice is provided. The final rule deletes the requirement
in proposed Sec. 825.300(b)(3)(v) that the employer provide a list of
the essential job functions with the eligibility notice. The final rule
requires that this list of
[[Page 67994]]
essential job functions be provided with the designation notice if the
employer will require that the fitness-for-duty certification address
the employee's ability to perform the essential functions of the
position. The final rule renumbers proposed Sec. 825.300(b)(4) and
(b)(5) as final Sec. 825.300(c)(2) and (c)(3). The final rule deletes
proposed Sec. 825.300(b)(6) and (b)(8). Proposed Sec. 825.300(b)(7)
is renumbered as final Sec. 825.300(c)(4) and modified to require the
employer to notify the employee of any change in the information
contained in the notice of rights and responsibilities within five
business days of the first notice of the need for leave following any
such change.
Many commenters addressed the requirement in proposed Sec.
825.300(b)(1) that the eligibility notice be conveyed within five
business days after the employee either requests leave or the employer
acquires knowledge that the employee's leave may be for an FMLA-
qualifying reason. Many employers and employer representatives
supported increasing the time to provide the eligibility notice from
two to five business days. Infinisource, Inc. and Cummins Inc. noted
that the increased time frame will allow employers to gather the
information necessary to determine eligibility and respond to a leave
request. See also Hinshaw & Culbertson; U.S. Small Business
Administration's Office of Advocacy; Community Health and Counseling
Services. Hewitt Associates commented that the increased time was ``a
significant improvement'' as ``[e]mployers have consistently been
challenged by completing the eligibility * * * notice within two days
given the confirmations to be made and calculations to be performed.''
Hewitt Associates also noted, however, that the increased time frame
was a ``trade-off'' as the proposed regulations ``would require
employers to provide even more information than they do currently.''
Southwest Airlines commented that the new time frame was ``a welcome
addition, particularly in light of the additional extensive information
to be included'' and also noted it was ``particularly appropriate when
considering * * * employers with multiple work locations.'' Other
commenters felt the increased time was still insufficient. Verycruysse
Murray & Calzone commented that, ``the relaxation of the response
period from two business days to five days will not be sufficient for
many employers to ensure that all of the information to be gathered and
communicated is correct and accurately reflected on the form.'' Willcox
and Savage stated the process of verifying the employee's eligibility
and availability of leave ``can be extremely time-consuming, especially
if intermittent leave has been used'' and suggested providing a ten-day
time frame. New York City (NY) Law Department stated that five business
days may not be adequate for employees who use unscheduled intermittent
leave and suggested that it should be sufficient for an employer to
provide such employees eligibility notification once upon completion of
a medical certification rather than each time the employee uses
intermittent leave.
On the other hand, some commenters objected that five days was too
long for the employee to have to wait for a determination of
eligibility. The Legal Aid Society, Employment Law Center asked, ``What
is an employee expected to do while waiting for her employer to
determine her eligibility? Take the time off work and risk being
terminated * * * ?'' See also Tracy Hutchinson. Another commenter,
Frank Sample, pointed out that ``[a]n employee denied information for a
week may make improper decisions regarding their care and treatment
which is wholly unfair to an ill employee or their family.'' Other
commenters stated that the two-day time frame was reasonable and the
increase to five days unnecessary. See, Linda Gore; Cindy Whitmore;
Richard Mielke. The National Partnership for Women & Families also
opposed the increased time frame, objecting that ``throughout the NPRM,
there are proposed changes that shorten employees' time frames for
meeting requirements for FMLA leave while employers would be given more
time to respond to requests for FMLA leave.'' See also AFL-CIO.
The final rule in Sec. 825.300(b)(1) adopts the Department's
proposal to increase the time frame for providing the eligibility
notice from two to five business days and also reinstates the ``absent
extenuating circumstances'' language from current Sec. 825.110(d). The
numerous comments that the two-day turnaround time is, in practice,
very difficult to meet illustrate the necessity of this change. The
Department also believes that extending this time frame to five
business days affords the employer with the opportunity to calculate
more accurately whether the employee is, in fact, eligible without
compromising the employee's FMLA rights.
Addressing proposed Sec. 825.300(b)(1) more generally, the
Metropolitan Transportation Authority (NY) commented that the ``trigger
[for determining eligibility] also needs to be revisited'' and
indicated that it was unreasonable to require a large employer to
``discern from thousands of sick leave requests the ones that may
indicate a pattern of leave usage that may be consistent'' with the
FMLA. The Department acknowledges that the timing and frequency of the
eligibility notice was unclear in the NPRM and could be read to require
the employer to provide the notice every time an employee gave notice
of an absence that might be FMLA-protected. Proposed Sec. 825.300
contained elements drawn from current Sec. Sec. 825.110(d), 825.208
and 825.301, each of which had different timing requirements for the
provision of information related to eligibility, designation, and
notice of rights and responsibilities, respectively. While the
consolidation of the employer notice requirements into a single section
in the proposal made it easier for employers to identify and comply
with their notice obligations, the proposal did not resolve the
differing timing requirements for the various notices employers must
provide. For example, proposed Sec. 825.300(b)(1) was based on current
Sec. 825.110(d) and required the eligibility notice to be provided
within five business days of the employer learning that an employee's
absence might be FMLA-protected. In contrast, Sec. 825.300(b)(6) was
based on current Sec. 825.301(b) and required the eligibility notice
to be provided no less often than every six months (assuming the
employee used FMLA leave during the six-month period).
