ESA Final Rules

The Family and Medical Leave Act of 1993   [11/17/2008]
[PDF]
FR Doc E8-26577
[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

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(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

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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 [designation] notice had been given,'' 
lending further support to the validity of the regulatory notice 
requirements. Id. at 93. Therefore, the final rule adopts proposed 
Sec.  825.301(d) and (e) without modification. The Department notes 
that retroactive designation consistent with this provision must be 
accompanied by appropriate notice to the employee as required under 
Sec.  825.300 and can only be undertaken where it does not cause harm 
or injury to the individual or where the employee and employer mutually 
agree to the retroactive designation.
    Finally, several commenters addressed the elimination of the 
``provisional designation'' concept. The Metropolitan Transportation 
Authority (NY) supported the elimination, noting that it was a 
confusing concept for both employers and employees. The National 
Partnership for Women & Families on the other hand, stated that the 
Department ``does not explain how this change could affect workers and 
whether the lack of a provisional designation accompanied by DOL's 
proposal to grant employers more time to respond to employee's requests 
for FMLA leave will make employees less likely to take FMLA leave as 
they will not know quickly whether the leave will be covered.'' The 
American Association of University Women stated that the elimination of 
the ``provisional'' designation status was ``particularly troubling'' 
in light of the increased time frame afforded employers and questioned 
whether workers might ``be less likely to take leave because it will 
take that much longer to know whether they are covered, and the leave 
is not provisionally designated in the meantime.'' The AFL-CIO 
commented that the ``[p]reliminary designation of FMLA leave gives 
employees the comfort of knowing that their requests for leave will be 
approved provided they give their employer requisite information `which 
confirms the leave is for an FMLA reason.' ''
    The final rule eliminates the ``provisional designation'' concept 
as proposed. The process for ``provisional designation'' of leave may 
have caused confusion over whether leave is protected prior to the 
actual designation, especially in cases where the leave does not 
eventually qualify for the Act's protections. The Department continues 
to believe that the deletion of a ``provisional'' designation concept 
will result in less confusion for employees. If employees take leave 
that ultimately is determined not to be FMLA-qualifying, it is not 
protected. A preliminary FMLA designation may have given false comfort 
to leave takers that their leave would be protected when, in fact, it 
was not. However, whether the leave is provisionally designated as FMLA 
leave or not, the leave is only protected by the statute if it is 
determined to be FMLA-qualifying, such as by timely completion of the 
medical certification process. Therefore, the proposed rule deleting 
this provision is adopted.
Section 825.302 (Employee Notice Requirements for Foreseeable FMLA 
Leave)
    Section 825.302 addresses an employee's obligation to provide 
notice of the need for foreseeable FMLA leave. Proposed Sec.  
825.302(a) retained both the current requirement that an employee must 
give at least 30 days notice when the need for FMLA leave is 
foreseeable at least 30 days in advance, and the requirement that 
notice be provided ``as soon as practicable'' if leave is foreseeable 
but 30 days notice is not practicable. The proposed section further 
added the requirement that when an employee gives less than 30

[[Page 68001]]

days advance notice, the employee must respond to a request from the 
employer to explain why it was not practicable to give 30 days notice. 
Proposed Sec.  825.302(b) deleted the second sentence of current Sec.  
825.302(b), which defined ``as soon as practicable'' as ``ordinarily * 
* * within one or two business days of when the need for leave becomes 
known to the employee.'' The NPRM further provided examples of when 
notice of the need for leave that is foreseeable less than 30 days in 
advance could practicably be provided. Proposed Sec.  825.302(c) 
retained the standard from the current regulation that an employee need 
not assert his or her rights under the FMLA or even mention the FMLA to 
put the employer on notice of the need for FMLA leave. The NPRM 
clarified, however, the information the employee must provide in order 
to provide sufficient notice to the employer of the need for FMLA leave 
and added that the employee has an obligation to respond to an 
employer's questions designed to determine whether leave is FMLA-
qualifying. The Department sought comment as to whether a different 
notice standard requiring that employees expressly assert their FMLA 
rights should apply in situations in which an employee had previously 
provided sufficient notice of a serious health condition necessitating 
leave and was subsequently providing notice of dates of leave due to 
that same condition. Proposed Sec.  825.302(d) retained the current 
requirement that an employee comply with the employer's usual notice 
and procedural requirements for calling in absences and requesting 
leave, but deleted current language stating that an employer cannot 
delay or deny FMLA leave if an employee fails to follow such 
procedures. The proposal qualified the employee's obligation to comply 
with the employer's customary notice and procedural requirements by 
noting that the obligation applied ``absent unusual circumstances'' and 
provided examples of what might constitute unusual circumstances. No 
changes were proposed to Sec. Sec.  825.302(e) and 825.302(f). Proposed 
Sec.  825.302(g) retained language stating that employers may waive 
employees' FMLA notice requirements but deleted language stating that 
employers could not enforce FMLA notice requirements if those 
requirements were stricter than the terms of a collective bargaining 
agreement, state law or employer leave policy.
    Section 825.302(a) of the final rule retains the requirement that 
employees respond to requests from employers to explain why it was not 
possible to give 30 days notice of their need for FMLA leave. It also 
makes clear that the 30-day notice requirement applies to FMLA leave 
taken for an expected birth, placement for adoption or foster care, 
planned medical treatment for a serious health condition of the 
employee or of a family member, or the planned medical treatment for a 
serious injury or illness of a covered servicemember. For FMLA leave 
taken for a qualifying exigency, notice must be provided as is 
practicable. The final rule also retains in Sec.  825.302(b) the 
statutory standard that notice of the need for leave that is 
foreseeable less than 30 days in advance must be provided ``as soon as 
practicable'' and provides guidance as to what notice the Department 
expects will be practicable in such circumstances. Section 825.302(c) 
of the final rule continues to provide guidance as to what information 
an employee may need to provide to constitute sufficient notice, but 
clarifies that the types of information listed are merely examples and 
may not be required in all situations. The general notice poster has 
been revised to include this information as well. The final rule also 
maintains the employee's obligation to respond to employer inquiries 
designed to determine if leave is FMLA-qualifying. It adds a 
requirement that, for FMLA leave taken because of a qualifying 
exigency, the employee shall provide sufficient information that 
indicates that a family member is on active duty or call to active duty 
status, that the requested leave is for one of the reasons listed in 
Sec.  825.126(a), and the anticipated duration of the absence. 
Additionally, the final rule requires employees seeking leave for a 
previously certified FMLA condition, covered servicemember's serious 
injury or illness, or qualifying exigency to inform the employer that 
the leave is for a condition, covered servicemember's serious injury or 
illness, or qualifying exigency that was previously certified or for 
which the employee has previously taken FMLA leave. The final rule 
maintains the standard in proposed Sec.  825.302(d) that ``absent 
unusual circumstances'' employees may be required to comply with 
employer policies for requesting leave so long as those policies do not 
require notice to be provided sooner than is practicable. The final 
rule makes a minor change to Sec.  825.302(e) to clarify that the 
reference to the scheduling of intermittent leave is merely an example 
and that the employee's obligation to make reasonable efforts to 
schedule planned medical treatment so as not to unduly disrupt the 
employer's operations applies to all FMLA leave whether it is taken as 
a continuous block of leave or as intermittent or reduced schedule 
leave. The final rule modified proposed Sec.  825.302(f) to include 
appropriate references to the military family leave provisions, 
including the requirement that, for intermittent or reduced schedule 
leave taken to care for a covered servicemember with a serious injury 
or illness, the employee shall attempt to schedule such leave to not 
unduly disrupt the employer's operations. The final rule makes no 
changes to proposed Sec.  825.302(f) and (g).
    Several commenters representing employees took issue with the 
requirement in the proposed rule that employees who fail to provide 30 
days notice of the need for foreseeable leave must explain the reasons 
for their failure to do so upon request from their employer for such 
information. See, e.g., National Treasury Employees Union; National 
Partnership for Women & Families; Legal Aid Society-Employment Law 
Center; Community Legal Services, Inc./AIDS Law Project of 
Pennsylvania; American Postal Workers Union. These commenters viewed 
the requirement as unnecessary and potentially invasive of employee 
privacy. The AFL-CIO asserted that the requirement ``unduly intrudes 
upon employee privacy'' and argued that ``[t]here is no reason to give 
employers unfettered discretion to demand that employees explain why 
they did not give 30 days notice of leave, particularly where the 
explanation may require the disclosure of sensitive medical or other 
personal information.''
    The few employer representatives that specifically addressed this 
notice requirement argued that it would facilitate employers' ability 
to plan for employee absences. Jackson Lewis noted, ``[w]hen the need 
for leave is foreseeable (as is often the case when an employee seeks 
leave for childbirth, surgery and recovery), employees should provide 
advance notification to their employer so that the employer has the 
time necessary to redistribute work to other employees.'' See also 
National Roofing Contractors Association; Equal Employment Advisory 
Council. The Equal Employment Advisory Council requested that the 
regulation go further and require that employees provide documentation 
to support their inability to provide additional notice.
    The Department believes that an employee's obligation to explain 
the reason he or she was unable to provide 30 days advance notice of 
the need for

[[Page 68002]]

foreseeable leave is implicit in the current regulation, which allows 
for the provision of less than 30 days notice only in those 
circumstances in which 30 days notice was not practicable. See Sec.  
825.302(a); see also 29 U.S.C. 2612(e)(1) and (2) (employee shall 
provide 30 days notice of the need for foreseeable leave due to 
applicable FMLA-qualifying reasons, unless circumstances require that 
the leave begin in less than 30 days, in which case the employee shall 
provide such notice as is practicable). Because employees already may 
be required to provide such an explanation, the Department does not 
view the explicit acknowledgement of this obligation in proposed Sec.  
825.302(a) as imposing any additional burden on employees. 
Additionally, the Department believes that early notice of the need for 
FMLA-protected leave is essential to the smooth functioning of FMLA 
leave in the workplace and that making clear that employees may be 
required to explain why they provided less than 30 days notice of the 
need for foreseeable leave emphasizes the importance of the notice 
requirement under the FMLA. Accordingly, the final regulation retains 
the requirement from the proposal that in applicable situations 
employees must provide an explanation upon request from their employer 
of the reason why they were unable to provide 30 days notice of the 
need for foreseeable FMLA leave.
    The NPRM raised a number of issues regarding the notice 
requirements for the military family leave provisions. While the NDAA 
applies the existing FMLA notice requirements to military caregiver 
leave, it establishes a different notice requirement for qualifying 
exigency leave. Under the NDAA, in such circumstances where leave taken 
for a qualifying exigency is foreseeable, eligible employees must 
provide notice to the employer that is ``reasonable and practicable.'' 
29 U.S.C. 2612(e)(3). The Department stated an initial view that 
proposed Sec. Sec.  825.302 and 825.303 should be extended to military 
caregiver leave. An employee using military caregiver leave would then 
be generally expected to provide the employer at least 30 days advance 
notice before FMLA leave is to begin when the need for the leave is 
foreseeable based on planned medical treatment for the covered 
servicemember. The Department asked whether military caregiver leave 
should be incorporated into this and all of the appropriate provisions 
in proposed Sec. Sec.  825.302 and 825.303. In addition, the Department 
stated its initial view that Sec. Sec.  825.302 and 825.303 should also 
be applied to qualifying exigency leave. The Department asked, if 
Sec. Sec.  825.302 and 825.303 were not applied to qualifying exigency 
leave, what other notice requirements should be used.
    The Department received many comments on employee notice 
requirements and the military family leave provisions. The Delphi 
Corporation offered that the ``new provisions should, to the greatest 
possible extent, track the current regulatory scheme. Any regulations 
concerning the administration of these leaves--including notice 
provisions and certification requirements--should track the non-
military FMLA requirements. This will help minimize disruption and 
confusion caused by the new provisions.'' The Manufacturers Alliance/
MAPI stated that ``[j]ust as the proposed FMLA regulations require the 
employee to give the employer notice of the need for foreseeable and 
unforeseeable leave, the same notice requirements should extend to 
leave taken to care for a covered service member and to leave taken for 
a qualifying exigency.'' Others addressed their comments specifically 
to notice for qualifying exigency leave. The National Coalition to 
Protect Family Leave expressed concern that the NDAA only requires 
notice for qualifying exigency leave ``if the need for leave is 
foreseeable. The language almost implies that no notice at all is 
required if exigency leave is unforeseeable. We believe the Department 
should apply the same principles of foreseeability as described in the 
proposed regulations * * * in sections 825.302 and 825.303.'' This 
commenter also stated that employees should ``notify their employers as 
soon as reasonable and practical when the employee learns that the 
servicemember has been called to active duty * * *. However, such 
notice of a call to active duty * * * should not be considered notice 
of a need for [qualifying exigency] leave. The employee should still be 
required to provide notice when the actual need for leave becomes 
known.'' Id. The Independent Bakers Association suggested that 
``[m]eetings and appointments should be scheduled in advance. Notice to 
employers should be provided as soon as the employee is aware of the 
need to take off.'' The National Association of Manufacturers 
commented:

    The statute requires that when the need for leave because of a 
family member's active duty is ``foreseeable,'' the employee should 
provide notice ``as is reasonable and practicable.'' The statute is 
silent with regard to notice when the need for leave is not 
foreseeable. The [National Association of Manufacturers] recognizes 
that even in the instance of when the need is foreseeable, there may 
be very limited notice; but the [National Association of 
Manufacturers] believes that the Department should clarify that an 
employee should provide notice as soon as practicable in either 
circumstance.
    Allowing no notice would present production issues and foreclose 
planning to accommodate the absence. This becomes more evident since 
the leave is based on exigent circumstances. In such circumstances, 
we believe the Department should require the employee to provide the 
employer with notice when the employee learns of the need for leave. 
The [National Association of Manufacturers] proposes that the 
Department consider incorporating the Department of Defense 
regulations interpreting the notice provisions under the Uniformed 
Services Employment and Reemployment Rights Act (``USERRA'') for 
these regulations. There, DoD recommends that a servicemember 
provide 30 days notice of the upcoming absence when feasible. In 
addition, notice can be provided for the employee by others, such as 
an appropriate military officer. Another approach could be to 
conform all notice requirements under FMLA with those in USERRA, 
which would lead to a similar result. Either alternative would be a 
meaningful improvement.

    In the final rule, the same requirements for providing notice for 
foreseeable leave that apply to existing FMLA leave are extended to 
military caregiver leave. Because Congress specifically amended the 
FMLA to include military caregiver leave under the existing statutory 
provisions regarding notice for foreseeable leave, it makes sense for 
the Department to do the same for the regulatory notice provisions for 
foreseeable leave. The statutory amendments regarding qualifying 
exigency leave created a free-standing notice provision for such leave 
that requires employees to provide such notice as is ``reasonable and 
practicable.'' The Department agrees with those commenters who argued 
that ``reasonable and practicable'' should be interpreted the same as 
``practicable'' and that the same standard of ``practicable'' should 
thus apply to leave for any FMLA-qualifying reason. Accordingly, in all 
cases of foreseeable leave due to a qualifying exigency, an employee is 
required to provide notice ``as soon as practicable'' and Sec.  825.302 
has been modified to apply to such leave. Thus, Sec.  825.302(a) in the 
final rule is changed to incorporate references to military caregiver 
leave and also makes clear that the 30-day advanced notice requirement 
for foreseeable leave does not apply to qualifying exigency leave. 
Employees are not obligated to provide notice to an employer when they 
first become aware of a covered family member's active duty or call to

[[Page 68003]]

active duty status. The Department believes this is an unnecessary 
requirement because many employees with a covered military member may 
never need to use qualifying exigency leave. Notice for qualifying 
exigency leave should be provided when the employee first seeks to take 
leave for a qualifying exigency.
    When the need for FMLA leave is foreseeable less than 30 days in 
advance, an employee must ``provide such notice as is practicable.'' 29 
U.S.C. 2612(e)(1), (2)(B). Proposed Sec.  825.302(b) deleted language 
from current Sec.  825.302(b) defining ``as soon as practicable'' as 
``ordinarily * * * mean[ing] at least verbal notification to the 
employer within one or two business days of when the need for leave 
becomes known to the employee.'' As discussed in the preamble to the 
proposed rule, the ``one or two business days'' timeframe was intended 
as an illustrative outer limit, but had come to be read as allowing 
employees two business days from learning of their need for leave to 
provide notice to their employers regardless of whether it would have 
been practicable to provide notice more quickly. 73 FR 7907 (Feb. 11, 
2008). See Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999).
    Several employee representatives specifically opposed the deletion 
of the ``one or two business days'' language in proposed Sec.  
825.302(b). See, e.g., National Partnership for Women & Families; 
Community Legal Services, Inc./AIDS Law Project of Pennsylvania; 
PathWaysPA; Human Rights Campaign. The National Partnership for Women & 
Families noted that the Department was proposing to shorten the amount 
of time that employees had to provide notice of the need for FMLA leave 
at the same time that it was proposing to give employers more time to 
respond to the employee's notice. Many commenters viewed the proposed 
requirement that employees provide notice of the need for leave that is 
foreseeable less than 30 days in advance either on the same day or the 
next business day to be unduly restrictive and to impose an unnecessary 
hurdle to employees seeking to utilize FMLA leave. See, e.g., Community 
Legal Services, Inc./AIDS Law Project of Pennsylvania; Human Rights 
Campaign; Denise Evans; PathWaysPA; Maine Department of Labor. The 
United Food and Commercial Workers International Union argued that the 
current regulation does not permit employees to wait two days if it is 
practicable for them to provide notice sooner and that therefore no 
regulatory change is needed as to the timing of notice for FMLA leave 
foreseeable less than 30 days in advance.
    Employee representatives also took issue with the statement in the 
preamble that:

    Absent emergency situations, where an employee becomes aware of 
the need for FMLA leave less than 30 days in advance, the Department 
expects that it will be practicable for the employee to provide 
notice of the need for leave either the same day (if the employee 
becomes aware of the need for leave during work hours) or the next 
business day (if the employee becomes aware of the need for leave 
after work hours).

73 FR 7908 (Feb. 11, 2008). The Legal Aid Society--Employment Law 
Center questioned whether under the proposed regulation an employee 
diagnosed with early stage breast cancer would be required to tell her 
employer about her diagnosis before telling her family. Similarly, the 
National Partnership for Women & Families noted that under the proposed 
rule an employee learning that the date for her cesarean section has 
been moved up may be required to inform her employer before her family. 
See also American Postal Workers Union (``The examples provided by the 
proposed regulation in Sec.  825.302(b) make no allowance for employees 
who, although they may be aware of a medical appointment, are not aware 
of the FMLA or of its employee notice requirements.'').
    Conversely, employer representatives overwhelmingly supported the 
deletion of the ``two-day rule.'' See, e.g., Equal Employment Advisory 
Council; the Chamber; National Newspaper Association; National Small 
Business Association. Commenters including the Equal Employment 
Advisory Council and the Chamber argued that prompt notice of an 
employee's need for FMLA leave is essential to the employer's ability 
to manage the workplace. See also HR Policy Association; AT&T. The 
Chamber stated that the lack of advance notice of absences was one of 
the biggest problems employers faced under the current regulations. 
They argued that deleting the ``two-day rule'' would reduce what they 
perceived to be the abuse of FMLA leave. AT&T noted that advance notice 
of absences is essential to its ability to comply with federal- and 
state-mandated service levels in some call centers.
    HR Policy Association and the National Association of Manufacturers 
agreed with the statement in the preamble that the Department expected 
that it would be practicable for employees to provide notice the same 
day or the next business day. The National Coalition to Protect Family 
Leave and the National Restaurant Association however, argued that 
employees should be required to comply with the timing requirements of 
employers' normal policies for reporting absences.
    The Department notes that prompt notice of an employee's need for 
FMLA leave not only allows an employer to manage its staffing needs but 
also facilitates the prompt determination of FMLA coverage. When an 
employee's need for FMLA leave is foreseeable, it is in the employee's 
interest that the determination of whether the leave is FMLA-protected 
be made prior to the commencement of the leave. Prompt notice of the 
need for leave to the employer allows the employer to determine whether 
or not certification will be required. Wherever possible, it is 
preferable that the employer receive all information necessary to 
determine whether the leave will be designated as FMLA-protected prior 
to the date of the leave.
    The Department wishes to stress that both current and proposed 
Sec.  825.302(b) defined ``as soon as practicable'' as ``as soon as 
both possible and practical, taking into account all the facts and 
circumstances of the individual case.'' The deletion of the ``two-day 
rule'' does not change the fact that whether notice is given as soon as 
practicable will be determined based upon the particular facts and 
circumstances of the employee's situation. For example, if an employee 
receives a call during the workday from her health care provider 
telling her that she had been diagnosed with breast cancer and will 
have a need for FMLA leave, the employee would not be expected to 
inform her employer of the need for leave the same day. Given the facts 
and circumstances related to the gravity of the condition and when the 
employee became aware of the diagnosis, it would not be practicable for 
the employee to provide notice to her employer of her impending need 
for leave to treat her cancer prior to having the opportunity to 
discuss the diagnosis with her family. In contrast, if an employee 
receives a call during the workday from her health care provider 
telling her that an appointment previously scheduled for Friday is 
being moved to Thursday, the employee would be expected to inform her 
employer of the change in her need for leave the same day. The examples 
provided in the proposed rule have been replaced with the statement 
that:

    Where an employee becomes aware of a need for FMLA leave less 
than 30 days in advance, it should be practicable for the employee 
to provide notice of the need for leave either the same day or the 
next business day. In all cases, however, the

[[Page 68004]]

determination of when an employee could practicably provide notice 
must take into account the individual facts and circumstances.

Thus, the employee's obligation is always to provide notice as soon as 
practicable. In the normal course, the Department expects that 
employees will be able to provide notice of the need for leave that is 
foreseeable less than 30 days in advance either the same day or the 
next business day. In cases involving unusual facts and circumstances, 
such as the diagnosis of a serious disease, additional time may be 
necessary before the employee can practicably provide notice to the 
employer of the need for leave.
    Proposed Sec.  825.302(c) retained the standard from current Sec.  
825.302(c) that an employee need not expressly assert his or her rights 
under the FMLA or even mention the FMLA, but instead must provide 
sufficient information to make his or her employer aware that FMLA 
rights may be at issue. To clarify the employee's notice obligation, 
proposed Sec.  825.302(c) added language clarifying what information 
the employee must provide to make the employer aware of the employee's 
need for FMLA-protected leave.

    The employee must provide sufficient information that indicates 
that a condition renders the employee unable to perform the 
functions of the job, or if the leave is for a family member, that 
the condition renders the family member unable to perform daily 
activities; the anticipated duration of the absence; and whether the 
employee or the employee's family member intends to visit a health 
care provider or has a condition for which the employee or the 
employee's family member is under the continuing care of a health 
care provider.

73 FR 7981 (Feb. 11, 2008). The proposed rule also added language 
explaining an employee is obligated to respond to an employer's 
questions designed to determine whether or not the absence is FMLA-
qualifying, and that failure to respond to reasonable inquiries may 
result in the denial of FMLA protection if the employer is unable to 
determine whether the leave is FMLA-qualifying. Additionally, the 
preamble to the proposed rule sought comments ``as to whether a 
different notice standard requiring employees to expressly assert their 
FMLA rights should apply in situations in which an employee has 
previously provided sufficient notice of a serious health condition 
necessitating leave and is subsequently providing notice of dates of 
leave due to the condition that were either previously unknown or 
changed.'' Id. at 7908.
    Employee representatives including the AFL-CIO and the National 
Employment Lawyers Association expressed concern that the proposed 
language was unduly proscriptive and would be difficult for employees 
to comply with. The National Partnership for Women & Families and the 
Sargent Shriver National Center on Poverty Law pointed out that not all 
of the listed elements would be applicable in some situations covered 
by the FMLA. Some commenters viewed the increased specificity in the 
proposed regulation as serving no purpose other than providing 
employers with another opportunity to deny FMLA protection to 
qualifying leave. See United Food and Commercial Workers International 
Union; Communications Workers of America. Community Legal Services, 
Inc./AIDS Law Project of Pennsylvania analyzed the proposal as follows: 
``The true effect of this change would simply be to give the employers 
additional grounds for denying FMLA leave, by claiming that leave 
requests which lacked one or more of the new requirements did not put 
them on notice of a possible FMLA-eligible leave request, and that 
therefore they did not need to inquire further.'' The National 
Partnership for Women & Families and the AFL-CIO expressed a concern 
that employees would lose FMLA protection because they would be unaware 
of the specific types of information required and noted that the 
proposed rule did not establish any mechanism for informing employees 
of the additional information they would be required to provide. See 
also Sargent Shriver National Center on Poverty Law; Community Legal 
Services, Inc./AIDS Law Project of Pennsylvania. A labor union 
attorney, Robert M. Schwartz, noted that the new notice requirements 
were not included in the proposed general notice and poster.
    Employer commenters indicated that requiring employees to provide 
additional information regarding their need for leave would facilitate 
the process of identifying, and protecting, FMLA leave. See the 
Chamber; Catholic Charities, Diocese of Metuchen. The Equal Employment 
Advisory Council stated that ``[i]nformation such as the inability to 
perform work, the anticipated duration of the absence, and the need to 
see a health care provider is critical to trigger for the employer the 
possibility that the employee may be requesting FMLA-qualifying 
leave.'' Jackson Lewis, however, commented that the additional 
information required under the proposed rule may still not be 
sufficient to put employers on notice that an employee's leave should 
be FMLA-protected. Several employer representatives also requested that 
the Department go further and require employees to expressly assert 
their FMLA rights in all instances. See, e.g., National Restaurant 
Association; National Coalition to Protect Family Leave; National 
Newspaper Association; Spencer Fane Britt & Browne; Society for Human 
Resource Management; National Association of Convenience Stores; 
American Foundry Society. Jackson Lewis suggested that employees be 
required ``to specifically request FMLA leave for all absences less 
than one week/five business days in duration.'' The Equal Employment 
Advisory Council expressed its support for requiring employees to 
respond to employer requests for follow-up information regarding their 
need for leave, noting that ``the employee's cooperation is necessary 
to substantiate a request for legally protected leave.''
    Most employee commenters who addressed the Department's inquiry 
regarding requiring employees to expressly assert their FMLA rights 
when they were requesting leave based on a condition for which they had 
previously provided sufficient notice, opposed the idea. See, e.g., 
National Partnership for Women & Families; United Food and Commercial 
Workers International Union; Community Legal Services, Inc./AIDS Law 
Project of Pennsylvania. Community Legal Services, Inc./AIDS Law 
Project of Pennsylvania argued that ``[e]mployees who have already 
established a right to FMLA leave should not be vulnerable to losing 
their jobs simply because they neglect to use the magic words in giving 
notice to an employer that was already aware of why they have been out 
on leave.'' The Communications Workers of America, however, asserted 
that the use of a separate notice standard in such instances would be 
beneficial.
    Many employer representatives, including a number of employers with 
large workforces such as the U.S. Postal Service and AT&T supported 
requiring employees to specifically reference the FMLA when requesting 
leave due to a previously-certified FMLA-protected condition. See also 
Southern Company; New York City (NY) Law Department; Vercruysse Murray 
& Calzone; National Association of Manufacturers; Society for Human 
Resource Management; Spencer Fane Britt & Browne; National School 
Boards Association. The U.S. Postal Service noted that requiring 
employees to specifically reference a previously-certified FMLA 
condition would be particularly helpful in situations in which 
employees have multiple FMLA conditions and

[[Page 68005]]

employers need to identify the condition for which the leave is being 
taken. The Equal Employment Advisory Council and Jackson Lewis, 
however, opposed having a separate notice standard in these 
circumstances because they perceived it as a lessening of the 
employee's notice obligation. Manufacturers Alliance/MAPI suggested 
that the uncertainty surrounding employee notice of the need for FMLA 
leave could be resolved if the Department created a form which 
employees could be required to use to request FMLA leave.
    Finally, several commenters including the National Partnership for 
Women & Families and the National Employment Lawyers Association 
expressed concern that proposed Sec.  825.302(c) fundamentally altered 
the employer's obligation to inquire if additional information was 
necessary to determine whether an employee's need for leave is FMLA-
protected. See also Sargent Shriver National Center on Poverty Law; 
Community Legal Services, Inc./AIDS Law Project of Pennsylvania. The 
AFL-CIO asserted that the proposed rule affirmatively ``shifts the 
burden to employees to provide information that is currently the 
employer's obligation to obtain if the initial notice is 
insufficient.''
    By setting forth the types of information that an employee may have 
to provide in order to put an employer on notice of the employee's need 
for FMLA-protected leave, the Department did not intend to establish a 
list of information that must be provided in all cases. Instead, the 
Department intended to provide additional guidance to employees so that 
they would know what information to provide to their employers. The 
Department agrees with those commenters who noted that the nature of 
the information necessary to put the employer on notice of the need for 
FMLA leave will vary depending on the circumstances. For example, an 
employee who informs her supervisor that she is pregnant and needs to 
attend a doctor's appointment related to her pregnancy has provided 
sufficient notice of her need for FMLA-protected leave. Likewise, where 
an employee is seriously injured at work and the employer sends the 
employee to the hospital by ambulance, the employer has sufficient 
information to be on notice that the employee's leave may be FMLA-
protected. Accordingly, the final rule has been changed to read: 
``Depending on the situation, such information may include that a 
condition renders the employee unable to perform the functions of the 
job, or if the leave is for a family member, that the condition renders 
the family member unable to perform daily activities; that the employee 
is pregnant or has been hospitalized overnight; the anticipated 
duration of the absence, if known; and whether the employee or the 
employee's family member is under the continuing care of a health care 
provider.'' The Department wishes to emphasize that the employer's 
obligation to inquire if it needs additional information to determine 
whether the leave is FMLA-qualifying remains the same as it is under 
the current regulations. No change in this obligation was proposed in 
the NPRM and none is intended in the final rule.
    Section 825.302(c) of the final rule has been changed to include a 
different notice standard when the employee requests leave for a 
previously-certified FMLA-qualifying reason. The Department believes 
that in such situations, because employees are already aware that leave 
for such reason is FMLA-protected, it is not overly burdensome to 
require them to specifically reference either the particular reason or 
their need for FMLA leave. Where an employee has previously taken FMLA 
leave for more than one qualifying reason, the employer may need to 
inquire further to determine for which reason the leave is being taken 
and employees will be required to respond to such inquiries. The 
Department believes that this requirement will facilitate employers' 
ability to appropriately designate and protect FMLA leave. Because 
incidents of unforeseeable leave are often related to previously-
certified FMLA-qualifying reasons, a similar notice standard has also 
been included in Sec.  825.303 of the final rule.
    Finally, Sec.  825.302(c) in the final rule has been modified to 
incorporate appropriate references to military caregiver leave and 
provides that for qualifying exigency leave the employee must provide 
notice with sufficient information that indicates that a family member 
is on active duty or call to active duty status, that the requested 
leave is for one of the reasons listed in Sec.  825.126(a), and the 
anticipated duration of the absence. It also states that an employer 
may request certification in the case of both military caregiver leave 
and qualifying exigency leave.
    Section 825.302(d) of the proposed rule retained the requirement 
that an employee comply with the employer's usual notice and procedural 
requirements for calling in absences and requesting leave, but deleted 
language stating that the employer could not delay or deny FMLA leave 
if the employee failed to follow such procedures. The proposed rule 
qualified the employee's obligation to comply with the employer's usual 
reporting requirements, however, by noting that it applies ``absent 
unusual circumstances'' and providing examples of what might constitute 
such circumstances. The proposed rule also clarified that where the 
employer's usual reporting procedure allowed less time for reporting 
absences than Sec.  825.302(a), the employer could not enforce its 
policy as to timing.
    Employee representatives strongly opposed allowing employers to 
delay or deny FMLA protection because of an employee's failure to 
comply with the employer's usual requirements for requesting leave. 
See, e.g., AFL-CIO; Community Legal Services, Inc./AIDS Law Project of 
Pennsylvania; American Postal Workers Union; National Partnership for 
Women & Families; Coalition of Labor Union Women. The AFL-CIO noted 
that the ``unusual circumstances'' exception would not provide 
employees with sufficient protection to prevent them from being denied 
FMLA leave due to the rigid application of employer policies. The 
American Postal Workers Union and the American Association of 
University Women argued that employers should not be able to enforce 
their usual policies unless they could show that they were harmed by 
the employee's failure to comply with the policy.
    Employer commenters, however, argued that employees should be 
required to follow the same procedures for requesting leave regardless 
of whether their need for leave was covered by the FMLA. See, e.g., 
National Coalition to Protect Family Leave; Equal Employment Advisory 
Council; TOC Management Services; Retail Industry Leaders Association; 
Society for Human Resource Management; Association of Corporate 
Counsel's Employment and Labor Law Committee. The Chamber argued that 
allowing employers to apply their normal procedures for requesting 
leave to FMLA leave requests would help reduce confusion and 
duplicative policies. The Equal Employment Advisory Council and the 
Association of Corporate Counsel's Employment and Labor Law Committee 
specifically supported the deletion of language from the current 
regulation stating that employers could not delay or deny FMLA 
protection where an employee fails to provide timely FMLA notice. The 
Equal Employment Advisory Council and others commented in favor of the 
clarification in the preamble to the proposed rule that where FMLA-

[[Page 68006]]

protected leave is delayed or denied because the employee failed to 
provide timely notice, and the employee is absent during the period in 
which he or she is not entitled to FMLA protection, the employer may 
treat the absence in the same manner it would treat any other unexcused 
absence. See also U.S. Postal Service; Retail Industry Leaders 
Association.
    The Department recognizes that call-in procedures are routinely 
enforced in the workplace and are critical to an employer's ability to 
ensure appropriate staffing levels. Such procedures frequently specify 
both when and to whom an employee is required to report an absence. The 
Department believes that employers should be able to enforce non-
discriminatory call-in procedures, except where an employer's call-in 
procedures are more stringent than the timing for FMLA notice as set 
forth in Sec.  825.302(a). In that situation, the employer may not 
enforce the more stringent timing requirement of its internal policy. 
Additionally, where unusual circumstances prevent an employee seeking 
FMLA-protected leave from complying with the procedures, the employee 
will be entitled to FMLA-protected leave so long as the employee 
complies with the policy as soon as he or she can practicably do so. 
Unusual circumstances would include where the employer's procedure 
requires employees to report absences to a specific individual, and 
that individual was absent on a particular day, or the individual's 
voice mail box was full. Because the example of an employee unable to 
report an absence due to his or her medical condition is more 
appropriately viewed as unforeseeable leave, the example has been 
replaced with an employee unable to comply with the employer's 
requirement for the reasons discussed above. In such an instance, the 
employee would satisfy his or her FMLA notice obligation by providing 
notice in accordance with the employer's policy as soon as the employee 
can practicably do so.
    Although the proposed rule made no changes in Sec.  825.302(e), one 
change has been made in the final rule. The phrase ``for example'' has 
been added to the third sentence to emphasize that the reference to the 
use of intermittent leave for planned medical treatment is only one 
example of when an employee is obligated to make a reasonable effort to 
schedule leave so as not to disrupt unduly the employer's operations. 
The employee's obligation applies to all foreseeable FMLA leave for 
planned medical treatment, whether that leave is taken in a single 
continuous block of leave or intermittently. 29 U.S.C. 2612(e)(2)(A).
    No changes were proposed to Sec.  825.302(f). The final rule 
modifies paragraph (f) to incorporate references to the military family 
leave provisions. The rule makes clear that the requirement that an 
employee and employer attempt to work out a schedule without unduly 
disrupting the employer's operations applies only to military caregiver 
leave. It does not apply to qualifying exigency leave.
    Proposed Sec.  825.302(g) retained only the first sentence of 
current Sec.  825.302(g) stating that employers may waive employees' 
FMLA notice requirements. The proposal deleted the remainder of current 
Sec.  825.302(g), which addressed whether employers could require 
compliance with FMLA notice requirements where the provisions of a 
collective bargaining agreement, state law, or applicable leave plan 
allow for less advance notice to the employer. This proposal did not 
draw a significant number of comments.
    Three unions, however, objected to the deletion of the language 
referencing less restrictive procedures in collective bargaining 
agreements. See National Association of Letter Carriers; National 
Treasury Employees Union; AFL-CIO. While the AFL-CIO agreed that the 
vacation leave example in current Sec.  825.302(g) was confusing and 
should be deleted, it argued that it was important to retain the second 
and fourth sentences of the current regulation to provide guidance on 
less strict notice provisions in collective bargaining agreements. The 
National Treasury Employees Union argued that the deletion was 
inconsistent with 29 U.S.C. 2652, which states that nothing in FMLA 
``shall be construed to diminish the obligation of an employer to 
comply with any collective bargaining agreement or any employment 
benefit program or plan that provides greater family or medical leave 
rights to employees than the rights established under this Act.'' See 
also National Partnership for Women & Families. Finally, the National 
Partnership for Women & Families objected to the deletion generally, 
not just as it applied to collective bargaining agreements. Only two 
employer representatives directly addressed proposed Sec.  825.302(g) 
and both supported the proposed changes. See Equal Employment Advisory 
Council; TOC Management Services. The Equal Employment Advisory Council 
argued that current Sec.  825.302(g) was confusing and inconsistent 
with the employer's right to notice under the FMLA.
    The final rule makes no substantive changes to proposed Sec.  
825.302(g). The FMLA does not relieve employers of their obligation to 
comply with state and local laws, collective bargaining agreements, or 
employment benefit programs that provide ``greater family or medical 
leave rights.'' 29 U.S.C. 2651(b), 2652(a). These statutory obligations 
are not diminished by the revisions made to Sec.  825.302(g). The 
Department does not believe that these obligations should be addressed 
in Sec.  825.302(g) as they are fully discussed in Sec. Sec.  825.700 
and 825.701 of both the current and final rules. A cross-reference has 
been added in Sec.  825.302(g) of the final rule, however, to Sec.  
825.304, which also addresses waiver of an employee's notice 
obligations.
Section 825.303 (Employee Notice Requirements for Unforeseeable FMLA 
Leave)
    Section 825.303 addresses an employee's obligation to provide 
notice when the need for FMLA leave is unforeseeable. Proposed Sec.  
825.303(a) retained the current standard that employees must provide 
notice of their need for unforeseeable leave ``as soon as practicable 
under the facts and circumstances of the particular case.'' The 
proposed rule replaced language stating that, except in extraordinary 
circumstances, employees would be expected to give notice ``within no 
more than one or two working days of learning of the need for leave,'' 
with the requirement that employees provide notice ``promptly'' and 
provided examples of appropriate notice. Proposed Sec.  825.303(b) 
retained the current standard that an employee need not assert his or 
her rights under the FMLA or even mention the FMLA to put the employer 
on notice of the need for unforeseeable FMLA leave. The proposal added 
the same clarifying language used in proposed Sec.  825.302(c) 
explaining the information the employee must provide in order to 
provide sufficient notice to the employer of the need for FMLA leave 
and added that the employee has an obligation to respond to an 
employer's questions designed to determine whether leave is FMLA-
qualifying. The proposal also added a specific statement that calling 
in ``sick,'' without providing additional information, will not be 
sufficient notice under the Act. The preamble to the proposed rule also 
sought comment on whether employees needing unforeseen leave for a 
previously-certified FMLA condition (e.g., a flare-up of a chronic 
condition) should be required to expressly assert their FMLA rights. 
Finally, proposed

[[Page 68007]]

Sec.  825.302(c) added the requirement that, except when extraordinary 
circumstances exist, employees must comply with employers' usual and 
customary notice and procedural requirements for requesting leave and 
provided examples.
    Section 825.303(a) of the final rule retains the standard from the 
current regulation that employees must provide notice of the need for 
unforeseeable FMLA leave ``as soon as practicable.'' The final rule 
replaces the statement that employees will be expected to give notice 
to their employer ``promptly'' with the statement that it generally 
should be practicable for the employee to provide notice of leave that 
is unforeseeable within the time prescribed by the employer's usual and 
customary notice requirements applicable to such leave. Section 
825.303(b) of the final rule continues to provide guidance as to what 
information an employee may need to provide to constitute sufficient 
notice, but clarifies that the types of information listed are merely 
examples and may not be required in all situations. It adds a 
requirement that, for FMLA leave taken because of a qualifying 
exigency, the employee shall provide sufficient information that 
indicates that a family member is on active duty or call to active duty 
status, that the requested leave is for one of the reasons listed in 
Sec.  825.126(a), and the anticipated duration of the absence. 
Additionally, the final rule requires employees seeking leave for a 
previously certified FMLA condition, covered servicemember's serious 
injury or illness, or qualifying exigency to inform the employer that 
the leave is for a condition, covered servicemember's serious injury or 
illness, or qualifying exigency that was previously certified or for 
which the employee has previously taken FMLA leave. The final rule also 
retains the statement that calling in ``sick'' is not sufficient notice 
of the need for FMLA leave and the requirement that employees respond 
to employer questions designed to determine if leave is FMLA-
qualifying. The final rule in Sec.  825.303(c) provides that, absent 
unusual circumstances, employees must comply with employers' usual 
notice and procedural requirements for requesting leave. This section 
makes clear that in the case of an emergency requiring leave because of 
an employee's own serious health condition, because of a qualifying 
exigency, or to care for a family member with a serious health 
condition or a covered servicemember with a serious injury or illness, 
written advance notice pursuant to an employer's internal rules and 
procedures may not be required. This section also makes clear that 
FMLA-protected leave may be delayed or denied when an employee does not 
comply with the employer's usual notice and procedural requirements and 
no unusual circumstances justify the failure to comply.
    Employee representatives objected to the proposed regulation's 
shortening of the time for employees to provide notice of the need for 
unforeseeable leave. See, e.g., National Partnership for Women & 
Families; United Food and Commercial Workers International Union; 
Community Legal Services, Inc./AIDS Law Project of Pennsylvania; 
National Employment Lawyers Association; Human Rights Campaign. The 
AFL-CIO and the United Food and Commercial Workers International Union 
took issue with the statement in the preamble to proposed Sec.  
825.303(a) that ``the Department expects that in all but the most 
extraordinary circumstances, employees will be able to provide notice 
to their employers of the need for leave at least prior to the start of 
their shift.'' 73 FR 7910 (Feb. 11, 2008). The United Food and 
Commercial Workers International Union objected to the examples 
provided in the proposed rule of an employee caring for a child with 
asthma and providing notice of the unforeseen need for leave 
``promptly,'' arguing that the example ``fails to consider the timing 
of the child's asthma in relationship to the start of the employee's 
shift, whether following the attack the employee believes further 
treatment may be advisable, or whether, at the time of the asthma 
attack, the employee had to interrupt other responsibilities which have 
to be completed such as getting other children to school.'' The United 
Food and Commercial Workers International Union also noted that the 
term ``promptly'' was undefined and argued that it could be read to 
conflict with the statutory standard that notice must be provided ``as 
soon as practicable.'' The National Partnership for Women & Families 
questioned how the proposed regulation would work, noting that ``[i]t 
is unclear how employers will ascertain whether the employee could have 
called in earlier or not and who will determine if `extraordinary 
circumstances' actually existed.'' See also PathWaysPA; Sargent Shriver 
National Center on Poverty Law.
    Employer representatives overwhelmingly supported replacing the 
``one or two working days'' standard with the requirement that 
employees provide notice of the unforeseen need for FMLA leave 
``promptly.'' See, e.g., Equal Employment Advisory Council; National 
Newspaper Association; Jackson Lewis. Several commenters emphasized 
that timely notice of absences is even more critical to an employer's 
operations when the need for leave is unforeseen. See Equal Employment 
Advisory Council; American Health Care Association; National 
Association of Manufacturers; AT&T; National Small Business 
Association. The Equal Employment Advisory Council and other commenters 
supported the statement in the preamble to the proposed rule that, 
absent extraordinary circumstances, employees would be expected to 
notify their employers of the need for unforeseen FMLA leave prior to 
the start of their shifts. See also American Health Care Association. 
Several law firms suggested that the final rule would be improved if 
this language from the preamble were incorporated into the regulatory 
text. See Spencer Fane Britt & Browne; Willcox & Savage; Vercruysse 
Murray & Calzone; see also TOC Management Services. The National 
Coalition to Protect Family Leave and others, however, objected to 
setting the standard at prior to the start of the shift and instead 
suggested that employer call-in policies should determine the timing of 
notice for unforeseen leave. See Spencer Fane Britt & Browne; Society 
for Human Resource Management; National Restaurant Association; 
National Newspaper Association. Spencer Fane Britt & Browne, for 
example, commented:

    Under the Proposed Rule, an employee can literally call in 
absent one minute before the start of the shift with impunity. In 
some industries, however, employers require as much as two hours 
advance notice because of scheduling issues and the need to find a 
replacement. It is literally impossible to have a replacement on 
site when an employee merely calls in right before the start of his/
her shift. This is a particular problem in time-sensitive, critical 
services, and interdependent jobs (e.g., health care, 
transportation, utilities, assembly line, work group operations, law 
enforcement and fire protection, etc.).