In order to clarify the employer's notice obligations, the final
rule re-establishes the distinction in current Sec. Sec. 825.110(d)
and 825.301(b) between notice of the employee's eligibility (i.e.,
whether the employee meets the requirements of Sec. 825.110(a)) and
notice of the employee's rights and responsibilities, and separates the
latter into final Sec. 825.300(c). As discussed below, the final rule
also clarifies the timing of these two notices and moves the obligation
to notify the employee whether he or she has FMLA leave available to
the designation notice because the employer is already required to make
that determination at the designation stage. The Department believes
that these revisions will clarify the rule and result in information
being provided to employees in the most logical and timely fashion
without resulting in redundant notices or undue burden on employers.
Final Sec. 825.300(b)(1) clarifies the eligibility determination
process and codifies in the regulations Wage and Hour Opinion Letter
FMLA-112 (Sept. 11, 2000). The eligibility notice
[[Page 67995]]
addresses only whether the employee meets the statutory eligibility
criteria as discussed in Sec. 825.110(a): Employment by the employer
for 12 months; 1,250 hours of service in the 12-month period
immediately preceding the request for leave; and employment at a
worksite where 50 or more employees are employed within 75 miles. The
determination of employee eligibility to take FMLA leave is addressed
separately from the determination of whether the employee has FMLA
leave to take (or has exhausted all available FMLA leave entitlement)
and whether the reason for which the employee needs leave is covered
under the FMLA. As clarified in Wage and Hour Opinion Letter FMLA-112,
once an employee has been determined to be eligible to take FMLA leave
for a particular FMLA-qualifying serious health condition, the employee
remains eligible to take FMLA leave for that serious health condition
for the remainder of the leave year (although the employee may exhaust
his or her FMLA leave entitlement). Wage and Hour Opinion Letter FMLA-
112 (stating that ``an employee's eligibility, once satisfied, for
intermittent FMLA leave for a particular condition would last through
the entire current 12-month period as designated by the employer for
FMLA leave purposes''). The final rule applies this same standard to
leave taken for a qualifying exigency and for military caregiver leave.
If an employee needs leave for a different FMLA-qualifying reason
during the same leave year, the employee's eligibility to take FMLA
leave (i.e., whether the employee has worked 1,250 hours of service in
the immediately preceding 12 months and whether 50 or more employees
are employed at the worksite) is determined separately as to leave for
that reason. Accordingly, final Sec. 825.300(b)(1) clarifies that the
eligibility notice must be provided ``at the commencement of the first
instance of leave in the 12-month FMLA leave year for each FMLA-
qualifying reason'' and that eligibility to take FMLA leave ``as to
that reason for leave does not change during the leave year.'' If an
employee needs FMLA leave due to a different FMLA-qualifying reason in
the same leave year and is determined not to be eligible as to that
second qualifying reason, Sec. 825.300(b)(3) of the final rule
requires the employer to notify the employee of the change in
eligibility status within five business days, absent extenuating
circumstances, of the employee's request for leave due to the second
reason. The final rule sets out in similar fashion the frequency with
which eligibility must be determined for leave to care for a covered
servicemember with a serious injury or illness.
To further clarify the eligibility determination procedure under
the final rule, the employer's obligation to notify the employee of the
specific expectations and obligations related to the employee's FMLA
leave is moved from proposed Sec. 825.300(b)(3) to final Sec.
825.300(c) titled ``Rights and responsibilities notice.'' The
Department notes that this is not a new notice obligation; the same
obligation exists under current Sec. 825.301(b) and was included in
proposed Sec. 825.300(b)(3). Moving this requirement into a separate
paragraph more closely resembles the structure of the current
regulations, which address the employer's obligation to notify the
employee of his or her eligibility and the obligation to notify the
employee of the expectations and obligations associated with the leave
in different sections of the rule. Lastly, the final rule also modifies
some of the data elements in both the eligibility and rights and
responsibilities notices; those changes are discussed below in
connection with the comments regarding the corresponding provisions in
the NPRM.
Several commenters addressed proposed Sec. 825.300(b)(2) that
required employers to provide employees with specific information
regarding eligibility and whether the employee still has any FMLA leave
available in the current 12-month FMLA leave period. Willcox and Savage
objected that the proposed accounting and reporting requirements are
unwarranted and burdensome, especially absent ``any assurance that the
employee will take the contemplated leave,'' and that the employer may
not have recorded the hours uniformly or consistently with ``specific
twelve-month periods.'' Other commenters objected to the content of the
eligibility notice. AT&T commented that the eligibility notice
``invites employees to request information about eligibility and
entitlement without imminent need for leave'' and expressed concern
that employees will inundate their managers with such requests. Spencer
Fane Britt & Browne commented that it would be burdensome (both in the
amount of time needed for the calculations and in the potential for
error) for the employer and questioned the usefulness of explaining
exactly why the employee is not eligible if an ineligible employee does
not have FMLA rights. See also Vercruysse Murray & Calzone.