    The Department has concluded that the statement in the proposed 
regulatory text that ``[w]here the need for leave is unforeseeable, it 
is expected that an employee will give notice to the employer 
promptly'' does not provide useful guidance for applying the ``as soon 
as practicable'' standard. As noted in the discussion of Sec.  
825.303(c) below, ``as soon as practicable'' is the governing standard. 
The Department believes that the employer's usual and customary notice 
requirements for taking such leave are a useful guide for providing 
notice of the need for unforeseeable

[[Page 68008]]

FMLA leave because the Department anticipates that providing notice 
``as soon as practicable'' will generally be consistent with an 
employer's reasonable notice requirements for taking such leave. 
Accordingly, Sec.  825.303(a) of the final rule replaces the statement 
that employees will be expected to give notice to their employers 
``promptly'' with the statement that it generally should be practicable 
for the employee to provide notice of leave that is unforeseeable 
within the time prescribed by the employer's usual and customary notice 
requirements applicable to such leave, with a cross-reference to Sec.  
825.303(c). Where unusual circumstances prevent the employee from 
complying with the employer's normal reporting policy, the employee 
will satisfy the FMLA notice obligation if he or she provides notice to 
the employer ``as soon as practicable'' under the circumstances. The 
final rule retains the examples from proposed Sec.  825.303(a) because 
the Department believes that they provide useful guidance on how the 
``as soon as practicable'' standard should be applied.
    Employee representatives commenting on proposed Sec.  825.303(b) 
objected, as they did in responding to proposed Sec.  825.302(c), that 
the listing in the regulation of the information necessary to notify an 
employer of the need for unforeseeable FMLA leave was overly 
prescriptive and presented an unnecessary hurdle for employees seeking 
to use FMLA leave. See, e.g., National Partnership for Women & 
Families; AFL-CIO; United Food and Commercial Workers International 
Union; Communications Workers of America. The United Food and 
Commercial Workers International Union argued that under the proposed 
rule employees would be required to provide information which they may 
well not know at the time they initially provide notice of the need for 
unforeseeable leave. Other commenters expressed concern that employees 
would not be aware of their increased notice obligation and would 
therefore lose FMLA protection because they did not include all of the 
necessary information in providing notice of the need for leave. See 
National Partnership for Women & Families; National Employment Lawyers 
Association; Sargent Shriver National Center on Poverty Law. The 
National Partnership for Women & Families argued that the problems that 
employers allegedly face with unforeseen intermittent leave could be 
addressed without altering the employee's notice obligation:

    To the extent that employers feel that employees are abusing 
unforeseeable leave, especially intermittent unforeseeable leave, 
employers should address those problems as an issue of management of 
their employees. There is no need to change the regulations for a 
federal statute for the entire country especially without sufficient 
evidence that such change is necessary.

The National Employment Lawyers Association questioned whether the 
proposed regulation inappropriately shifted the burden from the 
employer to inquire if additional information was needed to determine 
if leave was FMLA-qualifying to the employee to provide all necessary 
information in the initial notice. See also National Partnership for 
Women & Families; United Food and Commercial Workers International 
Union; Community Legal Services, Inc./AIDS Law Project of Pennsylvania; 
Sargent Shriver National Center on Poverty Law.
    Employer representatives also reiterated their comments on proposed 
Sec.  825.302(c) when commenting on Sec.  825.303(b), arguing that 
requiring employees to provide the enumerated information would 
facilitate the identification and protection of FMLA-qualifying leave. 
See the Chamber; Association of Corporate Counsel's Employment and 
Labor Law Committee. The National Coalition to Protect Family Leave and 
Society for Human Resource Management suggested that if employees were 
required to provide the information listed in proposed Sec.  
825.303(b), it would be equally appropriate and more effective to 
require them to specifically assert their FMLA rights when requesting 
unforeseen leave. See also National Newspaper Association; National 
Restaurant Association; Spencer Fane Britt & Browne. TOC Management 
Services and other commenters specifically supported the inclusion in 
the proposed regulation of the statement that simply calling in 
``sick'' was insufficient to put an employer on notice of the need for 
unforeseen FMLA leave. See also American Health Care Association; 
Association of Corporate Counsel's Employment and Labor Law Committee; 
the Chamber. The Association of Corporate Counsel's Employment and 
Labor Law Committee and the National Newspaper Association specifically 
supported the requirement that employees respond to follow-up inquiries 
from employers to determine whether leave is FMLA-qualifying. One law 
firm, Vercruysse Murray & Calzone, commented that language in the 
proposed preamble stating that employees would be expected to provide 
additional information to their employers if a condition that initially 
did not appear to be a serious health condition developed into one 
should be included in the text of the final regulation.
    Employers and their representatives generally supported requiring 
employees to expressly assert their FMLA rights when taking leave for a 
previously certified FMLA-qualifying reason, with several commenters 
noting that the need for such a requirement was even more imperative 
when the need for leave was unforeseen. See, e.g., American Health Care 
Association; Association of Corporate Counsel's Employment and Labor 
Law Committee; Southern Company. In particular, the U.S. Postal Service 
highlighted the problems faced by employers when employees with 
multiple FMLA-certified conditions notify their employers of an 
unscheduled absence. Vercruysse Murray & Calzone asserted that 
employees with approved FMLA certifications for chronic conditions 
frequently do not specify the reason for their absence, and argued that 
since such employees have ``already been approved for FMLA leave and 
have been notified of their rights and responsibilities under the FMLA, 
they should be required to specify, when reporting an absence, that the 
absence relates to their previously approved FMLA leave.'' Employee 
representatives generally opposed requiring employees to specifically 
assert their FMLA rights when requesting unforeseen leave due to a 
serious health condition for which they have previously been certified. 
See National Partnership for Women & Families; Community Legal 
Services, Inc./AIDS Law Project of Pennsylvania; United Food and 
Commercial Workers International Union. The Communications Workers of 
America, however, supported the application of the different notice 
standard in these circumstances, but expressed concern as to how 
employees would learn of such a new requirement.
    As discussed above in Sec.  825.302(c), the Department did not 
intend in proposed Sec.  825.303(b) to establish a list of information 
that must be provided in all cases. Accordingly, for the reasons 
discussed above in the preamble to Sec.  825.302(c), the final rule has 
been changed to read: ``Depending on the situation, such information 
may include that a condition renders the employee unable to perform the 
functions of the job; that the employee is pregnant or has been 
hospitalized overnight; whether the employee or the employee's family 
member is under the continuing care of a health care provider; if the 
leave is due to a qualifying exigency, that a

[[Page 68009]]

covered military member is on active duty or call to active duty 
status, that the requested leave is for one of the reasons listed in 
Sec.  826.126(a), and the anticipated duration of the absence; or if 
the leave is for a family member that the condition renders the family 
member unable to perform daily activities or that the family member is 
a covered servicemember with a serious injury or illness; the 
anticipated duration of the absence, if known.'' The Department also 
wishes to emphasize that the employer's obligation to inquire if 
additional information is needed to determine whether the leave is 
FMLA-qualifying remains the same as it is under the current 
regulations. No change in this obligation was proposed in the NPRM and 
none is intended in the final rule. Final Sec.  825.303(b) retains the 
obligation that employees respond to employer inquiries designed to 
determine whether leave is FMLA-qualifying. In addition, references to 
both military caregiver leave and qualifying exigency leave are added 
to Sec.  825.303(b). This paragraph is altered to provide that for 
qualifying exigency leave, the employee must provide notice with 
sufficient information that indicates that a family member is on active 
duty or call to active duty status, that the requested leave is for one 
of the reasons listed in Sec.  825.126(a), and the anticipated duration 
of the absence. Section 825.303(b) has also been changed to include a 
different notice standard when the employee requests unforeseen leave 
due to a previously certified FMLA-qualifying reason. As explained in 
connection with the revisions to final Sec.  825.302(c), the Department 
believes that in such circumstances, because employees are already 
aware that leave for the reason is FMLA-protected, it is not overly 
burdensome to require them to specifically reference their FMLA-
qualifying reason or their need for FMLA leave. When an employee has 
more than one previously certified FMLA-qualifying reason, the employer 
may need to inquire further to determine for which FMLA-qualifying 
reason the leave is being taken, and employees will be required to 
respond to such inquires. The Department believes this requirement will 
facilitate an employer's ability to appropriately designate and protect 
FMLA leave.
    Employee representatives objected to the requirement in proposed 
Sec.  825.303(c) that employees comply with the employer's usual and 
customary notice and procedural requirements for requesting leave, 
except when extraordinary circumstances exist. See National Partnership 
for Women & Families; United Food and Commercial Workers International 
Union; Community Legal Services, Inc./AIDS Law Project of Pennsylvania. 
Community Legal Services, Inc./AIDS Law Project of Pennsylvania 
emphasized that in low-wage settings employees may not be familiar with 
their employers' procedures for requesting leave. Employer 
representatives, however, argued that employees should follow the same 
procedures for absence reporting regardless of whether the leave was 
for a FMLA condition. See, e.g., National Coalition to Protect Family 
Leave; Retail Industry Leaders Association; National Restaurant 
Association; Ohio Department of Administrative Services; College and 
University Professional Association for Human Resources. Jackson Lewis 
objected to allowing an exception from the requirement for 
extraordinary circumstances.
    As discussed above in connection with the revisions to Sec.  
825.302(d), the Department recognizes that call-in procedures are a 
routine part of many workplaces and are critical to an employer's 
ability to manage its work force. Adherence to such policies is even 
more critical when the need for leave is unforeseen. Accordingly, the 
final rule in Sec.  825.303(c) provides that, absent unusual 
circumstances, employees must comply with their employer's usual and 
customary notice and procedural requirements for requesting leave. The 
Department modified the standard from ``extraordinary circumstances'' 
in the proposal to ``unusual circumstances'' in the final rule to make 
the standard consistent with that used in Sec.  825.302(d). In the 
final rule, the Department deleted the sentence that FMLA leave may not 
be delayed or denied where the employer's policy requires notice to be 
given sooner than set forth in Sec.  825.303(a) and the employee 
provides timely notice as required in that section. Because final Sec.  
825.303(a) makes the employer's usual and customary notice requirements 
the benchmark for providing timely notice for unforeseeable leave in 
most cases, this sentence no longer makes sense. Nonetheless, it is 
important to note that ``as soon as practicable'' is the governing 
standard; the Department anticipates that an employer's reasonable 
notice requirements for taking unforeseeable leave will be consistent 
with this standard in most circumstances. The final rule in Sec.  
825.303(d) includes the provision that FMLA-protected leave may be 
delayed or denied when an employee does not comply with the employer's 
usual notice and procedural requirements and no unusual circumstances 
justify the failure to comply. The Department included this provision 
to make it consistent with Sec.  825.302(d).
Section 825.304 (Employee Failure To Provide Notice)
    Proposed Sec.  825.304 clarified what an employer may do if an 
employee fails to provide the required notice for FMLA leave. 
Specifically, the proposed section separated into different paragraphs 
the rules applicable to leave foreseeable at least 30 days in advance, 
leave foreseeable less than 30 days in advance, and unforeseeable 
leave. The proposed section provided examples of what it means to delay 
FMLA leave in cases of both foreseeable and unforeseeable leave. The 
proposed rule retained language from current Sec.  825.304(c) stating 
that FMLA leave cannot be delayed due to lack of required employee 
notice if the employer has not complied with its notice requirements, 
as set forth in proposed Sec.  825.300. The final rule reorganizes 
Sec.  825.304 by moving paragraph (e) to paragraph (a) (and vice versa) 
as set forth in the proposed rule and by deleting the reference to 
annual distribution of employee notices to conform to changes made in 
final Sec.  825.300.
    The Department received few comments specifically addressing 
proposed Sec.  825.304. The Equal Employment Advisory Council, Jackson 
Lewis, and the Pennsylvania Governor's Office of Administration noted 
that the clarification of employers' rights when employees fail to meet 
their FMLA notice obligations provided needed guidance to employers. 
The United Food and Commercial Workers International Union, however, 
strongly opposed permitting employers to discipline employees or delay 
the start of FMLA leave when employees needing unforeseeable leave fail 
to comply with employer call-in procedures.
    The Department believes that proposed Sec.  825.304 provides 
helpful guidance clarifying the consequences of an employee's failure 
to provide timely notice of the need for FMLA leave. While current 
Sec.  825.304 addresses the delay of FMLA protection where an employee 
fails to provide 30 days notice of the need for FMLA leave, the 
regulation does not explain the consequences for failure to provide 
timely notice when the need for leave was either foreseeable less than 
30 days

[[Page 68010]]

in advance or unforeseeable. Moreover, the current regulation does not 
explain the effect of delaying FMLA protection if the employee was 
absent during the period in which the protection was appropriately 
delayed. The Department believes that Sec.  825.304 as proposed more 
clearly explains the consequences of an employee's failure to provide 
timely FMLA notice. Accordingly, except for the organizational changes 
in re-ordering paragraphs (a) and (e) noted above, the final rule 
adopts proposed Sec.  825.304 without change.
Section 825.305 (Certification, General Rule)
    The FMLA permits employers to require employees to provide a 
certification from their health care provider (or their family member's 
health care provider, as appropriate) to support the need for leave due 
to a serious health condition. 29 U.S.C. 2613. Section 825.305 of the 
regulations sets forth the general rules governing employer requests 
for medical certification to substantiate an employee's need for FMLA 
leave due to a serious health condition. The new military family leave 
provisions also permit employers to require employees to provide a 
certification in the case of leave taken for a qualifying exigency or 
to care for a covered servicemember with a serious injury or illness. 
Accordingly, Sec.  825.305 in the final rule has been retitled and 
edited to apply generally to all types of certification. In most cases, 
for example, references to ``medical certification'' have been changed 
to simply ``certification.''
    In the NPRM, no changes were proposed to current Sec.  825.305(a), 
which states the general rule that employers may require certification 
from a health care provider where the employee's need for leave is due 
to a serious health condition of the employee or a covered family 
member. Current Sec.  825.305(b) sets forth the timing requirement for 
providing the certification. Proposed Sec.  825.305(b) increased the 
time frame in which an employer should request medical certification 
from two to five business days after notice of the need for FMLA leave 
and applied the general 15-day time period for providing a requested 
certification to all cases, including where the employee provides 
notice of the need for leave 30 days in advance. The Department also 
requested comment as to whether it should add a requirement under this 
section that employers must notify employees when a requested 
certification is not received within the 15-day time frame. Proposed 
Sec.  825.305(c) added definitions of incomplete and insufficient 
certifications and set forth a procedure for curing an incomplete or 
insufficient certification that requires an employer to notify the 
employee in writing as to what additional information is necessary for 
the medical certification and provide seven calendar days to provide 
the additional information. Proposed Sec.  825.305(d) clarified that if 
an employee fails to submit a complete and sufficient certification, 
despite the opportunity to cure the deficiency as set forth in Sec.  
825.305(c), the employer may deny the taking of FMLA leave. This 
proposed section also clarified that, when certification is required by 
the employer, it is the employee's obligation to either provide a 
complete and sufficient certification or provide any necessary 
authorization for the health care provider to release a complete and 
sufficient certification directly to the employer; this obligation 
applies regardless of whether the certification requested is an initial 
certification, a recertification, a second or third opinion, or a 
fitness for duty certification. Current Sec.  825.305(e) states that if 
a less stringent medical certification standard applies under the 
employer's sick leave plan, only that lesser standard may be required 
when the employee substitutes any form of paid leave for FMLA leave. 
The proposed rule deleted this provision because it conflicted with the 
employer's right under 29 U.S.C. 2613 to require as a prerequisite to 
FMLA leave for a serious health condition that the employee provide a 
medical certification to substantiate the serious health condition. The 
proposed rule added a new Sec.  825.305(e) allowing for annual medical 
certifications in those cases in which a serious health condition 
extends beyond a single leave year; this addition codified the 
Department's interpretation of the certification requirement in Wage 
and Hour Opinion Letter FMLA-2005-2-A (Sept. 14, 2005). The final rule 
adopts Sec.  825.305 as proposed with one clarification to Sec.  
825.305(e) and with appropriate edits to reflect the military family 
leave provisions.
    Proposed Sec.  825.305(b) increased the time frame during which an 
employer should request medical certification from two to five business 
days after receiving notice of the employee's need for FMLA leave. The 
Department did not receive substantial comment on this proposal. For 
the most part, those commenters that addressed this proposal 
specifically supported the increase in the time frame to allow 
employers to process the employee's initial request for FMLA leave and 
determine if medical certification will be required. See, e.g., the 
Chamber; TOC Management Services; National Retail Federation; College 
and University Professional Association for Human Resources. The 
National Small Business Association noted that the increased time frame 
would be particularly helpful for small businesses, which must divert 
resources from other functions to administer FMLA requests.
    Current Sec.  825.305(b) states that where the need for leave is 
foreseeable and notice is provided 30 days in advance, the employee 
must provide any requested medical certification prior to the 
commencement of the leave; in all other cases, the employee must 
provide medical certification within 15 days after the leave is 
requested ``unless it is not practicable under the particular 
circumstances to do so despite the employee's diligent, good faith 
efforts.'' Proposed Sec.  825.305(b) applied the 15-day time frame, 
subject to the employee's diligent, good faith efforts, to all cases of 
FMLA leave in order to make it consistent with the timing requirements 
set forth in Sec.  825.311 of the regulations. The Department did not 
receive extensive comments regarding this proposed change. The Chamber 
and the Association of Corporate Counsel's Employment and Labor Law 
Committee supported the application of the 15-day time frame to all 
requests for certification because it establishes a clear deadline that 
would facilitate FMLA administration. The AFL-CIO, however, objected to 
the proposed change arguing that the shorter time frame would burden 
employees.
    Both proposed Sec.  825.305(b) and (c) provide employees additional 
time in which to either initially submit the medical certification or 
cure a deficiency in the certification if the employee is unable to 
comply with the initial time frame ``despite the employee's diligent, 
good faith efforts.'' Several commenters requested that the Department 
provide additional guidance on what constitutes ``diligent, good faith 
efforts'' sufficient to justify allowing the employee additional time 
to provide or cure a medical certification. See, e.g., Hewitt 
Associates; UMC of Southern Nevada; Dalton Corp. The AFL-CIO suggested 
that ``an employee who has requested a medical certification and has 
followed up at least once with his or her healthcare provider'' should 
be considered to have met the ``diligent, good-faith efforts'' standard 
justifying additional time within which to submit the certification. 
The Society for Human Resource Management and the National Coalition to 
Protect Family Leave suggested that where employees are

[[Page 68011]]

unable to submit a certification within 15 days despite diligent, good 
faith efforts, final Sec.  825.305(b) should provide a single seven day 
extension to submit the certification so that the process would be 
clear and would mirror the cure process in proposed Sec.  825.305(c).
    The preamble discussion of proposed Sec.  825.305(b) also sought 
comment on whether employers should be required to notify employees if 
a requested certification was not submitted within the 15-day time 
frame and allow the employee another seven days to provide the 
certification. Several employee representatives, including the National 
Partnership for Women & Families and the AFL-CIO supported requiring 
employers to provide notice to employees when a certification was not 
received within the initial time frame and provide additional time for 
the employee to submit the certification. See also National Treasury 
Employees Union; PathWaysPA. The National Treasury Employees Union 
noted that employees frequently request that their health care 
providers submit the certification directly to their employer and 
assume that the health care provider has done so. The AFL-CIO agreed 
that employers should be required to notify employees when a 
certification is not received, but suggested that the additional grace 
period for submitting the certification should be 15 days instead of 
seven. Catholic Charities, Diocese of Metuchen also supported allowing 
employees additional time to submit a certification. Employer 
representatives, however, almost uniformly opposed requiring employers 
to provide such notification because of the administrative burden doing 
so would impose. See, e.g., Burr and Forman; Equal Employment Advisory 
Council; AT&T; National Association of Manufacturers; Willcox & Savage; 
Manufacturers Alliance/MAPI; Southwest Airlines; Berens & Tate; 
National School Boards Association. The Southern Company argued that 
such a requirement would inappropriately shift the employee's statutory 
responsibility to provide a medical certification to the employer and 
would, in effect, convert the intended 15-day period for providing 
certification into a 22-day period in all cases. Jackson Lewis and the 
Ohio Department of Administrative Services objected that requiring 
employers to inform employees that a certification has not been 
received would be overly paternalistic.
    The final rule adopts proposed Sec.  825.305(b) without change. 
First, as to this section's time frames for employers, the Department 
believes that the increase in the general time frame for the employer 
to request the employee to furnish a certification from a health care 
provider from two to five business days is reasonable and consistent 
with other similar changes. See final Sec. Sec.  825.300(b) and (c); 
825.301(a). Second, as to this section's time frames governing 
employees' follow-up with employers, the Department believes that 
applying the 15-day time period as the outer limit of the time period 
by which the employee must respond to all requests for certification 
will facilitate the prompt determination of whether leave qualifies for 
FMLA protection. By requiring employees seeking leave that is 
foreseeable 30 days in advance to provide any requested certification 
within the time frame requested by the employer--which must allow at 
least 15 calendar days after the certification is requested by the 
employer--employers should have sufficient time to review the 
certification, request additional information or clarification in 
accordance with Sec.  825.305(c) if necessary, and determine whether 
the leave is FMLA-protected prior to employees commencing their leave. 
In all cases, employees who are unable to meet the 15-day time frame 
despite their diligent, good faith efforts must be allowed additional 
time to supply the certification. In all cases, it is imperative that 
employees communicate to their employers the efforts they are making to 
secure the completed medical certification. In assessing whether 
employees have made diligent, good faith efforts to submit a timely 
certification, employers should consider all the circumstances, 
including the employee's efforts to schedule appointments and follow-up 
with the health care provider's office, or other appropriate offices in 
the case of qualifying exigency leave or military caregiver leave, to 
ensure that the certification is completed; employers should be mindful 
that employees must rely on the cooperation of their health care 
providers and other third parties in submitting the certification and 
that employees should not be penalized for delays over which they have 
no control. The Department has decided not to require employers to 
provide notice to employees when a certification is not received 
because of the administrative burden this would impose. The Department 
is aware that many employers, in an effort to ensure that employees are 
aware of their FMLA rights, routinely send FMLA notifications and 
requests for certification for a wide range of absences, even when 
employees have not indicated that the absences are FMLA-qualifying. In 
such cases, there may be many reasons why an employee does not return 
the certification and requiring the employer to track every employee's 
time from the certification request and follow-up when a certification 
is not returned would create a significant burden on the employer and 
would be of questionable value to employees whose need for leave may be 
completely unrelated to the FMLA. Employees who request that their 
health care providers submit the certification directly to their 
employer can check with their employer to ensure that the certification 
has been received and follow-up with their health care provider if it 
has not. Such employee follow-up would be evidence of the employee's 
diligent, good faith efforts to provide timely certification. The 
Department deleted the phrase ``from a health care provider'' from the 
first sentence in the final rule. As noted above, this provision 
applies to all certifications for FMLA leave, including certification 
for qualifying exigency leave, which does not depend on a health care 
provider completing the certification.
    Proposed Sec.  825.305(c) defined the process by which an employee 
could cure an incomplete or insufficient certification, requiring 
employers to state in writing what additional information was necessary 
and establishing a seven-day period for the employee to provide the 
additional information. The Department proposed to define the cure 
procedure to address employee concerns that some employers made 
repeated requests for additional information without specifying why the 
certification was deficient, and employer concerns that without a 
defined process, it was unclear how many opportunities an employee must 
be given to cure a deficient certification. Overall, the Department 
received very positive feedback regarding the cure procedure in 
proposed Sec.  825.305(c).
    Several unions and other employee representatives supported the 
process in proposed Sec.  825.305(c) for curing an incomplete or 
insufficient certification. See, e.g., National Partnership for Women & 
Families; American Civil Liberties Union; AFL-CIO; Association of 
Professional Flight Attendants; National Postal Mail Handlers Union. 
The AFL-CIO commented that requiring employers to state in writing what 
additional information was required when they determine that a 
certification is incomplete or insufficient was justified based on 
employee complaints of employers making repeated requests for 
additional information. The

[[Page 68012]]

Association of Professional Flight Attendants, however, asserted that 
the proposal could be improved by requiring that employers ``provide 
sufficient detail for the health care provider to cure the 
deficiency.'' See also National Postal Mail Handlers Union. The 
National Association of Letter Carriers argued that limiting the cure 
period to seven days set an artificial deadline that would increase the 
likelihood that FMLA protection would be denied; the American Postal 
Workers Union suggested that an additional 15 days would be 
appropriate.
    Employer representatives were also supportive of the proposed cure 
procedure. See, e.g., the Chamber; Society for Human Resource 
Management; Equal Employment Advisory Council; TOC Management Services; 
National Coalition to Protect Family Leave; College and University 
Professional Association for Human Resources; Domtar Paper Company; 
American Foundry Society. The National Association of Manufacturers 
found the cure process to be ``appropriate;'' the National Newspaper 
Association described it as ``both explicit and fair;'' Spencer Fane 
Britt & Browne noted the process was ``workable and fair;'' and Hewitt 
Associates asserted that the proposed regulation ``provid[ed] a needed 
structure to the employer's obligation for incomplete or insufficient 
forms.'' Some commenters, however, opposed the additional seven-day 
period to cure a deficient certification, arguing that the 15-day 
period for submitting a complete and sufficient certification should 
not be extended. See, e.g., Independent Bakers Association; Burr and 
Forman; Vercruysse Murray & Calzone. Jackson Lewis argued that the 
seven-day period to cure the certification should not be subject to 
extension even when the employee is unable to meet the deadline despite 
diligent, good faith efforts. The Metropolitan Transportation Authority 
(NY) opposed the cure procedure, noting that the requirement that 
employers inform employees in writing of the reasons the certification 
is deficient imposes an additional administrative burden on employers. 
See also Independent Bakers Association. AT&T and the U.S. Postal 
Service, however, supported requiring employers to inform employees of 
the additional information necessary for the medical certification, 
noting that they have already been providing this information to their 
employees in writing and do not find it unduly burdensome. The U.S. 
Postal Service noted the benefit of this procedure, stating that 
``keeping lines of communication open between the employee and FMLA 
coordinator is crucial to help employees navigate their way through 
sometimes complex regulatory requirements during times of individual 
and family crisis.'' The Food Marketing Institute argued that employers 
should be required to inform employees of technical deficiencies in a 
certification but, where the employer finds the certification to be 
vague, should not be required to provide specific instructions as to 
how the deficiency could be corrected.
    Several commenters also found the definitions of incomplete and 
insufficient certifications in proposed Sec.  825.305(c) to be useful 
additions to the regulations. See, e.g., National Coalition to Protect 
Family Leave; Society for Human Resource Management; Equal Employment 
Advisory Council; American Foundry Society; Spencer Fane Britt & 
Browne; Retail Industry Leaders Association; Dalton Corp.; Scott D. 
Macdonald Esq. The Chamber stated that the clarification of these 
standards would ``immediately and drastically improve FMLA 
communications.'' The AFL-CIO disagreed, however, stating it was 
``greatly troubled'' by the definition of an ``insufficient 
certification'' as one containing ``vague, ambiguous or nonresponsive'' 
information. The AFL-CIO noted that in some cases, particularly those 
involving chronic conditions, medical providers may not be able to 
provide the level of certainty that employers desire in providing the 
frequency and duration of anticipated absences due to the condition. 
See also National Partnership for Women & Families (``DOL must make 
clear that a medical certificate may not be considered insufficient 
simply because the health care provider cannot supply a definite date 
by which the serious health condition will end or cannot predict when 
intermittent leave may be necessary.''). The National Postal Mail 
Handlers Union and the Association of Professional Flight Attendants 
requested that the Department state that a range of occurrences or a 
duration of ``indefinite,'' ``unknown,'' or ``lifetime'' should not be 
considered vague, ambiguous or non-responsive.
    The final rule adopts Sec.  825.305(c) as proposed without any 
substantive changes. The Department believes that the procedure for 
curing a deficient certification set forth in this section will go a 
long way toward lessening the friction between employers and employees 
during the certification process by increasing communication and 
providing a clear and manageable process for resolving questions 
regarding certifications. The Department believes the seven-calendar-
day time frame to cure a deficient certification is appropriate because 
the employee need only follow-up with the health care provider's 
office, or other appropriate office in the case of leave for a 
qualifying exigency or military caregiver leave to ensure that the 
complete certification is sent. In the case of a serious health 
condition, an employee should not need to schedule any additional 
medical treatment during this period. The Department also believes that 
it is appropriate that this time frame be extended when employees are 
unable to meet it despite diligent, good faith efforts. As discussed 
above regarding Sec.  825.305(b), while employees have an obligation to 
provide a complete and sufficient certification in a timely manner, 
employers must be cognizant of the fact that employees must rely on 
health care providers and other third parties to complete the 
certification and in some circumstances employees will not be able to 
comply with the time frame specified in this section despite their best 
efforts to do so. The Department has also retained the proposed 
definitions of incomplete and insufficient certifications because it 
believes that they provide useful guidance for employers in assessing 
whether a certification is sufficient to support a request for FMLA 
leave. While a medical certification should include the clearest 
information that is practicable for the health care provider to provide 
regarding the employee's need for leave, the Department is aware that 
precise responses are not always possible, particularly regarding the 
frequency and duration of incapacity due to chronic conditions. The 
Department does expect, however, that over time health care providers 
should be able to provide more detailed responses to these questions 
based on their knowledge of the employee's (or family member's) 
condition. For example, while an initial certification for a newly 
diagnosed chronic serious health condition may provide a relatively 
large range of expected incapacity, subsequent certifications in new 
leave years should be able to provide more specific information 
regarding the anticipated frequency and duration of incapacity based on 
the employee's actual experience during the intervening period.
    Proposed Sec.  825.305(d) explained the consequences of an 
employee's failure to provide a complete and sufficient certification. 
Employers welcomed the clarification that employees bear the

[[Page 68013]]

burden of ensuring that a complete and sufficient FMLA certification is 
submitted to the employer upon request in order to substantiate their 
right to FMLA-protected leave. See, e.g., U.S. Postal Service; 
Association of Corporate Counsel's Employment and Labor Law Committee; 
the Chamber.
    Finally, the proposed regulation deleted current Sec.  825.305(e), 
which addresses the employee's certification obligation when the 
employer's sick leave plan requires less stringent medical 
certification than the FMLA and the employee substituted paid leave. 
Proposed Sec.  825.305(e) replaced this requirement with a new 
provision allowing employers to require a new certification on an 
annual basis for conditions lasting beyond a single leave year. This 
addition codified the Department's interpretation of the certification 
requirement set forth in Wage and Hour Opinion Letter FMLA2005-2-A 
(Sept. 14, 2005).
    The AFL-CIO and the National Association of Letter Carriers opposed 
the deletion of current Sec.  825.305(e), which states that if the 
employer's sick leave plan has less stringent certification 
requirements, an employer can only require that lesser certification 
when an employee substitutes paid leave for FMLA leave. The National 
Association of Letter Carriers argued that the deletion would 
needlessly create a double standard in workplaces, with the 
documentation required for paid leave varying depending on whether the 
leave was FMLA-protected. TOC Management Services, however, argued that 
the deletion of current Sec.  825.305(e) resolved confusion as to 
whether employers could require FMLA medical certification in all 
cases. See also Association of Corporate Counsel's Employment and Labor 
Law Committee; Equal Employment Advisory Council.
    The AFL-CIO, American Postal Workers Union, and the National Postal 
Mail Handlers Union also opposed the provision in proposed Sec.  
825.305(e) allowing for a new medical certification each year for 
conditions lasting longer than a single leave year, arguing that there 
was no statutory basis for this new requirement. These commenters 
argued that annual medical certifications imposed an unnecessary and 
meaningless burden on employees with stable, long-term chronic health 
conditions. Employer commenters, however, argued that allowing 
employers to require annual medical certification would provide 
employers with a much needed tool for managing intermittent FMLA leave. 
See, e.g., the Chamber; U.S. Postal Service; American Foundry Society; 
National Association of Manufacturers; Retail Industry Leaders 
Association; National Small Business Association; Hewitt Associates; 
WorldatWork. TOC Management Services requested that the Department 
clarify that annual certifications would be considered ``new'' 
certifications, on which employers would be entitled to request second 
opinions, as opposed to ``recertifications,'' on which the regulations 
do not permit second opinions. See also Equal Employment Advisory 
Council (``In particular, because the statute does not allow for second 
or third opinions on recertification, the recognition that a new leave 
year should trigger an employer's right to require a new certification 
is important.''). The National Retail Federation asked that the 
Department allow employers to request a new certification every six 
months.
    The Department believes that current Sec.  825.305(e) created 
needless confusion and conflicted with the statutory right of employers 
to require certification of a serious health condition from a health 
care provider to substantiate the employee's right to FMLA-protected 
leave. See 29 U.S.C. 2613. Additionally, for the reasons explained in 
Wage and Hour Opinion Letter FMLA2005-2-A (Sept. 14, 2005), the 
Department believes that allowing employers to require annual medical 
certifications of conditions lasting longer than a single leave year is 
an appropriate interpretation of the employer's statutory right to 
certification and provides a useful tool for administering the FMLA in 
the workplace. The Department does not believe that the requirement 
will be burdensome, particularly in light of the requirement that 
employees with chronic serious health conditions receive treatment by a 
health care provider at least twice per year. See Sec.  825.115(c)(1). 
Finally, as the Department stated in the 2005 opinion letter, such new 
annual medical certifications are subject to clarification, including 
second and third opinions, as provided in Sec.  825.307. Accordingly, 
the final rule adopts Sec.  825.305(e) as proposed with the additional 
clarification that the clarification and authentication provisions of 
Sec.  825.307 apply to new annual certifications.
Section 825.306 (Content of Medical Certification for Leave Taken 
Because of an Employee's Own Serious Health Condition or the Serious 
Health Condition of a Family Member)
    Current Sec.  825.306 addresses how much information an employer 
can obtain in the medical certification to substantiate the existence 
of a serious health condition (of the employee or a family member) and 
the employee's need for leave due to the condition. This section also 
explains that the Department provides an optional form (Form WH-380) 
for use in the medical certification process; other forms may be used, 
but they may only seek information related to the condition for which 
leave is sought, and no additional information beyond that contained in 
the WH-380 may be required. As discussed in the preamble to the 
proposed rule, the Department has received significant feedback from 
stakeholders, including health care providers, that the current WH-380 
is confusing and could be improved. In addition to proposing a revised 
WH-380, the Department sought comment as to whether multiple forms 
would be clearer. The preamble to proposed Sec.  825.306 also contained 
an extensive discussion of the interaction between the FMLA 
certification process and the Department of Health and Human Services' 
Health Insurance Portability and Accountability Act (HIPAA) Privacy 
Rule, which governs the privacy of individually identifiable health 
information created or held by HIPAA-covered entities. Proposed Sec.  
825.306(a) contained the information necessary for a complete 
certification set forth in current Sec.  825.306(b) with a number of 
changes, including the addition of the health care provider's 
specialization; guidance as to what may constitute appropriate medical 
facts, including that a health care provider may provide a diagnosis; 
and whether intermittent or reduced schedule leave is medically 
necessary. Proposed Sec.  825.306(b) retained language from current 
Sec.  825.306(a) and (b) regarding the Department's optional Form WH-
380. The proposed rule deleted current Sec.  825.306(c), which contains 
language similar to current Sec.  825.305(e) regarding lesser 
certification requirements in employer sick leave plans. Proposed Sec.  
825.306(c) incorporated language from current Sec.  825.307(a)(1) 
explaining the interaction between workers' compensation and the FMLA 
with regard to the clarification of medical information. The proposed 
section also clarified that if an employee ordinarily is required to 
provide additional medical information to receive payments under a paid 
leave plan or benefit plan, an employer may require that the employee 
provide the additional information to receive those payments, as long 
as it is made clear to the employee that the additional information is 
requested only in

[[Page 68014]]

connection with qualifying for the paid leave benefit and does not 
affect the employee's right to unpaid FMLA leave. The proposed rule 
contained a new Sec.  825.306(d), which clarified that where a serious 
health condition may also be a disability, employers are not prevented 
from following the procedures under the Americans with Disabilities Act 
(ADA) for requesting medical information. The proposed rule also 
contained a new Sec.  825.306(e), which codified in the regulations the 
Department's long-standing position that employers may not require 
employees to sign a release of their medical information as a condition 
of taking FMLA leave. The final rule adopts Sec.  825.306 as proposed 
with mostly minor changes, which are discussed below. The title of 
Sec.  825.306 is modified in the final rule to clarify that this 
section does not apply to the military family leave provisions. 
Additionally, the Department has revised the current optional 
certification form WH-380 into two separate optional forms, one for the 
employee's own serious health condition and one for the serious health 
condition of a covered family member.
    The Department received few comments on the inclusion in proposed 
Sec.  825.306(a)(1) of the health care provider's specialization in the 
information that may be required on a certification. See, e.g., Equal 
Employment Advisory Council (``Particularly considering the broad 
definition of `healthcare provider,' the scope of the provider's 
expertise is important information that the employer needs to determine 
whether the certification is sufficient.''); Spencer Fane Britt & 
Browne (specialization is irrelevant unless employers are allowed to 
require that the certification be provided by an appropriate 
specialist); National Partnership for Women & Families (``the 
identification of the specialty could lead to the employer gaining 
information regarding the medical condition of the employee that is 
unnecessary to the determination of whether the employee qualifies for 
FMLA leave''). The Department notes it has always included the ``Type 
of Practice'' as part of the medical certification form. The Department 
believes that the health care provider's medical specialty/type of 
practice is useful and appropriate to the medical certification form 
and has retained this requirement in the final rule.
    Many comments were received on proposed Sec.  825.306(a)(3), which 
stated that the statement of appropriate medical facts ``may include 
information on symptoms, diagnosis, hospitalization, doctors visits, 
whether medication has been prescribed, any referrals for evaluation or 
treatment (physical therapy, for example), or any other regimen of 
continuing treatment.'' 73 FR 7983 (Feb. 11, 2008). Employees and their 
representatives objected to the proposal because they felt that a 
diagnosis should not be provided. See, e.g., Family Caregiver Alliance; 
National Treasury Employees Union; National Partnership for Women & 
Families; American Postal Workers Union; National Association of Letter 
Carriers; Texas Classroom Teachers Association; Darcy Bowles; Craig 
Stiver; Jon Arnold. The AFL-CIO expressed concern that specifying 
medical facts, including diagnosis, ``may'' be provided on the 
certification would result in employers rejecting as insufficient 
certifications that do not contain this information. Employer 
representatives, on the other hand, considered the proposal to provide 
useful clarification for the health care provider. See, e.g., 
Manufacturers Alliance/MAPI; Equal Employment Advisory Council; 
American Foundry Society; Dalton Corp. A number of employer 
representatives requested that the list of appropriate medical facts be 
made mandatory so that employers could require a diagnosis to support a 
request for FMLA leave. See, e.g., the Chamber; Society for Human 
Resource Management; National Association of Manufacturers; National 
Association of Wholesaler-Distributors; National Business Group on 
Health; National Coalition to Protect Family Leave; Food Marketing 
Institute. The Department notes that the determination of what medical 
facts are appropriate for inclusion on the certification form will vary 
depending on the nature of the serious health condition at issue, and 
is appropriately left to the health care provider. Accordingly, the 
Department declines to set forth a mandatory list of medical facts that 
must be included in the FMLA certification. Similarly, the Department 
continues to believe that it would not be appropriate to require a 
diagnosis as part of a complete and sufficient FMLA certification. 
Whether a diagnosis is included in the certification form is left to 
the discretion of the health care provider and an employer may not 
reject a complete and sufficient certification because it lacks a 
diagnosis.
    Several employer representatives praised the inclusion in proposed 
Sec.  825.306(a)(6), (7), and (8) of the statutory requirement that 
there must be a medical necessity for leave taken on an intermittent or 
reduced leave schedule basis due to a serious health condition. See, 
e.g., Equal Employment Advisory Council; International Public 
Management Association for Human Resources; City of Medford (OR); 
American Foundry Society; Dalton Corp. The National Association of 
Letter Carriers, however, objected to the inclusion of this language 
arguing that it ``would impose unnecessary requirements on employees 
and their health providers to disclose confidential medical 
information.'' Because leave may only be taken intermittently or on a 
reduced leave schedule due to the employee's or a family member's 
serious health condition when medically necessary, the final rule 
retains the requirement that a certification supporting the need for 
such leave must include information sufficient to establish the medical 
necessity for intermittent or reduced schedule leave. See 29 U.S.C. 
2612(b)(1).
    The Equal Employment Advisory Council and the Chamber specifically 
supported the proposed clarification in Sec.  825.306(c) that where an 
employee's serious health condition is covered by workers' compensation 
and the workers' compensation procedures permit the employer to request 
additional information beyond that included in a FMLA certification, 
the employer may follow the workers' compensation procedure. Both of 
these commenters also agreed with the proposal in this section to allow 
employers to request additional information in accordance with a paid 
disability leave policy or disability plan that requires greater 
information to qualify for payment or benefits. The AFL-CIO, however, 
opposed this proposal and argued that it was inconsistent with the 
Department's proposal to delete current Sec.  825.305(e), which 
prevented employers from requiring FMLA certification where the 
employers' sick leave plan had less stringent certification 
requirements and paid leave was substituted for unpaid FMLA leave. See 
also American Postal Workers Union. The Department disagrees with the 
AFL-CIO comment. The proposed clarifications in current Sec.  
825.306(c) and the deletion of current Sec.  825.305(e) are wholly 
consistent with each other. Taken together, these changes reflect both 
an employer's statutory right to require a minimally sufficient 
certification to substantiate the employee's right to FMLA-protected 
leave in all cases, and an employer's right to additional information 
when another benefit plan or program requires greater information in 
order to qualify the employee for payment or benefits beyond those 
provided by the FMLA.