The final rule in Sec. 825.300(b)(2) adopts the proposal with
modifications. The Department notes that the requirement to inform
employees if they are eligible to take FMLA leave is not a new one, and
the obligation has always been triggered by the employee providing
notice of the need for leave that may be covered under the FMLA. See
current Sec. Sec. 825.110(d), 825.302, 825.303. Proposed Sec.
825.300(b)(2), which is retained in the final rule, added a new
requirement that when an employer determines that an employee is not,
in fact, eligible to take FMLA leave, the employer must so inform the
employee and indicate the reasons the employee is not eligible. The
final rule modifies this obligation, however, by limiting the
notification that an employee is ineligible to any one of the potential
reasons why an employee fails to meet the eligibility requirements.
Thus, for example, if an employee has worked for the employer for fewer
than 12 months, the employer would be able to so indicate to the
employee and would not, then, still be required to calculate (and
notify the employee of the results of those calculations) whether the
employee had worked 1,250 hours in the 12 months prior to the requested
leave. The final rule also removes from the eligibility notice the
requirement that the employer notify the employee whether the employee
still has FMLA leave available. The determination of whether the
employee has FMLA leave available or has exhausted the FMLA leave
entitlement is part of the designation of FMLA leave process under both
current Sec. 825.208 and proposed Sec. 825.300(c). Accordingly, the
final rule moves the requirement to inform the employee of whether he
or she has FMLA leave available to new Sec. 825.300(d), which
addresses the designation notice.
Rights and Responsibilities Notice
As discussed above, the final rule moved proposed Sec.
825.300(b)(3) to final Sec. 825.300(c), separating the notice of
rights and responsibilities from the notice of eligibility. To simplify
the timing of the notice of rights and responsibilities and to avoid
unnecessary administrative burden on employers, Sec. 825.300(c)(1) of
the final rule requires employers to provide this notice to employees
at the same time they provide the eligibility notice. Additionally, if
the information in the notice of rights and responsibilities changes,
Sec. 825.300(c)(4) also requires the employer to notify the employee
of any changes within five business days of the first notice of the
need for FMLA leave subsequent to any change. This timing requirement
will ensure that employees receive timely notice of the expectations
and obligations associated with their FMLA leave each leave year
[[Page 67996]]
and also receive prompt notice of any change in those rights or
responsibilities when leave is needed during the leave year. The final
rule also makes several changes in the information included in the
notice of rights and responsibilities, which are addressed below.
Several commenters addressed proposed Sec. 825.300(b)(3), which is
moved to paragraph (c) of this section in the final rule, specifying
the information that must be included in the eligibility notice. The
final rule modifies proposed Sec. 825.300(b)(3)(i), which is moved to
final Sec. 825.300(c)(1)(i), to require employers to notify employees
of the method used for establishing the 12-month period for FMLA
entitlement, or, in the case of military caregiver leave, the start
date of the ``single 12-month period.'' The Department believes that
this change will provide employees with information that is crucial to
their understanding of their FMLA leave rights. The final rule
redesignates proposed Sec. 825.300(b)(3)(ii) and (iii) as Sec.
825.300(c)(1)(ii) and (iii), but otherwise makes no changes in these
paragraphs (other than incorporating references to the military family
leave provisions where applicable). In commenting on proposed Sec.
825.300(b)(3)(iii), Vercruysse Murray & Calzone objected to the level
of detail required regarding the conditions applicable to any paid
leave that is substituted for FMLA leave, because this information is
typically contained in employee handbooks or paid leave plans. The
Department redesignates proposed Sec. 825.300(b)(3)(iii) as Sec.
825.300(c)(1)(iii) and adopts it as proposed, requiring that employers
include in the eligibility notice an explanation of conditions
applicable to the use of paid leave that runs concurrently with unpaid
FMLA. The Department notes that this requirement is in current Sec.
825.301(b)(1)(iii). The NPRM only proposed to expand this section to
require that employers also notify employees of their continuing
entitlement to take unpaid FMLA leave if they do not comply with
employer-required conditions for use of paid leave. To clarify,
however, the Department notes that an employer may meet the
requirements of providing information about the conditions related to
the substitution of paid leave by reference to existing, employee-
accessible copies of such policies. See Appendix D.
A number of commenters addressed the requirement in proposed Sec.
825.300(b)(3)(v) that an employer provide a list of the essential
functions of the employee's position with the eligibility notice if the
employer will require a fitness-for-duty certification that addresses
those functions. Domtar Paper Company supported the proposed change,
stating that while it will require additional administrative burden for
employers, it ``is a valid requirement if the employer wants the option
to be able to determine fitness for duty at some point in the future.''
See also National Business Group on Health; Community Health and
Counseling Services. Other commenters opposed this proposal, arguing
that it would be administratively burdensome to provide a list of the
employee's essential job functions at the eligibility notice stage.