[[Page 68015]]

    The Equal Employment Advisory Council, the Chamber, and TOC 
Management Services supported the Department's clarification in Sec.  
825.306(d) that employers may follow the procedures for requesting 
medical information under the ADA where the employee's serious health 
condition may also be a disability within the meaning of that Act. The 
Equal Employment Opportunity Commission, which enforces Title I of the 
ADA, was also supportive of this clarification, noting in its comments 
that it often receives ``questions from employers who are worried that 
they will violate the FMLA if they follow the ADA's procedures for 
requesting medical information in these circumstances.'' The Texas 
Classroom Teachers Association, however, suggested that the regulation 
be modified so that an employer could only follow ADA procedures where 
an employee requests an accommodation ``not otherwise provided by the 
FMLA.'' Hewitt Associates asked for clarification as to whether 
additional medical information received pursuant to Sec.  825.306(c) 
and (d) may be used to determine employees' eligibility for FMLA leave. 
See also Metropolitan Transportation Authority (NY). The final rule 
revises Sec.  825.306(c) and (d) to further clarify that additional 
information received pursuant to workers' compensation, paid leave, or 
ADA procedures may be considered in determining an employee's 
entitlement to FMLA-protected leave.
    Lastly, employee representatives supported the clarification in 
Sec.  825.306(e) that while employees may choose to comply with an 
authorization, release, or waiver allowing the employer to communicate 
directly with the employee's health care provider, they may not be 
required to provide such an authorization, release, or waiver 
permitting their employer to contact their health care provider 
directly as part of the FMLA certification process. See, e.g., National 
Partnership for Women & Families; AFL-CIO; American Association of 
University Women; National Postal Mail Handlers Union; Coalition of 
Labor Union Women. See also Equal Employment Advisory Council. The 
Metropolitan Transportation Authority (NY), however, argued that 
employees should be required to execute a release of their medical 
information as part of the FMLA certification process. The Equal 
Employment Advisory Council and the Association of Corporate Counsel's 
Employment and Labor Law Committee supported the statement in this 
section that employees are responsible for providing complete and 
sufficient certification and that their failure to do so may result in 
the denial of FMLA leave. The Department continues to believe that 
employees should not be required to execute any type of release or 
authorization permitting their employers to receive medical information 
directly from their health care providers as part of the FMLA 
certification process. Of course, an employee remains free to choose to 
comply with the certification requirement in this manner by executing 
an authorization providing for the release of information required for 
a complete and sufficient certification. Accordingly, the final rule 
adopts Sec.  825.306(e) as proposed, with only minor editorial changes. 
As stated in the regulation, however, in all cases where certification 
is requested, it is the employee's obligation to provide a complete and 
sufficient certification and the failure to do so may result in the 
denial of FMLA leave.
    The Department received generally favorable comments regarding the 
proposed revision to the WH-380 optional medical certification form. 
See Equal Employment Advisory Council; Domtar Paper Company; Spencer 
Fane Britt & Browne; National Treasury Employees Union. But see 
Vercruysse Murray & Calzone; Illinois Credit Union League. Most 
commenters who addressed the issue supported the creation of multiple 
certification forms, most often suggesting separate forms for leave due 
to the serious health condition of the employee and the employee's 
family member. See, e.g., Equal Employment Advisory Council; Hewitt 
Associates; American Health Care Association; National Partnership for 
Women & Families; Communications Workers of America; Southern Company. 
See also Spencer Fane Britt & Browne (suggesting separate forms for 
block and intermittent or reduced schedule leave); American Health Care 
Association/National Center for Assisted Living (suggesting a separate 
certification form for chronic serious health conditions). A few 
commenters, however, opposed the creation of multiple forms. See 
Jackson Lewis; National Treasury Employees Union; Scott D. Macdonald 
Esq.; Pennsylvania Governor's Office of Administration (noting that the 
Commonwealth of Pennsylvania switched from using two forms to using a 
single form because employees frequently filled out the wrong form). 
The Communications Workers of America, the Coalition of Labor Union 
Women, and the Academic Pediatric Association et al., encouraged the 
Department to make use of the WH-380 mandatory. Based on the comments 
received, the Department has decided to include two optional 
certification forms in the final rule, one form to be used when the 
need for leave is due to the employee's own serious health condition 
and a second form to be used when the need for leave is to care for a 
family member with a serious health condition. Section 825.306(b) of 
the final rule has been modified accordingly to reflect that there are 
two optional certification forms. The Department also altered several 
of the questions from the single optional certification form proposed 
in the NPRM to better explain the information needed to support a 
request for each type of leave. The Department believes that using 
separate forms will make the forms shorter, clearer, and easier for 
health care providers to complete. The Department further believes that 
the purpose behind the two forms is sufficiently clear that it will not 
cause confusion. Because many serious health conditions require a 
combination of both a continuous block of leave and intermittent leave, 
the Department is not promulgating separate certification forms for 
block and intermittent leave. The Department also declines to mandate 
the use of either of the optional Department of Labor certification 
forms; where certification is requested, the employee's obligation is 
to provide a complete and sufficient certification, regardless of the 
form used.
    Several commenters offered specific comments on the proposed 
revision to the Department's optional medical certification form. A 
number of commenters praised the Department's deletion of checkboxes on 
the current form for health care providers to indicate the type of 
serious health condition at issue. See, e.g., Society for Human 
Resource Management; National Coalition to Protect Family Leave; 
American Foundry Society; College and University Professional 
Association for Human Resources; National Business Group on Health; 
Bridgestone Firestone North American Tire. These commenters noted that 
whether the medical facts satisfy one of the definitions of a serious 
health condition under the regulations is a legal determination, not a 
medical one; they also reported significant confusion resulting from 
health care providers checking a type of serious health condition that 
was inconsistent with the medical information contained in the rest of 
the form. See Society for Human Resource Management; National

[[Page 68016]]

Coalition to Protect Family Leave; College and University Professional 
Association for Human Resources; see also Equal Employment Advisory 
Council. Other commenters, however, objected that the proposed changes 
would impermissibly result in employers making medical judgments that 
should be made by health care providers. See National Partnership for 
Women & Families; Association of Professional Flight Attendants; Mary 
Lundquist. The National Partnership for Women & Families objected to 
the removal from the proposed form of the definitions of serious health 
condition, asserting that ``employees will be unable to determine 
themselves if they qualify for FMLA leave and will be unable to 
challenge the employer's determination that they do not qualify without 
legal or medical assistance.'' Because the Department has added a 
definition of serious health condition to the notice of Employee Rights 
under FMLA that must be posted, and provided to all employees at 
hiring, the Department disagrees with the National Partnership's 
assertion that removing this same information from the certification 
form will impact an employee's ability to determine for themselves if 
they qualify for FMLA leave. Moreover, the Department believes that 
requiring a health care provider to determine which definition of 
serious health condition is applicable has caused considerable 
confusion, with employers frequently receiving certifications with 
multiple and contradictory boxes checked, or with medical facts 
contained in the certification that are inconsistent with the serious 
health condition that has been checked. Accordingly, the optional 
certification forms contained in the final rule do not include boxes to 
indicate which definition of serious health condition is applicable. As 
the Department stated in the NPRM, the health care provider should 
determine the appropriate relevant medical facts to include on the 
certification and the employer should determine whether the 
certification is complete and sufficient to meet the regulatory 
definition of serious health condition. 73 FR 7915 (Feb. 11, 2008).
    The Illinois Credit Union League and Cummins Inc. objected to being 
required to include on the certification form a statement of the 
essential functions of the position, arguing that it was unduly 
burdensome to require employers to set forth the essential functions of 
the employee's position or to provide a job description. The Equal 
Employment Advisory Council, however, supported the requirement that 
the health care provider provide information sufficient to establish 
the employee is unable to perform one or more of the essential 
functions of the employee's job, noting that the inability to perform 
the essential functions of the job due to a serious health condition is 
a ``threshold requirement'' that is ``the foundation for this type of 
FMLA leave.'' See also Association of Corporate Counsel's Employment 
and Labor Law Committee. The Illinois Credit Union League requested 
that the references to employees' job duties or functions in questions 
6 and 7 be standardized to refer to ``essential functions.'' See also 
Scott R. Macdonald Esq.
    In response to the concern of some commenters, the final rule makes 
clear in Sec.  825.123(b) that an employer may, but is not required to, 
provide a list of essential functions when it requires a medical 
certification. The Department believes it is in the best interests of 
both employers and employees when such information is provided by the 
employer at the time it requests medical certification, so that the 
health care provider may assess the employee's ability to perform his 
or her job based on the most complete description of the employee's 
duties. The Department recognizes, however, that the FMLA imposes no 
legal obligation on employers to create or maintain written job 
descriptions or a list of essential functions for each position. 
Accordingly, the final form WH-380E has been revised to make clear 
that, in those cases in which the employer chooses not to include 
information on the certification form identifying the employee's 
essential functions, the health care provider may assess the employee's 
ability to perform his or her job based on the employee's own 
description of his or her job functions. For this same reason, and 
because the determination of whether a particular job duty is an 
``essential function'' as that term is used for purposes of the FMLA is 
a legal, not a medical, conclusion, the final form WH-380E also retains 
the references to an employee's ``functions'' in questions 6 and 7.
    The Department notes that an employer may use the procedures set 
forth in Sec.  825.307 to clarify a certification that does not clearly 
specify that an employee is unable to perform one or more essential 
functions of the position. For example, if a certification specifies 
only that an employee is unable to lift heavy items, an employer may 
clarify with the health care provider whether the employee can perform 
the essential function of his or her job of lifting 20 pounds. In order 
to minimize the need for such clarifications, the Department strongly 
encourages employers to provide a list of essential functions when it 
requests medical certification.
    Several commenters objected to the wording of question 3, which 
asks the health care provider to describe the relevant medical facts, 
arguing that as worded in the proposed form health care providers would 
not be aware that the medical facts listed, including diagnosis, were 
not mandatory. See, e.g., National Partnership for Women & Families; 
Communications Workers of America; Coalition of Labor Union Women; 
Texas Classroom Teachers Association; Academic Pediatric Association, 
et al. Other commenters requested, as they had in response to proposed 
Sec.  825.306(a), that the provision of a diagnosis and the other 
listed medical facts be made mandatory on the medical certification 
form. See, e.g., Society for Human Resource Management; National 
Coalition to Protect Family Leave; American Foundry Society; 
Independent Bakers Association; National Newspaper Association; 
Illinois Credit Union League. The National Business Group on Health and 
Hewitt Associates suggested that including the list of conditions set 
forth in current Sec.  825.114(c), which are ordinarily not serious 
health conditions, would provide useful guidance to health care 
practitioners in completing the medical certification form. As 
discussed above regarding proposed Sec.  825.306(a)(3), the 
determination of what medical facts are appropriate for inclusion on 
the certification form is within the discretion of the health care 
provider and will vary depending on the nature of the condition for 
which leave is sought. The Department has revised the certification 
form to clearly indicate that the medical facts listed are merely 
examples and are not required in all cases. The Department does not 
believe that it is necessary to include the list of conditions set 
forth in final Sec.  825.113(d) (current Sec.  825.114(c)) on the 
certification forms; the health care provider will determine the 
medical facts relating to the employee's or family member's health 
condition, and where those medical facts meet one of the definitions of 
serious health condition the employee's need for leave will be FMLA-
protected regardless of whether the condition is one of those listed.
    Vercruysse Murray & Calzone objected to the statement in the form's 
instructions to the employee that failure to provide the requested 
information ``may result in a denial'' of FMLA leave,

[[Page 68017]]

arguing that failure to provide such information will always result in 
such a denial and the instructions should so indicate. See also Hewitt 
Associates. The Department believes that this instruction is correct. 
Employers are not required to request medical certification and in 
appropriate circumstances may protect leave under the FMLA despite the 
employee's failure to return the certification form.
    Several commenters also objected to the instructions to the health 
care provider in section III of the proposed form, arguing that instead 
of indicating that the terms ``lifetime,'' ``unknown,'' or 
``indeterminate'' ``may not be sufficient to determine FMLA coverage,'' 
the instructions should state clearly that such terms are not 
sufficient to support a request for FMLA-protected leave. See, e.g., 
Society for Human Resource Management; National Coalition to Protect 
Family Leave; American Foundry Society; Hewitt Associates; National 
Newspaper Association; Spencer Fane Britt & Browne. But see National 
Partnership for Women & Families (``We are concerned that this 
instruction, coupled with the proposed direct contact between the 
employer and employee's health care provider could lead to employer 
representatives demanding that health care providers give more definite 
answers when they cannot.''); Communications Workers of America. The 
Academic Pediatric Association et al. argued that ``lifetime,'' 
``unknown,'' and ``indeterminate'' may be medically appropriate answers 
for some conditions and that the ``lack of medical certainty should not 
supply a de facto reason for denying FMLA leave.'' The Department 
believes that the instructions are correct as proposed. While terms 
such as ``lifetime,'' ``unknown,'' or ``indeterminate'' will not be 
sufficient where more specific estimates are possible, there will be 
situations in which such terms are an appropriate response reflecting 
the health care provider's best medical judgment and will therefore be 
sufficient.
    Finally, several commenters addressed the Department's discussion 
of the Health Insurance Portability and Accountability Act (HIPAA) and 
the HIPAA Privacy Rule. The National Coalition to Protect Family Leave 
and the Equal Employment Advisory Council agreed with the Department's 
observation that the HIPAA Privacy Rule sets the standard for the 
protection of employee medical information. See also U.S. Postal 
Service; American Health Care Association; Society for Human Resource 
Management; Retail Industry Leaders Association. Infinisource, Inc., 
concurred, stating that ``DOL correctly recognized with the advent of 
HIPAA since the FMLA regulations were last finalized, a framework 
already exists for ensuring privacy.'' Commenters representing 
employees, however, objected that the HIPAA Privacy Rule does not 
provide sufficient protection for employee medical privacy. See, e.g., 
AFL-CIO; National Treasury Employees Union; National Association of 
Letter Carriers; National Postal Mail Handlers Union. As the Department 
explained in the NPRM, the HIPAA Privacy Rule governs disclosures of 
medical information to employers or their representatives by employees' 
health care providers that are HIPAA-covered entities and sets a far 
higher standard for protection of employee medical information than the 
current FMLA regulations. The impact of HIPAA is discussed further in 
Sec.  825.307 as it relates to the process of clarification and 
authentication of medical certifications.
Section 825.307 (Authentication and Clarification of Medical 
Certification for Leave Taken Because of an Employee's Own Serious 
Health Condition or the Serious Health Condition of a Family Member)
    Current Sec.  825.307 addresses the employer's ability to clarify 
or authenticate a complete and sufficient FMLA certification. Current 
Sec.  825.307(a) permits an employer, with the employee's permission, 
to have its own health care provider contact the employee's health care 
provider in order to clarify or authenticate a FMLA certification. 
Proposed Sec.  825.307(a) defined ``authentication'' and 
``clarification,'' clarifying that ``authentication'' involves 
providing the health care provider with a copy of the certification and 
requesting verification that the information on the form was completed 
and/or authorized by the provider; no additional medical information 
may be requested and the employee's permission is not required. In 
contrast, ``clarification'' involves contacting the employee's health 
care provider in order to understand the handwriting on the medical 
certification or to understand the meaning of a response; no additional 
information beyond that included in the certification form may be 
requested and any contact with the employee's health care provider must 
comply with the requirements of the HIPAA Privacy Rule. The NPRM 
removed the requirement that the employer utilize a health care 
provider to make the contact with the employee's health care provider, 
and the requirement that the employee consent to the contact. Proposed 
Sec.  825.307(a) required that prior to any contact with the employee's 
health care provider for purposes of clarification or authentication of 
the FMLA certification, the employee must first be given an opportunity 
to cure any deficiencies in the certification pursuant to the 
procedures set forth in Sec.  825.305(c). The proposed rule also made 
clear that the employee is not obligated to permit his or her health 
care provider to communicate with the employer, but that if such 
contact is not permitted and the employee does not otherwise clarify 
the certification, the employer may deny the taking of FMLA leave. 
Proposed Sec.  825.307(b) consolidated language from current Sec.  
825.307(a)(2) and (b) setting forth the requirements for an employer to 
obtain a second opinion, and added language requiring the employee or 
the employee's family member to authorize his or her health care 
provider to release relevant medical information pertaining to the 
serious health condition at issue if such information is requested by 
the second opinion health care provider. Proposed Sec.  825.307(c) 
added the same requirement to provide relevant medical information if 
requested by the third opinion health care provider. Proposed Sec.  
825.307(d) increased the number of days the employer has to provide an 
employee with a requested copy of a second or third opinion from two to 
five business days. The NPRM proposed no changes to current Sec.  
825.307(e) and (f), involving travel expenses for second and third 
opinions and certifications by foreign health care providers, 
respectively. The Department did note in the preamble, however, that it 
was aware of significant concerns regarding foreign medical 
certifications and asked for comment as to what changes would allow for 
better authentication of such certifications.
    The final rule makes three changes to proposed Sec.  825.307. 
First, in response to many comments from employee groups and individual 
employees expressing concern for employee medical privacy, Sec.  
825.307(a) of the final rule modifies the process by which an employer 
may contact an employee's health care provider to clarify who may 
contact the employee's health care provider and to ensure that the 
employee's direct supervisor is not the point of contact. The final 
rule also revises the reference to the HIPAA Privacy Rule in this 
section to make clear that its requirements must be satisfied whenever 
individually-identifiable health information of an employee is

[[Page 68018]]

shared with an employer by a HIPAA-covered health care provider. 
Second, Sec.  825.307(f) has been modified to require employees to 
provide, upon request by the employer, a translation of FMLA 
certifications that are completed by foreign medical providers in 
languages other than English. In addition, the title of Sec.  825.307 
is modified in the final rule to clarify that this section does not 
apply to the military family leave provisions.
    The Department's proposal to allow direct contact (i.e., without 
the use of a health care provider) between employers and employees' 
health care providers resulted in a significant number of comments to 
the NPRM. Employees and their representatives expressed both 
generalized concerns arising from the removal of the requirement of 
employee consent, and specific concerns regarding the possibility of 
direct supervisors being made aware of sensitive medical information. 
Employers and their representatives expressed overwhelming support for 
the proposal, arguing that it would streamline the certification 
process and decrease administrative costs.
    While most of the comments focused on the clarification process, 
several commenters representing employers specifically supported the 
Department's proposal regarding authentication of FMLA certifications. 
These commenters noted that the current regulation's requirement of 
employee consent for authentication of a FMLA certification is 
problematic because the purpose of authenticating a certification is to 
ensure that fraud has not been committed. Consent is unlikely in such 
situations and defeats the purpose. See, e.g., AT&T; International 
Public Management Association for Human Resources; HR Policy 
Association; National Small Business Association; National Association 
of Manufacturers; the Chamber; Equal Employment Advisory Council. The 
National Association of Letter Carriers, however, argued that if such 
direct contact between the employer and the employee's health care 
provider is necessary to ensure the authenticity of a certification, 
the employer should be required to make such contact only in writing in 
order to ensure that additional medical information is not disclosed. 
The American Civil Liberties Union specifically objected to removing 
the requirement of employee consent in order for an employer to 
authenticate a FMLA certification. See also National Treasury Employees 
Union; AFL-CIO. The Department declines to require that the 
authentication process be limited to a written process. The Department 
has modified the final rule to make clear that, to the extent that 
authentication requires a HIPAA-covered health care provider to share 
individually-identifiable health information with an employer, the 
HIPAA Privacy Rule will require a valid HIPAA authorization.
    Regarding the clarification process, the Department received a 
significant number of comments, many coming from individual employees, 
opposing the Department's proposal to allow employers to contact an 
employee's health care provider for purposes of clarifying a 
certification without the employee's permission and without using a 
health care provider to make the contact. See, e.g., Richard 
Baerlocher; Theodore Rabinowitz; Kenneth Kelble; Robin Arnold; Donna 
Long; Bob Gunter; Sarah Blackman; Susan Fuchs. Many commenters 
representing employees were particularly concerned that the proposed 
rule would allow an employee's direct supervisor to contact the 
employee's health care provider. See, e.g., National Postal Mail 
Handler's Union; Legal Aid Society--Employment Law Center; National 
Association of Letter Carriers. The Service Employees International 
Union argued that the prospect of a direct supervisor contacting a 
health care provider ``would deter valid requests for leave from 
employees who resent this invasion of their own and their family 
member's privacy.'' See also National Employment Lawyers Association; 
Women Employed. The National Partnership for Women & Families noted 
that under the proposed regulation there was nothing to prevent an 
employer from utilizing the employee's supervisor, or even a coworker, 
to clarify a FMLA certification. See also Women Employed; Family 
Caregiver Alliance; American Association of University Women.
    Commenters also objected to allowing individuals without medical 
training to contact an employee's health care provider. See, e.g., 
National Postal Mail Handlers Union; Association of Professional Flight 
Attendants; Women Employed; National Association of Letter Carriers; 
PathWaysPA. The AFL-CIO argued that the employee protections afforded 
by requiring provider-to-provider contact far outweigh any expense or 
delay incurred as a result of such requirement. The Communications 
Workers of America argued that allowing employer representatives who 
lack medical training to contact employee health care providers would 
significantly increase the burden on the healthcare system.
    Several commenters representing employees expressed concern that 
once employers were allowed to make contact with an employee's health 
care provider without having to use the employer's own health care 
provider, there would be no way to ensure that employers limited 
themselves to requesting clarification of the certification and did not 
request additional medical information. See, e.g., National Association 
of Letter Carriers; Family Caregiver Alliance; American Civil Liberties 
Union; American Association of University Women. The National Postal 
Mail Handlers Union argued that the appropriate mechanism for an 
employer to gather additional information regarding an employee's 
medical condition is the second opinion process, not direct contact 
with the employee's health care provider. See also Service Employees 
International Union; Communications Workers of America.
    Finally, commenters representing employees also argued that the 
requirement in current Sec.  825.307(a) that the employee consent to 
any contact with his or her health care provider provides greater 
protection for employee medical privacy than does requiring employers 
to comply with the HIPAA Privacy Rule. The AFL-CIO, for example, argued 
that the HIPAA Privacy Rule's protections are insufficient because they 
do not provide a remedy against employers for the unauthorized 
disclosure of protected health information. See also Air Line Pilots 
Association. The National Treasury Employees Union and the National 
Association of Letter Carriers both argued that the current FMLA 
regulations provide greater protection for employee medical information 
than does HIPAA. The National Postal Mail Handlers Union argued that if 
the Department included proposed Sec.  825.307(a) in the final rule 
despite employee objections, it should make clear that a HIPAA-
compliant authorization for employer contact could be narrowly limited 
to cover only the information included in the FMLA certification form. 
See also Association of Professional Flight Attendants.
    Commenters representing employers overwhelmingly supported the 
proposed changes to the clarification process. See, e.g., Infinisource, 
Inc.; AT&T; Society for Human Resource Management; Association of 
Corporate Counsel's Employment and Labor Law Committee; National 
Coalition to Protect Family Leave; National Association of 
Manufacturers. The Chamber described the proposal to permit contact 
between the employer without the use of a health

[[Page 68019]]

care provider representing the employer and the employee's health care 
provider as ``among the most impactful changes proposed'' in the NPRM 
and assured that ``employers are mindful of the sensitive nature of the 
information involved and consider this additional privilege extremely 
limited * * * [they] do not view this as permission to go on a `fishing 
expedition' and delve further into an employee's private affairs than 
necessary to evaluate the request for leave.'' The Equal Employment 
Advisory Council asserted that allowing human resources professionals 
to contact the employee's health care provider would allow the 
necessary information to be obtained more efficiently because the 
individual making the contact would be familiar with both the FMLA's 
requirements and the employee's job functions. The National Newspapers 
Association noted that allowing direct employer contact with the 
employee's health care provider was a ``significant improvement'' for 
small businesses that do not have health care providers on staff. See 
also National Federation of Independent Business. The Society for Human 
Resource Management and the National Coalition to Protect Family Leave 
urged the Department to clarify in the final rule that employees may 
choose to authorize their employers to contact their health care 
providers at the outset of the clarification process, and are not 
required to first seek to cure the certification themselves pursuant to 
Sec.  825.305(c). Finally, numerous employers and employer 
representatives commented that the HIPAA Privacy Rule has supplanted 
the consent requirement of the current regulation and sets the 
appropriate standard for guaranteeing employee medical privacy. See, 
e.g., National Coalition to Protect Family Leave; Equal Employment 
Advisory Council; American Health Care Association; Society for Human 
Resource Management; Retail Industry Leaders Association. For example, 
the U.S. Postal Service stated that ``HIPAA restrictions will continue 
to protect unwarranted disclosures but at the same time, employers will 
be able to process FMLA requests more expeditiously when allowed direct 
access to a provider.''
    The Department understands the concerns expressed by employees and 
their representatives that the proposed regulation did not prohibit an 
employee's direct supervisor from contacting the employee's health care 
provider. The Department agrees that employers should not be able to 
use the employee's direct supervisor to contact an employee's health 
care provider. Accordingly, Sec.  825.307(a) of the final rule 
specifies that the employer representative contacting the employee's 
health care provider must be either a health care practitioner, a human 
resources professional, a leave administrator, or a management 
official, but in no case may the employer representative be the 
employee's direct supervisor. The Department recognizes that many 
employers utilize third party providers to manage all or part of their 
leave administration; such third party providers may be used for the 
purposes of authenticating or clarifying FMLA certifications. The 
Department declines, however, to restrict employers to utilizing only 
health care providers for purposes of authenticating or clarifying an 
employee's FMLA certification. As is the case under the existing 
process set forth in current Sec.  825.307(a), the final rule restricts 
the employer to contacting the health care provider for the purpose of 
understanding the handwriting on the medical certification or the 
meaning of a response. In light of the fact that an employer may make 
similar, or even more detailed, inquiries without utilizing a health 
care provider when determining an employee's eligibility for other 
related benefits, the Department does not believe that employers should 
be so constrained under the FMLA. For example, the Department notes 
that employers are not constrained by any such restriction under the 
Americans with Disabilities Act, as amended, and, in fact, commonly 
utilize human resources professionals or other management officials to 
communicate with employees' health care providers when appropriate 
under that Act. The Department encourages employers to continue to 
utilize health care practitioners when contacting an employee's health 
care provider to clarify FMLA certifications wherever possible, but 
Sec.  825.307(a) of the final rule permits employers to use other 
appropriate representatives in order to streamline the authentication 
and clarification process, speed the determination of whether an 
employee's leave is FMLA-protected and reduce the associated 
administrative costs.
    The final rule also maintains the requirement from the proposal 
that communication between employers and employees' HIPAA-covered 
health care providers for purposes of clarification of FMLA 
certifications comply with the requirements of the HIPAA Privacy Rule 
and clarifies that the requirements of the HIPAA Privacy Rule must be 
satisfied whenever individually-identifiable health information of an 
employee is shared with an employer by a HIPAA-covered health care 
provider. As the Department noted in the NPRM, the HIPAA Privacy Rule 
provides far more protection for employee medical information than 
current Sec.  825.307(a). For example, although the current regulation 
requires an employee's permission for an employer to contact the 
employee's HIPAA-covered health care provider, it does not dictate the 
form such permission may take. Under the current regulation, employees 
could verbally consent to such contact. In contrast, in order for a 
health care provider that is a HIPAA-covered entity to share employee 
health information with an employer, the authorization must be valid 
under the HIPAA Privacy Rule, which requires that the authorization 
must be a written document containing the name of the health care 
provider, a description of the information to be disclosed, the name or 
specific identification of the person to whom the disclosure may be 
made, a description of the purpose of the requested disclosure, an 
expiration date or event for the authorization, and a signature of the 
individual making the authorization. 45 CFR 164.508(c)(1). In addition, 
three required statements regarding the revocation of the 
authorization, the conditioning of treatment or payment, and the 
potential for redisclosure must also be included as provided at 45 CFR 
164.508(c)(2). Finally, the HIPAA Privacy Rule at 45 CFR 164.508(b)(3), 
prohibits a HIPAA authorization from being combined with certain other 
documents.
    Hence, the HIPAA authorization supplants and serves the same 
purpose as the ``with the employee's permission'' standard under the 
current FMLA rule. In such cases employees will be made aware that 
their employers may need to contact the employees' HIPAA-covered health 
care provider because the employee will have to complete a HIPAA 
authorization form with his or her health care provider, at which point 
in time employees can choose to allow the authorization or not. If the 
employee chooses not to authorize such contact under the HIPAA Privacy 
Rule, he or she has the same responsibilities as under the current FMLA 
rule to provide a complete and sufficient medical certification form. 
Finally, the Department notes that because employers are not covered 
entities under HIPAA, the HIPAA Privacy Rule does not provide a remedy 
to employees for employers' dissemination of confidential medical 
information. However, Sec.  825.500(g) of

[[Page 68020]]

both the current and final rules requires employers to maintain medical 
certifications created for purposes of the FMLA as confidential medical 
records in separate files from the usual personnel files.
    Finally, the Department agrees that employees may choose to forego 
the opportunity to utilize the cure procedure in Sec.  825.305(c) if 
they wish their employer to proceed immediately with curing any 
deficiencies in the certification through direct contact with their 
health care provider. The Department does not believe that any change 
is necessary in the proposed regulatory language in this regard, 
however, as the regulation requires only that the employee be given the 
opportunity to cure any deficiencies in this manner; it does not 
require that the employee avail himself or herself of that opportunity. 
The Department also does not believe that any change is necessary to 
clarify the scope of information involved in the clarification process. 
The final rule maintains the standard set forth in current Sec.  
825.307(a) limiting the scope of clarification to the information set 
forth in the certification. The Department's addition of a definition 
of the term ``clarification'' is not intended to broaden the type or 
amount of information an employer may obtain as part of the existing 
clarification process.
    The Department received comments from several employers and their 
representatives regarding the proposal in Sec.  825.307(b) and (c) to 
require employees or their family members to authorize their health 
care providers to release all relevant medical information pertaining 
to the serious health condition at issue if requested by the provider 
of the second or third opinion in order to render a sufficient and 
complete medical opinion. These commenters universally agreed that this 
proposal would enhance the second and third opinion process. See, e.g., 
the Chamber; Society for Human Resource Management; Equal Employment 
Advisory Council; American Foundry Society; Domtar Paper Company; 
National Business Group on Health; National Association of 
Manufacturers; AT&T. The U.S. Postal Service argued that both the 
employer and the employee will benefit from this proposal because the 
second or third opinion provider will be better able to assess the 
employee's medical condition and may also be able to rely on prior test 
results in some cases, thus sparing employees unnecessary additional 
medical testing. See also National Coalition to Protect Family Leave. 
The Department believes that it is appropriate to require employees or 
their family members to make such authorizations in this context 
because the information will be conveyed directly to the second or 
third opinion health care provider, as opposed to being provided to the 
employer as is the case with clarification. While the Department 
received very few comments on the proposal in Sec.  825.307(d) to 
increase from two to five business days unless extenuating 
circumstances prevent such action the amount of time employers have to 
provide a copy of a second or third opinion to an employee who requests 
one, TOC Management Services and Infinisource, Inc. specifically 
supported this proposal. But see Richard Baerlocher (urging the 
Department to retain the current two-day time frame). The final rule 
adopts Sec.  825.307(b), (c), and (d) as proposed without any changes.
    Finally, the Department received comments from several employer 
representatives regarding FMLA certifications filled out by foreign 
medical care providers. The Equal Employment Advisory Council and 
others suggested that employees should be expected to provide an 
English translation of a medical certification provided in another 
language. See also National School Boards Association; Vercruysse 
Murray & Calzone. The National Coalition to Protect Family Leave, the 
Society for Human Resource Management, and the American Foundry Society 
argued that employers should be automatically entitled to get a second 
opinion on any certification provided by a foreign health care 
provider. Spencer Fane Britt & Browne argued an employee should be 
required to have his or her own health care provider in the United 
States authenticate and verify any FMLA certification completed by a 
foreign health care provider.
    The final rule modifies Sec.  825.307(f) to require that employees 
provide a written translation of any certification by a foreign health 
or provider that is completed in a language other than English. The 
Department believes that in most situations either the employee or the 
employee's family member will be able to provide the written 
translation and such a translation will satisfy the rule. Therefore, 
the Department does not anticipate that this requirement will impose a 
significant burden on employees. The provision of an English 
translation of the certification will facilitate the employer's ability 
to determine whether or not the leave is FMLA protected, and whether 
additional clarification or authentication is required. The Department 
recognizes that providing for translation of certifications by foreign 
health care providers does not fully address all of the concerns 
employers have regarding such certifications. The Department believes, 
however, that this approach, while limited, recognizes the legitimate 
need of employees to take FMLA leave to care for family members in 
foreign countries and the need of employers to be able to verify that 
such leave is being appropriately used.
Section 825.308 (Recertifications for Leave Taken Because of an 
Employee's Own Serious Health Condition or the Serious Health Condition 
of a Family Member)
    Current Sec.  825.308 of the regulations addresses the employer's 
ability to seek recertification of an employee's medical condition. 
Section 825.308(a) of the current regulations sets forth the rule for 
recertification for pregnancy, chronic, or permanent/long-term 
conditions and generally permits recertification no more often than 
every 30 days in connection with an absence. Current Sec.  825.308(b) 
states that where a certification specifies a minimum duration of 
incapacity of more than 30 days, or specifies a minimum period of 
intermittent or reduced schedule leave, recertification generally may 
not be required until the specified minimum duration has passed. 
Section 825.308(c) of the current regulations provides that in all 
situations not covered by Sec.  825.308(a) and (b), employers may 
generally request recertification every 30 days. Current Sec.  
825.308(d) requires employees to provide recertification within at 
least 15 calendar days of the employer's request, unless it is not 
practicable to do so despite the employee's diligent, good faith 
efforts. Current Sec.  825.308(e) provides that recertification is at 
the employee's expense and that no second or third opinions may be 
required on recertification. In the NPRM, the Department proposed to 
reorganize Sec.  825.308 for purposes of clarity. Proposed Sec.  
825.308(a), titled ``30-day rule,'' permitted recertification every 30 
days in connection with an absence. Proposed Sec.  825.308(b), titled 
``More than 30 days,'' stated the rule from current Sec.  825.308(b) 
that where the certification indicates a minimum period of incapacity 
in excess of 30 days, recertification generally may not be required 
until the minimum duration has passed and added an example to clarify 
the application of this rule. The proposal also permitted an employer 
to request recertification every six months in connection with an 
absence in all

[[Page 68021]]

cases. Proposed Sec.  825.308(c), titled ``Less than 30 days,'' 
explained under what circumstances an employer could require 
recertification more frequently than every 30 days and provided 
examples of circumstances that might justify requesting more frequent 
recertification. Proposed Sec.  825.308(d) was unchanged from the 
current regulations other than the addition of the title ``Timing.'' 
The proposal contained a new Sec.  825.308(e), titled ``Content,'' 
which clarified that an employer may request the same information on 
recertification as required for the initial certification as set forth 
in Sec.  825.306, and the employee has the same obligation to cooperate 
in providing recertification as he or she does in providing the initial 
certification. Proposed Sec.  825.308(e) also clarified that employers 
may provide the employee's health care provider with a record of the 
employee's absence pattern and ask whether the leave pattern is 
consistent with the employee's serious health condition. Current Sec.  
825.308(e) was redesignated as proposed Sec.  825.308(f) without any 
changes. The Department requested comment, however, regarding its 
decision to retain the current regulation's prohibition against second 
and third opinions on recertification. The final rule adopts Sec.  
825.308 as proposed, with minor clarifications in Sec.  825.308(b) as 
discussed below. The title is also modified in the final rule to 
clarify that this section does not apply to the military family leave 
provisions.
    The NPRM proposed to resolve uncertainty under current Sec.  
825.308 as to how often employers could seek recertification of chronic 
conditions where the certification indicates that the duration of the 
condition is ``lifetime.'' Under the current regulation, it is unclear 
whether such certifications would be subject to recertification every 
30 days under Sec.  825.308(a) because the conditions are chronic, or 
whether they would never be subject to recertification under Sec.  
825.308(b)(2) because the certification indicated a need for 
intermittent leave for the employee's lifetime. The NPRM clarified that 
conditions that will last an extended period of time, including 
conditions for which the duration is indicated as ``lifetime,'' 
``indefinite,'' or ``unknown,'' would fall under proposed Sec.  
825.308(b). Under that section, employers would not be able to seek 
recertification until the minimum duration specified in the 
certification had passed, but would always be entitled to seek 
recertification every six months in connection with an absence. In 
other words, if the certification specified a duration of greater than 
six months, the employer would still be able to seek recertification at 
six-month intervals. (Where the requirements of proposed Sec.  
825.308(c) were met, recertification would also be permitted pursuant 
to that section.) The proposal represented a change in the Department's 
position, which had previously been that certifications indicating an 
``indefinite'' or ``unknown'' duration were subject to recertification 
every 30 days. See Wage and Hour Opinion Letter FMLA2004-2-A (May 25, 
2004). The Department received significant comments from both employers 
and employees regarding this proposal. By and large, the comments 
confirmed the confusion that exists in this area. Despite the 
Department's explanation in the NPRM that permitting six-month 
recertification of long-term or permanent health conditions would 
result in fewer recertifications for many employees with chronic 
serious health conditions than currently permitted, most employees and 
their representatives interpreted the proposal as an increase in their 
recertification burden. Employers and their representatives were 
divided as to whether the Department's proposal represented an increase 
or a diminution in their recertification right.
    Most employees and their representatives opposed the proposal in 
Sec.  825.308(b) to permit recertification every six months for long-
term or permanent conditions, viewing it as unnecessary in the absence 
of some change in the condition and as imposing an increased burden on 
employees. See, e.g., National Postal Mail Handlers Union; National 
Federation of Federal Employees; Academic Pediatric Association et al.; 
Association of Professional Flight Attendants; Diane North; Mary 
Freeman; Gregory Sheffield, Jr. The Communications Workers of America 
suggested that employees with chronic serious health conditions should 
not be required to recertify more than once per year. See also National 
Partnership for Women & Families. The American Postal Workers Union 
suggested that recertification of chronic conditions should only be 
permitted where circumstances change or new information justifies the 
request. The Academic Pediatric Association et al. argued that 
requiring recertification of chronic or lifelong conditions ``does not 
serve any useful purpose.'' The AFL-CIO, however, supported the 
proposed change as it applies to conditions of indefinite, unknown, or 
lifetime duration, but opposed six-month recertification for conditions 
with a defined duration in excess of six months (e.g., for a condition 
that will last nine months). In support of six-month recertification 
for chronic serious health conditions, the AFL-CIO argued that 
``[r]ecertifications on a 30-day basis for long-term conditions are not 
only burdensome to employees and their health care providers, but are 
highly unlikely to elicit useful information for making leave decisions 
under the FMLA.''
    Many commenters representing employees also noted that 
recertification imposes a financial burden on employees because health 
care providers charge for the additional medical examination and/or 
paperwork associated with recertification. See, e.g., Communications 
Workers of America; Sargent Shriver National Center on Poverty Law; 
Association of Professional Flight Attendants; National Partnership for 
Women & Families; National Postal Mail Handlers Union. The National 
Partnership for Women & Families requested that, if the Department 
finalized Sec.  825.308 as proposed, it make clear that the two visits 
required under the proposed definition of a chronic serious health 
condition in Sec.  825.115(c)(1) could be satisfied by the six-month 
visits for recertification.
    Employers and their representatives were split as to whether the 
six-month recertification rule was an improvement on the current 
recertification provision. Several large employers and employer 
associations supported permitting recertification on a six-month basis 
for long-term or permanent conditions. See, e.g., AT&T; the Chamber; 
Equal Employment Advisory Council; National Association of 
Manufacturers; HR Policy Association; WorldatWork; Manufacturers 
Alliance; TOC Management Services. The U.S. Postal Service stated that 
the six-month recertification proposal for conditions of unknown or 
permanent duration ``eliminates the ambiguity that had been a hallmark 
of the recertification provisions and is sorely needed.'' The National 
Business Group on Health asserted that the Department's proposal ``will 
help to alleviate situations where, under current rules, doctors can 
provide multi-year medical certifications for serious health conditions 
that may no longer be present after some months or longer.'' The 
Chamber argued that ``requiring more frequent certifications will not 
present any additional hardship to employees, as employees with chronic 
conditions are likely to be visiting their health care providers at 
lease twice a year already.''

[[Page 68022]]

    Other commenters, however, argued that 30-day recertification for 
chronic serious health conditions would be more appropriate. See, e.g., 
Metropolitan Transportation Authority (NY); International Public 
Management Association for Human Resources; Ohio Department of 
Administrative Services; City of Medford (OR); National Association of 
Wholesaler-Distributors; American Foundry Society. The Society for 
Human Resource Management objected that the proposal would require 
employers to permit potential misuse of leave to continue for months 
before being able to obtain a recertification. Jackson Lewis suggested 
that recertification every 60 days would be more appropriate. The 
Association of Corporate Counsel's Employment and Labor Law Committee 
suggested that recertification be should be permitted every three 
months. See also National School Boards Association. The law firm of 
Willcox & Savage argued that ``[s]ix-month recertifications would be 
entirely inadequate to ensure that intermittent leave is used for 
qualified reasons and to limit misuse of intermittent leave.''
    The law firms of Spencer Fane Britt & Browne and Vercruysse Murray 
& Calzone expressed confusion as to the interaction of the ``[m]ore 
than 30 days'' rule and the ``30-day rule.'' Both of these commenters 
asked whether the 30-day recertification rule would apply to long-term 
conditions requiring short periods of intermittent leave. They 
questioned what serious health conditions would be covered by Sec.  
825.308(a) if these long-term or permanent conditions were instead 
covered under Sec.  825.308(b). These commenters attributed their 
confusion to the use of the phrase ``minimum period of incapacity'' in 
proposed Sec.  825.308(b), and questioned whether the Department meant 
the duration of ``incapacity'' or the duration of the ``condition.'' 
See also Equal Employment Advisory Council.
    The Department views the conflicting comments it received regarding 
proposed Sec.  825.308(b) as indication of the need to further clarify 
the recertification regulation. The Department agrees that, as proposed 
in the NPRM, it was unclear whether Sec.  825.308(b) applied to 
permanent or long-term conditions requiring short periods of 
intermittent leave (i.e., chronic conditions). Accordingly, final Sec.  
825.308(b) is modified to clarify that the rule applies to conditions 
where the minimum duration of the condition, as opposed to the duration 
of the period of incapacity, exceeds 30 days. This is a clarification, 
not a change in the Department's enforcement position. Current Sec.  
825.308(b) has two subsections, the first of which addresses 
certifications specifying a minimum period of incapacity in excess of 
30 days, and the second of which addresses certifications specifying a 
minimum period during which intermittent or reduced schedule leave will 
be needed; in both situations an employer may not request 
recertification until the minimum period specified has passed. 
Accordingly, the Department has always interpreted the current 
regulation as applying to those situations in which the certification 
states that an employee will need leave due to a serious health 
condition for a specified period in excess of 30 days, regardless of 
whether that leave is taken as a single continuous block or on an 
intermittent basis. The final rule also provides an example of how the 
six-month recertification provision would apply. Not all situations 
will fit within final Sec.  825.308(b), and, as the final rule makes 
clear, employers are entitled to recertification on a 30-day basis, 
unless the requirements of paragraphs (b) or (c) are met. In all cases, 
where the criteria of Sec.  825.308(c) are met, employers may seek 
recertification in less than 30 days.
    The Department declines in the final rule to permit recertification 
of long-term or permanent conditions more frequently than every six 
months unless the conditions set forth in Sec.  825.308(c) are met. As 
explained in the NPRM, the Department is concerned about the burden 
frequent recertifications place on employees suffering from permanent 
or long-term serious health conditions. The Department believes that 
permitting recertification on a six-month basis represents the 
appropriate balance between the employer's right to receive updated 
medical information to support the need for FMLA leave, and the 
employee's right to take such leave. As noted in the NPRM, the six-
month period for recertification generally coincides with the 
requirement of periodic visits of twice per year for treatment in the 
definition of a chronic serious health condition in Sec.  
825.115(c)(1). To the extent that an employee visits his or her health 
care provider for treatment in connection with obtaining a 
recertification, that visit could count towards satisfying the periodic 
treatment criteria for a chronic serious health condition if it occurs 
every six months.
    The Department also received several comments from employer 
representatives supporting the Department's proposal in Sec.  
825.308(e) to expressly permit employers to provide an employee's 
health care provider with information regarding the employee's absences 
due to the serious health condition, with many commenters indicating 
that this change would significantly improve their ability to 
administer FMLA leave. See, e.g., HR Policy Association; Pennsylvania 
Governor's Office of Administration; Southwest Airlines; American 
Foundry Society; Equal Employment Advisory Council. The AFL-CIO, 
however, argued that proposed Sec.  825.308(e) was an unnecessary 
addition to the regulations as the Department had already taken this 
position in Wage and Hour Opinion Letter FMLA2004-2-A (May 25, 2004). 
The Department believes it is appropriate to include this language in 
the regulatory text and therefore the final rule adopts Sec.  
825.308(e) as proposed.
    Finally, the National Association of Manufacturers and the National 
Association of Wholesaler-Distributors, as well as many other 
commenters, objected to the Department's continued prohibition in 
proposed Sec.  825.308(f) on second and third opinions on 
recertification. See also Vercruysse Murray & Calzone; TOC Management 
Services; Jackson Lewis; Metropolitan Transportation Authority (NY); 
Independent Bakers Association; Pennsylvania Governor's Office of 
Administration; International Public Management Association for Human 
Resources; City of Medford (OR); American Foundry Society. The National 
Association to Protect Family Leave and the Society for Human Resource 
Management argued that the statute does not prohibit second and third 
opinions on recertification and that permitting them would reduce the 
number of second and third opinions on initial certifications, which 
would benefit both employers and employees. The Southern Company argued 
that the Department's proposal to permit employers to require new 
certifications of ongoing conditions on an annual basis, which would be 
subject to second and third opinions, was not sufficient to allow 
employers to effectively manage employee leave and that employers 
should therefore be permitted to seek second and third opinions on 
recertifications as well. See also Berens & Tate; National Coalition to 
Protect Family Leave. Spencer Fane Britt & Browne argued that employers 
should be entitled to get a second opinion whenever they are permitted 
to seek recertification in less than 30 days under Sec.  825.308(c), 
and in other situations every three months.
    The Department declines in the final rule to permit second or third 
opinions on recertification. As discussed above,

[[Page 68023]]

Sec.  825.305(e) of the final rule will permit employers to require a 
new certification on an annual basis for conditions lasting longer than 
a single leave year, and such new certifications will be subject to 
second and third opinions. The Department believes that allowing 
employers the option of a second and third opinion once per leave year 
is sufficient and that permitting second and third opinions on 
recertifications would impose an additional burden on employees that 
would be disproportionate to any benefit to employers.
Section 825.309 (Certification for Leave Taken Because of a Qualifying 
Exigency)
    Under the military family leave provisions of the NDAA, an employer 
may require that leave taken because of a qualifying exigency be 
``supported by a certification issued at such time and in such manner 
as the Secretary may by regulation prescribe.'' 29 U.S.C. 2613(f). 
Because the NDAA gives the Secretary of Labor the authority to 
prescribe a new certification requirement for FMLA leave taken because 
of a qualifying exigency, the Department's NPRM included a discussion 
of a number of issues related to the Department's implementation of a 
certification requirement for qualifying exigency leave. The Department 
specifically sought comment on the type of information that should be 
provided in a certification related to qualifying exigency leave in 
order for it to be considered complete and sufficient. The Department 
expressed an initial view that, in addition to providing confirmation 
of the covered military member's active duty or call to active duty 
status, an employee could be asked to provide certification that an 
absence is due to a qualifying exigency. The Department sought comment 
on whether an employee should provide certification of the qualifying 
exigency by statement or affidavit or by another means. The Department 
also sought comment on whether the certification requirements should 
vary depending on the nature of the qualifying exigency for which leave 
is being taken.
    In addition, the Department asked for comments regarding who should 
bear the cost, if any, of obtaining certifications related to leave 
taken because of a qualifying exigency and what timing requirements 
should be applied to such certifications. The Department also asked 
whether an employer should be permitted to clarify, authenticate, or 
validate an active duty or call to active duty certification or a 
certification that a particular event is a qualifying exigency, and 
what limitations, if any, should be imposed on an employer's ability to 
seek such clarification, authentication, or validation. Lastly, the 
Department sought comment on whether a recertification process should 
be established for certifications related to leave taken because of a 
qualifying exigency and, if so, how that process should compare to the 
recertification process used for existing FMLA leave entitlements.
    While the Department has attempted to mirror the existing FMLA 
certification process wherever possible for qualifying exigency leave, 
the unique nature of this leave necessitates that an employee provide 
different information in order to confirm the need for leave. In the 
final rule, the certification requirements for leave taken because of a 
qualifying exigency are set forth in Sec.  825.309. Section 825.309(a) 
of the final rule establishes that an employer may require that the 
employee provide a copy of the covered military member's active duty 
orders or other documentation issued by the military which indicates 
that the 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, and the dates of the covered military member's 
active duty service. Section 825.309(b) establishes that each time 
leave is first taken for one of the qualifying exigencies specified in 
Sec.  825.126, an employer may require an employee to provide a 
certification that sets forth certain information. Section 825.309(c) 
of the final rule describes the optional form (Form WH-384) developed 
by the Department for employees' use in obtaining certification that 
meets the FMLA's certification requirements. The form is optional for 
employers and reflects the certification requirements established in 
Sec.  825.309(b) so that it is easier for an employee to furnish 
appropriate information to support his or her request for leave because 
of a qualifying exigency. Form WH-384, or another form containing the 
same basic information, may be used by the employer; however, no 
information may be required beyond that specified in this section. 
Section 825.309(d) of the final rule establishes the verification 
process for certifications.
    The Department received many comments that agreed that it is 
appropriate to require a copy of the covered military member's active 
duty orders or some other form of documentation issued by the military 
which indicates that the 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 for certification purposes. See 
National Partnership for Women & Families, in joint comments with the 
National Military Family Association; U.S. Postal Service; National 
Coalition to Protect Family Leave; Society for Human Resource 
Management; Equal Employment Advisory Council; Hewitt Associates; AT&T; 
South Carolina, Office of Human Resources; Pennsylvania Governor's 
Office of Administration. Hewitt Associates also suggested that ``[i]f 
military orders are not readily available, employers should permit 
employees to provide secondary documentation confirming that the family 
member is on active military duty.'' TOC Management Services went 
further to suggest that the Department ``develop a `qualifying exigency 
certification,' to be completed by the military servicemember's 
commanding officer (or other authorized military personnel).'' Senator 
Dodd and Representative Woolsey et al. suggested that certification 
should ``consist of activation orders or letters from a commanding 
officer.''
    The Department agrees with the majority of commenters that a 
complete and sufficient certification for purposes of qualifying 
exigency leave should include a copy of the covered military member's 
active duty orders. The orders will confirm that the covered military 
member is on active duty (or has been notified of an impending call to 
active duty) in support of a contingency operation. The Department also 
believes that it is appropriate to allow an employee to provide other 
documentation issued by the military in order to establish that the 
covered military member is on active duty or has been notified of an 
impending call or order to active duty for purposes of qualifying 
exigency leave. Accordingly, Sec.  825.309(a) provides that an employer 
may request, as part of a complete and sufficient certification to 
support a request for qualifying exigency leave, a copy of the covered 
military member's active duty orders or other documentation issued by 
the military which indicates that the covered military member is on 
active duty or call to active duty status in support of a contingency 
operation, and the dates of the covered military member's active duty 
service. In addition, to alleviate as much of the burden as possible on 
employees using this new leave entitlement, this provision provides 
that this information need only be provided to the employer the first 
time an employee requests leave because of a

[[Page 68024]]

qualifying exigency arising out of a particular active duty or call to 
active duty of a covered military member. While additional information 
is required to provide certification for subsequent requests for 
exigency leave, an employee is only required to give a copy of the 
active duty orders to the employer once. A copy of new active duty 
orders or other documentation issued by the military only needs to be 
provided to the employer if the need for leave because of a qualifying 
exigency arises out of a different active duty or call to active duty 
order of the same or a different covered military member.
    A number of commenters addressed whether an employer should be able 
to request documentation beyond the covered military member's active 
duty orders, and provided suggestions on the types information an 
employee could be required to provide. Senator Dodd and Representative 
Woolsey et al. commented that ``a simple personal statement * * * 
stating the reason for the leave and that the leave arises from the 
deployment or return of the servicemember'' is sufficient. The National 
Partnership for Women & Families, in joint comments with the National 
Military Family Association, suggested that notes from the service 
provider or the military association should be sufficient, such as a 
note from a counselor when the leave is needed to attend counseling. 
The National Coalition to Protect Family Leave recommended that an 
employee provide written documentation unless there are extraordinary 
or extenuating circumstances, or documentation does not exist, and that 
such documentation be from an independent source if available; a 
statement or affidavit should be sufficient only if there is no other 
alternative method of certification available. The Equal Employment 
Advisory Council requested that an employee provide proof of the need 
for leave and sign an affidavit declaring the reason for taking leave. 
The Chamber stated that an employee ``should provide the employer with 
detailed information about the reasons for leave.'' TOC Management 
Services suggested that an employee be required to submit a statement 
or affidavit. Hewitt Associates noted that:

    The list of qualifying exigencies may be too broad and 
indefinite to create a form that speaks to the leave reasons 
themselves. In addition, in many cases, there may not be a clear 
third party like a physician, teacher, or department able to certify 
the leave. Employers that are concerned with abuse could rely upon 
company rules prohibiting dishonesty, misrepresentation, and/or the 
falsification of company documents and a reminder of such rules and 
policies could be included on the form itself.

    In the final rule, the Department seeks to provide an appropriate 
balance between providing employers with a reasonable amount of 
information to demonstrate the validity of the qualifying exigency and 
ensuring that employees are not overburdened with unnecessary steps 
that do not enhance the utility of the certification. For example, the 
Department does not believe that it is necessary for an employee to 
sign an affidavit to provide a meaningful certification. Such a 
requirement would place a burden on employees that would potentially 
delay or frustrate their ability to utilize qualifying exigency leave. 
Most employers have policies in place that prohibit employees from 
providing false information and enforcing such policies would have 
substantially the same effect as an affidavit in deterring abuse. 
Section 825.309(b)(1)-(5) of the final rule allows an employer to 
require an employee to provide a reasonable amount of information for 
certification. Where applicable, this information should be readily 
available to the employee and should not impose a significant obstacle.
    Section 825.309(b)(1) requires the employee to provide a signed 
statement or description of the facts regarding each qualifying 
exigency for which FMLA leave is requested and stipulates that such 
facts must be sufficient to support the need for leave. Where an 
employee needs intermittent leave for a particular qualifying exigency, 
only one certification is required for that qualifying exigency. For 
example, there are many types of qualifying exigencies within the 
category of childcare and school activities. Thus, an employee would 
need to provide one certification for enrolling a child in school, and 
a separate certification for arranging for alternative childcare; the 
employee, however, would only need one certification for a series of 
related parent-teacher conferences. The final rule also provides a 
number of examples of written documents that could support a request of 
leave, such as a copy of a meeting announcement for informational 
briefings sponsored by the military, a document confirming an 
appointment with a counselor or school official, or a copy of a bill of 
services for the handling of legal or financial affairs. These examples 
illustrate that, whenever possible, the employee's statement should 
include demonstrable information that relates to the type of leave 
being taken.
    Section 825.309(b)(2) of the final rule requires the inclusion of 
the approximate date on which the qualifying exigency commenced or will 
commence. Section 825.309(b)(3) stipulates that if an employee requests 
leave because of a qualifying exigency for a single, continuous period 
of time, the employee should provide the beginning and end dates for 
such absence. If an employee requests leave because of a qualifying 
exigency on an intermittent or reduced schedule basis, Sec.  
825.309(b)(4) of the final rule requires an estimate of the frequency 
and duration of the qualifying exigency. These sections will not always 
apply to every kind of qualifying exigency. When applicable, however, 
all three of these provisions will assist employers by providing them 
with sufficient information to adequately prepare for the employee's 
absence in connection with qualifying exigency leave.
    Finally, in Sec.  825.309(b)(5) of the final rule, the Department 
allows the employer to require the inclusion of appropriate contact 
information when an exigency involves meeting with a third party. In 
addition to the name, title, organization, address, telephone number, 
fax number, and e-mail address for the individual or entity with which 
the employee is meeting, the contact information can also include a 
brief description of the purpose of the meeting. Although the 
Department recognizes that not every qualifying exigency involves a 
third party, for those exigencies where a third party is involved such 
detailed information should provide meaningful assurance and validation 
for employers.
    The Department also received a few comments regarding the creation 
of a certification form to be used by employees and employers. 
Infinisource, Inc. and the Equal Employment Advisory Council suggested 
that the Department provide a sample qualifying exigency certification 
form.
    The final rule provides an optional form (Form WH-384) that is 
described in Sec.  825.309(c) and included in Appendix G to the 
regulations. The form reflects the certification requirements so as to 
permit an employee to furnish appropriate information to support his or 
her request for leave because of a qualifying exigency. This optional 
Form WH-384, or another form containing the same basic information, may 
be used by the employer. The final rule makes clear, however, that no 
information may be required beyond that specified in Sec.  825.309 and 
in all instances the information on the form must relate only to the 
qualifying exigency for which the current need for leave exists.

[[Page 68025]]

The Department believes Form WH-384 will benefit both employees and 
employers by providing all the certification requirements in a clear, 
easy to follow format.
    The Department also received many comments on the issues of 
authentication and recertification. Many commenters requested that 
employers be permitted to clarify or authenticate military active duty 
orders and the event necessitating qualifying exigency leave. See AT&T; 
Pennsylvania Governor's Office of Administration; Catholic Charities, 
Diocese of Metuchen; National Association of Manufacturers; Association 
of Corporate Counsel's Employment and Labor Law Committee. The 
Association of Corporate Counsel's Employment and Labor Law Committee 
suggested that employers be permitted to contact third parties involved 
in the need for leave, such as calling ``a childcare provider to 
confirm that they were consulted to provide care as a result of a 
servicemember's call to duty.'' Senator Dodd and Representative Woolsey 
et al. and the National Partnership for Women & Families, in joint 
comments with the National Military Family Association, argued that 
there should be no need to clarify or authenticate military active duty 
orders. The National Partnership for Women & Families, in joint 
comments with the National Military Family Association, acknowledged, 
however, that ``[e]mployers should be able to authenticate the 
certifications for the actual leave--for example by calling the school 
and checking that the parent was scheduled for a conference at that 
time.'' Senator Dodd and Representative Woolsey et al. similarly 
suggested that an ``employer could request additional information if it 
suspects that the employee is misusing the leave entitlement.'' On the 
subject of recertification, AT&T and Catholic Charities requested that 
recertifications be allowed. Catholic Charities asserted that ``the 
employer should have the right to request a recertification every 30 
days regardless of the duration of time that the certification states 
the employee is to be out.'' AT&T asserted that recertifications should 
be permitted at least once every six months for intermittent qualifying 
exigency leave.
    The Department agrees that employers should have the opportunity to 
verify certain information in the certification in a limited way that 
respects the privacy of the employee. Section 825.309(d) of the final 
rule describes the verification process. If an employee submits a 
complete and sufficient certification to support his or her request for 
leave because of a qualifying exigency, the employer may not request 
additional information from the employee. However, if the qualifying 
exigency involves meeting with a third party, the employer may contact 
the individual or entity with whom the employee is meeting for purposes 
of verifying a meeting or appointment schedule and the nature of the 
meeting between the employee and the specified individual entity. For 
example, an employer could call a school to confirm that a meeting took 
place between the employee and the teacher of a child of a covered 
military member. The section provides that no additional information 
may be requested by the employer and the employee's permission is not 
required in order to verify meetings or appointments with third 
parties.
    In addition, the final rule allows an employer to contact an 
appropriate unit of the Department of Defense to request verification 
that a covered military member has been called to active duty status 
(or notified of an impending call to active duty status) in support of 
a contingency operation. Again, no additional information may be 
requested by the employer and the employee's permission is not 
required. This verification process will protect employees from 
unnecessary intrusion while still providing a useful tool for employers 
to verify the certification information given to them.
    With regard to recertification, however, the Department agrees with 
the comments that suggested that recertification is unnecessary; the 
final rule does not provide for recertification. An employee is already 
required to provide certification to the employer in connection with 
leave taken for a qualifying exigency. See discussion regarding Sec.  
825.309(b)(1), supra. A recertification would most likely result in the 
employee providing the employer with a copy of the same active duty 
orders already provided to the employer. Section 825.309(a), however, 
does state that a copy of new active duty orders or other documentation 
issued by the military shall be provided to the employer if the need 
for leave because of a qualifying exigency arises out of a different 
active duty or call to active duty order of the same or a different 
covered military member.
Section 825.310 (Certification for Leave Taken To Care for a Covered 
Servicemember (Military Caregiver Leave))
    The military family leave provisions of the NDAA amended the FMLA's 
certification requirements to permit an employer to request that leave 
taken to care for a covered servicemember be supported by a medical 
certification. 29 U.S.C. 2613(a). The FMLA's existing certification 
requirements, however, focus on providing information related to a 
serious health condition--a term that is not relevant to leave taken to 
care for a covered servicemember. At the same time, the military family 
leave provisions of the NDAA did not explicitly require that a 
sufficient certification for purposes of military caregiver leave 
provide relevant information regarding the covered servicemember's 
serious injury or illness. In light of this, the Department sought 
comment in the NPRM on the appropriate requirements and content of a 
certification for leave to care for a covered servicemember. The 
Department also sought comment on whether a certification from the DOD 
or VA should be sufficient to establish whether a servicemember has a 
serious injury or illness that was incurred by the member in the line 
of duty on active duty in the Armed Forces.
    Section 825.310 of the final rule provides that when leave is taken 
to care for a covered servicemember with a serious injury or illness, 
an employer may require an employee to support his or her request for 
leave with a sufficient certification. Section 825.310(a) of the final 
rule permits an employer to require that certain necessary information 
to support the request for leave be supported by a certification from 
one of the following authorized 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. Section 825.310(b)-(c) 
of the final rule sets forth the information an employer may request 
from an employee (or the authorized health care provider) in order to 
support the employee's request for leave. As indicated in Sec.  
825.310(d) of the final rule, the Department has developed a new 
optional form, Form WH-385, which may be used to obtain appropriate 
information to support an employee's request for leave to care for a 
covered servicemember with a serious injury or illness. An employer may 
use this optional form, or another form containing the same basic 
information; however, as is the case for any required certification for 
leave taken to care for a family member with a serious health 
condition, no information may be required beyond that specified in 
Sec.  825.310 of the final rule. In all instances, the information on 
any required certification must relate only to

[[Page 68026]]

the serious injury or illness for which the current need for leave 
exists.
    Additionally, Sec.  825.310(e) of the final rule provides that an 
employer requiring an employee to submit a certification for leave to 
care for a covered servicemember must accept as sufficient 
certification ``invitational travel orders'' (``ITOs'') or 
``invitational travel authorizations'' (``ITAs'') issued by the DOD for 
a family member to join an injured or ill servicemember at his or her 
bedside. If an employee will need leave to care for a covered 
servicemember beyond the expiration date specified in an ITO or an ITA, 
the final rule provides that an employer may request further 
certification from the employee. Lastly, Sec.  825.310(f) of the final 
rule provides that in all instances in which certification is 
requested, it is the employee's responsibility to provide the employer 
with complete and sufficient certification and failure to do so may 
result in the denial of FMLA leave.
    The majority of comments received from both employees and employers 
regarding certification requirements for military caregiver leave 
requested that the Department create a separate certification process 
for such leave, rather than incorporate such requests into the 
certification process used for other FMLA qualifying reasons. For 
example, the National Partnership for Women & Families, in joint 
comments with the National Military Family Association, wrote that 
because the ``triggering events'' for an employee to use leave for an 
injured servicemember are significantly different from those for leave 
taken for other FMLA-qualifying reasons, ``the medical certification 
requirements for leave to care for an injured servicemember should 
match those in the statute, rather than being grafted onto requirements 
in the existing FMLA.'' The National School Boards Association also 
commented that a certification for covered servicemember leave should 
focus on each aspect of the definition of ``serious injury or illness'' 
and ``should not focus on `serious health condition' because this term 
does not trigger the right to take military family leave.'' Finally, 
comments submitted by Senator Dodd and Representative Woolsey et al. 
suggested that any required certification should provide employers who 
request certification with ``essential information.''
    The Department agrees with those comments that suggested that the 
certification requirements for taking leave to care for a covered 
servicemember must necessarily be different than those for taking leave 
to care for a family member with a serious health condition since the 
``triggers'' for taking each type of leave are different. The NDAA's 
definitions of ``serious injury or illness'' and ``covered 
servicemember'' contain specific components that are unique to military 
servicemembers that would not adequately be addressed if the 
certification requirements for a serious health condition were adopted 
for purposes of military caregiver leave. Moreover, adopting the 
existing FMLA certification requirements for purposes of military 
caregiver leave would permit an employer, in some instances, to obtain 
medical and other information that is not relevant to support a request 
to take FMLA leave to care for a covered servicemember.
    Accordingly, the final rule creates a new regulatory section, Sec.  
825.310, which sets forth separate certification requirements for 
military caregiver leave. This section, as suggested by the majority of 
commenters, provides that an employer may seek a certification which 
provides information specific to the NDAA requirements for taking leave 
to care for a covered servicemember, including: (1) Whether the 
servicemember has incurred a serious injury or illness; (2) whether the 
injury or illness may render the servicemember medically unfit to 
perform the duties of the member's office, grade, rank, or rating; (3) 
whether the injury or illness was incurred by the member in line of 
duty on active duty; and (4) whether the servicemember is undergoing 
medical treatment, recuperation, or therapy, is otherwise on outpatient 
status, or is otherwise on the temporary disability retired list. The 
Department notes that the optional certification form (WH-385) for 
covered servicemember leave includes two additional categories of 
internal DOD casualty assistance designations used by DOD health care 
providers ((VSI) Very Seriously Ill/Injured and (SI) Seriously Ill/
Injured) that also meet the standard of a serious injury or illness.
    At the same time, the Department also agrees with those commenters 
who recommended that a certification for military caregiver leave 
should contain certain information about the need for leave that is 
also required of individuals requesting FMLA leave to care for a family 
member with a serious health condition. See e.g., Jackson Lewis; 
Association of Corporate Counsel's Employment and Labor Law Committee; 
and AT&T. This information includes (1) the probable duration of the 
injury or illness; (2) frequency and duration of leave required; (3) if 
leave is requested on an intermittent or reduced schedule basis, an 
estimate of the frequency and duration of such leave; and (4) the 
family relationship of the eligible employee to the covered 
servicemember. The Department believes it is reasonable to require all 
individuals requesting leave to care for a family member to provide 
this information, regardless of whether the family member has a serious 
health condition or is a covered servicemember with a serious injury or 
illness. Accordingly, Sec.  825.310(a)-(c) of the final rule permit an 
employer to require such information. As is the case with the 
certification process for leave taken to care for a family member with 
a serious health condition, no information may be required beyond that 
specified in Sec.  825.310 of the final rule.
    Most of the commenters also agreed with the Department's initial 
view in the NPRM that the DOD and the VA are in the best position to 
determine what constitutes a ``serious injury or illness.'' 
Additionally, the majority of commenters also supported employees 
providing certification from the DOD (or relevant military branch) or 
VA to support a request for leave to care for a covered servicemember. 
Domtar Paper Company wrote that, ``the DOL should adopt DOD 
certification for FMLA purposes. We agree that military branches, as 
well as the Department of Veterans' Affairs do a good job in making 
these determinations.'' The Illinois Credit Union League believed a 
certification from ``either Department'' should be ``sufficient.'' As 
to ``serious injury or illness,'' Hewitt Associates supported providing 
DOD or VA with ``deference in this analysis.''
    Based upon extensive discussions with the DOD, as well as with the 
VA, the Department believes that the DOD should not be the only entity 
able to certify that an eligible employee is needed to care for a 
covered servicemember with a serious injury or illness. At the present 
time, servicemembers with serious injuries or illnesses intended to be 
covered by the NDAA amendments do not receive care solely from DOD 
health care providers. Rather, such covered servicemembers also may 
receive care from either VA health care providers or DOD TRICARE 
military health system authorized private health care providers. 
Indeed, it is the Department's understanding that members of the 
National Guard and Reserves, especially in more rural areas, will be 
more likely to receive care from DOD TRICARE authorized private health 
care providers than from DOD or even VA health care providers.\6\

[[Page 68027]]

Additionally, servicemembers on the temporary disability retired list 
may be receiving care from these private health care providers. 
Accordingly, Sec.  825.310(a) of the final rule provides that any of 
the following health care providers may complete an employer-required 
certification to support a request for military caregiver leave: (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.
---------------------------------------------------------------------------

    \6\ Based upon discussions with the DOD, it is the Department's 
understanding that some covered servicemembers in more remote areas 
of the United States may not have a local health care provider who 
is in the DOD TRICARE network. In these situations, TRICARE 
authorizes non-network health care providers to administer care to 
these servicemembers. These ``non-network'' health care providers 
are specifically included in the regulations as one of the 
categories of health care providers authorized to complete 
certifications for leave to care for a covered servicemember.
---------------------------------------------------------------------------

    If a VA or a DOD TRICARE authorized health care provider is unable 
to make any of the military-related determinations (i.e., whether the 
serious injury or illness may render the covered servicemember 
medically unfit to perform the duties of the member's office, grade, 
rank, or rating and/or whether the serious injury or illness was 
incurred in line of duty on active duty) as part of the certification 
process, Sec.  825.310(a) of the final rule provides that such health 
care providers may complete the certification form by relying on a 
determination from an authorized DOD representative (such as a recovery 
care coordinator). The Department believes this solution sufficiently 
protects an employer's right to obtain a sufficient certification while 
not unduly burdening an employee seeking to take leave by unnecessarily 
restricting the health care providers who may complete such a 
certification. Based on consultation with the DOD, it is the 
Department's understanding that every covered servicemember will have a 
DOD representative who can serve as a point of contact for health care 
providers who need information relating to the military-related 
determinations requested in the FMLA certification form. For example, 
the most seriously injured or ill covered servicemembers (i.e., those 
servicemembers receiving injuries that the DOD terms catastrophic or 
severe) will have either a ``Federal Recovery Coordinator'' or 
``Recovery Care Coordinator'' assigned to assist the covered 
servicemember and his or her family.
    Although the military caregiver leave provisions of the NDAA permit 
an eligible employee who is the next of kin of a covered servicemember 
to take leave to care for a covered servicemember, the NDAA's 
certification requirements appear to permit an employer to obtain a 
certification issued by the health care provider of the employee's next 
of kin, rather than the covered servicemember. See 29 U.S.C. 2613(a). 
In the NPRM, the Department stated that it believes that an employer 
should only be able to obtain a certification from the health care 
provider or military branch of the covered servicemember for whom the 
eligible employee is caring, and not the health care provider of the 
next of kin. The comments addressing this issue agreed with the 
Department that an employer should only be able to obtain a 
certification from the health care provider or military branch of the 
covered servicemember for whom the eligible employee is caring. The 
U.S. Postal Service wrote: ``A provider's medical certification of a 
health condition can only pertain to his/her patient, which in this 
case is the covered servicemember. No other interpretation makes sense. 
A physician simply cannot provide any medical documentation for a `next 
of kin' when that person receives no treatment, therapy, etc. Notably, 
the overall FMLA scheme is one that requires certification of a 
patient's condition from the treating provider. There is no logical 
basis for construing the servicemember certification requirements any 
differently.'' Additionally, the National School Boards Association 
wrote that ``[t]he results of the statute as written are odd and would 
only serve to inconvenience everyone in the process particularly the 
servicemember whose medical certification would have to come from a 
doctor [with] whom the service member has no relationship.''
    After reviewing all of the comments, the Department agrees with 
those comments that stated that an employer should only be able to 
obtain a certification from the health care provider of the covered 
servicemember for whom the eligible employee is caring. To permit an 
employer to obtain a medical certification issued by the health care 
provider of the ``next of kin,'' rather than the servicemember is 
illogical, and does not serve the interests of either employees or 
employers. Accordingly, the final rule provides that any certification 
supporting a request for FMLA leave by a covered servicemember's next 
of kin should be issued by the health care provider of the covered 
servicemember--not the health care provider of the next of kin.
    Additionally, Sec.  825.310(e) of the final rule provides that an 
employer must accept the submission of ``invitational travel orders'' 
(``ITOs'') or ``invitational travel authorizations'' (``ITAs'') issued 
for medical purposes, in lieu of the DOL optional certification form or 
an employer's own form, as sufficient certification of a request for 
military caregiver leave during the time period specified in the ITOs 
or ITAs. Based on consultation with the DOD, it is the belief of the 
Department that the issuance of such orders or authorizations, by 
themselves, qualifies a servicemember as a ``covered servicemember'' 
for purposes of the military caregiver leave provisions of the FMLA. 
The issuance of an ITO or ITA for medical purposes permits the family 
member of the injured or ill servicemember to travel immediately to the 
servicemember's bedside, at DOD's expense. These ITOs or ITAs for 
medical purposes are not issued by the DOD as a matter of course, but 
rather only when the servicemember is, at minimum, seriously injured or 
ill. It is the Department's understanding that, in such cases, the ITO 
or ITA is issued to a servicemember's family upon the direction of a 
DOD health care provider and will state on its face that the travel 
order or authorization is for ``medical purposes.''
    The Department believes that permitting ITOs or ITAs to serve as 
sufficient certification is appropriate in light of the fact that the 
DOD has determined that the injury or illness incurred by the 
servicemember is serious enough to warrant the immediate presence of a 
family member at the servicemember's bedside. Moreover, in many 
circumstances where ITOs or ITAs are issued, it may be extremely 
difficult for an employee to provide an otherwise timely certification 
that complies with the requirements of Sec.  825.310 to an employer. 
The Department also believes this approach appropriately accommodates 
an employer's right to obtain a sufficient certification from an 
employee in order to designate such leave as FMLA qualified.
    Given the seriousness of the injuries or illness incurred by a 
servicemember whose family member receives an ITO or ITA, and the 
immediate need for the family member at the servicemember's bedside, it 
is the Department's intention to remove as many certification hurdles 
for the employee as possible for the duration of the order or 
authorization. Accordingly, the final rule further provides that during 
the period of time specified in the ITO or ITA, an eligible employee 
may take leave to care for the covered servicemember in a continuous 
block of time or on an intermittent basis.