Hewitt Associates commented that ``many [employers] struggle with
maintaining usable job descriptions.'' Vercruysse Murray & Calzone
commented that five days would not be sufficient for large employers to
find the applicable job description, verify its accuracy, and revise it
as necessary to reflect the actual essential functions of the
employee's position, or in other cases, to create new job descriptions.
ORC Worldwide commented that the proposal would be burdensome because
``large employers would feel compelled to require Fitness-for-Duty
certifications in all instances to preserve their rights. Allowing
employers additional time to properly evaluate the employee's condition
and determine whether there are any job-related concerns will also
minimize the burden on employees, who would otherwise not be required
to submit medical documentation for brief absences.'' The Equal
Employment Advisory Council commented the proposal would be burdensome
``by requiring employers to assess and list the essential functions of
the job that are unique to each employee requesting leave when it may
not ever be necessary to do so'' and specifically recommended that
``the employer be permitted to state in the Eligibility Notice merely
that a fitness-for-duty certification may be required.'' (Emphasis in
original.) The HR Policy Association also questioned the utility of
providing a list of essential functions of the employee's job with the
eligibility notice, noting that ``at the Eligibility Notice stage, an
employer has not yet received the medical certification form from the
employee's health care provider, which details the employee's medical
condition and allows an employer to determine whether a Fitness-for-
Duty certification is even permissible under the law.'' (See also
discussion of Sec. 825.310, which discusses additional comments on
this subject.)
After careful consideration of these comments, the Department has
modified the timing requirement for providing the list of essential
functions of the employee's position if the employer will require that
the fitness-for-duty certification address the employee's ability to
perform those functions. For the reasons discussed in Sec. 825.310,
employers will not be required to provide the list of essential
functions with the eligibility notice. Instead, as noted in the
designation notice discussion below, if the employer will require that
the fitness-for-duty certification specifically address the employee's
ability to perform the essential functions of the employee's job, the
employer must provide the employee with a list of the essential
functions no later than with the designation notice required by final
Sec. 825.300(d), and the employer must also indicate in the
designation notice that the fitness-for-duty certification must address
the employee's ability to perform those essential functions. As a
consequence of these modifications, the final rule deletes proposed
Sec. 825.300(b)(3)(v) and renumbers the remaining paragraphs in Sec.
825.300(c)(1) accordingly.
The Department did not receive significant comments on proposed
Sec. 825.300(b)(4). The final rule redesignates paragraph (b)(4) as
(c)(2) and changes the reference from ``eligibility notice'' to
``notice of rights and responsibilities,'' but otherwise makes no
change.
A few comments addressed proposed Sec. 825.300(b)(5), which states
that the eligibility notice should be accompanied by any required
medical certification form. Verizon requested clarification of the
requirement that any required medical certification form accompany the
eligibility notice:
In Verizon, over 6,000 eligibility notices are sent out each
week. Approximately 2,800 medical certification forms are received
each week for processing. The paper that is wasted with respect to
those that do not submit a certification form is, at Verizon alone,
over half a million sheets of paper per year * * *. While it is the
employer's obligation to make required certification forms available
in a manner that is reasonable (i.e., included with eligibility
letter, electronically, or upon request), we are sure that the
Department will clarify that it is not requiring that employers
engage in the wasteful extravagance of mailing literally tons of
paper for no purpose.
See also National Restaurant Association. The Department did not intend
that proposed Sec. 825.300(b)(5) be read to require the employer to
provide the employee with the medical certification form in instances
when one would not be submitted and has altered the wording of this
provision in final
[[Page 67997]]
Sec. 825.300(c)(3) to indicate that the medical certification may be
included with the notice of rights and responsibilities. The Department
notes that both the employer and employee have an interest in the
prompt determination of whether leave is covered by the FMLA and the
early provision of any required medical certification form facilitates
this determination; employers are not, however, required to provide the
certification form with the notice of rights and responsibilities.
Although proposed Sec. 825.300(b)(6) sets forth a timing
requirement that was inconsistent with the timing requirement contained
in proposed Sec. 825.300(b)(1), the Department did not receive any
significant comment regarding this provision. As explained above, Sec.
825.300(b) of the final rule clarifies the timing of the eligibility
notice and final Sec. 825.300(c) clarifies the timing of the notice of
rights and responsibilities. The requirement to provide both of these
notices is timed to the employee's need for this information, which, in
many cases, is much less frequent than either with each FMLA-protected
absence or every six months. Accordingly, the final rule deletes
proposed Sec. 825.300(b)(6).
The Department did not receive significant comments on proposed
paragraphs (b)(7), (b)(8), (b)(9), or (b)(10) of this section. The
final rule redesignates paragraph (b)(7) as (c)(4) and clarifies that
notice of any changes in the rights and responsibilities notice must be
provided within five business days of the first notice of an employee's
need for leave subsequent to any change. The final rule deletes
proposed paragraph (b)(8), which addressed notification of the
requirement for medical certification or fitness-for-duty
certification, because final paragraph (c)(1)(ii) addresses information
regarding the requirement for medical certification, and the
requirement for information regarding fitness-for-duty certification is
addressed in the designation notice in final Sec. 825.300(d). Proposed
paragraph (b)(9) is redesignated as final paragraph (c)(5) and adopted
without change. Finally, proposed paragraph (b)(10) has been adopted as
final paragraph (c)(6), and the prototype notice is redesignated as the
``Notice of Eligibility and Rights and Responsibilities.'' Final Sec.