[[Page 68028]]

An eligible employee who provides an ITO or ITA to support his or her 
request for leave may not be required to provide any additional or 
separate certification that leave taken on an intermittent basis during 
the period of time specified in the ITO or ITA is medically necessary. 
The final rule also provides that an employer must not refuse to accept 
an ITO or ITA because the order or authorization is not signed by a 
health care provider. As long as the ITO or ITA is issued by the DOD, 
an employer must accept it. While an ITO or ITA is only issued to 
family members upon the direction of a DOD health care provider, the 
actual order or authorization may or may not be signed by a health care 
provider.
    If an employee will need leave to care for a covered servicemember 
beyond the expiration date specified in an ITO or ITA, the final rule 
permits an employer to require that the employee have one of the 
authorized health care providers listed under Sec.  825.310(a) complete 
the DOL optional certification form (WH-385) or an employer's own form, 
as requisite certification for the remainder of the employee's 
necessary leave period. The Department is permitting this additional 
certification, if an employer so chooses, in order to allow an employer 
to obtain information about the employee's continued need for leave 
once the ITO or ITA expires, including specific information regarding 
the servicemember's injury or illness and its expected duration. The 
Department believes this approach is reasonable since the ITO or ITA 
will not provide the employer with such information initially. 
Furthermore, the Department believes that once an ITO or ITA expires, 
the employee will be in a better position to have an authorized health 
care provider furnish a complete certification as to the 
servicemember's medical condition and the employee's continuing need 
for leave.
    The final rule also permits an eligible employee who is a spouse, 
parent, son, daughter or next of kin of a covered servicemember to 
submit an ITO or ITA issued to another family member as sufficient 
certification for the duration of time specified in the ITO or ITA, 
even if the employee seeking leave is not the named recipient on the 
ITO or ITA. Thus, for example, a covered servicemember's son may submit 
an ITO issued to the servicemember's spouse to support the son's 
request for FMLA leave to care for the servicemember during the time 
period specified by the ITO. An employer must accept such an ITO or ITA 
from the employee as sufficient certification, in lieu of the 
Department's optional certification form (WH-385) or an employer's own 
certification form, for the duration of time specified in the order or 
authorization.
    The DOD does not issue an ITO or ITA to every family member of an 
injured or ill servicemember who might be eligible to take FMLA leave 
to care for the covered servicemember. It is the Department's 
understanding that if the DOD issues an ITO or ITA at all, they do so 
for between one and three family members of the servicemember. However, 
in some situations, the servicemember may have additional family 
members who are eligible to take FMLA leave to care for the 
servicemember, even if the DOD has not authorized an ITO for that 
person. For example, an ITO or ITA can be issued to the spouse of a 
servicemember without also being issued to a servicemember's parents, 
children, or siblings. The Department believes that all family members 
of a covered servicemember who are eligible to take FMLA leave to care 
for the covered servicemember should be able to rely on the DOD's 
issuance of an ITO or ITA as sufficient certification to support a 
request for FMLA leave during the effective period of the ITO or ITA. 
Like a named recipient in an ITO or ITA, an employee using another 
family member's orders or authorizations may take the leave in a 
continuous block or on an intermittent basis for the duration of time 
specified in the ITO or ITA without providing an additional or separate 
certification that such leave is medically necessary. However, an 
employer may require an employee to provide confirmation of covered 
family relationship to the seriously injured or ill servicemember 
pursuant to Sec.  825.122(j) of the FMLA in support of the employee's 
use of an ITO or ITA.
    In addition to requesting comment on the appropriate certification 
process for military caregiver leave, the Department also sought 
comment on whether the clarification, authentication, second and third 
opinion, and recertification provisions applicable to FMLA leave taken 
to care for a family member with a serious health condition should be 
applied to certifications supporting FMLA leave taken to care for a 
covered servicemember. Sections 825.310(d) and (e)(2) of the final rule 
provide that an employer may seek to authenticate and clarify a 
certification provided in support of a request for leave to care for a 
covered servicemember, including ITOs or ITAs. The final rule does not 
permit an employer to seek second and/or third opinions of an 
employee's need to care for a covered servicemember in any case. 
Because leave to care for a covered servicemember is a one-time 
entitlement that must be used within a ``single 12-month period,'' the 
final rule also does not provide a recertification process for leave to 
care for a covered servicemember. The final rule does permit an 
employer to require an employee to provide confirmation of covered 
family relationship to the covered servicemember pursuant to Sec.  
825.122(j).
    Comments addressing whether the FMLA clarification, authentication, 
second and third opinion, and recertification processes used for other 
types of FMLA leave should apply to military caregiver leave were 
mixed. The U.S. Postal Service wrote that ``[c]onsistent with the other 
provisions of the FMLA, the employer should have the ability to seek 
clarification, authentication, recertification, and second/third 
opinions, if necessary.'' Infinisource, Inc. commented that there are 
``clear advantages'' for adopting the same certification scheme for 
military caregiver leave that exists for leave for a serious health 
condition, and that ``[t]his would include first and subsequent 
certifications, second opinions and third opinions. It would be easiest 
for employers and employees alike to know that there is one set of 
rules for all types of FMLA leave.''
    However, other commenters believed that a certification for 
military caregiver leave should not require the same follow-up 
mechanisms as permitted under the FMLA for a serious health condition. 
AT&T wrote that if leave to care for a covered servicemember is limited 
to a single 12-month period, there should be ``no need for a general 
recertification (i.e., once every 6 months) after initial certification 
has been secured.'' The National Partnership for Women & Families, in 
joint comments with the National Military Family Association, argued 
that the authentication and clarification processes applicable to other 
types of FMLA leave should not apply to leave taken to care for a 
covered servicemember because requiring ``frequent certification'' will 
be difficult for the family members of servicemembers and will 
discourage them from taking leave, particularly given the likelihood 
that the employee will be away from home because the servicemember is 
in a ``highly specialized'' hospital unit. These commenters also argued 
that recertification is not necessary because the NDAA limits the leave 
taking to one 12-month period.
    The Department agrees with those commenters that argued that 
similar procedures should be used for all types

[[Page 68029]]

of FMLA leave whenever feasible in order to minimize the number of 
different procedures that have to be followed by both employees 
requesting leave and employers administering leave programs. 
Accordingly, the final rule permits employers to authenticate and 
clarify medical certifications submitted to support a request for leave 
to care for a covered servicemember using the procedures applicable to 
FMLA leave taken to care for a family member with a serious health 
condition. However, the Department also agrees with those comments that 
suggested that it would not be appropriate to apply the recertification 
and second and third opinion processes used for other types of FMLA 
leave to military caregiver leave. Because an employee's use of 
military caregiver leave is limited to a ``single 12-month period'' 
from the date such leave is first taken, the Department has concluded 
that recertification and second and third opinions are not warranted 
for purposes of military caregiver leave. In addition, because the 
statutory standard for determining whether a family member has a 
serious injury or illness is dependent on several determinations which 
can only be made by the military, including whether the injury may 
render the servicemember unfit to perform his or her duties and whether 
the injury was incurred in the line of duty on active duty, the 
Department believes it would be inappropriate to permit second and 
third opinions regarding these determinations.
    The Department also specifically sought comment in the NPRM on 
whether there should be different timing requirements for the provision 
of any required certification for military caregiver leave. The final 
rule applies the same timing requirements to all requests for FMLA 
leave. Thus, under Sec.  825.305(b) of the final rule, an employee 
seeking to take military caregiver leave must provide the requested 
certification to the employer within the time frame requested by the 
employer (which must allow at least 15 calendar days after the 
employer's request), unless it is not practicable under the particular 
circumstances to do so despite the employee's diligent, good faith 
efforts.
    A number of commenters expressed concerns regarding timely receipt 
of certifications from the DOD. The Unum Group stated that a 
certification from the DOD should be sufficient to establish whether a 
serious injury or illness exists, but that employers should also be 
able to use a certification from a health care provider as well 
``because of potential time concerns with receiving the certification 
from the Department of Defense.'' The Manufacturers Alliance/MAPI 
expressed concern with the timeliness in which the DOD and VA can 
provide certifications, stating that ``numerous media reports about 
some returning injured servicemembers who have faced obstacles and 
delays in receiving treatment through these Departments--often as a 
result of missing or inaccurate paperwork--at least call into question 
whether these Departments have the full capability to supply 
certifications with sufficient medical information in a timely fashion. 
Neither employers nor employees would be well served if they must wait 
months to obtain these certifications.'' The National Partnership for 
Women & Families, in joint comments with the National Military Family 
Association, commented that ``given the well documented delays and 
uneven outcomes of employees going through the military disability 
system, we are concerned that any certification requirement created by 
the DOD or VA will be overly burdensome and may lead to unequal 
results.'' Therefore, these commenters recommended that the Department 
develop a ``simple form, similar to the medical forms used in the rest 
of the FMLA, which will allow private health care providers, DOD, or 
the VA to make this a simple and expedited process.'' They also 
suggested that the Department should consult with the DOD and VA to 
determine which office within these organizations would be responsible 
for issuing certifications and set a ``maximum amount of time'' by 
which the offices should respond to such a request--``for example, a 
maximum of 15 days.'' In contrast, a number of employers and employer 
groups, including the Equal Employment Advisory Council, ORC Worldwide, 
and AT&T, recommended that the timing requirements set out in the 
Department's NPRM for the certification of a serious health condition 
should be applied to the certification for military caregiver leave.
    The Department agrees with the comments submitted by Senator Dodd 
and Representative Woolsey et al. that delays in the provision of 
service at the DOD and VA could ``undermine the intent of the law'' in 
providing family assistance to those who need it most. The Department 
is fully cognizant of the special circumstances surrounding this type 
of leave and the fact that an employee may have very little notice 
before he or she is needed to care for a seriously injured or ill 
servicemember. As noted by the National Partnership for Women & 
Families, in joint comments with the National Military Family 
Association, employees may need to travel in order to be with an 
injured servicemember and may not be near a specific DOD or VA office 
where paperwork can be completed. In addition, the Department fully 
recognizes and acknowledges the concerns expressed by commenters 
regarding the timely receipt of certifications from the DOD. It is for 
these reasons that the Department is requiring employers to accept ITOs 
and ITAs as sufficient certification for those employees who must 
travel immediately to the bedside of their seriously injured or ill 
servicemember.
    Furthermore, these timing concerns guided the Department in working 
with the DOD to create the Department's optional certification form 
(WH-385). Consistent with the recommendation received from the National 
Partnership for Women & Families, in joint comments with the National 
Military Family Association, the Department created a ``simple form, 
similar to the medical forms used in the rest of the FMLA'' which will 
allow the DOD, VA, and DOD TRICARE private health care providers to 
make this a ``simple and expedited process.'' The Department also 
believes that the inclusion of TRICARE private health care providers as 
one of the categories of health care providers authorized to complete a 
certification will give greater flexibility to employees seeking to 
certify that they are needed to care for a covered servicemember with a 
serious injury or illness. Additionally, the Department believes the 
inclusion of these private health care providers will allay the 
concerns of commenters that there might be significant delays in the 
receipt of certifications if only the DOD and/or VA could complete the 
necessary certification.
    The Department has taken significant steps to simplify the 
certification process for military caregiver leave, such as creating, 
with the assistance of the DOD, a simplified Department optional 
certification form, by requiring an employer to accept ITOs or ITAs as 
sufficient certification, and by authorizing TRICARE private health 
care providers to issue certifications. Given these provisions, the 
Department does not believe that different timing requirements should 
be created for the receipt of certifications for military caregiver 
leave. Thus, the final rule provides that an employee seeking FMLA 
leave to care for a covered servicemember must comply with the timing 
requirements for certifications set forth in Sec.  825.305(b). Under 
this

[[Page 68030]]

section, an employee seeking FMLA leave to care for a covered 
servicemember must provide the requested certification to the employer 
within the time frame requested by the employer (which must allow at 
least 15 calendar days after the employer's request), unless it is not 
practicable under the particular circumstances to do so despite the 
employee's diligent, good faith efforts.
Section 825.311 (Intent To Return to Work)
    The Department did not propose any changes in Sec.  825.309 in the 
NPRM and received no significant comments on this section. In the final 
rule, Sec.  825.309 is renumbered as Sec.  825.311 to account for the 
new military family leave sections (Sec. Sec.  825.309 and 825.310) and 
is otherwise adopted as proposed.
Section 825.312 (Fitness-for-Duty Certification)
    Section 825.312 addresses the fitness-for-duty certification that 
an employee may be required to submit upon return to work from FMLA 
leave. This section was numbered Sec.  825.310 in the NPRM but is 
renumbered as Sec.  825.312 in the final rule to account for the new 
military family leave sections (Sec. Sec.  825.309 and 825.310). The 
Department proposed to add a sentence to paragraph (a) clarifying that 
employees have the same obligation to provide a complete certification 
or provide sufficient authorization to the health care provider in 
order for that person to provide the information directly to the 
employer in the fitness-for-duty certification process as they do in 
the initial certification process. The Department did not propose any 
changes to current paragraph (b). The Department proposed to change 
current paragraph (c) in two respects. First, the Department proposed 
to change the requirement in current paragraph (c) that the fitness-
for-duty certification need only be a ``simple statement.'' The 
Department proposed to allow an employer to require that the fitness-
for-duty certification address the employee's ability to perform the 
essential functions of the employee's job as long as the employer 
provides the employee with a list of those essential job functions at 
the same time that the employer provides the eligibility notice 
required by proposed Sec.  825.300(b). Second, the Department proposed 
to allow an employer to contact the employee's health care provider 
directly, consistent with the procedure in proposed Sec.  825.307(a), 
for purposes of authenticating or clarifying the fitness-for-duty 
certification. The Department did not propose any changes to current 
paragraph (d). The Department proposed to modify current paragraph (e) 
to require that the employer advise the employee in the eligibility 
notice required by proposed Sec.  825.300(b) if the employer will 
require a fitness-for-duty certification to return to work. The 
Department proposed to add language to current paragraph (f) to make 
clear that the employee is not entitled to the reinstatement 
protections of the Act if he or she does not provide the required 
fitness-for-duty certification or request additional FMLA leave. The 
Department proposed to change current paragraph (g) to allow an 
employer to require a fitness-for-duty certification up to once every 
30 days if an employee has used intermittent or reduced schedule leave 
during the 30-day period and if reasonable safety concerns exist 
regarding the employee's ability to perform his or her duties, based on 
the serious health condition for which the employee took such leave. 
Finally, the Department proposed deleting current paragraph (h) as 
redundant with Sec.  825.213 regarding repayment of health insurance 
premiums if the employee is unable to return to work as a result of a 
continuation of a serious health condition.
    The final rule adopts the proposed change to paragraph (a). The 
Department has moved the statements in current paragraph (b) that 
discusses the applicability of provisions in state or local law or 
collective bargaining agreements that govern an employee's return to 
work to a new paragraph (g) in the final rule. The Department has also 
moved the discussion of the ADA in current paragraph (b) to a new and 
separate paragraph (h) in the final rule. Due to the reorganization of 
this section in the final rule, proposed paragraph (c) is paragraph (b) 
in the final rule. In paragraph (b) in the final rule, the Department 
adopts the proposed change but modifies the language to make clear that 
an employer may require that a fitness-for-duty certification 
specifically address the employee's ability to perform the essential 
functions of the employee's job. To do so, the final rules explain that 
the employer must provide the employee with a list of the essential job 
functions no later than with the designation notice required by Sec.  
825.300(d), rather than with the eligibility notice as proposed, and 
the employer must indicate in the designation notice that the 
certification must address the employee's ability to perform those 
essential functions. In addition, the Department has moved the 
statement in current paragraph (e) that no second or third opinions on 
a fitness-for-duty certification may be required to paragraph (b) in 
the final rule. Current paragraph (d) is paragraph (c) in the final 
rule. Current paragraph (e) is paragraph (d) in the final rule. The 
Department has modified the notice requirement in paragraph (d) in the 
final rule to provide that, if the employer will require a fitness-for-
duty certification, the employer must advise the employee of this 
requirement in the designation notice and indicate therein whether that 
certification must address the employee's ability to perform the 
essential functions of the employee's job. Current paragraph (f) is 
paragraph (e) in the final rule. The Department adopts the proposed 
change to current paragraph (f) without modifications. Current 
paragraph (g) is paragraph (f) in the final rule. The Department adopts 
the proposal in this paragraph regarding uniformly-applied policies 
permitting fitness-for-duty certifications for intermittent and reduced 
schedule leave users when reasonable safety concerns are present and 
adds a definition of ``reasonable safety concerns.'' ``Reasonable 
safety concerns'' means a reasonable belief of a significant risk of 
harm to the individual employee or others. In determining whether 
reasonable safety concerns exist, an employer should consider the 
nature and severity of the potential harm and the likelihood that 
potential harm will occur. In addition, the Department has added a 
notice requirement to this paragraph requiring the employer, if it 
chooses to require a fitness-for-duty certification as allowed by this 
paragraph, to inform the employee at the same time it issues the 
designation notice that for each subsequent instance of intermittent or 
reduced schedule leave, the employee will be required to submit a 
fitness-for-duty certification unless one has already been submitted 
within the past 30 days. Alternatively, the employer can set a 
different interval for requiring a fitness-for-duty certification as 
long as it does not exceed more than once every 30 days and the 
employer advises the employee of the requirement in advance of the 
employee taking intermittent or reduced schedule leave. The Department 
deletes current paragraph (h) in the final rule.
    The Department received few substantive comments on its proposal to 
add a sentence to paragraph (a) clarifying that employees have the same 
obligation to provide a complete certification or provide sufficient 
authorization to the health care provider to enable that person to 
provide the

[[Page 68031]]

information directly to the employer in the fitness-for-duty 
certification process as they do in the initial certification process. 
The Equal Employment Advisory Council supported the proposal, noting 
the importance of the fitness-for-duty certification to an employee's 
exercise of the right to reinstatement. The Department adopts the 
proposed clarification to paragraph (a) without modification.
    The Department did not propose any changes to current paragraph 
(b), which addresses the applicability of provisions in state or local 
law or collective bargaining agreements that govern an employee's 
return to work, and the ADA in the fitness-for-duty context. However, 
to make clear that the statements in this paragraph apply to all of the 
provisions in Sec.  825.312, the Department has moved the statements in 
current paragraph (b) to the end of the section in the final rule. 
Thus, the statement that provisions in state or local law or the terms 
of a collective bargaining agreement that govern an employee's return 
to work shall be applied is in paragraph (g) in the final rule. 
Additionally, for reasons discussed below, the Department has moved the 
discussion of the ADA contained in current paragraph (b) to a new 
paragraph (h) in the final rule in order to highlight the relationship 
between the FMLA's fitness-for-duty certification and the ADA. The 
Department does not intend for either of these changes to be 
substantive.
    In response the proposal in paragraph (c) to allow employers to 
require that fitness-for-duty certifications contain more than a 
``simple statement'' of the employee's ability to return to work, many 
employers and employer organizations welcomed the ability to obtain a 
certification that addresses the employee's ability to perform the 
essential functions of the job. See National Association of 
Manufacturers; National Business Group on Health; ORC Worldwide; 
National Restaurant Association; AT&T; International Public Management 
Association for Human Resources/International Municipal Lawyers 
Association. Domtar Paper Company recognized that providing a list of 
essential job functions may be burdensome to employers, but asserted 
that it was worth the effort if the employer wants a more useful 
fitness-for-duty certification.
    In contrast, employee organizations and unions opposed this 
proposed change, because they believed it would be duplicative, 
onerous, and costly for employees. See United Food and Commercial 
Workers International Union; Coalition of Labor Union Women; National 
Partnership for Women & Families; Tracy Hutchinson. The Coalition of 
Labor Union Women commented that the additional information that an 
employee is required to provide will likely increase the cost to 
employees because it might necessitate an additional medical 
evaluation. Commenters including Richard Baerlocher and the United Food 
and Commercial Workers International Union asserted that a more 
detailed certification could delay an employee's return to work, which 
could require the employee to take more FMLA leave than needed or face 
discipline if the employee has no leave remaining. These commenters 
argued that this will discourage employees from taking FMLA leave. The 
United Food and Commercial Workers International Union also questioned 
the necessity of a detailed fitness-for-duty certification when the 
initial medical certification for FMLA leave requires the employee's 
health care provider to assess the employee's condition in relationship 
to the employee's essential job functions. This commenter argued that 
because the health care provider has already considered the essential 
functions of the employee's position in completing the initial 
certification, by certifying that the employee is fit to return to 
duty, the health care provider necessarily certifies that the 
employee's serious health condition no longer prevents the employee 
from being able to perform the essential functions of his or her job.
    The Department notes that the current regulation already allows an 
employer to delay an employee's return to work until the employee 
provides a fitness-for-duty certification, assuming the employer has 
appropriately notified the employee of the requirement. The only 
difference under the proposed regulation is that the employer may, if 
it so chooses, require that the fitness-for-duty certification address 
the employee's ability to perform the essential functions of the job. 
Because the employee will know in advance (as discussed below) that a 
fitness-for-duty certification is required, and that it must address 
the employee's ability to perform the essential functions of the 
employee's job, and will have the list of essential job functions to 
present to his or her health care provider, the additional requirement 
that the fitness-for-duty certification address the employee's ability 
to perform the essential functions of the job should not impose any 
additional delay in the employee's return to work. Additionally, 
requiring the health care provider to address the employee's essential 
job functions when determining whether the employee is fit to return to 
duty will produce a more meaningful fitness-for-duty certification. The 
fact that the employee's health care provider certified, in the medical 
certification submitted in support of the request for leave, that the 
employee was unable to perform the essential functions of the 
employee's position does not mean that the health care provider will 
specifically consider these functions again when the employee seeks to 
return to work unless specifically called upon to do so.
    The AFL-CIO commented that the Department's proposal to allow 
employers to require a fitness-for-duty certification that addresses an 
employee's ability to perform the essential functions of the position 
for all employees goes beyond what it asserted was a more limited 
request by employer groups to allow more detailed certifications for 
employees in safety-sensitive jobs. The Department notes that the FMLA 
does not obligate employers to restore any employee to the same or 
equivalent position if the employee is unable to resume work. Resuming 
work requires that the employee be able to perform the essential 
functions of the job. Accordingly, an employer is entitled in all cases 
in which it is authorized to obtain a fitness-for-duty certification to 
require that the certification address the employee's ability to 
perform the essential functions of the position. An employer's rights 
and obligations on this issue are not limited to employees working in 
safety-sensitive jobs.
    Several employers and employer organizations, while supportive of 
the proposal, viewed the timing requirements under the proposal as 
problematic. See Equal Employment Advisory Council; ORC Worldwide; HR 
Policy Association; Manufacturers Alliance. Their comments on this 
subject addressed proposed paragraph (e)'s requirement that the 
employer inform the employee in the eligibility notice if the employer 
will require a fitness-for-duty certification to return to work and 
proposed paragraph (c)'s requirement that the employer provide the list 
of essential job functions with the eligibility notice. Specifically, 
they argued that this timing requirement is premature (for reasons 
discussed in detail in conjunction with the discussion of paragraph (e) 
below). These commenters stated that requiring employers to provide a 
list of essential job functions with the eligibility notice will be 
burdensome and costly to employers because in order to preserve the 
option of requiring a fitness-for-duty certification, they will be 
forced to

[[Page 68032]]

prepare lists of essential job functions in all instances; whereas if 
they could determine later whether a fitness-for-duty certification 
will be required and whether the fitness-for-duty certification needs 
to address the employee's ability to perform the essential job 
functions, they may decide not to require a fitness-for-duty 
certification at all or not to require a certification that addresses 
an employee's essential job functions in certain cases. These 
commenters recommended that employers be permitted to provide the list 
of essential job functions at a later time. The Equal Employment 
Advisory Council suggested that the fitness-for-duty certification 
notice requirement should come, at the earliest, at the designation 
notice stage. ORC Worldwide suggested there be no time limit on when an 
employer must advise an employee of the fitness-for-duty certification 
requirement because this will change on a case-by-case basis. According 
to the Manufacturers Alliance and the HR Policy Association, a later 
notice requirement would not be burdensome to employees because 
employees could simply fax or email the fitness-for-duty certification 
and list of essential job functions to their health care providers upon 
receiving notice that the fitness-for-duty certification is needed. The 
National Association of Manufacturers and AT&T suggested altering the 
timing to allow an employer to provide the list of essential job 
functions directly to the health care provider when seeking 
authentication or clarification of the fitness-for-duty certification.
    As an initial matter, the Department notes that it has not prepared 
or issued a fitness-for-duty certification form. It appears that 
several commenters erroneously assumed that the Department had proposed 
a separate fitness-for-duty certification form for an employee's health 
care provider to complete. There is no fitness-for-duty certification 
form, nor is there any specific format such a certification must follow 
as long as it contains the required information. The Department also 
notes that this section permits an employer to require that the 
fitness-for-duty certification address the employee's ability to 
perform the essential functions of his or her position. However, the 
employer can chose to accept a simple statement fitness-for-duty 
certification (or not require a fitness-for-duty certification at all). 
The Department has modified the language in the final rule in paragraph 
(b) to make this distinction clear. Specifically, if the employer 
chooses to require a certification that addresses the employee's 
ability to perform the essential functions of the employee's job, the 
employer must so indicate in the designation notice (in addition to 
providing a list of the essential functions of the employee's job).
    In response to the comments about the timing requirements in the 
proposal, the Department has changed the timing requirement in what was 
proposed paragraph (e) and is now paragraph (d) in the final rule 
(discussed in detail below) to coincide with the designation notice 
instead of the eligibility notice. For consistency, the Department has 
also changed paragraph (b) in the final rule to require the employer to 
provide the list of essential functions no later than with the 
designation notice. Therefore, final paragraph (b) states that if the 
employer will require that the fitness-for-duty certification address 
the employee's ability to perform the essential job functions, the 
employer must provide the employee with the list of the essential job 
functions no later than with the designation notice required by Sec.  
825.300(d).
    The AFL-CIO and the law firm Sherman & Howard each addressed the 
preparation of the list of essential job functions. The AFL-CIO 
commented that the proposal would appear to give employers the ability 
to determine the essential job functions regardless of whether a 
written job description already exists. The AFL-CIO believes that 
employers that do not already have written job descriptions should not 
be able to create a list of essential functions for the purpose of 
determining if an employee is fit to return to duty because employers 
will use this as an opportunity to create arbitrary lists to penalize 
employees for taking FMLA leave. In contrast, the law firm Sherman & 
Howard requested that employers be able to provide the list of 
essential job functions regardless of whether those functions are 
listed in a formal job description. While employers must set forth the 
essential functions of an employee's position if they wish to require a 
fitness for duty certification that specifically addresses those 
functions, there is no requirement that an employer have pre-existing 
written job descriptions. There is no legal requirement under the FMLA 
that employers have written or formal job descriptions for all 
positions. It would be unreasonably burdensome to impose such a 
requirement. The Department notes, however, that an employer may rely 
on its determination of the essential functions of a position in 
denying an employee's return to work only to the extent that the 
essential functions it has listed are in fact essential functions of 
the position.
    In conjunction with these proposed changes, the Department 
requested input concerning whether additional information or 
procedures, such as a second and third opinion process, should be 
permitted where an employer has reason to doubt the validity of the 
fitness-for-duty certification. Several employers and employer 
organizations requested that the Department establish a second and 
third opinion process for fitness-for-duty certifications. See Equal 
Employment Advisory Council; TOC Management Services; National School 
Boards Association. The Independence (MO) Human Resources Department 
and Catholic Charities noted that this is particularly important in 
safety-sensitive positions. The Society for Human Resource Management 
and the National Coalition to Protect Family Leave argued that 
prohibiting an employer from seeking second and third opinions presents 
safety concerns and conflicts with the fitness-for-duty assessment 
permitted under the ADA. The Southern Company expressed concern that an 
employee may pressure his or her health care provider to certify that 
the employee is able to return to work before he or she is truly ready. 
This commenter suggested that permitting a second and third opinion 
would address this problem. The Association of American Railroads 
requested that employers be allowed to apply the same fitness-for-duty 
certification standards to employees returning from FMLA leave as 
employers apply to employees returning from other forms of leave. The 
law firm Vercruysse Murray & Calzone suggested that employers be 
allowed to delay an employee's return to work pending a second and 
third opinion. The Equal Employment Advisory Council noted that the 
current regulation allows employers to require an employee to submit to 
a medical examination after returning from leave so long as the 
examination is consistent with ADA standards. It requested that the 
final regulation explicitly permit such a post return-to-work 
examination, in addition to second and third opinions on a fitness-for-
duty certification. Others, including the law firm Spencer Fane Britt & 
Browne and Central Carolina Society for Human Resource Management 
suggested as an alternative to second and third opinions in the 
fitness-for-duty context that employers be allowed to require a full 
medical examination by the employer's health care provider before 
allowing an employee to return to work. These


[[Continued on page 68033]]


From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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[[pp. 68033-68082]] The Family and Medical Leave Act of 1993

[[Continued from page 68032]]

[[Page 68033]]

commenters maintained that employers should use such examinations only 
on a uniformly applied basis that does not distinguish between FMLA 
leave and non-FMLA leave. On a similar note, the U.S. Department of 
Transportation, Federal Railroad Administration requested that 
employers be able to use their own health care providers to evaluate an 
employee's fitness to return to duty.
    The Equal Employment Opportunity Commission commented that, 
contrary to some of the other commenters' assertions, prohibiting 
second and third opinions on fitness-for-duty certifications does not 
conflict with the ADA. The ADA does not expressly regulate second and 
third opinions. The Equal Employment Opportunity Commission stated that 
the current regulation already addresses the Commission's highest 
priority by making clear in current paragraph (b) (paragraph (h) in the 
final rule) that a fitness-for-duty examination must be job-related and 
consistent with business necessity.
    The National Federation of Federal Employees and the AFL-CIO were 
opposed to including a second and third opinion process in the fitness-
for-duty certification procedure. Both commenters maintained that the 
statute does not permit second and third opinions for fitness-for-duty 
certifications. On a related note, the Association of Professional 
Flight Attendants suggested that if an employer questions an employee's 
general ability to perform the essential functions of the job, the 
employer may choose to send the employee to a doctor for a general 
fitness-for-duty examination at the employer's expense and on-the-clock 
for the employee.
    The Department declines to establish a second and third opinion 
process for a fitness-for-duty certification. A second and third 
opinion process would impose a significant burden on employees because 
it would delay an employee's return to work from FMLA leave. The 
statute permits an employee to return to work based on a uniformly-
applied policy permitting a fitness-for-duty certification from the 
employee's health care provider, 29 U.S.C. 2614(a)(4). A fitness-for-
duty certification need only address the condition for which FMLA leave 
was taken and the employee's ability to perform the essential functions 
of the job. The employee's health care provider determines whether a 
separate examination is required in order to determine the employee's 
fitness to return to duty under the FMLA. The statute does not require 
that an employee returning from FMLA leave submit to a medical 
examination by an employer's health care provider. An employer may not 
require that an employee submit to a medical exam by the employer's 
health care provider as a condition of returning to work. A medical 
examination at the employer's expense by an employer's health care 
provider may be required only after the employee has returned from FMLA 
leave and must be job-related and consistent with business necessity as 
required by the ADA. Thus, if an employer is concerned about the health 
care provider's fitness-for-duty certification, the employer may, 
consistent with the ADA, require a medical exam at the employer's 
expense after the employee has returned to work from FMLA leave as 
stated in paragraph (h) in the final rule. The employer cannot, 
however, delay the employee's return to work while arranging for and 
having the employee undergo a medical examination. The Department has 
moved the statement that no second or third opinions on a fitness-for-
duty certification may be required from current paragraph (e) to 
paragraph (b) in the final rule because this follows logically the 
discussion regarding the content of the certification and the 
employer's ability to authenticate or clarify the fitness-for-duty 
certification.
    The second change the Department included in proposed paragraph (c) 
was to allow an employer to contact the employee's health care provider 
directly, consistent with the procedure in proposed Sec.  825.307(a), 
for purposes of authenticating or clarifying the fitness-for-duty 
certification. In conjunction with this change, the Department deleted 
the statement that no additional information may be acquired because 
the process of clarifying the fitness-for-duty certification may result 
in the employer obtaining additional information not initially provided 
on the fitness-for-duty certification; any additional information, 
however, must be limited to the condition for which the leave was taken 
and the employee's ability to perform the essential functions of the 
position.
    The Service Employee International Union, the American Association 
of University Women, and the National Employment Lawyers Association 
opposed the Department's proposal to allow direct contact between the 
employer and the employee's health care provider consistent with the 
procedure proposed in Sec.  825.307(a). The National Employment Lawyers 
Association expressed concern that this will have a chilling effect on 
whether employees will feel secure in taking FMLA leave for their own 
serious health condition. This issue of employer contact with the 
employee's health care provider is discussed extensively in regard to 
Sec.  825.307. For the same reasons outlined there, the Department 
retains the provision allowing for an employer to contact directly the 
employee's health care provider to clarify or authenticate a fitness-
for-duty certification. As discussed above in Sec.  825.307, the 
Department has modified Sec.  825.307(a) to specify the manner in which 
the employer may contact the employee's health care provider. Because 
paragraph (b) explicitly references Sec.  825.307(a), the procedures 
set forth in Sec.  825.307(a) apply in the fitness-for-duty 
certification context.
    As noted above, several commenters objected to proposed paragraph 
(e)'s requirement that the employer advise the employee in the 
eligibility notice if a fitness-for-duty certification will be 
required. See, e.g., Equal Employment Advisory Council; ORC Worldwide; 
HR Policy Association; Manufacturers Alliance. They argued that this 
timing requirement is premature. The Equal Employment Advisory Council 
stated that this is inconsistent with the Department's proposed 
simplification of the notice process and will result in an undue 
administrative burden on both employers and employees because some 
employers do not require medical documentation until an employee misses 
a threshold number of workdays. According to this commenter, requiring 
notice at the eligibility notice stage will instead force employers to 
require a fitness-for-duty certification in all instances in which the 
FMLA permits them to do so and will force some employees to obtain 
fitness-for-duty certifications that would otherwise not have been 
required. The HR Policy Association expressed these same concerns and 
asserted that this timing requirement could create a greater burden on 
employers and employees rather than a lesser burden. The Equal 
Employment Advisory Council suggested that the fitness-for-duty 
certification notice requirement should come, at the earliest, at the 
designation notice stage. ORC Worldwide and the HR Policy Association 
suggested there be no time limit on when an employer must advise an 
employee of the fitness-for-duty certification requirement because this 
will change on a case-by-case basis.
    In response to the comments about the timing requirements, the 
Department has modified these requirements. As outlined in the 
comments, an employer may not know

[[Page 68034]]

at the eligibility notice stage if it will need a fitness-for-duty 
certification. It may depend on the nature of the employee's health 
condition and the duration of the leave. Requiring that an employer 
state that it will require a fitness-for-duty certification in order to 
preserve its right to request one later could have the effect of 
forcing an employer to require such certifications in all instances, 
even when it would not do so otherwise. However, in order to reduce the 
burden on the employee, if the employer is going to require a fitness-
for-duty certification prior to returning the employee to work, the 
employer must provide notice of this requirement no later than in the 
designation notice and indicate in the designation notice whether 
certification must address the employee's ability to perform the 
essential functions of the employee's job. Further, if the employer 
will require a fitness-for-duty certification that addresses the 
employee's ability to perform the essential job functions, the employer 
must provide the employee with the list of essential functions as 
required by final paragraph (b) no later than with the designation 
notice.
    The Department did not receive any significant comments 
specifically addressed to the change in proposed paragraph (f) to add 
language to current paragraph (f) to make clear that the employee is 
not entitled to the reinstatement protections of the Act if he or she 
does not provide the required fitness-for-duty certification or request 
additional FMLA leave. The Department adopts the proposal without 
modification. Due to the reorganization of this section, current 
paragraph (f) is paragraph (e) in the final rule.
    Proposed paragraph (g) allowed employers to require a uniformly-
applied policy permitting a fitness-for-duty certification for 
employees returning from intermittent or reduced schedule leave if 
reasonable safety concerns existed, but limited the frequency of such 
certifications to once in a 30-day period in which intermittent or 
reduced schedule leave was taken. Numerous employee unions and 
organizations opposed proposed paragraph (g), focusing most of their 
criticism on the increased costs that requiring fitness-for-duty 
certifications for employees returning from intermittent or reduced 
schedule leave would impose on employees. See, e.g., National 
Federation of Federal Employees; Coalition of Labor Union Women; 
National Employment Lawyers Association; AFL-CIO; National Partnership 
for Women & Families; A Better Balance: The Work and Family Legal 
Center. These commenters said that requiring an employee in a safety-
sensitive position to obtain a fitness-for-duty certification every 30 
days when the employee has taken intermittent leave during the 30-day 
period will increase the costs to the employee of taking FMLA leave, 
which may cause employees to forego taking FMLA leave. Robert Schwartz 
noted that an employee who is absent one day a month because of a back 
condition could be required to submit twelve certifications a year. 
Robert Jusino commented that this is especially costly for employees 
who do not have health insurance or have a high deductible. He and the 
American College of Occupational and Environmental Medicine each 
suggested that the Department require the employer to pay for the 
fitness-for-duty certification if the employer is going to require it 
when an employee takes intermittent or reduced schedule leave. 
Similarly, in response to the Department's request for suggestions on 
how to minimize the cost to employees, A Better Balance: The Work and 
Family Legal Center urged the Department to require employers to share 
a portion of the cost of the required medical visits by providing paid 
sick leave to cover the appointments, and in the case of employers who 
do not provide health insurance, requiring the employer to pay the cost 
of the medical visit necessary to obtain the fitness-for-duty 
certification. The AFL-CIO argued that permitting fitness-for-duty 
certifications for intermittent FMLA absences under any circumstances 
is particularly unworkable and costly to employees with chronic 
conditions such as migraines or asthma because the duration of the 
leave is uncertain and the employee may not be able to schedule an 
appointment with his or her health care provider or request that the 
provider prepare the certification until the employee knows that the 
condition has subsided. The AFL-CIO argued that in these cases, because 
the certification is a condition of restoring the employee to work, the 
employee will be forced to take more leave than actually needed while 
obtaining the certification.
    Employee commenters also questioned the value of the fitness-for-
duty certification in the intermittent and reduce schedule leave 
context even when the employer has safety concerns. The AFL-CIO 
maintained that this requirement is unnecessary in situations where the 
employee's health condition has not changed. It argued that there is no 
purpose in requiring repeat certifications other than imposing a burden 
on employees to discourage them from taking such leave. The National 
Employment Lawyers Association urged the Department to allow an 
employer to require a fitness-for-duty certification for intermittent 
leave users only if there is an observed material change in the 
employee's condition.
    Lastly, several employee commenters pointed out that the term 
``reasonable safety concerns'' is ambiguous and urged the Department to 
define the term. See, e.g., National Employment Lawyers Association; 
AFL-CIO; National Partnership for Women & Families; National Employment 
Lawyers Association. The National Partnership for Women & Families 
questioned whether the safety concerns must be related to safety issues 
of the job or safety issues posed by the serious health condition or 
both, and how this term interacts with the ADA's direct threat 
standard. Kindra Obermeier expressed concern that employers will 
require a fitness-for-duty certification for intermittent or reduced 
schedule leave as a blanket policy, not limited to the existence of 
reasonable safety concerns.
    Employers and employer organizations generally supported allowing 
fitness-for-duty certifications for intermittent or reduced schedule 
leave where reasonable safety concerns exist, but some felt that the 
proposal did not go far enough. Several of these commenters supported 
the proposal, stating that allowing employers to require a fitness-for-
duty certification once in a 30-day period when leave is taken during 
that period adequately addressed their safety concerns and struck the 
appropriate balance. See, e.g., U.S. Postal Service; Association of 
American Railroads; National Association of Manufacturers; the Chamber; 
Spencer Fane Britt & Browne; Southwest Airlines; Navy Federal Credit 
Union; Southern Company; AT&T. The Southern Company recognized that 
this will impose some burden on employees, but believed that the safety 
considerations outweigh that burden. The U.S. Postal Service stated 
that the ADA's direct threat standard (29 CFR 1630.2(r)) is itself 
sufficient to restrain employers from requesting certifications on an 
unwarranted and repetitive basis, and recommended that the Department 
specifically apply the ADA standard.
    Numerous employers and employer organizations, however, stated that 
the proposal did not go far enough because allowing a fitness-for-duty 
certification only once in a 30-day period when the employee takes more 
than one instance of leave during that period does not

[[Page 68035]]

adequately address employers' safety concerns. They urged the 
Department to allow employers to require a fitness-for-duty 
certification after each instance of intermittent or reduced schedule 
leave. See, e.g., Society for Human Resource Management; National 
Coalition to Protect Family Leave; Food Marketing Institute; Colorado 
Department of Personnel & Administration; Schreiber Foods; South 
Carolina Office of Human Resources; Jackson Lewis; New York City (NY) 
Law Department; City of Medford (OR); City of American Canyon (CA); 
Dalton Corp.; International Public Management Association for Human 
Resources/International Municipal Lawyers Association. WorldatWork 
suggested that this would be particularly appropriate where employee 
abuse is suspected. The law firm Willcox & Savage and the National 
School Board Association believed that the fitness-for-duty 
certification for employees returning from intermittent leave should 
not be limited to situations where safety concerns exist. They argued 
that all employees should be able to perform the essential functions of 
the position, and requiring a certification regardless of whether there 
are safety concerns would be a means of controlling abuse of 
intermittent leave.
    The National School Boards Association and the law firm Spencer 
Fane Britt & Browne also requested that the Department define 
``reasonable safety concerns.'' The National School Boards Association 
suggested that the Department make clear that the safety concerns must 
arise due to a particular health condition in relation to an employee's 
position. As an example, this commenter suggested that a teacher who 
suffers from seizures could not be required to provide a fitness-for-
duty certification, but a bus driver could. The law firm Spencer Fane 
Britt & Browne suggested that the term include, at a minimum, the 
possibility of risk of harm or injury to the employee or others, 
whether the employee works around or with dangerous/hazardous equipment 
or products, whether there are OSHA considerations, and whether there 
are Department of Transportation driver medical qualification 
considerations.
    The Department agrees with the commenters that the term 
``reasonable safety concerns'' needs further clarification. Therefore, 
the Department has revised the regulation to include a definition of 
this term. ``Reasonable safety concerns'' means a reasonable belief of 
significant risk of harm to the individual employee or others. In 
determining whether reasonable safety concerns exist, an employer 
should consider the nature and severity of the potential harm and the 
likelihood that potential harm will occur. The Department intends for 
this to be a high standard. The determination that there are reasonable 
safety concerns must rely on objective factual evidence, not subjective 
perceptions. In other words, the employer must have a reasonable 
belief, based on the objective information available, that there is a 
significant risk of harm. Both the employee's condition for which FMLA 
leave was taken and the employee's essential job functions are relevant 
to determine if there are reasonable safety concerns. For example, a 
delivery person whose essential job functions require him or her to 
lift articles over a certain weight and who suffers from a back 
condition that limits his or her ability to lift items above that 
weight may present reasonable safety concerns upon return from 
intermittent or reduced schedule FMLA leave due to the employee's back 
condition. An air traffic controller who takes intermittent leave to 
treat high blood pressure may present reasonable safety concerns upon 
return from intermittent or reduced schedule FMLA leave due to the 
employee's high blood pressure. A roofer who experiences panic attacks 
may present reasonable safety concerns upon return from intermittent or 
reduced schedule FMLA leave due to the employee's panic attacks. In 
contrast, an office worker who has periodic seizures would likely not 
present reasonable safety concerns. Similarly, a cashier who suffers 
from migraines would likely not present reasonable safety concerns upon 
return from intermittent or reduced schedule FMLA leave due to the 
employee's migraines.
    The Department recognizes that this new regulation may impose 
additional costs on some employees. However, because the Department has 
defined the term ``reasonable safety concerns'' to create a high 
standard, and employers may only request a fitness-for-duty 
certification pursuant to a uniformly-applied practice or policy, the 
Department estimates that a relatively small group of employees will 
fall into this category. For these employees, the significant safety 
concerns that their conditions present in the context of their 
essential job functions outweigh the burden imposed.
    The Department wishes to emphasize that, even where employers have 
a uniformly-applied policy of requesting fitness-for-duty 
certifications, employees who take intermittent or reduced schedule 
leave may only be required to provide such certifications where 
reasonable safety concerns are present, and employers cannot under this 
regulation require such certifications in all intermittent or reduced 
schedule leave situations. Furthermore, the requirement may not be used 
to penalize employees who take intermittent or reduced schedule leave. 
An employer may impose this requirement only if there are reasonable 
safety concerns present, as discussed above. The Department's objective 
in allowing an employer to require a fitness-for-duty certification for 
intermittent or reduced schedule leave is to ensure the safety of all 
employees in the workplace and the public when there are legitimate 
reasonable safety concerns.
    The Department declines to adopt the suggestion that a fitness-for-
duty certification for intermittent or reduced schedule leave be 
allowed only when there is a material change in the employee's 
condition. This would not adequately address employers' legitimate 
safety concerns. Likewise, the fact that an employee's condition has 
not changed does not eliminate the reasonable safety concerns that may 
be present depending on the particular condition for which leave was 
taken and the employee's essential job functions.
    The Department also declines to adopt the request to allow a 
fitness-for-duty certification after each instance of intermittent or 
reduced schedule leave. This would impose an unreasonable burden on 
employees. If an employer is concerned that an employee's intermittent 
or reduced schedule leave that occurs more often than once in a 30-day 
period presents safety concerns, the employer may require the employee, 
once returned to work from FMLA leave, to submit to a medical exam as 
long as the exam is job-related and consistent with business necessity 
as required by the ADA (see discussion above). Alternatively, if there 
are changed circumstances in the employee's medical condition, Sec.  
825.308(c) permits an employer to require recertification.
    As provided in paragraph (d) of this section, if the employer will 
require a fitness-for-duty certification, it must notify the employee 
in the designation notice of this requirement. However, the Department 
recognizes that this is logistically difficult when the intermittent or 
reduced schedule leave is unforeseen and the employer may provide the 
designation notice after the employee is ready to return to work. In 
order to provide sufficient advance notice to the employee of the 
fitness-for-duty certification requirement in connection with 
intermittent leave, the Department has adopted a modified