825.300(c)(6) has also been modified to permit electronic distribution
of the notice of rights and responsibilities, so long as the employer
can demonstrate that the employee (who may already be on leave and who
may not have access to employer-provided computers) has access to the
information electronically.
Designation Notice
Under the current and proposed regulations, the employer must
notify the employee when leave is designated as FMLA leave. Proposed
Sec. 825.300(c) outlined the requirements of the designation notice an
employer must provide to an employee. (Additional requirements
concerning employer designation of FMLA leave are found at proposed and
final Sec. 825.301.) The Department's proposal sought to clarify and
strengthen the existing designation notice requirements contained in
current Sec. 825.208(b) in a number of ways.
Proposed Sec. 825.300(c)(1) required that, once the employer has
enough information to determine whether the leave qualifies as FMLA
leave, the employer must notify the employee within five business days
of making the determination whether the leave has or has not been
designated as FMLA leave. This was an increase from the two-day time
frame in current Sec. 825.208(b)(1). Proposed Sec. 825.300(c)(1) also
required the employer to inform the employee of the number of hours,
days or weeks that would be designated as FMLA leave. To the extent it
is not possible to provide such information (such as in the case of
unforeseeable intermittent leave), the Department proposed that the
employer be required to provide such information to the employee every
30 days if the employee took leave during the 30-day period. In
addition, proposed Sec. 825.300(c)(1) provided that if the employer
requires that paid leave be substituted for unpaid leave, or that paid
leave taken under an existing leave plan be counted as FMLA leave, the
employer must inform the employee of this designation at the time the
leave is designated as FMLA leave. Proposed Sec. 825.300(c)(2)
required the designation notice to be in writing, but indicated that it
may be in any form, including a notation on the employee's pay stub,
and that if the leave is not designated as FMLA leave, the notice to
the employee may be in the form of a simple written statement. Proposed
Sec. 825.300(c)(3) permitted an employer to provide an employee with
both the eligibility and designation notice at the same time in cases
where the employer had adequate information to designate leave as FMLA
leave when an employee requested the leave. Proposed Sec.
825.300(c)(4) referred to a new optional prototype designation notice
in Appendix E that an employer could use to satisfy its obligation to
notify an employee that leave taken for a qualifying reason is or is
not designated as FMLA leave.
The final rule redesignates proposed paragraph (c) as final
paragraph (d) of this section and makes several changes to clarify the
timing and content of the designation notice, as well as the shift of
notice of the requirement for a fitness-for-duty certification from the
eligibility notice in the NPRM to the designation notice in the final
rule. The final rule moves the statement of the employer's obligation
to provide the designation notice from proposed Sec. 825.301(a) to
final Sec. 825.300(d)(1) so that the structure of the designation
notice in paragraph (d) of this section more closely parallels the
structure of the eligibility notice in paragraph (b) of this section
and the rights and responsibilities notice in paragraph (c) of this
section. The final rule in paragraph (d)(1) also includes reference to
the military family leave provisions. The Department moved proposed
Sec. 825.300(c)(3) to Sec. 825.300(d)(2) in the final rule, and made
minor wording changes. Final Sec. 825.300(d)(3) requires employers to
notify employees of the requirement to provide a fitness-for-duty
certification no later than the designation notice. Proposed paragraphs
(c)(2) and (c)(4) of this section have been combined and redesignated
as final Sec. 825.300(d)(4). A new paragraph (d)(5) has been added to
this section of the final rule requiring the employer to notify the
employee if the information provided in the designation notice changes
(e.g., if the employee exhausts the FMLA leave entitlement). Lastly,
the final rule distinguishes between designation of leave for a
specific qualifying reason as FMLA-covered and notification of the
particular hours of leave that have been counted against the FMLA
entitlement, a distinction that is implicit in current Sec. 825.208
and in proposed Sec. 825.300(c), and moves the obligation to notify
the employee of the amount of leave counted as FMLA to final Sec.
825.300(d)(6).
The Department received many comments on designation. Several
commenters supported the proposal at Sec. 825.300(c)(1) to increase
the time frame for providing the designation notice from two to five
business days. See Retail Industry Leaders Association. Cummins Inc.
commented that the increased time frame ``coupled with the strengthened
medical certification process, will provide the necessary time for
employers to appropriately respond to an FMLA leave request.'' The
Illinois Credit Union League supported the extended time frame but
requested additional time ``if the individual with FMLA
responsibilities is out of the
[[Page 67998]]
office on vacation, for example.'' Verizon acknowledged that five days
is ``certainly reasonable'' but objected that the time frame was
``inflexible'' because it did not provide for ``exceptional or unusual
circumstances.'' Some employers, on the other hand, objected that the
five business days proposed was still inadequate. Southwest Airlines
noted that the requirement was ``particularly unreasonable for
employers * * * with multiple worksites and/or local, decentralized
recordkeeping.'' See also Metropolitan Transportation Authority (NY);
Regence. Spencer Fane Britt & Browne stated, ``[a]lthough we believe
the five-day rule is an improvement over the existing two-day rule and
certainly more realistic, we question whether such a rule is even
necessary in light of the Ragsdale decision'' and interpreted the
proposed rule to allow notification outside the five-day rule ``if the
employee suffers no harm.'' Others viewed the increase less favorably.