[[Page 68036]]

notice requirement for a fitness-for-duty certification in such 
circumstances. When an employee uses intermittent or reduced schedule 
leave for a condition that presents reasonable safety concerns, if the 
employer chooses to require a fitness-for-duty certification, the 
employer shall inform the employee at the time it issues the 
designation notice that for each subsequent instance of intermittent or 
reduced schedule leave, the employee will be required to submit a 
fitness-for-duty certification unless one has already been submitted 
within the past 30 days. Alternatively, an employer can set a different 
interval of time for a fitness-for-duty certification requirement as 
long as it does not exceed once every 30 days and as long as the 
employer advises the employee of the requirement in advance of the 
employee taking the intermittent or reduced schedule leave. The 
Department recognizes that the first time an employee uses intermittent 
or reduced schedule leave and reasonable safety concerns exist, it may 
be difficult to inform the employee of the fitness-for-duty 
certification requirement in a timely manner. In such instances, 
however, the employer may, consistent with the ADA, require a medical 
exam after the employee has returned to work from FMLA leave.
    The Department did not receive any comments on its proposal to 
delete current paragraph (h) as redundant with Sec.  825.213. 
Therefore, the Department has deleted current paragraph (h) in the 
final rule. As stated above, the Department has moved the statement 
regarding the applicability of the provisions in state or local law or 
the terms of collective bargaining agreements that govern an employee's 
return to work in current paragraph (b) to a new paragraph (h) in the 
final rule in order to make clear that this applies to all of the 
provisions in this section.
    As stated above, the Department has also moved the discussion of 
the ADA in current paragraph (b) to a new paragraph (h) in the final 
rule. The Department has modified the discussion of the ADA in 
paragraph (h) to make clear that medical examinations after the 
employee has returned to work from FMLA leave must be job related and 
consistent with business necessity. The Department has also included 
the statement in Sec.  825.306(d) that ``[i]f an employee's serious 
health condition may also be a disability within the meaning of the 
ADA, the FMLA does not prevent the employer from following the 
procedure for requesting medical information under the ADA'' in 
paragraph (h). Based on the comments, it appears that both employers 
and employees are confused regarding the interaction between the ADA 
and the FMLA in relation to fitness-for-duty certifications. By moving 
the discussion to a separate paragraph and including the statement in 
Sec.  825.306(d) regarding the ADA, the Department intends to make 
clear that, once an employee returns to work and is no longer on FMLA 
leave, an employer may require a medical exam under the guidelines and 
restrictions imposed by the ADA. At that point, the FMLA's fitness-for-
duty regulation no longer applies.
Section 825.313 (Failure To Provide Certification)
    Current Sec.  825.311 provides that if an employee fails to provide 
medical certification in a timely manner, the employer may delay the 
taking of FMLA leave until it has been provided. Current Sec.  
825.311(a) addresses the failure to provide timely certification of the 
foreseeable need for FMLA leave, and Sec.  825.311(b) addresses the 
failure to provide timely certification when the need for FMLA leave is 
not foreseeable. Current Sec.  825.311(c) addresses an employee's 
failure to provide timely certification of the employee's fitness to 
return to work pursuant to Sec.  825.310 (Sec.  825.312 in the final 
rule). In the NPRM, the Department proposed to explain more clearly the 
implications of an employee's failure to provide medical certification 
in a timely manner. To that end, the Department proposed to amend the 
wording in current Sec.  825.311(a) and (b) permitting an employer to 
``delay'' FMLA leave to instead clarify that an employer may ``deny'' 
FMLA leave until the required certification as provided. As explained 
in the NPRM, the proposed change in language was intended to ensure 
that both employees and employers understood the potential impact of a 
failure to provide medical certification in a timely manner, but was 
not a substantive change from the current regulation. The Department 
also proposed a new Sec.  825.311(c) that addressed the consequences of 
failing to provide timely recertification. Current Sec.  825.311(c) was 
redesignated as Sec.  825.311(d) in the proposed rule, without a 
substantive change. The final rule adopts Sec.  825.311 as proposed, 
but the section is renumbered as Sec.  825.313 to account for the new 
military family leave sections (Sec. Sec.  825.309 and 825.310). 
Section 825.313(c) also clarifies that recertification does not apply 
to leave taken for a qualifying exigency or to care for a covered 
servicemember.
    The Department received very few comments regarding proposed Sec.  
825.311 (Sec.  825.313 in the final rule). The Equal Employment 
Advisory Council supported the Department's clarification regarding the 
consequences of an employee's failure to provide medical certification 
but asked the Department to state even more explicitly in the final 
rule that any absences an employee may have during the period in which 
the employer may deny FMLA protection due to the failure to provide 
timely certification may be treated as unexcused, even if certification 
is later provided that covers the period of time in which the 
protection was denied. The law firm of Vercruysse Murray & Calzone 
expressed concern that this section could be read as prohibiting 
employers from disciplining or terminating employees for absences that 
occur during the period in which employers are permitted to deny FMLA 
protection due to the employee's failure to provide timely 
certification. TOC Management Services argued that employees should not 
be given 15 days of protection, as indicated in the example in Sec.  
825.311(a), when they fail to provide timely medical certification. The 
National Retail Federation requested clarification as to whether FMLA 
leave can be denied from the date the employer requests the 
certification or from the date that the employee fails to timely 
provide the certification. The Pennsylvania Governor's Office of 
Administration asked for clarification of the employer's ability to 
retroactively designate leave as FMLA-protected when an employee 
provides late certification.
    The Department believes that Sec.  825.311 as proposed (Sec.  
825.313 in the final rule) is clear as to the consequences of an 
employee's failure to provide timely certification or recertification. 
Any absences that occur during the period in which an employer has the 
right to deny FMLA protection due to the failure to provide timely 
certification may be treated under the employer's normal attendance 
policies. The Department disagrees that, where employees fail to 
provide timely certification, employers should be able to deny FMLA 
protection for the entire period from the request for certification 
until such time as the certification is provided. Employees must be 
provided at least 15 calendar days to provide the requested 
certification, and are entitled to additional time when they are unable 
to meet that deadline despite their diligent, good-faith efforts. The 
Department expects that in all cases employees will communicate to 
their employers the efforts they are making to secure the completed 
medical certifications. See Sec. Sec.  825.305(b) and

[[Page 68037]]

825.308(d). Accordingly, an employee's certification (or 
recertification) is not untimely until that period has passed, as the 
regulation indicates. Finally, the Department notes that Sec.  825.313 
permits employers to deny FMLA protection when an employee fails to 
provide a timely certification or recertification, but it does not 
require employers to do so. Employers always have the option of 
accepting an untimely certification and not denying FMLA protection to 
any absences that occurred during the period in which the certification 
was delayed.
Sections 825.400-825.600
    The Department noted in the NPRM that conforming changes would need 
to be made to Sec. Sec.  825.400-825.600, which include Subpart D--
Enforcement Mechanisms, Subpart E--Recordkeeping Requirements, and 
Subpart F--Special Rules Applicable to Employees of Schools, in order 
to incorporate the new military family leave entitlements. The 
Department proposed no other substantive changes to these sections, 
although it did propose new titles and very minor editorial changes, 
such as adding a reference to the Department's Web site in proposed 
Sec.  825.401(a), updating the reference in proposed Sec.  
825.500(c)(4) to the new employer eligibility notice requirement 
proposed in Sec.  825.300(b), and deleting a cross-reference in 
proposed section 825.601(b).
 Subpart D--Enforcement Mechanisms (Sections 825.400-825.404)
    There were very few comments on Sec. Sec.  825.400-825.404 of the 
proposal. The final rule adopts proposed Sec. Sec.  825.400-825.404 
without change, except as explained below with respect to the 
incorporation of appropriate references to the military family leave 
entitlements.
    The military family leave amendments to the FMLA provide for the 
recovery of damages equal to, in a case involving the need for leave to 
care for a covered servicemember in which wages, salary, employment 
benefits or other compensation have not been denied or lost to the 
employee, any actual monetary losses sustained by the employee up to a 
sum equal to a total of 26 weeks of wages (rather than the usual 12 
weeks). 29 U.S.C. 2617. In order to implement this provision, the 
preamble to the NPRM stated the Department's belief that a conforming 
revision would be required to Sec.  825.400(c), which, as proposed, 
provided that an employee is entitled to wages, employment benefits, or 
other compensation lost or denied to the employee by reason of the 
violation or, where no such tangible loss has occurred, any actual 
monetary losses sustained as a direct result of an employer's violation 
of one or more of the provisions of FMLA up to an amount equal to a 
total of 12 weeks of wages. See 73 FR at 7932. Accordingly, the final 
rule amends Sec.  825.400(c) to provide that, in a case involving the 
military caregiver leave, an employee is entitled to actual monetary 
losses sustained up to sum equal to a total of 26 weeks of wages for 
the employee. The final rule makes no other changes to proposed 
Sec. Sec.  825.400-825.404.
Section 825.500 (Recordkeeping Requirements)
    The only change proposed in Sec.  825.500 was to paragraph (c)(4) 
to include a reference to the eligibility notice requirement in 
proposed Sec.  825.300(b) and to delete the reference to the general 
notice form. The final rule adopts these proposed changes, incorporates 
a reference to the notice requirements for military family leave, and 
further clarifies that employers should retain all written notices 
given to employees as required under the FMLA and these regulations.
    Comments on the FMLA recordkeeping provisions centered on proposed 
Sec.  825.500(g), which, like the current regulations, requires that 
certain records created for purposes of FMLA be maintained as 
confidential medical records. The American Postal Workers Union, for 
example, recommended that FMLA medical certifications be accessible 
only to trained professionals employed by or representing the employer. 
Many employees raised concerns about supervisors disclosing information 
about an employee's serious health condition. Catholic Charities, 
Diocese of Metuchen urged that the Department clarify whether this 
section of the recordkeeping provisions applies to fitness-for-duty 
documents.
    The Department believes this section of the proposed rule, which 
closely tracks the current regulation, adequately addresses the issues 
raised by these comments. The proposed regulation provided that records 
and documents relating to medical certifications, recertifications, or 
medical histories of employees or employees' family members, created 
for purposes of FMLA, are to be maintained as confidential medical 
records in separate files/records from the usual personnel files, and 
that if the ADA is also applicable, such records are to be maintained 
in conformance with ADA confidentiality requirements (see 29 CFR 
1630.14(c)(1)); except that: (1) Supervisors and managers may be 
informed regarding necessary restrictions on the work or duties of an 
employee and necessary accommodations; (2) first aid and safety 
personnel may be informed (when appropriate) if the employee's physical 
or medical condition might require emergency treatment; and (3) 
government officials investigating compliance with FMLA (or other 
pertinent law) are to be provided relevant information upon request. 
Because a fitness-for-duty certification is a type of medical 
certification, the Department does not believe that a separate 
reference to fitness-for-duty certifications is required in this 
section. As is the case under the current regulations, fitness-for-duty 
certifications are to be maintained as confidential medical records 
pursuant to Sec.  825.500(g).
    The Department did make two minor changes in Sec.  825.500(c)(4) of 
the final rule, which requires an employer to maintain copies of 
notices provided to an employee pursuant to the FMLA. The proposed 
recordkeeping requirement did not specifically mention the designation 
notice (Form WH-382). In response to a comment from the Metro Regional 
Transit Authority in Akron, Ohio, the final rule clarifies in Sec.  
825.500(c)(4) that employers must maintain copies of all written 
notices given to employees as required under the FMLA and these 
regulations, and not just eligibility notices. Finally, in Sec.  
825.500(g), a reference to ``medical certifications'' is changed to 
``certifications'' to incorporate certifications related to the 
military family leave provisions.
Subpart F--Special Rules Applicable to Employees of Schools (Sections 
825.600-825.604)
    There were very few comments on Sec. Sec.  825.600-825.604 of the 
proposal. The National School Boards Association commented that the 
possible regulatory changes the Department discussed in the preamble 
regarding the application of the military family leave amendments to 
eligible instructional employees of local educational agencies appeared 
consistent with the new legislation. The American Federation of 
Teachers commented on the need for the availability of FMLA leave for 
its 1.4 million members and stated that ``without the ability to use 
FMLA leave, many AFT members would have risked losing their jobs and/or 
essential health insurance in order to provide necessary care for 
themselves or for a family member. Increased restrictions on using such 
leave could therefore have a

[[Page 68038]]

devastating impact upon workers.'' Other than changes to titles and 
very minor editorial changes, the proposed text for Sec. Sec.  
825.600--825.604 was the same as the current regulations. The preamble 
to the proposed rule, however, stated that three related regulatory 
changes would be required to incorporate the new military family leave 
provisions into these sections of the FMLA regulations. 73 FR at 7932-
33.\7\
---------------------------------------------------------------------------

    \7\ The military family leave provisions of the NDAA that extend 
the entitlement to take FMLA leave to care for a covered 
servicemember and because of a qualifying exigency to eligible 
instructional employees of local agencies are codified in 
subsections (c)(1), (d)(2), and (d)(3) of 29 U.S.C. 2618.
---------------------------------------------------------------------------

    First, the military family leave amendments provide that an 
employer covered by 29 U.S.C. 2618 can require-in the case of an 
instructional employee who requests FMLA leave intermittently or on a 
reduced leave schedule for foreseeable planned medical treatment of a 
covered servicemember and who, as a result, will be on leave for 
greater than 20 percent of the total number of working days during the 
period of leave-that the employee choose to either (1) take leave for a 
period or periods of particular duration; or (2) transfer temporarily 
to an available alternative position with equivalent pay and benefits 
that better accommodates recurring periods of leave. In order to 
incorporate this change, the Department stated in the preamble to the 
proposed rule that a minor technical revision would be required to 
current and proposed Sec.  825.601(a)(1) to provide that the provisions 
of that section apply when an eligible instructional employee needs 
intermittent leave or leave on a reduced schedule to care for a covered 
servicemember, in addition to applying to situations where the employee 
takes such leave to care for a family member with a serious health 
condition or for the employee's own serious health condition. In all 
three cases, the provision would continue to apply only to intermittent 
leave or leave on a reduced leave schedule, which is foreseeable based 
on planned medical treatment, and requires the employee to be on leave 
for more than 20 percent of the total number of working days over the 
period the leave would extend. The final rule incorporates this change.
    Second, the military family leave amendments extend some of the 
limitations on leave near the end of an academic term to leave 
requested during this period to care for a covered servicemember. The 
Department stated in the preamble to the proposed rule that it believed 
the text of Sec.  825.602(a)(2) and (a)(3) would need to be changed in 
order to apply the limitations on leave near the end of an academic 
term to military family leave. 73 FR at 7933. Specifically, current and 
proposed Sec.  825.602(a)(2) provide that if an instructional employee 
begins leave for a purpose other than the employee's own serious health 
condition during the five-week period before the end of the term, the 
employer may require the employee to continue taking leave until the 
end of the term if the leave will last more than two weeks and the 
employee would return to work during the two-week period before the end 
of the term. Current and proposed Sec.  825.602(a)(3) provide that an 
employer may require an instructional employee to continue taking leave 
until the end of the term if the employee begins leave that will last 
more than five working days for a purpose other than the employee's own 
serious health condition during the three-week period before the end of 
the term.
    Because the military family leave amendments extend the limitations 
in Sec.  825.602(a)(2) and (a)(3) only to leave taken to care for a 
covered servicemember, and not leave taken because of a qualifying 
exigency, the Department stated in the NPRM that these two FMLA 
regulatory sections would need to be changed in order to specifically 
reference the types of leave that are subject to the limitations, 
namely: (1) Leave because of the birth of a son or daughter, (2) leave 
because of the placement of a son or daughter for adoption or foster 
care, (3) leave taken to care for a spouse, parent, or child with a 
serious health condition, and (4) leave taken to care for a covered 
servicemember. 73 FR at 7933. The final rule incorporates these changes 
and a minor grammatical change to Sec.  825.602(a)(3). No other changes 
have been made to proposed Sec. Sec.  825.600-825.604.
Subpart G--Effect of Other Laws, Employer Practices, and Collective 
Bargaining Agreements on Employee Rights Under FMLA (Sections 825.700-
825.702)
Section 825.700 (Interaction With Employer's Policies)
    Current Sec.  825.700(a) provides that an employer may not diminish 
the rights established by the FMLA through an employment benefit 
program or plan, but that an employer may provide greater leave rights 
than the FMLA requires. The NPRM proposed to delete the last sentence 
of Sec.  825.700(a), which states that if an employee takes paid or 
unpaid leave and the employer does not designate the leave as FMLA 
leave, the leave taken does not count against an employee's FMLA 
entitlement, in order to conform to the U.S. Supreme Court's decision 
in Ragsdale which invalidated this provision. The Department proposed 
no changes to current Sec.  825.700(b), which provides that an employer 
may amend existing leave programs, so long as they comply with the 
FMLA, and that nothing in the Act is intended to discourage employers 
from adopting or retaining more generous leave policies. The Department 
proposed to delete Sec.  825.700(c)(1) and (2) from the current 
regulations, as they discuss the initial applicability of the statute 
and periods of employment prior to the statute's effective date, which 
are no longer necessary.
    There were only a few comments on these changes. The Association of 
Corporate Counsel's Employment and Labor Law Committee and the Equal 
Employment Advisory Council commented that they supported the changes 
in Sec.  825.700(a) to align the regulations with the Ragsdale 
decision. The final rule adopts Sec.  825.700 as proposed and makes no 
further changes.
Section 825.701 (Interaction With State laws)
    Section 401(b) of the FMLA, 29 U.S.C. 2651(b), provides that 
``Nothing in this Act or any amendment made by this Act shall be 
construed to supersede any provision of any State or local law that 
provides greater family or medical leave rights than the rights 
established under this Act or any amendment made by this Act.'' When 
Sec.  825.701 of the current rule was proposed for public comment, a 
number of employer groups argued that this part of the statute should 
be interpreted to apply only in the case of more generous State or 
local law substantive provisions, such as eligibility and coverage 
requirements, amount of leave, benefits and employment protections, and 
substitution requirements, and not to procedural provisions such as 
notification of leave and certification requirements. These commenters 
argued at that time that any State or local law's (or implementing 
regulation's) procedural provision that is inconsistent with the FMLA 
should be preempted because of the administrative difficulty in trying 
to determine if a particular State or local law's procedural provision 
is more or less generous to the employee than the FMLA procedural 
provisions. See the discussion on this topic in the preamble to the 
current rule at 60 FR at 2230-32 (Jan. 6, 1995).
    Because the wording of the statute provides that the FMLA does not

[[Page 68039]]

supersede ``any provision'' of any State or local law that provides 
greater family or medical leave ``rights'' than those provided under 
the FMLA, the Department stated in the preamble to the current rule 
that it was not possible to apply section 401(b) of the statute only to 
substantive provisions that provide more generous family or medical 
leave benefits and not to procedural provisions that may extend greater 
rights:

    There is no basis under this [statutory] language or the 
legislative history to distinguish between procedural provisions 
that extend greater rights to employees and substantive provisions 
that provide more generous family or medical leave benefits to 
employees * * *. Given the literal language of FMLA, DOL has no 
authority to preempt State laws to the extent they provide more 
generous leave rights to employees. The results about which the 
majority of the comments complained occur by operation of law (FMLA 
and State family and medical leave laws), and cannot be mitigated by 
regulation.

Id.

Although no changes to Sec.  825.701 were proposed in the NPRM, the 
Department received a few comments regarding this section. TOC 
Management Services raised a question regarding Sec.  825.701(a)(4). 
Specifically, TOC Management Services commented,

    Nothing in the [FMLA] statute limits the employer's ability to 
request the second opinion if state law limits the ability. State 
leave laws regulate their specific leave provisions, not the FMLA. 
Clearly an employer would not have the ability to ask for the second 
opinion if the employee's leave only qualified under state law and 
such second opinions were prohibited by that state. But when an 
employee is taking FMLA leave (even if it runs concurrently with 
state leave), 29 U.S.C. 2601-2654 sets the parameters of that leave. 
The DOL cannot enact regulations that contradict the statute; 29 
U.S.C. 2623(c)(1) provides employers with the right to obtain second 
opinions and the DOL cannot deprive employers of that statutory 
right.

    The Legal Aid Society-Employment Law Center also commented that 
``many large corporations that operate throughout the Unites States 
utterly fail to comply with California's more restrictive privacy laws 
in California * * * [and that] DOL must take action to ensure that 
large companies, which operate throughout the United States, comply 
with California's more protective privacy and medical confidentiality 
laws.''
    The Department disagrees with the comment from TOC Management 
Services that nothing in the FMLA limits the employer's ability to 
request a second opinion in the case of FMLA leave contrary to State 
law, ``even if it runs concurrently with state leave.'' It is correct 
that State and local family and medical leave laws do not supersede or 
preempt the FMLA. As explained above, however, section 401(b) of the 
FMLA, 29 U.S.C. 2651(b), provides that the FMLA does not supersede or 
preempt provisions of State or local laws (whether substantive or 
procedural) that afford employees with greater rights than the FMLA. 
Thus, an employer must comply with all the provisions of the FMLA and 
any parallel State or local law that applies to a given leave request.
    Conversely, the Department disagrees with the Legal Aid Society-
Employment Law Center's comment that the Department should take action 
to ensure that companies comply with State privacy and confidentiality 
laws. The Department's Wage and Hour Division administers and enforces 
the FMLA and has no authority to administer or enforce any State laws.
    Based on its consideration of these two comments, however, the 
Department has decided that the examples in Sec.  825.701(a)(3) and 
(a)(4) are not helpful because they can be read incorrectly to suggest 
that the Department is assuming the responsibility for the 
administration or enforcement of provisions of State or local laws that 
afford employees with greater rights than the FMLA. As indicated above, 
the Department's Wage and Hour Division administers and enforces the 
FMLA and has no authority to administer or enforce State or local 
family and medical leave laws. Employers who contact local Wage and 
Hour offices with questions about State laws are referred to the 
appropriate State government agency.
    Thus, in order to avoid any misimpression that the Wage and Hour 
Division enforces State or local family and medical leave laws, the 
examples in the current Sec.  825.701(a)(3) and (a)(4) have been 
removed from the text of the final rule. This change has no policy or 
legal effect whatsoever on the continued application of the principle 
embodied in section 401(b) of the FMLA, 29 U.S.C. 2651(b), that the 
FMLA does not supersede or preempt any provision of a State or local 
law that affords an employee with greater rights than the FMLA. This 
change in the final rule is intended only to clarify that the 
Department administers and enforces the FMLA; State and local 
government agencies administer and enforce the laws for which they are 
responsible; and employers must comply with all applicable laws. Where 
a State or local law applies concurrently with the FMLA, there is 
unfortunately no way for employers to avoid the administrative burden 
that each leave request is to be considered first under one law 
(including its benefit and procedural provisions) and then the 
other(s). No other changes to the proposed text for Sec.  825.701 have 
been made.
Section 825.702 (Interaction With Federal and State Anti-Discrimination 
Laws)
    Current Sec.  825.702 addresses the interaction between the FMLA 
and other Federal and State anti-discrimination laws. The Department 
proposed to add a new paragraph (g) in this section to discuss the 
interaction between the Uniformed Services Employment and Reemployment 
Rights Act of 1994 (USERRA) and the FMLA and incorporate the 
information in a 2002 guidance memorandum on this matter. Existing 
paragraph (g) of this section was proposed to be redesignated as 
paragraph (h). The only other change in the proposal was to conform the 
cross-reference in Sec.  825.702(d)(2) to the proper paragraph in 
proposed Sec.  825.207. These changes are included in the final rule.
    The Chamber stated that it supports the clarification in proposed 
new Sec.  825.702(g), ``which codifies guidance issued by the 
Department in July 2002, especially in light of the reentry into the 
workforce of thousands of service members in the coming years.'' The 
Equal Employment Advisory Council, however, commented that the 
``Department's proposal to confer eligibility on military service 
members pursuant to the Uniformed Services Employment and Reemployment 
Rights Act (USERRA) * * * exceeds the Department's authority,'' and 
that the proposed new Sec.  825.702(g), and a related new paragraph in 
Sec.  825.110(c)(2) (in the section entitled ``Eligible employee'') 
should be deleted.
    The Department does not agree with this latter comment. The NPRM 
included this new Sec.  825.702(g) simply to incorporate the substance 
of a July 22, 2002 guidance memorandum, available at http://
www.dol.gov/vets/media/fmlarights.pdf, stating the Department's opinion 
on the application of uniformed servicemembers' rights under USERRA to 
family and medical leave. Under USERRA, servicemembers who are 
reemployed are entitled to the rights and benefits that they would have 
attained if they had remained continuously employed. The rights and 
benefits protected by USERRA include those provided by employers and 
those required by another statute, such as the right to leave under the 
FMLA. Accordingly, under USERRA, a

[[Page 68040]]

returning servicemember would be entitled to FMLA leave if the hours 
that he or she would have worked for the civilian employer during the 
period of military service would have met the FMLA eligibility 
threshold. This is not an expansion of FMLA rights through regulation; 
this is a requirement of USERRA.
    Section 825.702(b)-(e) of the current and proposed rule discuss the 
interaction between the FMLA and the ADA, as amended. As indicated in 
the preamble to the proposed rule, the Department received a number of 
comments in response to the RFI that discussed the relationship between 
the FMLA and the ADA, particularly regarding job modification, light 
duty, and reassignment. See 73 FR at 7923 (Feb. 11, 2008). Many of 
those comments were discussed in Chapter VII of the Department's 2007 
Report on the RFI comments. See 72 FR at 35599 (June 28, 2007). The 
preamble to the proposed rule stated that the Department could do 
nothing to alter the fact that the two statutes serve distinctly 
different purposes, provide different rights, and have different 
eligibility criteria. See 73 FR at 7924. Although the Department did 
not propose any regulatory changes, it did provide a lengthy discussion 
in the preamble to the proposed rule regarding the interaction between 
the FMLA and the ADA to aid both employees and employers.
    In response to the NPRM, comments from employer groups continued to 
express frustration over the difficulty of reconciling the two 
statutes. The National Federation of Independent Business commented 
that ``employers must navigate the complexities of both laws in order 
to determine whether an employee should be granted medical leave in a 
given situation * * *. [A]n employee's condition must be looked at from 
both perspectives to determine whether the FMLA, ADA, or both apply * * 
*. [For example,] an impaired employee entitled to ADA protections is 
not limited to the 12 weeks leave permitted under the FMLA [and this 
can] lead to situations where employers simply play it safe by 
extending FMLA leave beyond 12 weeks without question because of 
concerns that an employee would file an ADA discrimination lawsuit.'' 
The NPRM also prompted a significant number of comments on the 
Department's preamble discussion of the interaction between the FMLA 
and the ADA.
    The Department recognizes the difficulty employers face in 
addressing both ADA and FMLA compliance issues that can arise on a 
particular leave request and the frustration that this administrative 
burden causes. The Department continues to believe that the 
administrative burden of complying with the FMLA and the ADA cannot be 
reduced through revisions to the regulatory requirements under the 
FMLA. The FMLA legislative history clearly states that the ``purpose of 
the FMLA is to make leave available to eligible employees and employers 
within its coverage, and not to limit already existing rights and 
protection,'' and it specifically recognizes that ``the leave 
provisions of the [FMLA] are wholly distinct from the reasonable 
accommodation obligations of employers covered under the [ADA].'' S. 
Rep. No. 103-3, at 38 (1993). Thus, where both laws may apply, the 
applicability of each statute needs to be evaluated independently. For 
these reasons, the final rule does not make any changes to this 
regulatory section in response to these comments. The words ``as 
amended'' have been added to the reference to the ADA in Sec.  
825.702(a), and to the definition of the ADA in Sec.  825.800, to 
reflect the passage of the Americans with Disabilities Amendments Act 
of 2008, which makes several changes to the definition of the term 
``disability'' under the ADA. The Department notes that the EEOC will 
be revising its ADA regulations to comply with these amendments, which 
become effective on January 1, 2009.
Subpart H--Definitions
Section 825.800 (Definitions)
    The current Sec.  825.800 contains the definitions of significant 
terms used in the regulations. Changes to definitions that would be 
affected by the Department's proposed rule were included in the NPRM. 
Specifically, changes and clarifications were proposed to the 
definitions of the terms ``continuing treatment,'' ``eligible 
employee,'' ``employee,'' ``health care provider,'' ``serious health 
condition,'' ``parent,'' and ``son or daughter.''
    The Department received two comments on the content of the 
definitions. WorldAtWork commented that the definition of ``son or 
daughter'' should be expanded to children over age 18 who do not have a 
mental or physical disability if they meet other conditions. Because 
``son or daughter'' is defined by the statute itself, the Department is 
not adopting this comment. See 29 U.S.C. 2611(12). The American Academy 
of Physician Assistants stated its support for the Department's 
inclusion of physician assistants in the definition of ``health care 
provider.''
    One commenter, Illinois Credit Union League expressed concern that 
the cross-references made the definitions difficult to read; another 
commenter, Catholic Charities, Diocese of Metuchen suggested that the 
definitions should be placed at the beginning of the rule. The 
Department agrees that it is preferable to avoid cross-references to 
other sections in the definitions. This is not always possible, 
however, without including very lengthy text in a definition that is 
identical to text in another section. Also, no other commenters 
suggested moving the definitions section to the front of the 
regulation, and its current position in Sec.  825.800 is a familiar 
location to many people. Consequently, these two comments were not 
adopted in the final rule.
    The final rule adopts Sec.  825.800 as proposed except where 
changes were needed to conform the definitions to changes in other 
sections of the final rule. Specifically, the final rule includes 
additional changes to the definitions for ``continuing treatment'' and 
``serious health condition.''
    In the NPRM, the Department also stated that it was considering the 
addition of certain new terms related to the military family leave 
entitlements to the definitions found in Sec.  825.800. Specifically, 
the Department stated that it would add the terms ``active duty,'' 
``contingency operation,'' ``covered servicemember,'' ``outpatient 
status,'' ``next of kin,'' and ``serious injury or illness.'' These 
terms are discussed in depth in the sections of the preamble related to 
qualifying exigency leave (Sec.  825.126) and military caregiver leave 
(Sec.  825.127).
    In the final rule, Sec.  825.800 contains new definitions for the 
terms ``active duty or call to active duty status,'' ``contingency 
operation,'' ``covered military member,'' and ``son or daughter on 
active duty or call to active duty status'' in relation to qualifying 
exigency leave. It also contains new definitions for the terms 
``covered servicemember,'' ``parent of a covered servicemember,'' 
``outpatient status,'' ``next of kin of a covered servicemember,'' 
``serious injury or illness,'' and ``son or daughter of a covered 
servicemember'' in relation to military caregiver leave. The 
definitions for these terms in Sec.  825.800 reflect the definitions 
for these terms found in Sec. Sec.  825.126, 825.127, 825.309, and 
825.310.

Paperwork Reduction Act

    The Office of Management and Budget (OMB) has assigned control 
number 1215-0181 to the FMLA information collections. In accordance 
with the

[[Page 68041]]

Paperwork Reduction Act of 1995 (PRA), the February 11, 2008, NPRM 
solicited comments on the FMLA information collections as they were 
proposed to be changed. 44 U.S.C. 3506(c)(2). The Department also 
submitted a contemporaneous request for OMB review of the proposed 
revisions to the FMLA information collections, in accordance with 44 
U.S.C. 3507(d). On March 11, 2008, the OMB issued a notice that 
continued the previous approval of the FMLA information collections 
under the existing terms of clearance. The OMB asked the Department to 
resubmit the information collection request upon promulgation of a 
final rule and after considering public comments on the FMLA NPRM. 
While the Department received comments regarding substantive aspects of 
the FMLA information collections, no comments directly addressed the 
methodology for estimating the public burdens under the PRA. In order 
to facilitate a full understanding of all the issues involved and avoid 
duplication within this preamble, the public comments addressing FMLA 
information collections imposed by this final rule are discussed in the 
applicable portions of this preamble. The following table shows where 
the various information collections appear in the final rule.

------------------------------------------------------------------------
                                               Regulatory citation(s)
        Information collection name               within 29 CFR 825
------------------------------------------------------------------------
Employee's Notice of Need for FMLA Leave..  Sec.  Sec.   .100(d),
                                             .301(b), .302, .303.
Notice to Employee of FMLA Eligibility....  Sec.   .300(b).
Notice to Employee of FMLA Rights and       Sec.   .300(c).
 Responsibilities.
Notice to Employee of FMLA Designation....  Sec.  Sec.   .127(c)(4),
                                             .300(d), .301(a), .312.
Medical Certification/Recertification       Sec.  Sec.   .100(d), .305-
 (Self and Family).                          .308.
Fitness-For-Duty Medical Certification....  Sec.  Sec.   .100(d),
                                             .212(a)(3), .216(b), .312.
Notice to Employee of Incomplete or         Sec.   .305(c).
 Insufficient Medical Certification.
Notice to Employee of Change of 12-Month    Sec.   .200(d)(1), (e).
 Period for Determining Entitlement.
Employee's Periodic Status Report.........  Sec.   .311.
Documenting Family Relationships..........  Sec.  Sec.   .122(j),
                                             .310(d), (e)(3).
``Key Employee'' Notification.............  Sec.  Sec.   .219,
                                             .300(c)(1)(v).
Notice to Employee of Pending Cancellation  Sec.   .212(a)(1).
 of Health Benefits.
Documenting Call to Military Active Duty..  Sec.   .309(a).
Certification of Qualifying Exigency......  Sec.  Sec.   .309(b)-(c).
Servicemember's Designation of Next of Kin  Sec.  Sec.   .122(d),
                                             .127(b)(3).
Certification for Serious Injury or         Sec.  Sec.   .307(a), .310.
 Illness of Covered Servicemember.
General Recordkeeping.....................  Sec.   .500.
------------------------------------------------------------------------

    Interested parties may obtain prototype FMLA notices via the Wage 
and Hour Division's Forms Web site at http://www.dol.gov/esa/whd/forms/
index.htm, contacting the Wage and Hour Division at 1-866-4US-WAGE (1-
866-487-9243), or visiting a Wage and Hour Division District Office. A 
list of District Office addresses is available on the Internet at 
http://www.dol.gov/esa/whd/america2.htm. Prototype FMLA forms are also 
available through the forms.gov Web site. Specifically, the Wage and 
Hour Division offers the following prototype notices: Certification of 
Serious Health Condition--Employee's Own Condition (Form WH-380-E), 
Certification of Serious Health Condition--Employee's Family Member's 
Condition (Form WH-380-F), Notice of FMLA Eligibility and Rights and 
Responsibilities (Form WH-381), Notice to Employee of FMLA Designation 
(Form WH-382), Certification of Qualifying Exigency (Form WH-384), 
Certification for Serious Injury or Illness of Covered Servicemember 
(Form WH-385).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The Department has resubmitted the 
revised FMLA information collections to the OMB for approval, and the 
Department intends to publish a notice announcing the OMB's decision 
regarding this information collection request. A copy of the 
information collection request can be obtained at http://
www.RegInfo.gov or by contacting the Wage and Hour Division as shown in 
the FOR FURTHER INFORMATION CONTACT section of this preamble. The 
existing FMLA information collection authorization will remain in 
effect until the OMB finally approves the new information collection 
request or this final rule takes effect on January 16, 2009, whichever 
date is later.

VI. Executive Order 12866 and the Small Business Regulatory Enforcement 
Fairness Act

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is an ``economically 
significant'' regulatory action under section 3(f)(1) of Executive 
Order 12866. Based on the analysis presented below, the Department has 
determined that the final rule will have an annual effect on the 
economy of $100 million or more. For similar reasons, the Department 
has concluded that this rule is a major rule under the Small Business 
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). 
Therefore, the Department has prepared a Regulatory Impact Analysis 
(``RIA'') in connection with this rule as required under Section 
6(a)(3) of the Order and the Office of Management and Budget has 
reviewed the rule. The RIA is presented in its entirety below.

Regulatory Impact Analysis

Chapter 1: Executive Summary
    The final rule will revise the FMLA regulations published in 1995 
and implement the new changes required by the National Defense 
Authorization Act for FY 2008 (``NDAA''), Public Law 110-181. The 
Department determined that changes to the 1995 regulations were 
necessary because a decision by the U.S. Supreme Court and a number of 
decisions by other federal courts invalidated aspects of the 
regulations, the Department's experience administering the law, and 
public comments that it has received. 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.'' The 
NDAA also provides 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 12-month period 
to care for the servicemember.'' (Pub. L. 110-181, Section 585(a)).
    Based upon an analysis presented in more detail in the Preliminary 
Regulatory Impact Analysis (PRIA),

[[Page 68042]]

which was in turn based on an analysis by CONSAD Research and the 2000 
Westat Report the Department estimates that 285,237 firms are covered 
by Title I of the FMLA.\8\ These firms operate 1.1 million 
establishments and employ 95.8 million workers. In 2005, 77.1 million 
workers or 80.5 percent of the workers employed at the covered 
establishments met the FMLA eligibility requirements (i.e., have been 
employed by their employer for 12 months and have worked for their 
employer at least 1,250 hours during the previous 12 months). Based 
upon CONSAD's projection of 2000 FMLA leave usage rates to 2007, the 
Department estimates that 7.0 million workers took an estimated 10.5 
million FMLA leaves. In addition, the Department estimates that 139,000 
workers will take FMLA leave under the military leave provisions of the 
NDAA.
---------------------------------------------------------------------------

    \8\ The CONSAD analysis is available at: www.regulations.gov, 
ESA-2008-0001-0002; and the 2000 Westat Report is available at 
www.regulations.gov, ESA-2006-0022-0006.
---------------------------------------------------------------------------

    The Department estimates that the revisions will result in total 
first year net costs of $327.7 million and annual reoccurring costs of 
$244.4 million for both workers and employers. Based upon a five year 
pay-off period and a real interest rate of 3.0 percent (OMB Circular A-
4),\9\ total annualized costs for the revisions for both workers and 
employers is $262.6 million. Based upon a five year pay-off period and 
a real interest rate of 7.0 percent, total annualized costs for the 
revisions for both workers and employers is $264.7 million. For 
employers, the largest cost is the $257.3 million in recurring costs 
related to the new military leave provisions (Sec. Sec.  825.126 and 
.127). For workers, the largest cost is the $19.8 million in recurring 
costs associated with the additional fitness-for-duty certifications 
that may be required if a worker has used intermittent leave and a 
reasonable safety concern exists (Sec.  825.312(f)).
---------------------------------------------------------------------------

    \9\ Available on the Internet at: http://www.whitehouse.gov/omb/
circulars/a004/a-4.html.
---------------------------------------------------------------------------

    The annualized costs for employers based upon a 7.0 percent 
discount rate is $230.6 million, or about $2.41 for each of the 95.8 
million workers employed at establishments covered by Title I of the 
FMLA; and about $2.99 for each of the 77.1 million workers eligible to 
take FMLA leave; and about $32.48 for each of the 7.1 million workers 
who will take FMLA leave.\10\ The $230.6 million in costs also 
represents less than 0.006 percent of the estimated $3.7 trillion in 
payroll costs for the establishments covered by Title I of the FMLA 
(CONSAD). Therefore, the Department has determined that the costs of 
the final rule do not represent a significant economic impact for most 
establishments covered by Title I of the FMLA.
---------------------------------------------------------------------------

    \10\ As noted above, 7.0 million workers take FMLA leave, and 
the Department estimates that 139,000 additional workers will take 
FMLA leave under the military leave provisions of the NDAA, for a 
total of 7.1 million.
---------------------------------------------------------------------------

    The annualized costs for workers is $34.1 million, or about $0.36 
for each of the 95.8 million workers employed at establishments covered 
by Title I of the FMLA; and about $0.44 for each of the 77.1 million 
workers eligible to take FMLA leave; and about $4.80 for each of the 
7.1 million workers who will take FMLA leave. Therefore, the Department 
has determined that the costs of the final rule do not represent a 
significant economic impact for most workers who take leave under Title 
I of the FMLA.
    The Department anticipates that substantial but unquantifiable 
benefits will accrue from the proposed revisions to the FMLA 
regulations. First, associated with the addition of the provisions for 
military leave, the families of servicemembers will no longer have to 
worry about losing their jobs or health insurance due to absences to 
care for a covered seriously injured or ill servicemember or due to a 
qualifying exigency resulting from active duty or call to active duty 
in support of a contingency operation. Second, the clarifications to 
the regulations and the revisions to improve the communications between 
employers and employees should reduce the uncertainty and the worries 
about FMLA leave. Third, the revisions should reduce the costs of 
unforeseeable intermittent FMLA leave in high-impact, time-sensitive 
operations. And, finally, the proposed changes related to fitness-for-
duty certifications should reduce some presenteeism.
Chapter 2: Industry Profile
    The industry profile presents the Department's best estimates of 
the number of establishments covered by the FMLA and the number of 
workers employed at those establishments. Title I of the FMLA covers 
private-sector employers of 50 or more employees, public agencies and 
certain federal employers and entities, such as the U.S. Postal Service 
and the Postal Regulatory Commission. To be eligible for FMLA benefits, 
an employee must: (1) Work for a covered employer; (2) have worked for 
the employer for a total of 12 months; (3) have worked at least 1,250 
hours over the previous 12 months; and (4) work at a location where at 
least 50 employees are employed by the employer within 75 miles. The 
NDAA amendments did not affect these eligibility requirements and, 
therefore, have no impact on either the number of covered 
establishments or eligible employees.
    The industry profile estimates presented in the PRIA were developed 
by CONSAD Research. Just as the Department did for the Request for 
Information (RFI), ``CONSAD used data from the 2000 Westat Report as 
the basis for many of its estimates. However, rather than applying the 
Westat coverage, eligibility, and usage rates to data from the Current 
Population Survey (``CPS''), CONSAD primarily used data from the U.S. 
Census Bureau, 2005 County Business Patterns (``CBP''). The CBP data 
was used because it provides data on the number of employees, 
establishments, and the size of the payroll in each industry, as well 
as these data by size of establishment. However, since the CBP only 
covers most non-agricultural businesses in the private sector, CONSAD 
supplemented the CBP with data from other sources including the U.S. 
Department of Agriculture, Census of Agriculture, 2002, the U.S. Census 
Bureau, Census of Governments, Compendium of Public Employment, 2002, 
the annual reports of certain Federal agencies (Bonneville Power 
Authority and Tennessee Valley Authority), the Association of American 
Railroads, Railroad Service in the United States, 2005, and the U.S. 
Postal Service, Annual Report, 2006. CONSAD estimated the number of 
firms based upon the U.S. Census Bureau, Statistics of U.S. Business, 
2004.'' 73 FR at 7941.
    In the PRIA, the Department used the estimated number of FMLA 
covered workers that was developed by CONSAD using the data sources 
listed above. Id. at 7942. The Department estimated the number of 
workers eligible to take FMLA leave by applying estimates from the 2000 
Westat Report to the Department's coverage estimates. The number of 
workers eligible to take FMLA leave in each industry was calculated by 
multiplying Westat's estimate that 80.5 percent of workers employed at 
covered establishments are eligible to take FMLA leave\11\ by the 
number of workers covered by the FMLA in each industry. Id. at 7943.
---------------------------------------------------------------------------

    \11\ DOL estimate developed from 2000 Westat Report, p. A-2-21.
---------------------------------------------------------------------------

    In the PRIA, the Department estimated the number of workers who 
took FMLA leave in 2005 by multiplying the number of covered and 
eligible workers times the percentage of covered and eligible workers 
who took FMLA leave, after adjusting the percentage in the 2000 Westat 
Report to account for the increase in FMLA usage

[[Page 68043]]

over time. Id. at 7943. The number of workers who took intermittent 
FMLA leave in 2005 was estimated using Westat's estimate that 23.9 
percent of workers who take FMLA leave take some of the leave 
intermittently. Id. at 7943-44.
    Since the FMLA leave provisions for military families were enacted 
after the 2000 Westat Report was completed, the Department estimated 
the number of FMLA covered and eligible workers who would take 
qualifying exigency leave or caregiver leave in the PRIA using a model 
developed by CONSAD with data from the Defense Manpower Data Center, 
the Current Population Survey and the Decennial Census of Population. 
First, CONSAD developed a model to estimate the number of parents, 
spouses, and adult sons and daughters of servicemembers; it then 
calculated the employment rates for parents and spouses who might need 
to take military family leave, using the employment rates for age 
ranges expected to be associated with the age range of the military 
servicemembers. Id. at 7954-55.
    For qualifying exigency leave, the Department developed estimates 
in the PRIA of the number of servicemembers deployed or activated for 
contingency operations based upon Department of Defense data and then 
used the CONSAD model to develop estimates of the potential number of 
family members who may be eligible for qualifying exigency leave under 
the FMLA. ``Preliminary estimates from the Department of Defense 
suggest that there are approximately 339,000 servicemembers currently 
deployed on or activated for contingency operations. Based on these 
numbers, the Department used the model in the CONSAD Report to develop 
estimates of the number of FMLA covered and eligible workers who would 
take leave for a qualifying exigency. Based on the age distribution of 
active duty servicemembers, the Department estimated the number of 
currently deployed or activated personnel in contingency operations by 
age and number of family members potentially eligible for qualifying 
exigency leave.'' Id. at 7956.
    For caregiver leave, the Department developed estimates in the PRIA 
of the number of seriously injured servicemembers based upon Department 
of Defense data and then utilized the CONSAD model to develop estimates 
of the potential number of caregivers who may be eligible for FMLA 
leave. ``[T]he Department estimates that there are 1,500 to 14,000 
seriously injured servicemembers whose potential caregivers may be 
eligible for FMLA leave * * * Based on the assumption that the age 
distribution of seriously wounded servicemembers is the same as the age 
distribution of all military servicemembers * * *, the Department used 
CONSAD's model to compute the numbers of servicemembers with serious 
injuries or illnesses who will have no potential caregivers, and one, 
two, three, four, or five or more potential caregivers who may be 
eligible for FMLA leave.'' Id. at 7955.
    The Department received no substantive comments on its PRIA 
estimates of the number of establishments covered by the FMLA, the 
number of workers employed at those establishments, and FMLA leave 
usage. The Department believes the lack of substantive comments is due 
to the fact that the Department used a methodology in the PRIA that was 
similar to the methodology used in the Request for Information (RFI), 
and that the methodology and estimates presented in the PRIA were based 
upon a careful review of the comments the Department received in 
response to the RFI and the refinements that were made to the 
methodology at that stage of the rulemaking. For example, in response 
to comments on the RFI that FMLA leave usage has probably increased 
since Westat conducted its surveys in the 1999-2000 time period (see 72 
FR 35622-23), the Department adjusted the FMLA usage rates developed by 
Westat (see 73 FR 7943). The Department also supplemented the data in 
the 2000 Westat Report that was used in the PRIA with data that was 
submitted in response to the RFI.
    Comments received by the Department on its PRIA estimates focused 
on the age of the data the Department used to develop its estimates and 
the need for the Department to conduct a new data collection before 
proceeding with this rulemaking. For example, the United States 
Congress, Joint Economic Committee (``JEC'') stated ``[r]ather than 
commission a survey * * * the Department develops their main source of 
data on FMLA coverage, eligibility, and usage by extrapolating forward 
the trends from previously commissioned surveys * * * The Department 
also relies on non-representative, industry sponsored data * * *.'' 
Similarly, the Institute for Women's Policy Research stated ``[t]he 
proposed regulations rely on data from non-representative and possibly 
biased samples; from a survey conducted in 2000 that did not directly 
address some of the key issues for which changes are proposed; from 
generalizations about individual employers' reports of their 
experiences that cannot be compared with the entire universe of 
employers; and from judgments about how use of the FMLA may have 
changed since the 2000 survey was conducted.'' The National Partnership 
for Women & Families stated that ``[s]ince 2000, DOL has not conducted 
any rigorous surveys or analysis of how the FMLA is working * * * If 
DOL is going to change regulations that DOL's own survey data show have 
been working well for over a decade, DOL should have empirical evidence 
to support those changes.'' See also AFL-CIO, American Association of 
University Women, Communications Workers of America, Disability Policy 
Collaboration.
    This issue was initially raised in response to the RFI and the 
Department addressed it in the Report on the RFI prior to publishing 
the NPRM and PRIA. Although the Department recognizes that the RFI is 
not the same as conducting a nationally representative FMLA survey, the 
Department ``believes that the RFI was a useful information collection 
method that yielded a wide variety of objective survey data and 
research, as well as a considerable amount of company-specific data and 
information that supplements and updates our knowledge of the impacts 
of FMLA leave. In fact, several organizations conducted national 
surveys in response to the RFI.'' 72 FR at 35621.
    The Department continues to believe the RFI was a satisfactory 
alternative to conducting another national survey. As noted in the 
report, the RFI yielded a wealth of data, some of which would have been 
difficult to obtain in a survey. Further, the necessity to combine 
multiple data sources from multiple years is a common concern in 
regulatory analysis and is not a unique issue for the FMLA rulemaking.
    Rulemakings can frequently take years to complete. Even if a data 
collection is conducted before the rulemaking begins, it is not unusual 
for the data to be years old by the time the rulemaking is completed. 
Requiring the data to be ``up to date'' would leave very short time 
frames for rulemakings to be completed and would allow parties to 
hinder the proceedings simply by delaying them until the data are older 
than some arbitrary age limitation. Further, requiring all data be 
obtained from government surveys would be prohibitively costly and 
would result in rulemakings taking even longer than they currently do. 
For example, under this scenario, if some aspect of a rulemaking (e.g., 
an alternative that arose during the public comment

[[Page 68044]]

period) were not covered by existing survey data, then an agency would 
be required to go out and conduct a new survey, and designing and 
conducting a new survey could take a number of years during which time 
some of the other data may become dated.
    Finally, requiring an agency to only use recent government surveys 
would have a chilling effect on the ability of agencies to use data 
obtained through public comments in response to RFIs and NPRMs. In 
fact, the Department was able to collect a considerable amount of data 
in response to the RFI and NPRM. ``Some of the data submitted [in 
response to the RFI] were national surveys (e.g., AARP, International 
Foundation of Employee Benefit Plans, Society for Human Resource 
Management, National Association of Manufacturers, U.S. Chamber of 
Commerce, WorldatWork, and the College and University Professional 
Association for Human Resources). Others submitted surveys or 
collections of reports from their clients, customers, or members (e.g., 
Willcox & Savage, Kalamazoo Human Resources Management Association, 
Manufacturers Alliance, Air Conference, Association of American Rail 
Roads, Retail Industry Leaders Association, National Federation of 
Independent Business, HR Policy Association, International Public 
Management Association for Human Resources, and American Bakers 
Association). Numerous other comments provided data from individual 
companies (e.g., United Parcel Service, U.S. Postal Service, Honda, 
Southwest Airlines, YellowBook, Madison Gas and Electric Company, 
Edison Electric, Verizon, Delphi, MGM Mirage, Union Pacific, and 
Palmetto Health) or government and quasi-government agencies (e.g., New 
York City, Dallas Area Rapid Transit, Fairfax County, VA, the Port 
Authority of Allegheny County, PA, and the City of Portland, OR). Other 
comments provided references to previously published studies (e.g., 
Darby Associates, the Center for WorkLife Law, Women Employment Rights, 
and the Family Care Alliance). Many comments were also received from 
labor organizations and family advocates (e.g., AFL-CIO, Communications 
Workers of America, National Partnership for Women and Families, 
Families USA, 9to5, National Association of Working Women). Finally, 
the Department received many comments from workers who took FMLA 
leave.'' 72 FR at 35620.
    Moreover, additional data was submitted in response to the NPRM, 
including new membership surveys (e.g., WorldatWork, College and 
University Professional Association for Human Resources (``CUPA-HR''), 
Hinshaw & Culbertson, and Working America), corporate data (e.g., Unum 
Group), and data on the costs being incurred by individual workers 
(e.g., Jay Zeunen Sr.).
    Given the FMLA surveys previously conducted by the Department, the 
availability of data from other government surveys and the wealth of 
data submitted by the public in response to the RFI and NPRM, the 
Department concludes that it has sufficient data to meet its 
responsibilities in this rulemaking. This position was supported by the 
National Coalition to Protect Family Leave which stated ``[t]here is in 
the record a substantial amount of data, analysis and conjecture on 
which to base a description of various attributes of benefits and costs 
arising from over a decade of experience under the FMLA.'' 72 FR at 
35621.
    Therefore, for its coverage estimates, the Department will continue 
to use the estimates developed by CONSAD and presented in Table 4 of 
the NPRM (73 FR 7943) and reproduced in Table 1 below. In 2005, there 
were 285,237 private sector firms and government entities covered by 
Title 1 of the FMLA. These covered entities operated 1.1 million 
establishments and employed 95.8 million workers. In 2005, an estimated 
77.1 million workers, or 80.5 percent of the workers employed at the 
covered establishments, met the FMLA eligibility requirements (i.e., 
have been employed by their employer for 12 months and have worked for 
their employer at least 1,250 hours during the previous 12 months). 
Table 5 of the NPRM (73 FR 7944) presented the estimated distribution 
of these workers by industry.

   Table 1--Estimated Number of FMLA Covered Firms, Establishments and
                            Employment, 2005
------------------------------------------------------------------------

------------------------------------------------------------------------
Thousands of FMLA Covered Entities.........................        285.2
Thousands of FMLA Covered Establishments...................      1,134.6
Thousands of Workers Employed at FMLA Covered                  95,793.5
 Establishments............................................
------------------------------------------------------------------------
Source: U.S. Department of Labor, ESA, 2008.

    For its estimates of FMLA leave usage under the 1995 regulations, 
the Department will continue to use the estimates developed by CONSAD 
and presented in Table 5 of the NPRM. (73 FR 7944). In 2005, 
approximately 7.0 million workers (i.e., 7.3 percent of workers 
employed at establishments covered by Title I of the FMLA) took FMLA 
leave and 1.7 million workers (23.9 percent of all workers who took 
FMLA leave) took intermittent FMLA leave.
    Comments from the JEC criticized the Department's use of the 23.9 
percent estimate from the 2000 Westat employee survey arguing that this 
was only one of many estimates in the 2000 Westat Report. ``The 
Department estimated the number of workers who took intermittent leave 
in 2005 * * * [based upon] Westat's estimate that 23.9 percent of 
workers who take FMLA take some leave intermittently. However, the data 
that are available from the survey seem to suggest a wide range of 
possible leave-takers who might use leave intermittently.'' The 
Department examined the entire 2000 Westat employer and employee 
questionnaires prior to publishing estimates in the RFI and the NPRM, 
and determined that question 5B of the 2000 Westat employee survey 
provides the best basis for estimating intermittent leave use. Based 
upon the JEC comment and one from Albelda, Boushey and Lovell (cited in 
the Report on the RFI, 72 FR 35626, Footnote 32), the Department has 
carefully re-examined the survey instrument and stands by its earlier 
determination.
    Although intermittent leave is brought up in other questions, it is 
important to examine the ``skip patterns'' in the questionnaire when 
determining the appropriate question and data to use. Question 5B was 
asked of all leave takers, which is why it was used by the Department 
as the basis for its estimate. Question 8 of the Westat employee 
survey, an alternative suggested by some commenters, was only asked of 
leave takers who indicated that they took multiple leaves during the 18 
month survey period. (See the last programming note on page D-10 of the 
2000 Westat Report). Since Question 8 was not asked of all leave 
takers, and since there was some concern about the meaning of ``leave'' 
in the 2000 Westat employee survey (see 73 FR at 7944), the Department 
does not believe that Question 8 is appropriate to use as the basis for 
its estimate.
    Similarly, some commenters suggested that Question 17A of the 
Westat employee survey should be used. However, as was noted by the 
JEC, Question 17A was only asked of ``employees who took a leave that 
the establishment classified as FMLA leave.'' The Department does not 
believe that Question 17A is appropriate to use as the basis for its 
estimate because the 2000 Westat survey data suggests that

[[Page 68045]]

many employees are unaware that their employers have designated their 
leave as FMLA leave. (See the discussion of Sec.  825.300(c) in this 
preamble and the discussions regarding estimating the number of workers 
who took FMLA leave in 71 FR at 69511 (Dec. 1, 2006) and 72 FR at 
35623-24 (June 28, 2007).) Therefore, the Department concludes that 
Question 5B of the Westat employee survey provides the best basis for 
estimating the number of workers who took intermittent FMLA leave. 
Moreover, as was discussed in the Report on the RFI, the 23.9 percent 
estimate based on Question 5B is consistent with data submitted by the 
public on the use of intermittent FMLA leave. See id. at 35625.
    The Department based its estimates of the leave that will be taken 
under the military leave provisions of the NDAA on the analysis 
presented in Appendix A of the PRIA (73 FR at 7954). However, after 
reviewing that preliminary analysis the Department has made some 
revisions.
    In the NPRM, based upon the President's Commission on Care for 
America's Returning Wounded Warriors and other sources, the Department 
estimated that each year approximately 1,500 servicemembers would incur 
a serious injury or illness in training and contingency operations. 
Using the age distribution of the military and the likely family 
structure based on that age distribution, the Department estimated that 
these 1,500 serious injuries would result in approximately 1,900 
caregivers taking FMLA leave. In the NPRM, the Department also provided 
an alternative estimate based upon estimates from the Department of 
Defense (``DOD'') Disability System. DOD separates or retires for 
disability reasons (with benefits) about 14,000 servicemembers 
annually. Based upon this estimate of serious illnesses and injuries 
(e.g., illnesses and injuries serious enough to cause servicemembers to 
separate from the military), the Department estimated there would be 
about 17,700 potential caregivers for servicemembers who are separated 
through the DOD Disability System every year.
    The statute defines the term ``serious injury or illness'' for 
members of the Armed Forces, including members of the National Guard or 
Reserves, as ``an injury or illness incurred by the member in the 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.'' As discussed in the preamble above, 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. Depending upon how the four different 
types of DOD or VA authorized health care providers interpret the 
statutory definition of serious injury or illness, the estimates in the 
NRPM may be too low. For example, in 2001, there were 1.9 million 
reported injuries in the military of which 32,000 resulted in lost duty 
time.\12\ If lost duty time injuries were classified as serious, then 
about 40,500 workers would be eligible for caregiver leave.
---------------------------------------------------------------------------

    \12\ DOD Military Injury Metrics Working Group White Paper, 
November 2002, pg. G1, Available at: http://
www.ergoworkinggroup.org/ewgweb/SubPages/ProgramTools/Metrics/
MilitaryInjuryMetricsWhitepaperNov02rev.pdf.
---------------------------------------------------------------------------

    Although not all lost duty time injuries are likely to be certified 
for caregiver leave, the Department believes that the estimate based on 
disability retirement alone is probably too low. Therefore, the 
Department's best estimate is that about 29,100 workers will take 
military caregiver leave each year.\13\
---------------------------------------------------------------------------

    \13\ This estimate is the average of 17,700 and 40,500.
---------------------------------------------------------------------------

    In the NRPM, the Department preliminarily estimated there were 
339,000 servicemembers currently deployed or activated in support of 
contingency operations and that this would result in 330,000 family 
members taking FMLA leave for a qualifying exigency. (73 FR at 7957). 
However, these estimates included all servicemembers on active duty in 
contingency operations. As discussed in the preamble, under the statute 
only family members of the servicemembers in the Reserves and National 
Guard would qualify for the exigency leave. Of the 339,000 
servicemembers deployed on or activated for contingency operations in 
October 2007, one-third or 113,000 were Reserve and National Guard 
personnel. This would result in about 110,000 family members being 
eligible to take qualifying exigency leave each year.\14\
---------------------------------------------------------------------------

    \14\ The reason there are fewer family members eligible to take 
qualifying exigency leave than there are Reserve and Guard personnel 
is because not every member of the Reserve and Guard will have a 
covered and eligible family member.
---------------------------------------------------------------------------

    Although the Department has no experience with the patterns of 
leave use under the NDAA amendments, it assumes, as it did for the 1995 
FMLA final rule, that most workers taking FLMA leave for qualifying 
exigencies or to provide care to a seriously injured or ill 
servicemember will not use their entire 12-week or 26-week allotment. 
In addition, given the nature of the leave that would be taken under 
the military leave provisions of the NDAA, the Department assumes that 
all workers taking this type of leave will take some leave 
intermittently. Table 2 presents the Department's best estimates for 
FMLA usage.

                 Table 2--Estimated Use of FMLA Leave *
------------------------------------------------------------------------

------------------------------------------------------------------------
Millions of Workers Taking FMLA Leave........................      7.100
  Millions of Workers Taking FMLA Leave Under the 1995             7.000
   Regulations...............................................
  Millions of Workers Taking FMLA Leave to Care for Seriously      0.029
   Ill or Injured Servicemembers.............................
  Millions of Workers Taking FMLA Leave for Qualifying             0.110
   Exigencies................................................
------------------------------------------------------------------------
Millions of Workers Taking Intermittent FMLA Leave...........      1.800
  Millions of Workers Taking Intermittent FMLA Leave under         1.700
   the 1995 regulations......................................
  Millions of Workers Taking Intermittent FMLA Leave to Care       0.029
   for Seriously Ill or Injured Servicemembers...............
  Millions of Workers Taking Intermittent FMLA Leave for           0.110
   Qualifying Exigencies.....................................
------------------------------------------------------------------------
* Based upon the 2005 estimates in Table 1.
Source: U.S. Department of Labor, ESA, 2008.

Chapter 3: Estimated Costs of the Final Revisions
    This chapter presents a provision-by-provision analysis of the 
changes in costs that would be incurred by employers and workers 
covered by Title I of the FMLA. The estimates presented in the PRIA 
were developed using three approaches.
    First, the PRIA assessed the impacts that are generally applicable 
to most employers and their employees. ``For employers, the most 
significant costs will be the first year cost of reviewing and 
implementing the proposed revisions and the cost of providing employees 
with additional and more specific notifications. After the first year, 
however, these costs will be more than offset by the reduction in 
administrative costs and increased productivity resulting from 
employees providing better notice of their need for FMLA leave * * * 
Although the vast majority of FMLA leave-takers will see no difference, 
the Department estimates that employees will incur * * *

[[Page 68046]]

additional expenses related to taking FMLA leave, primarily as the 
result of the increased number of certifications that they will have to 
provide their employers.'' 73 FR at 7952.
    Second, the PRIA qualitatively discussed the impacts on employers 
and employees with highly time-sensitive operations. The Department 
noted that ``[i]n many situations, the absence of just a few employees 
can have a significant impact. For example, with respect to unscheduled 
intermittent leaves, some employers find they have to over-staff on a 
continuing basis just to make sure they have sufficient coverage on any 
particular day (such as hourly positions in manufacturing, public 
transportation, customer service, health care, call centers, and other 
establishments that operate on a 24/7 basis). Some employers require 
their employees to work overtime to cover the absent employee's work. 
Both of these options result in additional costs. Unfortunately, 
without an accurate production function for each of these industries, 
it is not possible to quantitatively estimate the impact that the 
absence of these workers, including unforeseen absences, will have on 
the time-sensitive operations.'' Id. at 7954.
    Third, the Department estimated the magnitude of the potential 
costs associated with the NDAA military family leave provisions by 
comparing the additional number of workers who might take FMLA leave 
under the new requirements with those currently taking FMLA leave. Id. 
at 7957.
    The Department received no substantive comments on the methodology 
that it used to estimate the costs in the PRIA. Although there were 
some comments about the lack of draft provisions for the NDAA 
amendments and the potential burden that such provisions could impose, 
most of the comments that the Department received on its methodology 
focused upon the underlying data. ``Since 2000, DOL has not conducted 
any rigorous surveys or analysis of how the FMLA is working.'' 
(National Partnership for Women & Families). ``I am confused about why 
some businesses are lobbying for these changes, when they cannot 
demonstrate that the provisions have affected their business 
operations.'' (Andrea Barreiro). ``The lack of adequate data may have 
led the Department to underestimate the costs of the Proposed Rules for 
employees.'' (JEC). ``There is no data about what conditions the 
individuals have or in what industries they are employed. Lacking this 
data, DOL cannot know if its proposed changes will remedy the claimed 
problems.'' (Disability Policy Collaboration).
    Some criticized the Department's reliance on the 2000 Westat 
Report. For example, the Institute of Women's Policy Research stated 
``[t]he most recent data available on FMLA coverage, eligibility, and 
use are from a survey commissioned by the DOL and conducted by Westat 
in 2000. Even when the survey results were published in 2001, these 
data were unable to illuminate many aspects of FMLA use, because of 
difficulty distinguishing between FMLA-qualifying leaves and other 
leaves for similar circumstances that did not meet the criteria for 
FMLA leave, and lack of emphasis on some topics that are now a bigger 
concern. These data may not reflect the current average or range of 
experiences with the FMLA of either workers or employers.'' The Equal 
Employment Advisory Council also noted that ``[w]hile the 2000 Westat 
Report * * * suggests little, if any, burden associated with 
administering FMLA leave, we believe the Report does not accurately 
reflect the level of difficultly employers have experienced in 
attempting to comply with current FMLA regulations.''
    Others criticized the Department for using data supplied by the 
public. ``The Department also relies on non-representative, industry-
sponsored survey data for developing its recommendations.'' (JEC). ``It 
is unlikely that information collected in this manner gives an accurate 
picture of workers' or employers' experiences with the FMLA. DOL 
assumptions * * * [draw on] non-representative survey of self-
interested respondents * * * Survey methodologists recognize that 
individuals invited to participate in non-random-sampled surveys are 
more likely to respond if they have strong feelings about the issues on 
the survey instrument.'' (The Institute of Women's Policy Research)
    The Department recognizes that the 2000 Westat Report has certain 
limitations that affect the accuracy of the Department's estimates. In 
fact, the Department raised many of these limitations in the RFI (see 
71 FR at 69510-13) and was even criticized by some commenters for 
raising these limitations (see 72 FR at 35621). As the Department has 
previously noted, one purpose of the RFI ``was to supplement existing 
data and information on the wide variety of economic impacts that the 
FMLA is likely to have on both workers and employers, including 
productivity and profitability.'' Id. at 35628.
    In fact, the RFI provided the Department a vast quantity of data to 
supplement the data in the 2000 Westat Report. The Department did not 
indiscriminately utilize these data. Rather, whenever possible, the 
Department prudently tried to validate estimates (including those based 
on the 2000 Westat Report) by corroborating them from multiple sources. 
Some of this validation was presented in the Report on the RFI (see, 
for example, the discussions at 71 FR at 35623-26) and some in the PRIA 
(see, for example, the discussions at 73 FR at 7942-43, 7946, and 7949-
50). Moreover, based upon its assessments, which were founded on 
professional judgment and the comments received in response to the RFI, 
the Department made appropriate adjustments to the raw survey data. 
(See, for example, the discussions at 73 FR 7943, 7948 and 7952.)
    The Department notes that it has been a long-standing established 
procedure in regulatory assessment to combine data from multiple 
sources and multiple years in order to address the limitations of any 
one data source. In fact, this very procedure was used to develop the 
estimates for the 1995 FMLA regulations. ``The Department's analysis 
was principally based on a previous analysis of the cost impact of 
prior versions of FMLA legislation pending before the U.S. Congress 
which were conducted by the U.S. General Accounting Office (GAO). The 
latest GAO report on FMLA legislation, updated to reflect the 1993 
enactment * * * [was] based on a survey of selected firms in the 
Detroit, Michigan and Charleston, South Carolina areas.'' (60 FR at 
2236 (Jan. 6, 1995)). An examination of the 1993 GAO report referenced 
by the Department (GAO/HRD-93-14R) indicates that the 1993 GAO 
estimates were in fact based upon a 1987 GAO report (GAO/HRD-88-34).

    To calculate an estimate for the cost to employers of providing 
unpaid leave to eligible workers that reflect 1992 employment and 
cost information we made three adjustments to our previous cost 
estimates. First, we updated employers' health insurance costs. 
Second, we increased the number of likely beneficiaries to reflect 
employment growth. Third, we adjusted the duration of leave an 
employee would take to reflect provisions of * * * the Family and 
Medical Leave Act of 1993. (GAO/HRD-93-14R at 3).

    According to the 1987 GAO report ``[t]o develop our cost estimates, 
we obtained data from numerous sources.'' Two of the sources cited in 
the report were the 1985 National Health Interview Survey, which was 
used to estimate ``the number likely to take leave under the sick child 
and temporary medical leave provisions'' and the 1982 National Long-
Term Care Survey, which was used to estimate ``the number likely to

[[Page 68047]]

take leave under the ill parent provision * * *'' (GAO/HRD-88-34 at 2). 
Since none of the underlying data in the 1985 and 1982 surveys was 
updated by either GAO or the Department, by the time the Department 
published its 1995 FMLA regulations the underlying data were a decade 
or more old.
    The Department also notes that statistical agencies also use data 
from multiple sources to adjust their survey data. For example, the 
Bureau of Labor Statistics (``BLS'') estimates the monthly unemployment 
rate based upon the Current Population Survey (``CPS'') of 
approximately 60,000 households (http://www.bls.gov/cps/cps_htgm.htm). 
According to the CPS Technical Documentation, the Census Bureau adjusts 
the CPS population controls (weights) every year based on 
administrative data, such as birth and death statistics, along with the 
Census Bureau's estimates of net international migration (reflecting 
both legal and illegal immigration). (http://www.bls.gov/cps/
documentation.htm#pop)
    The Department, therefore, concludes that the general approach 
presented in the NPRM to estimate the impacts of the proposed changes 
to the FMLA regulations by combining data from multiple sources and 
multiple years is reasonable. It is consistent with the approach 
commonly used by regulatory agencies. In fact, it is very similar to 
the approach previously used by the GAO and the Department to estimate 
the impacts of the 1995 FMLA regulations (e.g., basing the rates on 
data from multiple sources and updating the estimates to reflect 
population and employment changes). The Department's approach (although 
less sophisticated) is also similar in many respects to that used by 
statistical agencies. In the example cited above, the sample frames 
used by the BLS to estimate the unemployment rate at times may be as 
much as a decade old. Therefore, the Bureau uses data from other 
sources (e.g., birth and death statistics and Census Bureau's estimates 
of net international migration) to adjust the sample frame, even though 
it recognizes that the adjustments are imperfect and will require the 
Bureau to periodically revise its estimates.
    Thus, Department continued to use this approach for estimating the 
impacts of the regulatory changes in the final rule. The provision-by-
provision analysis of the final rule (including and the new provisions 
implementing the NDAA amendments) is presented below. As was the case 
in the PRIA, the provision-by-provision analysis is followed by a 
discussion of the qualitative impact on time-sensitive operations.\15\
---------------------------------------------------------------------------

    \15\ However, the latter discussion was moved to another 
chapter.
---------------------------------------------------------------------------

Cost of Reviewing and Implementing Revisions

    Any change in a regulation will result in costs for the regulated 
community to review the changes and revise their policies and 
procedures. For the PRIA, the Department estimated: ``on average, a 
human resource professional at each firm with FMLA covered 
establishments will spend an average of six hours to review the revised 
FMLA provisions, adjust existing company policies accordingly, and 
disseminate information to managers and staff.'' 73 FR at 7945. 
Although the Department did not receive any comments on this estimate, 
because of the provisions associated with the NDAA, for the final rule 
the Department estimates that it will take eight hours instead of six 
hours.
    Given that the average hourly wage and benefits rate of a Human 
Resource compensation and benefits specialist is $36.51,\16\ the 
average one-time cost per covered firm is $292.08 (8 hours x $36.51). 
Multiplying this average cost per firm by the estimated 285,237 
entities \17\ that have FMLA covered establishments results in an 
estimated one-time cost of about $83.3 million for employers to review 
the changes and revise their policies and procedures.
---------------------------------------------------------------------------

    \16\ Bureau of Labor Statistics, ``National Compensation Survey: 
Occupational Wages in the United States, June 2006.'' Rate assumes 
hourly wage plus 40% for benefits.
    \17\ This estimate includes private sector entities, state and 
local government entities, and quasi-governmental employers. See 
Table 4 of the PRIA. Id. at 7943.
---------------------------------------------------------------------------

    Although the Department did not receive any comments on this 
estimate, because of the new provisions associated with the NDAA, for 
the final rule the Department is estimating that it will take eight 
rather than six hours to review the revised FMLA provisions, adjust 
existing company policies accordingly, and disseminate information to 
managers and staff. This change results in first year costs of $80 
million for the final rule.

The FMLA and Its Purpose (Sec. Sec.  825.100 and .101)

    In the final rule, the Department added references to the NDAA 
military family leave to Sec. Sec.  825.100 and .101. The impact of 
these changes is to expand the list of criteria under which an eligible 
employee can qualify for FMLA-protected leave. The cost associated with 
this update is included in the cost of reviewing and implementing the 
final rule.

Clarifying the Treatment of Professional Employer Organizations (Sec.  
825.106)

    The Department is clarifying how the joint employment rules apply 
to a Professional Employer Organization (``PEO''). PEOs that contract 
with client employers merely to perform administrative functions--
including payroll, benefits, regulatory paperwork, and updating 
employment policies--are not joint employers with their clients. 
However, where a PEO has the right to exercise control over the 
activities of the client's employees, or has the right to hire, fire or 
supervise them, or benefits from the work that the employees perform, 
they are more likely to be considered a joint employer. Essentially, in 
order to determine whether a PEO is a joint employer all of the facts 
and circumstances must be evaluated to assess the economic realities of 
the situation.
    In the PRIA, the Department stated ``[a]lthough data limitations 
inhibit the Department from estimating the impact of this 
clarification, the Department expects that very few workers or 
employers will be impacted by this clarification. Id. Although the 
Department received several comments on Sec.  825.106, none of them 
provided data or addressed the Department's estimated impact. 
Therefore, the Department concludes that very few workers or employers 
will be impacted by this clarification.

Clarifying the Definition of ``Public Agency'' (Sec.  825.108)

    Although the Department proposed no changes to this section, in the 
final rule the definition of ``public agency'' was revised to conform 
to that used in the FLSA. The Department expects that very few workers 
or employers will be impacted by this clarification.

Clarifying the Definition of ``Eligible Employee'' (Sec.  825.110)

    Current Sec.  825.110 sets forth the eligibility standards 
employees must meet in order to take FMLA leave. The Department 
proposed a new 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. 
As discussed in the preamble above, the final rule modifies the 
proposal by extending the permissible gap to seven years. In the PRIA, 
the Department determined that very few workers will be impacted by 
this clarification because ``[i]n order to be impacted

[[Page 68048]]

* * * a worker would have to (1) be employed for at least 1,250 hours 
during the previous 12 months, (2) have a break in employment with that 
employer for more than 5 years, and (3) need time from the earlier 
period of employment with the same employer to meet the 12 months of 
employment requirement for FMLA eligibility. Very few workers are 
likely to meet these three conditions. For example, part-time employees 
would have to work an average of 25 hours per week for 50 weeks to meet 
the 1,250 hours employed requirement. So the only ones impacted are 
those who want to use FMLA leave and who need a few additional weeks of 
employment from their previous period of employment more than 5 years 
ago with the same employer. Similarly, returning full-time employees 
will need more than seven months of employment at 40 hours per week to 
meet the 1,250 hours employed requirement. So the only ones impacted 
are those who want to use FMLA leave and who need a few extra months of 
employment from their previous period of employment more than 5 years 
ago with the same employer.'' Id., Footnote 33. Even fewer workers are 
likely to be impacted by the final rule, which extends the period to 
seven years.
    Although the Department received several comments on this change, 
as noted in the preamble discussion above, none of the comments 
provided estimates of the number of employers or workers who would be 
impacted by the change, nor did they dispute the Department's 
assessment. Therefore, the Department concludes that very few workers 
or employers will be impacted by this change.
    The final rule also adopts the two exceptions to the cap set forth 
in Sec.  825.110(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 Sec.  825.110(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.
    The Department also proposed and has adopted in the final rule 
Sec.  825.110(d), which clarifies that an employee may attain FMLA 
eligibility while out on a continuous block of leave when the employee 
satisfies the requirement for 12 months of employment. The Department 
believes that this change will have a minimal burden on employers 
because it would only apply to employers who voluntarily allow 
employees to go out on leave before the employee has satisfied the 12-
month requirement.
    Finally, the Department deleted the ``deeming'' provisions in 
current Sec.  825.110(c) and (d). This change should have no impact on 
employers or employees because the Department believes that it cannot 
enforce the deeming provisions of the current rule in light of the 
Supreme Court's 2002 Ragsdale decision.

Determining of Whether 50 Employees are Employed Within 75 Miles (Sec.  
825.111)

    Current Sec.  825.111 sets forth the standards for determining 
whether an employer employs 50 employees within 75 miles for purposes 
of employee eligibility. The Department proposed and is adopting a 
modification to Sec.  825.111(a)(3) that when an employee is jointly 
employed by two or more employees, the employer's worksite is the 
primary employer's office from which the employee is assigned or 
reports, unless the employee has physically worked for at least one 
year at a facility of a secondary employer, in which case the 
employee's worksite is that location.
    In the PRIA, the Department stated that it anticipates that this 
clarification will have little net impact. ``Some employees currently 
covered by FMLA may not be covered if their official worksite is 
changed because they have worked more than one year at an establishment 
which has less than 50 employees within 75 miles, while other employees 
not currently covered may become covered if their worksite is changed 
to an establishment which has 50 or more employees within 75 miles.'' 
Id. at 7946.
    The Department did not receive comments disputing this assessment 
although Burr & Forman was concerned about the potential impact of this 
revision on small businesses using leased employees. The firm stated 
that this revision ``would result in not only administrative burdens, 
but also will result in additional costs in orienting and training 
temporary employees rotating into slots vacated by those on leave.'' 
After carefully considering this comment, the Department disagrees 
because the change impacts the eligibility of the jointly employed 
worker, and regardless of the eligibility of the worker, the jointly 
employed worker must still be counted as an employee by both the 
primary and the secondary employers. That is, the small business would 
have to count the leased employees towards the 50 or more employee 
threshold for FMLA coverage whether or not those employees have their 
home office or the actual physical place where they work as their 
official worksite. Therefore, the Department concludes that this change 
will have little net impact on workers or employers.

Qualifying Reasons for Leave, General Rule (Sec.  825.112)

    The Department proposed no substantive changes to Sec.  825.112 but 
did propose moving several paragraphs of the current rule to other 
sections to improve the organization of the regulations. This 
reorganization has been adopted in the final rule and will improve 
understanding of the rules but will not substantively impact workers or 
employers.

Serious Health Condition (Sec.  825.113) and Inpatient Care (Sec.  
825.114)

    The Department proposed and has adopted changes to Sec.  825.113 to 
incorporate the definitions of ``incapacity'' and ``treatment'' from 
current Sec.  825.114 and to move the definition of ``parent, spouse, 
son or daughter'' to Sec.  825.122. In addition, Sec.  825.113 of the 
final rule adopts, with limited change, language from Sec.  825.114 
that illustrates the types of treatments and conditions not ordinarily 
expected to be covered by the definition of serious health condition. 
The reorganization and clarification will improve understanding of the 
rules but will unlikely have an identifiable impact on either employers 
or workers.