See Cindy Whitmore. The National Partnership for Women & Families
commented that the change ``provides another example of the pattern in
the NPRM of employees requesting leave having less time to meet new
requirements and time frames and employers having more time to respond
to requests.'' The Communications Workers of America also opposed
``giving employers additional time to process FMLA paperwork without
giving employees an equal extension of time to provide responsive
documentation requests'' and further expressed a concern that the
failure to timely designate leave may result in related absences also
being denied, ultimately leading employees ``to abandon their FMLA
rights.''
A significant number of comments from employers, employer
representatives, and employer associations objected to proposed Sec.
825.300(c)(1)'s requirement that, in situations involving unscheduled
intermittent leave, employers provide employees notice every 30 days of
the amount of leave that has been designated as FMLA-qualifying if the
employee took leave during the 30-day period. Community Health and
Counseling Services called the notification requirement ``an
administrative nightmare--especially with the time records always in
arrears upwards of two weeks.'' The New York City (NY) Law Department
commented that this proposal placed ``an undue burden on employers who
may have many employees frequently using intermittent leave.'' This
commenter and the Chamber suggested that employers be required to
provide employees with such information upon request, but not more
often than every 30 days. The Catholic Charities, Diocese of Metuchen
recommended the designation notice ``only be provided to the employee
more frequently than every six months if the employee's leave will not
be considered FMLA leave.'' The Unified Government of Wyandotte County/
Kansas City (KS) agreed, stating its concern about the increased
workload that will be caused by the reporting of leave used to
employees taking leave each month. Willcox and Savage commented that
the proposal was unnecessary since many employees using unscheduled
intermittent leave do not begin to exhaust their twelve-week
entitlement. See also Ohio Department of Administrative Services;
Columbus (OH) City Attorney's Office; Illinois Credit Union League; and
Vercruysse Murray & Calzone. The AFL-CIO, however, supported the
requirement and stated the information required to be provided in a 30-
day notice ``will also facilitate leave-related decisions by employees
who take unforeseen, intermittent leave.'' Community Legal Services,
Inc./AIDS Law Project of Pennsylvania also supported the Department's
proposal but urged the Department ``to go further and require that
employers inform employees who are on leave when they are within a week
of exhausting their FMLA leave.''
The Department considers communication between the employer and the
employee to be critical to the smooth administration of the FMLA and
has significantly modified the process for designating FMLA leave to
ensure that employees receive timely notification both that leave for a
particular condition will be FMLA-protected and the number of hours
that will be counted against their FMLA leave entitlement in a manner
that is not unduly burdensome for employers. The Department is
cognizant of the various factors that employers must consider before
determining whether an employee's leave should be designated as FMLA
leave and the administrative burden imposed by having to make this
determination in a short time frame. Accordingly, final Sec.
825.300(d)(1) modifies the timing of the designation notice, requiring
the employer to notify the employee whether a leave of absence will be
designated as FMLA leave within five business days absent extenuating
circumstances of when the employer has sufficient information to
determine whether the leave is being taken for a FMLA-qualifying
reason. Final Sec. 825.300(d)(1) further clarifies that only one
designation notice is required for each FMLA-qualifying reason per
leave year, regardless of whether the leave is taken as a continuous
block of leave or on an intermittent or reduced leave schedule basis.
In order to clarify the distinction between designating leave taken for
a qualifying reason as FMLA-protected and notifying the employee of the
number of hours counted against the FMLA leave entitlement, the final
rule moves the latter requirement to a new paragraph (d)(6) of this
section; this requirement applies also to the military family leave
provisions. This distinction is implicit in both current Sec. 825.208
and proposed Sec. Sec. 825.300(c) and 825.301(a). Under Sec.
825.300(d)(6) of the final rule, if the amount of leave needed is known
at the time of the employer's designation of the leave as FMLA leave,
the employer must notify the employee of the amount of leave that will
be counted against the employee's FMLA leave entitlement in the
designation notice. The Department finds persuasive the comments that
the automatic 30-day tracking, recording, and reporting to intermittent
FMLA leave-takers of the amount of leave counted as FMLA required by
proposed Sec. 825.300(c)(1) would be unduly burdensome. Accordingly,
in situations in which the amount of leave to be taken is not known at
the designation stage (e.g., when unforeseeable intermittent leave will
be needed), the final rule modifies the employer's obligation,
requiring employers to inform the employee of the number of hours
counted against the FMLA leave entitlement only upon employee request,
and no more often than every 30 days if FMLA leave was taken during
that period. In order to lessen the burden of this notification, and
consistent with current Sec. 825.208(b)(2), the final rule also
permits the employer to notify the employee of the hours counted
against the FMLA leave entitlement orally and follow up with written
notification on a pay stub at the next payday (unless the next payday
is in less than one week, in which case the notice must be no later
than the subsequent payday). By clarifying that this requirement can be
met with simple notation of FMLA leave on a pay stub, the Department
believes that employers will be able to provide the necessary
information to employees in a timely fashion with minimal additional
burden. To further encourage employers to provide notice to the
employee at the earliest possible stage, the Department has also moved
proposed Sec. 825.300(c)(3) to final
[[Page 67999]]
Sec. 825.300(d)(2), to emphasize that the employer is expressly
permitted to provide the designation and eligibility notices
simultaneously upon an employee's request for FMLA leave, if the
employer has sufficient information to do so at that time.
The Department has included a new Sec. 825.300(d)(3), consistent
with the changes in the final rule in Sec. 825.300(c) and the
discussion above, to require that the employer provide written notice
of any requirement for a fitness-for-duty certification, including
indicating whether the fitness-for-duty certification must address the
employee's ability to perform the essential functions of the employee's
position and, if so, to provide a list of the essential functions of
the employee's position, with the designation notice. If the employee
handbook or other written documents clearly provide that a fitness-for-
duty certificate will be required, written notice is not required, but
oral notice must be provided.
The final rule combines proposed Sec. 825.300(c)(2) and (c)(4),
both of which addressed the form of the designation notice, and
redesignates them as Sec. 825.300(d)(4). Because pay stub designation
is more appropriate for notifying employees of the amount of leave
counted against the FMLA leave entitlement, reference to designation by
pay stub notation has been deleted from this paragraph of the final
rule and moved to final Sec. 825.300(d)(6). As noted above, final
Sec. 825.300(d)(6) reinstates oral notification of the amount of leave
counted as FMLA leave with written follow-up notification; such
designation is permitted under current Sec. 825.208(b)(2), but had
been removed from proposed Sec. 825.300(c). The prototype designation
notice referenced in final Sec. 825.300(d)(4) has been modified
consistent with the final rule.
Finally, the final rule adds a new Sec. 825.300(d)(5) that
requires employers to notify employees if the information in the
designation notice changes. For example, if an employee exhausts his or
her FMLA leave entitlement and the leave will no longer be designated
as FMLA leave, the employer must provide the employee with written
notice of this change consistent with this section.
Consequences of Failing To Provide Notice
The Department proposed a new paragraph at Sec. 825.300(d) to
address concerns arising out of the U.S. Supreme Court's decision in
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). This
paragraph provided a remedy provision that is dependent on an employee
having suffered individualized harm as a result of any violation of the
general, eligibility, or designation notice requirements. The
Department's proposal clarified that failure to comply with the notice
requirements set forth in this section could constitute interference
with, restraint of, or denial of the use of FMLA leave. The proposal
further provided that, if the employee is able to demonstrate harm as a
result of the employer's failure to provide a required notice, the
employer could be liable for the harm suffered as a result of the
violation, such as lost compensation and benefits, other monetary
losses, and appropriate equitable or other relief, including
employment, reinstatement, or promotion. See also Sec. 825.301(e).
Few commenters addressed this provision and most agreed with the
proposed changes. The National Partnership for Women & Families, for
example, agreed that proposed Sec. 825.300(d) is necessary given the
Ragsdale decision, and suggested the final rule make clear that ``one
of the equitable remedies an employee may obtain is additional leave.''
As in any action arising under the FMLA, any remedy is specific to the
facts of the individual's circumstance, and a court may order any
appropriate relief. Therefore, no change to the proposal is necessary,
and the final rule adopts proposed paragraph (d) as final paragraph (e)
without modification. See also the preamble discussion of Sec. 825.301
for additional discussion of the designation and remedy provisions.
Section 825.301 (Employer Designation of FMLA Leave)
The Department proposed to delete current Sec. 825.301, which
addressed employer notices to employees, because its requirements were
incorporated into proposed Sec. 825.300 as discussed above. Provisions
in current Sec. 825.208 addressing designation of FMLA leave, to the
extent not incorporated into proposed Sec. 825.300(c), were moved to
proposed Sec. 825.301.
Proposed Sec. 825.301(a) stated an employer's obligations
regarding timely designation of leave as FMLA-qualifying and reiterated
the requirement to notify the employee of the designation within five
business days as proposed in Sec. 825.300. This section required that
the employer's designation decision be based only on information
received from the employee or the employee's representative and also
provided that, if the employer does not have sufficient information
about the employee's reason for leave, the employer should inquire
further of the employee or of the employee's spokesperson. The section
further provided that, in the case of intermittent leave or leave on a
reduced schedule, only one such notice is required unless the
circumstances regarding leave have changed. Proposed Sec. 825.301(b)
outlined employee responsibilities, with cross-references to proposed
Sec. Sec. 825.302 and 825.303, which addressed what constitutes
sufficient information an employee must communicate to an employer when
needing FMLA leave. Among other things, proposed Sec. 825.301(b)
required that an employee (or his or her spokesperson) provide
sufficient information to allow the employer to determine that the
leave qualifies under the FMLA, but the employee need not expressly
assert rights under the Act or even mention the FMLA. Proposed Sec.
825.301(b) also explained that the consequences for an employee's
failure to satisfy these responsibilities could include delay or denial
of FMLA leave. Proposed Sec. 825.301(b), as a matter of clarification,
deleted the word ``unpaid'' found in current Sec. 825.208(a)(2), as
these employee responsibilities apply whether the leave is paid or
unpaid. Proposed Sec. 825.301(c) provided that if there is a dispute
between an employee and employer about whether leave qualifies as FMLA
leave, it should be resolved through discussion and the dispute
resolution documented. Proposed Sec. 825.301(d) permitted retroactive
designation under certain circumstances. Additionally, the Department
proposed in Sec. 825.301(d) that in all cases where leave is FMLA-
qualifying, an employer and an employee can mutually agree that the
leave be retroactively designated as FMLA leave. Proposed Sec.
825.301(e) clarified that, if an employer failed to timely designate
leave and if an employee establishes that he or she has suffered harm
as a result of the employer's actions, a remedy may be available.
Proposed Sec. 825.301(e) provided that failure to timely designate may
constitute an interference with, restraint of, or denial of, the
exercise of an employee's FMLA rights. This section clarified that, if
the employee is able to establish prejudice as a result of the
employer's failure to designate leave properly, an employer could be
liable for compensation and benefits lost by reason of the violation,
for other monetary losses sustained as a direct result of the
violation, and for appropriate equitable relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered. The Department provided examples to illustrate the type of
circumstance where an employee may
[[Page 68000]]
or may not be able to show that harm has occurred as a result of the
employer's actions. Lastly, the Department's proposal eliminated the
``provisional designation'' concept that appears in current Sec.
825.208(e)(2).
Southwest Airlines noted that the provision in proposed Sec.
825.301(a) allowing only one designation notice in the case of
intermittent or reduced schedule leave, unless the circumstances of the
leave have changed, coupled with the new requirement to provide
designation notice as often as every 30 days created ``confusion as to
whether an employer is obligated to provide the designation notice
every 30 days, or only once.'' The Department agrees that the proposal
did not clearly distinguish between the employer's obligation to
designate a leave of absence as FMLA-qualifying, which generally
applies only once per leave year for each FMLA-qualifying reason, and
the employer's obligation to notify the employee of how much leave is
to be counted against the employee's FMLA leave entitlement, which must
be determined for each absence. As discussed above, the final rule
clarified these two obligations in final Sec. 825.300(d)(1) and
(d)(6). As part of this clarification, both the general statement of
the employer's obligation to designate leave as FMLA-protected and the
statement regarding the need to designate intermittent and reduced
schedule leave only once were moved from proposed Sec. 825.301(a) to
final Sec. 825.300(d)(1), with modifications.
The Department did not receive significant comments regarding
proposed Sec. 825.301(b) and (c). Therefore, the final rule adopts
these provisions as proposed with minor editorial changes, including
the deletion of some references to ``paid leave'' that were
unnecessary.
Several commenters agreed that proposed Sec. 825.301(d) and (e)
accurately reflected the Supreme Court's decision in Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81 (2002). See Equal Employment
Advisory Council; the Association of Corporate Counsel's Employment and
Labor Law Committee; TOC Management Services; the Chamber; Community
Health and Counseling Services; National Association of Wholesaler-
Distribution. The American Foundry Society concurred but requested
clarification regarding at ``what point an employer's obligations are
triggered to make follow-up inquiries.'' The AFL-CIO agreed
specifically with the proposed revisions to Sec. 825.301(e) concerning
remedies. Hewitt Associates commented that ``employers will find [the
example provided in that section] highly instructive'' and suggested
adding other examples. The National Retail Federation however, objected
that the ``equitable relief language for harm caused by interference
with FMLA rights is problematic'' and ``too vague about how the loss of
FMLA rights directly results in monetary harm.'' The Illinois Credit
Union League commented that the remedy provision (specifically citing
to the provision as it appears at proposed Sec. 825.300(d)) was
``particularly troubling'' and objected that ``interference with a
`right' suggests something more than failure to provide notice.'' The
National Association of Convenience Stores stated the Ragsdale decision
rendered the designation requirements of no effect and recommended that
any designation requirement be eliminated from the regulations.
The Department does not believe that the Ragsdale decision limited
the Department's ability to require employer notices beyond a posted
general notice. The Ragsdale decision invalidated the categorical
penalty imposed by Sec. 825.700(a) of the current regulations. The
Court stated ``in so holding we do not decide whether the notice and
designation requirements are themselves valid or whether other means of
enforcing them might be consistent with the statute.'' 535 U.S. at 96.
In fact, the Court also stated, ``[t]o be sure, 12 more weeks might be
an appropriate make-whole remedy for an employee who would not have
taken any leave at all if the [