Clarifying the Definition of ``Continuing Treatment'' (Sec.  825.115)

    Proposed Sec.  825.115 defined ``continuing treatment'' for 
purposes of establishing a serious health condition. Two changes were 
proposed from current regulations and they were adopted in the final 
rule.
    First, current Sec.  825.114(a)(2)(i)(A) establishes that an 
employee can meet the definition of serious health condition if, in 
connection with a period of incapacity of more than three consecutive 
calendar days, the employee or family member is treated two or more 
times by a health care provider. However, the current ``two visit'' 
requirement for serious health conditions is open-ended. In Sec.  
825.115(a)(1), the Department proposed and has adopted a clarification 
specifying that the two visits to a health care provider must take 
place within 30 days unless extenuating circumstances exist to meet the 
definition. The final rule also clarifies that the period of incapacity 
must be

[[Page 68049]]

more than three consecutive ``full'' calendar days; that the 30-day 
period begins with the first day of incapacity; and that the first 
visit to the health care provider must occur within 7 days of the first 
day of incapacity.
    Second, the current definition of a chronic serious health 
condition in Sec.  825.114(a)(2)(iii) is similarly open-ended because 
the regulations do not define the term ``periodic visit.'' In Sec.  
825.115(c)(1), as discussed in the preamble above, the Department 
proposed and has adopted a clarification defining the term ``periodic 
treatment'' as visiting a health care provider at least twice a year 
for the same condition.
    In the PRIA, the Department stated that the proposed clarifications 
were ``unlikely to have any identifiable impact on FMLA leave-takers 
for several reasons. First, of the five different definitions of 
continuing treatment contained in current Sec.  825.114(a)(2)(i)-(v), 
the Department is proposing to update only two. Those workers who meet 
the other tests will not be affected * * *. The proposed changes also 
do not affect employees who take FMLA leave for serious health 
conditions that required an overnight hospital stay or workers who will 
qualify on the basis of one visit to a health care professional and a 
continuing regimen of treatment. Second, serious health conditions 
usually require two visits to a health care provider within 30 days, 
and workers with chronic serious health conditions typically visit 
their health care providers twice a year. Finally, the Department has 
also proposed an `extenuating circumstances' exception to the 30-day 
rule in Sec.  825.115(a)(1), so it is likely that very few workers will 
be negatively impacted by the proposed changes. In fact, the Department 
believes it is providing FMLA protection to more workers by clarifying 
that the period should be 30 days, instead of adopting the stricter 
regulatory interpretation offered by the United States Court of Appeals 
for the Tenth Circuit. Further, to the extent that some employers have 
chosen to provide their own more stringent definition of the term 
`periodic' for FMLA purposes, clarifying the term `periodic' for 
chronic conditions to mean `at least twice a year' will reduce 
uncertainty in the workplace and decrease the burden for some 
workers.'' 73 FR at 7946.
    In response to the NPRM the Department received many comments from 
individual employees and employee representatives that the Department's 
assessment was incorrect and that these changes would increase the 
burden on workers taking FMLA leave. For example, in response to the 
Department's proposal to clarify in Sec.  825.115(a) that the two 
visits to a health care provider must take place within a 30-calendar-
day period unless extenuating circumstances exist, the Communications 
Workers of America (``CWA'') stated ``this arbitrary change [requiring 
treatment by a health care provider twice within a 30-day period] will 
impose an unwarranted burden on employees and their health care 
providers * * *.'' The National Postal Mail Handlers Union stated that 
``[t]o require the employee to visit the doctor a second time within 30 
days imposes an undue cost and inconvenience on the employee, and a 
burden on the already overburdened health care system. The employee is 
likely to have a co-pay for this additional (and medically unnecessary) 
visit and the employee's insurance may even refuse to cover such a 
medically unnecessary appointment, potentially imposing great cost on 
the employee.''
    In response to the Department's proposal to clarify in Sec.  
825.115(c) that the term ``periodic visit'' for chronic conditions 
means visiting a health care provider at least twice a year for the 
same condition, many members of the American Postal Workers Union 
(``APWU'') stated ``[t]he new regulations would pose an unreasonable 
burden on employees who suffer from long-term or chronic conditions, 
requiring them to make unnecessary visits to their doctor, and forcing 
them to pay for the extra visits.'' The JEC stated ``an employee with 
an incurable disease, such as diabetes, may not actually need to go to 
the doctor that often. This rule may in fact lead to the need for more 
intermittent leave for those employees so that they can go to the 
doctor * * *.''
    After carefully reviewing all of the comments related to the 
clarification that the two visits to a health care provider must take 
place within a 30-day period unless extenuating circumstances exist, 
and re-examining its assessment in the PRIA, the Department stands by 
its earlier determination that this clarification is unlikely to have 
any identifiable impact on FMLA leave-takers. As noted in the PRIA, 
serious health conditions usually require two visits to a health care 
provider within 30 days. In fact, the final rule's requirement of two 
visits to a health care provider is encompassed by the current 
standard. Therefore, workers will not have any additional costs under 
this ``test'' than they did before. The only difference is the costs 
for the two visits will be borne within 30 days instead of over some 
indefinite period. Further, the final rule also includes the 
``extenuating circumstances'' exception to the 30-day standard in Sec.  
825.115(a)(1), so it is unlikely that any workers will be negatively 
impacted by the proposed changes. In fact, the Department believes it 
is providing FMLA protection to more workers by clarifying that the 
period should be 30 days, instead of adopting the stricter regulatory 
interpretation offered by the United States Court of Appeals for the 
Tenth Circuit.
    After carefully reviewing all of the comments related to the 
clarification that the term ``periodic visit'' means visiting a health 
care provider at least twice per year for the same condition, the 
Department stands by its determination in the PRIA that this 
clarification is unlikely to have any identifiable impact on FMLA 
leave-takers. As noted in the PRIA, workers with chronic serious health 
conditions that are currently covered by the FMLA typically visit their 
health care providers twice a year. In fact, the current standard of 
``periodic'' visits for chronic conditions is implicitly the same as 
the final rule's requirement of two visits per year. As noted in the 
preamble, 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 burdensome since that 
view effectively ignores the requirement for ``periodic'' visits in the 
current regulations. As with the requirement of two treatment visits 
within 30 days, the determination of whether two treatment visits per 
year are necessary is a medical determination to be made by the health 
care provider. The clarification more effectively identifies the types 
of chronic conditions Congress intended to cover under the FMLA, 
without including some conditions that the Department believes are not 
currently covered. 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. 
Therefore, workers with currently covered chronic conditions are 
unlikely to incur any additional costs under this ``test'' than they 
did before. Further, to the extent that some employers have chosen to 
provide their own more stringent definition of the term ``periodic'' 
for FMLA purposes, clarifying the term ``periodic'' for chronic 
conditions to mean visits at least twice a year may reduce uncertainty 
in the workplace and may decrease the burden for some workers.

[[Page 68050]]

Leave for Treatment of Substance Abuse (Sec.  825.119)

    The Department proposed and has adopted in the final rule 
consolidating in a single location the provisions in current Sec. Sec.  
825.112(g) and 825.114(d). This reorganization will have no impact on 
either employers or workers.

Leave for Pregnancy or Birth (Sec.  825.120)

    The Department proposed and has adopted in the final rule 
consolidating the existing regulations pertaining to pregnancy and 
birth in a single location. In the final rule the Department also 
clarifies that a husband is entitled to FMLA-protected leave if he is 
needed to care for his wife who is incapacitated due to her pregnancy 
(e.g., if the pregnant wife is unable to transport herself to a 
doctor's appointment). As with all care for covered family members 
under the FMLA such care may include providing psychological comfort 
and reassurance. The Department also clarified that FMLA leave to care 
for a pregnant woman is available to the spouse and not, for example, 
to a boyfriend or fianc[eacute] who is the father of the unborn child. 
The reorganization and clarification will have no impact on either 
employers or workers.

Leave for Adoption or Foster Care (Sec.  825.121)

    The Department proposed and has adopted the consolidation of the 
existing regulations pertaining to the rights and obligations with 
regard to adoption and foster care. The reorganization will have no 
impact on either employers or workers.

Clarifying the Definitions of Spouse, Parent, Son and Daughter (Sec.  
825.122)

    The proposal relocated these definitions from existing Sec.  
825.113 and made some minor editorial changes. In addition, Sec.  
825.122(f) of the proposal added language that the employer could 
require the employee to provide documentation to confirm a family 
relationship such as a sworn, notarized statement or a submitted and 
signed tax return. In the final rule the Department adopted the edits 
but did not adopt the proposed language in paragraph (f) regarding the 
additional documentation necessary to confirm the family relationship, 
and retained the current regulation instead. The Department also 
further reorganized this section by inserting clarifying definitions 
related to military caregiver leave and moving the language about 
documentation confirming a family relationship to new Sec.  825.122(j). 
In addition, in the final rule the Department clarified (as did the 
proposal) that an adult child must be incapable of self-care because of 
a disability at the time FMLA leave is to commence. The reorganization, 
edits and clarifications will have no impact on either employers or 
workers.

Unable To Perform the Functions of the Position (Sec.  825.123)

    The Department proposed no substantive changes to this section but 
proposed to clarify in paragraph (b) that a sufficient medical 
certification must specify what functions the employee is unable to 
perform. The final rule adopts the proposal with one minor change. In 
order to make the terminology consistent with 29 U.S.C. 2613(b)(3) and 
(4)(B), paragraph (b) of the final rule uses the term ``essential 
functions.'' The edits and clarifications will have no impact on either 
employers or workers.

Needed To Care for a Family Member or Covered Servicemember (Sec.  
825.124)

    The proposal relocated the regulations that define the phrase 
``needed to care for'' a family member from Sec.  825.116. In addition, 
the Department clarified 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 
reorganization and clarification will have no impact on either 
employers or workers.

Definition of Health Care Provider (Sec.  825.125)

    The Department proposed and has adopted a change to the definition 
of health care provider by clarifying the status of a physician 
assistant (``PA''). Corresponding changes were also made to Sec.  
825.115 (Continuing treatment) and Sec.  825.800 (Definitions). The 
reorganization and clarifications will have no impact on either 
employers or workers. As was noted previously in the preamble, most PAs 
are already included in the definition of health care provider because 
the vast majority of group health plans accept them when substantiating 
a claim for benefits.

Leave Because of a Qualifying Exigency (Sec.  825.126) and Leave To 
Care for a Covered Servicemember With a Serious Injury or Illness 
(Sec.  825.127)

    Section 825.126 (addressing what is referred to as ``qualifying 
exigency leave'' in this document) implements the provision of the NDAA 
that eligible employees may take up to 12 weeks of FMLA leave for any 
qualifying exigency arising out of the fact that the spouse, son, 
daughter or parent of the employee is on active duty or has been 
notified of an impending call to active duty status in support of a 
contingency operation. As discussed in the preamble, for the purposes 
of Sec.  825.126 servicemembers include members of the National Guard, 
the Reserves, and certain retired members of the Regular Armed Forces 
and retired Reserve who are the spouse, son, daughter or parent of the 
eligible employee. Section 825.126 also includes a list of qualifying 
exigencies.
    Section 825.127 (addressing what is referred to as ``military 
caregiver leave'' in this document) implements the provision of the 
NDAA that provides that eligible employees may take up to 26 weeks of 
FMLA leave during a single 12-month period to care for a ``covered 
servicemember'' with a serious injury or illness incurred by the 
servicemember in the line of duty on active duty that may render the 
servicemember medically unfit to perform the duties of his or her 
office, grade, rank or rating. For the purposes of this section, a 
``covered servicemember'' must be a member of the Armed Forces, 
including a member of the National Guard or Reserves, who has a serious 
injury or illness for which he or she is (1) undergoing medical 
treatment, recuperation or therapy; or (2) otherwise in ``outpatient 
status;'' or (3) otherwise on the temporary disability retired list 
(``TRDL''). Former members of the Armed Forces, former members of the 
National Guard and Reserves, and members on the permanent disability 
retired list (``PDRL'') are not ``covered servicemembers.'' In order to 
care for a covered servicemember, an employee must be the spouse, son, 
daughter, parent or next of kin of a covered servicemember.
    As discussed in the PRIA (id. at 7954), the Department identified 
the potential number of covered and eligible workers who may be 
impacted by the military family leave provisions but did not develop 
specific cost estimates for these provisions. Rather, based upon the 
potential increase in the number of FMLA-eligible workers who would 
take FMLA leave due to the military family leave provisions and the 
assumption that the costs of military family leave are similar to the 
costs of current FMLA leaves, the Department estimated that the cost of 
the FMLA could potentially increase by as much as 5 percent,\18\ Id.

[[Page 68051]]

at 7957. Although the Department received many comments on the NDAA 
provisions, they primarily indicated support for the new entitlements 
and provided recommendations on how they should be implemented. None of 
the comments addressed the estimation of potential impacts.
---------------------------------------------------------------------------

    \18\ As was discussed in the PRIA, the Department believed that 
a 5 percent cost increase may be an over-estimate because (1) the 
NDAA did not change the scope of covered employers or eligible 
workers under the FMLA and many of the costs of the FMLA are related 
to the coverage of the establishment or the eligibility of workers 
rather than the number of workers taking leave, and (2) just as all 
workers eligible to take FMLA leave do not take FMLA leave when they 
or a qualified family member have a serious health condition, 
similarly, not all employees eligible to take FMLA leave will do so 
under the new military family leave provisions. Id. at 7957.
---------------------------------------------------------------------------

    Because Sec. Sec.  825.126 and 825.127 are new provisions, the 
Department has no history on which to base its estimates. For example, 
there are no existing surveys (either conducted by the public or the 
federal government) that can be used as a basis to estimate the leave 
patterns of workers taking either qualifying exigency leave under Sec.  
825.126 or military caregiver leave under Sec.  825.127. Therefore, the 
Department is using a different approach to estimate the impacts of 
Sec. Sec.  825.126 and 825.127 than it used to estimate the impacts of 
the other provisions.
    First, based upon its analysis of the provisions, the Department 
developed typical profiles of the leave patterns of workers that it 
estimates would take qualifying exigency leave under Sec.  825.126 and 
military caregiver leave under Sec.  825.127. The Department believes 
that a typical employee who will take qualifying exigency leave under 
Sec.  825.126 will have the following leave pattern:
     Upon notification of the deployment of the servicemember, 
the eligible employee will take a block of one week of unforeseeable 
FMLA leave to address qualifying exigencies (e.g., under Sec.  
825.126(a)(1)(i)).
     During the deployment of the servicemember, the eligible 
employee will take ten days of unforeseeable FMLA leave to address 
qualifying exigencies under Sec.  825.126(a).
     During the deployment of the servicemember, the eligible 
employee will take a block of one week of foreseeable FMLA leave to 
join the servicemember while the servicemember is on ``Rest and 
Recuperation'' (Sec.  825.126(a)(6)).
     Post deployment of the servicemember, the eligible 
employee will take a block of one week of foreseeable FMLA leave to 
address qualifying exigencies (Sec.  825.126(a)(7)).
    The Department believes that a typical employee who will take 
military caregiver leave under Sec.  825.127 will have the following 
leave pattern:
     Upon receiving notification of the serious injury or 
illness of the covered servicemember the eligible employee will take a 
block of four weeks of unforeseeable FMLA leave to care for the covered 
servicemember.
     The eligible employee will subsequently take a second 
block of two weeks of unforeseeable FMLA leave to care for the covered 
servicemember after the covered servicemember is transferred to a 
rehabilitation facility.
     During the single 12-month period, the eligible employee 
will take two one-week blocks of unforeseeable FMLA leave to care for 
the covered servicemember, under the assumption that the covered 
servicemember may experience an unanticipated complication.
     During the single 12-month period, the eligible employee 
will schedule and take 40 individual days of foreseeable FMLA leave to 
care for the covered servicemember.
    Next, the Department assessed the costs associated with each type 
of leave. As noted in the NPRM, the Department recognized that the NDAA 
``does not change the scope of the FMLA in terms of the establishments 
covered or the eligibility of workers. Many of the costs of the FMLA 
are related to the coverage of the establishment or the eligibility of 
workers rather than the number of workers taking leave.'' Id. at 7957. 
The Department determined that the marginal costs related to workers 
taking both kinds of military family leave under Sec. Sec.  825.126 and 
825.127 result from the cost of providing health insurance during the 
period the worker is on leave and the efficiency costs associated with 
unexpected absences. The Department believes these two categories of 
costs are reasonable proxies for the opportunity cost of the NDAA 
provisions, since health insurance coverage represents the marginal 
compensation an employer is still required to cover under the FMLA when 
a worker is absent, and unexpected absences have long been identified 
in this rulemaking and other FMLA leave studies as a potential source 
of burden above and beyond the cost of a replacement worker. Since FMLA 
leave is unpaid, as was done in the promulgation of the 1995 FMLA 
regulation, the Department is not assessing the costs associated with 
the replacement workers as a cost of this rulemaking.
    The Department based the costs of providing health insurance on 
data from the BLS, Employer Costs for Employee Compensation survey. 
According to the June 2008 report (USDL: 08-1271), employers spend an 
average of $2.25 per hour on health insurance (see Table 1, pg. 5). 
Based upon the assumption that typical employees work 8-hour days and 
40-hour workweeks, typical employees will cost their employer 
approximately $450 for the estimated 200 hours (i.e., 25 days x 8 hours 
per day) of FMLA leave that they will take for qualifying exigency 
leave under Sec.  825.126 and $1,440 for the estimated 640 hours (i.e., 
80 days x 8 hours per day) of FMLA leave that they will take for 
military caregiver leave under Sec.  825.127.
    The Department based the costs of unforeseeable FMLA leave on data 
from the Unscheduled Absence Survey by CCH \19\ and a 2008 Employee 
Absenteeism survey conducted by WorldatWork.\20\ According to the CCH 
2005 survey, the average per-employee cost of unscheduled absenteeism 
is $660. Since this estimate was per employee, the Department converted 
it to a per day estimate. According to the 2008 WorldatWork Employee 
Absenteeism survey, employees averaged 5.3 days of unplanned absences 
per year. Applying this rate to the $660 cost per employee results in 
an estimated cost of $125 per day for unplanned absences. Based upon 
comments made regarding the need for employee notification, the 
Department assumes that this cost only applies to the first day of the 
blocks of unforeseeable FMLA leave because employers will have had time 
to schedule coverage on the subsequent days. Therefore, the Department 
estimates that the one block and 10 individual days of unforeseeable 
FMLA leave taken by a typical employee for qualifying exigency leave 
under Sec.  825.126 will cost employers $1,375 and the four blocks of 
unforeseeable FMLA leave taken by a typical employee for military 
caregiver leave under Sec.  825.127 will cost employers $500.
---------------------------------------------------------------------------

    \19\ Available at: http://www.cch.com/Press/news/2005/
200510121h.asp.
    \20\ Available at: http://www.worldatwork.org/waw/
adimComment?id=28206.
---------------------------------------------------------------------------

    Thus the Department estimates a typical employee utilizing FMLA 
leave under the provisions of the NDAA will cost his or her employer 
approximately $1,825 for qualifying exigency leave under Sec.  825.126 
and $1,940 for military caregiver leave under Sec.  825.127. Based on 
an estimated 110,000 eligible employees taking qualifying exigency 
leave under Sec.  825.126, the Department estimates that Sec.  825.126 
will result in added costs to employers of $200.8 million. Based on an 
estimated 29,100 eligible employees taking military caregiver leave 
under Sec.  825.127, the Department estimates that Sec.  825.127 will 
result in added costs to employers of $56.5 million.

[[Page 68052]]

    The Department also estimated other costs associated with the 
military leave provisions, such as those related to the employer 
notification provisions in Sec.  825.300. Those costs are presented in 
the appropriate sections below.
    The Department did not assess any additional costs for foreseeable 
FMLA leave taken under Sec. Sec.  825.126 and 825.127. The Department 
believes that employers covered by the FMLA will have the systems in 
place to handle these foreseeable FMLA leaves after the occurrence of 
the initial unforeseeable FMLA leaves were taken. Moreover, after the 
employee has supplied the initial information for the employer to 
determine that the initial unforeseeable leave qualifies as FMLA leave, 
the certification requirements for the subsequent leave taken under 
Sec. Sec.  825.126 and 825.127 are less burdensome. Finally, the 
marginal administrative costs for the foreseeable FMLA leaves taken 
under Sec. Sec.  825.126 and 825.127 are negligible (e.g., once the 
eligible employee has taken the initial unforeseen leave under either 
Sec. Sec.  825.126 or 825.127, the employer is on notice that 
additional leaves will follow, so that the costs to employers of 
administering subsequent scheduled leaves taken under either Sec. Sec.  
825.126 or 825.127 will be nominal).

Amount of Leave (Sec.  825.200)

    Section 825.200 explains the basic leave entitlement. The 
Department proposed and has adopted a clarification regarding how 
holidays are counted when they fall in a week that an employee needs 
less than a full week of FMLA leave. Specifically, in these situations, 
it has been the Department's enforcement position not to count the 
holidays against the employee's 12-week entitlement. The Department has 
not made any changes in the treatment of holidays which fall within a 
full week of FMLA leave. The Department also added additional 
explanation to the rolling leave year calculation. These clarifications 
will have no impact on either employers or workers.

Leave To Care for a Parent (Sec.  825.201)

    The Department proposed and has adopted some changes to make the 
regulations more clear and accessible. The requirements regarding leave 
for the birth, adoption or foster care of a child have been relocated 
to Sec.  825.120 and Sec.  825.121. Therefore, Sec.  825.201 now only 
covers leave to care for a parent, which was previously in Sec.  
825.202. The reorganization and edits will have no impact on either 
employers or workers.

Intermittent Leave or Reduced Schedule Leave (Sec.  825.202)

    The Department proposed and has adopted some changes to make the 
regulations more clear and accessible. The Department made three edits 
in final rule. First, the parenthetical phrase ``(as distinguished from 
voluntary treatments and procedures)'' was deleted because it was an 
unnecessary and confusing reference to provisions in the 1993 interim 
rule that were dropped when the 1995 regulations were promulgated. 
Next, a clear definition of ``medical necessity'' for intermittent 
leave was included by combining existing language from current Sec.  
825.117 and illustrations from current Sec.  825.203(c). Finally, as 
explained in the preamble, the Department agreed with commenters to 
delete the word ``related'' from the phrase ``treatment of related 
serious health condition'' as an unnecessary term and potentially 
problematic. Overall, the aforementioned changes to this section were 
well received by commenters to the NPRM. The reorganization and edits 
will have no impact on either employers or workers.

Scheduling of Intermittent or Reduced Schedule Leave (Sec.  825.203)

    The Department proposed and has adopted some changes to make the 
regulations more clear and accessible. In addition, the Department 
proposed and has adopted an editorial change to clarify that employees 
who take intermittent FMLA leave have a statutory obligation to make a 
``reasonable effort'' to schedule such leave so as not to disrupt 
unduly the employer's operations. The reorganization and clarification 
that more closely follows the statutory language will have no impact on 
either employers or workers.

Transfer of an Employee to an Alternative Position During Intermittent 
Leave or Reduced Schedule Leave (Sec.  825.204)

    The Department proposed and has adopted some non-substantive 
editorial changes to this section such as adding new subheadings. In 
addition, the NPRM solicited comments on whether to alter the rules to 
expand employers' ability to transfer workers who take intermittent 
FMLA leave to alternative positions. As discussed in the preamble 
above, the Department found no statutory basis to permit transfers to 
an alternative position for those taking unscheduled or unforeseeable 
intermittent leave and declined to make this change in the final rule. 
The non-substantive edits will have no impact on either employers or 
workers.

Increments of FMLA Leave for Intermittent or Reduced Schedule Leave 
(Sec.  825.205)

    The Department proposed and has adopted some changes to make the 
regulations more clear and accessible such as relocating some of the 
language currently in Sec.  825.203 and adding subtitles. The 
reorganization and clarification will have no impact on either 
employers or workers.
    In addition, the NPRM requested comments on whether the minimum 
increment of leave should be raised for all workers or in situations 
where a physical impossibility prevents an employee from commencing 
work part-way through a shift. As discussed in the preamble above, the 
Department retained the current requirement that employers use the 
shortest period of time their leave system uses to account for other 
types of leave as long as it does not exceed one hour. In doing so, the 
Department also recognized that employers may account ``for absences or 
use of leave in varying increments at different times of the day or 
shift.'' This clarification coupled with the one hour increment 
discussed above allows employers to assess FMLA-leave time in 
increments of an hour to tardy employees, so long as the employees do 
not work during the time charged as leave. However, the Department went 
on to adopt changes related to situations where it is not possible for 
an employee to commence work part-way through a shift.
    The language in the final rule makes it clear that the Department 
intends the exception to be applied narrowly to situations where an 
employee is physically unable to access the worksite after the start of 
the shift such as where a flight attendant or a railroad conductor is 
scheduled to work aboard an airplane or train, or a laboratory employee 
is unable to enter or leave a sealed ``clean room'' during a certain 
period of time.
    According to the Bureau of Labor Statistics, Occupational 
Employment Survey, approximately 3.75 million employees work on flight 
crews, train crews, ship crews, and as truck, bus, and subway drivers. 
The Department also estimates another 150,000 employees work in clean 
rooms for a total of 3.9 million workers.\21\ It is likely

[[Page 68053]]

that about 80.5 percent of these workers are covered and eligible to 
take FMLA leave; that about 9.1 percent of those workers will take FMLA 
leave; and that about 23.9 percent of those workers will take 
intermittent FMLA leave, or about 68,000 workers. Further, since the 
Department intends the physical impossibility exception to be applied 
narrowly, this is likely to be an overestimate of the number of workers 
who actually will be impacted by the change because it likely includes 
a number of workers who will not fit into the exception examples 
provided in the preamble above.
---------------------------------------------------------------------------

    \21\ According to a 1999 report in the San Francisco Chronicle, 
roughly 74,000 people across the country work in clean rooms 
building semiconductors. The report is available at: http://
www.sfgate.com/cgi-bin/article.cgi?f=/c/a/1999/04/19/
BU86426.DTL&type=printable. The Department has doubled this estimate 
to account for clean rooms in other industries and employment growth 
since 1999.
---------------------------------------------------------------------------

    Using Data from the BLS' Occupation Employment Statistics survey, 
the Department estimates that the median hourly wage for flight crews, 
train crews, ship crews, drivers, and clean room workers to be about 
$17.66 per hour.
    Assuming that the regulatory change will result in an average of 
eight hours of additional unpaid leave for each of the estimated 68,000 
workers who take intermittent leave in situations where it is not 
possible for them to commence work part-way through a shift, then at 
most $9.6 million per year (e.g., 68,000 workers per year x 8 hours per 
worker x $17.66 per hour) would be transferred from these employees to 
their employers in the form of unpaid FMLA leave or using accrued paid 
leave.\22\ Again, since the Department intends the physical 
impossibility exception to be applied narrowly, this is likely to be an 
overestimate of the cost of this provision.
---------------------------------------------------------------------------

    \22\ Based on the comments, the Department has determined that 
under the current regulations some employers end up having to pay 
two workers for the same shift when one worker shows up late for 
work because they take intermittent FMLA leave (i.e., the worker 
called in to take the shift of the employee on FMLA leave, and the 
employee returning from FMLA leave). For example, the Airline 
Industrial Relations Conference (comment for the RFI), noted that an 
``employee could use intermittent FMLA leave to miss the heavy 
flight bank, causing the carrier to either operate short-handed or 
to call in a replacement worker who likely must be paid a shift 
premium, then come in to work the rest of the shift during which no 
flights may arrive or depart, leaving the carrier now over-
staffed.'' Under the final rule, the employee could remain on unpaid 
FMLA leave. Since under the final rule the employer would no longer 
have to pay two employees for the same shift, the value of the 
unpaid leave of the employee on FMLA leave is effectively a transfer 
to the employer.
---------------------------------------------------------------------------

    Finally, in response to comments, the Department is making two 
revisions to the calculation of leave to address issues that arise when 
an employee's schedule varies. First, the Department clarified that 
workweeks and fractions thereof may be converted to hours for tracking 
purposes. Second, the Department changed the rule for calculating an 
average workweek when the employee has no normal schedule to a 12-month 
rather than a 12-week average to account for seasonal variation. As 
discussed in the preamble above, the Department believes that it has 
addressed the commenters' concerns by changing the calculation of leave 
so that overtime is factored into the leave entitlement, either because 
the regular schedule is over 40 hours or because the employee is on a 
variable schedule and the hours are averaged over a 12-month period. 
The Department concludes that the changes to the calculation of leave 
will have no impact on either employers or workers.

Substitution of Paid Leave (Sec.  825.207)

    The Department proposed and has adopted several changes to Sec.  
825.207 allowing employers to apply their normal paid leave policies to 
the substitution of all types of paid leave for unpaid leave. In 
addition, the Department proposed and has adopted changes that permit 
employers and employees to voluntarily agree to supplement workers' 
compensation benefits with accrued paid leave; allow the substitution 
of compensatory time accrued by public agency employees; and deleted 
current Sec.  825.207(h), which states that where paid leave is 
substituted for unpaid FMLA leave and 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. Finally, the Department made a few editorial 
changes such as deleting the term ``running concurrently.''
    Several commenters criticized the Department's assessment in the 
PRIA that the proposed changes to this section would have little 
impact. Id. at 7947. The JEC stated ``[t]he Department does not provide 
evidence that employees can easily access paid leave or vacation time, 
or whether they can easily use paid time off for FMLA. While some FMLA 
leaves can be planned or requested far in advance, many cannot.'' The 
Institute for Women's Policy Research stated ``DOL does not report 
having surveyed employers about the conditions they may impose on 
taking paid leave, such as whether the leave must be requested some 
number of days or weeks in advance, whether a minimum amount of paid 
leave must be taken at once, or whether the leave must be coordinated 
with co-workers' leave.'' The National Partnership for Women & Families 
stated ``if an employer does not allow vacation leave during certain 
times of the year, requires five days notice for vacation time, or 
requires that vacation time be taken in four hour blocks, an employee 
will have to abide by these rules when taking leave concurrently with 
FMLA leave in order to be paid while on FMLA leave * * * Many employees 
cut their leaves short because they cannot afford to go too long 
without a paycheck. DOL's proposed new rule may increase the number of 
employees that will have to face the agonizing choice between a 
paycheck and their health or the health of a loved one.'' The Coalition 
of Labor Union Women (``CLUW'') noted that ``information from members 
indicates that the vast majority of unpaid leaves are unscheduled, 
caused by unforeseen medical problems. CLUW is concerned that this 
regulatory change will make it more difficult for an employee to 
qualify for much-needed leave without income loss.'' The AFL-CIO stated 
that ``[m]any collective bargaining agreements require employees to bid 
on vacation time on an annual basis, and the Department's 
reinterpretation would foreclose the use of paid vacation leave in 
these workplaces.'' The Institute for Women's Policy Research also 
stated that ``[i]t seems entirely reasonable to expect that some share 
of FMLA leave-takers will not be able to meet their employer's general 
paid leave requirements and thus will not be paid during their FMLA 
leave. This will place a new financial burden on workers.''
    The Department notes that it presented evidence based on data in 
the 2000 Westat Report that suggests many employees can easily access 
paid leave or vacation time. Id. at 7947. According to the 2000 Westat 
Report, 77.8 percent of leave-takers reported that it was easy to get 
their employer to let them take time off. This suggests that a large 
majority of workers will have no problem complying with their 
employers' leave policies. Moreover, the Department concurs with the 
Institute for Women's Policy Research that it is entirely reasonable to 
expect that some FMLA leave-takers will not be able to meet their 
employers' general paid leave requirements and thus will not be paid 
during their FMLA leave. In fact, the Department presented data in the 
PRIA from the 2000 Westat Report that suggests 14 percent of workers 
reported that it was difficult to get time off and that a similarly 
small percentage of the workers who received paid vacation or personal 
leave during their FMLA leave may have some difficulty satisfying their 
employers' paid leave policies.
    The Department notes that the analysis presented in the PRIA was 
not

[[Page 68054]]

based upon the assertion that very few workers would lose the ability 
to use paid vacation and personal leave when they take FMLA leave under 
the revised provisions. Rather, based upon data from the 2000 Westat 
Report, the Department determined that 63.8 percent of workers do not 
run either paid vacation or personal leave concurrently with their FMLA 
leave. Moreover, of those workers who do use the types of paid leave 
covered by the update in the final rule, many are likely to have no 
problem complying with their employers' paid leave policies. According 
to the 2000 Westat Report, 77.8 percent of leave-takers reported that 
it was easy to get their employer to let them take time off.
    In addition, a number of commenters pointed out that allowing 
employees to have paid vacation leave run concurrently with their 
unpaid FMLA leave without having to meet their employer's normal paid 
vacation leave-taking rules, places employees using FMLA leave in a 
more favorable position regarding the use of employer provided paid 
leave than their coworkers taking vacation or personal leave for non-
FMLA reasons.
    However, the Department recognizes that the inability to take paid 
vacation leave concurrently with FMLA leave may have an impact on some 
workers. Those workers who are covered by a collective bargaining 
agreement (``CBA'') that requires them to bid on their vacations may 
not be able to substitute paid vacation leave for unpaid FMLA leave 
under the final rule unless their CBAs are changed. In addition, it is 
likely that some workers who take FMLA leave that is unscheduled and 
unforeseen will not be able to comply with their employers' procedures 
(particularly those related to advanced notice) for taking vacation or 
personal leave.
    For the purposes of this RIA, however, the revisions have no impact 
on the workers' ability to take unpaid protected FMLA leave or the 
workers' ability to use accrued paid leave under their employers' 
procedures. Workers who do not or cannot satisfy their employer's 
procedures for taking paid leave will still remain entitled to all the 
protections of unpaid FMLA leave, and for the workers who may no longer 
be able to substitute paid vacation in all situations, these workers 
will still be entitled to use their accrued paid leave at some other 
time. Thus any impacts resulting from the final rule will be in the 
nature of a lost opportunity to have paid leave run concurrently with 
FMLA leave rather than actual income losses. How the lost opportunities 
affect individual workers will depend on the amount of deferred paid 
leave and the workers' financial status. Ultimately, the FMLA is an 
unpaid leave statute that does not convey the right to the paid leave 
that workers may have accrued but are not yet fully vested in. See Wage 
and Hour Opinion Letter FMLA-75 (November 14, 1995). Nor does the 
Department believe that Congress intended to put FMLA leave-takers in a 
more favorable position regarding the use of employer provided paid 
leave than their coworkers taking vacation or personal leave for non-
FMLA reasons. Therefore, the Department believes it has appropriately 
determined for the purposes of the RIA that the updated text in the 
final rule will have only minor unquantifiable impacts on workers.

Employee Payment of Group Health Benefit Premiums (Sec.  825.210)

    The Department proposed and adopted some editorial changes (e.g., 
deleting the word unpaid) and some technical corrections (e.g., related 
to the cross-references) to Sec.  825.210. These editorial changes and 
technical corrections will have no impact on employers or workers.

Employee Failure To Make Health Premium Payments (Sec.  825.212)

    The Department proposed and adopted a revision to Sec.  825.212(c), 
which clarifies 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, 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 
a failure to do so. Since this revision was a clarification of and not 
a change to the Department's enforcement position, it will have no 
impact on employers or workers.

Employer Recovery of Benefit Costs (Sec.  825.213)

    The Department proposed and adopted a revision to Sec.  825.213 to 
move language from current Sec.  825.310(h) in order to combine it with 
other issues involving repayment of health premiums. This relocation of 
the language will have no impact on employers or workers.

Employee Right to Reinstatement (Sec.  825.214)

    The Department proposed and adopted organizational changes and 
minor edits to Sec.  825.214 by moving language from current Sec.  
825.214(b) to Sec.  825.216(c). This relocation of the language and 
minor edits will have no impact on employers or workers.

Equivalent Position (Sec.  825.215)

    The Department proposed and adopted minor organizational changes to 
Sec.  825.215 such as adding subtitle headings and making some 
editorial changes. The only substantive change proposed and adopted was 
modifying perfect attendance awards in Sec.  825.215(c)(2) to allow 
employers to disqualify employees from bonuses or other payments based 
on achievement of a specified job-related performance goal where the 
employee has not met the goal due to FMLA leave so long as this is done 
in a nondiscriminatory manner. In the final rule the Department 
replaced the proposed phrase ``unless otherwise paid to employees on 
equivalent non-FMLA leave status'' with ``unless otherwise paid to 
employees on an equivalent leave status for a reason that does not 
qualify as FMLA leave.'' The final rule also changed Sec.  
825.215(c)(1) to include the same limitation on the employer's ability 
to deny pay increases.
    As was noted in the PRIA, ``[p]erfect attendance incentives are 
traditionally offered by employers where the costs of absent employees 
(i.e., the cost of the production delay itself or the cost of 
overstaffing or overtime to avoid the delay) are high. Employers would 
offer the bonuses to motivate workers not to be absent, thereby 
avoiding costs that are far in excess of the bonus. In such situations, 
both employers and employees gain from the bonus. Employers reduce 
their costs. Employees increase their income * * * The Department 
believes that this revision will restore perfect attendance awards to 
their intended purpose. By reducing the uncertainty surrounding 
employee incentive plans, this revision may encourage more employers to 
provide larger bonuses as incentives to reduce absenteeism among all 
workers.'' Id. at 7947 (footnote omitted).
    Several employee organizations and unions opposed the change 
asserting that it would provide a disincentive to take FMLA leave 
(e.g., Working America/Working America Education Fund, Center for 
WorkLife Law, and National Partnership for Women & Families). However, 
as was noted in the NRPM, employers believe ``the current regulatory 
requirements are illogical and unfair, and have caused many companies 
to modify, or eliminate altogether, perfect attendance reward programs. 
Other employers stated that they would not consider implementing a 
perfect attendance program because,

[[Page 68055]]

by requiring that employers provide awards to individuals with less 
than perfect attendance, these commenters believe that the Department 
has placed employees taking FMLA leave in a better position than those 
who take no leave. Many employees also commented on the perceived 
unfairness of providing a `perfect attendance' award to individuals who 
had been absent from work for up to 12 weeks of the eligible time 
period.'' Id. at 7898.
    The Department concludes that making the change is more favorable 
to workers than the current trend of companies eliminating all perfect 
attendance awards. The revisions were drafted to reduce the 
disincentive for employers to provide such awards by treating workers 
who take FMLA leave in a similar manner to employees ``on equivalent 
leave status for a reason that does not qualify as FMLA leave.'' 
Although the Department expects that some reduction in unnecessary 
absenteeism will reduce overall employer costs, data limitations 
inhibit the Department from quantifying the impact of this revision.
    Similarly, the nondiscriminatory treatment of FMLA leave for pay 
increases based upon seniority, length of service or performance in 
revised Sec.  825.215(c)(1) should eliminate the disincentive for 
employers to provide these pay increases on these bases.

Limitations on an Employee's Right to Reinstatement (Sec.  825.216)

    The Department proposed and adopted organizational changes and 
minor edits to Sec.  825.216 such as moving language from current Sec.  
825.214(b) and Sec.  825.312, as well as reordering and combining 
paragraphs to Sec.  825.216(c). This relocation of the language and 
minor edits will have no impact on employers or workers.

Explanation of Key Employees and Their Rights (Sec.  825.217 through 
825.219)

    The Department proposed and has adopted minor changes to update the 
reference to ``salary basis.'' The updated reference will have no 
impact on employers or workers.

Protection for Employees Who Request Leave or Otherwise Assert FMLA 
Rights (Sec.  825.220)

    The Department proposed and has adopted new language in Sec.  
825.220 setting forth the remedies for interfering with an employee's 
FMLA rights, such as referencing retaliation. The Department also 
proposed and has adopted a change to Sec.  825.220(c) to clarify that 
the prohibition against interference includes a prohibition against 
retaliation as well as a prohibition against discrimination. These 
clarifications will have no impact on employers or workers.
    The Department also proposed and has adopted modified language in 
Sec.  825.220(d) to clarify that the prohibition against employees 
waiving their rights applies only to prospective FMLA rights and does 
not apply to settling past FMLA claims. The Department concurs with the 
comments of the College and University Professional Association for 
Human Resources that the primary impact of ``this clarification * * * 
will help promote voluntary resolution of claims and reduce unnecessary 
litigation.'' Although it should be easier for employers and workers to 
settle FMLA claims, data limitations prevent the Department from 
quantifying the benefits of this clarification.
    Finally, the Department proposed and adopted clarifying 
modifications to Sec.  825.220(d) so that light duty does not count 
against the employee's 12 week FMLA leave entitlement.
    Since the Department received no comments on its analysis presented 
in the NPRM, it retains that analysis for the final rule. ``Under FMLA 
employees have no right to a light duty position. Therefore, employers 
will only offer such duty to employees when it is advantageous for them 
to do so. This will continue to be the case under the revised 
provision. Although the Department believes that this change will have 
a negligible impact on employers, a few workers whose employers are 
counting their light duty hours towards their 12 weeks of FMLA leave 
will now have more hours of leave available. The only impact that the 
Department anticipates is that some workers may not be offered light 
duty because their employers will not consider such duty cost-effective 
if the time is not counted against the worker's FMLA allotment, either 
for purposes of restoration rights or length of leave.'' Id. at 7947.

Changes to the Employer Notification Requirements (Sec.  825.300)

    The Department proposed a reorganization of the notice requirements 
so that all of the employer notice requirements were consolidated in 
Sec.  825.300 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. In addition, the final rule creates a new section, 
titled ``Rights and responsibilities notice'' and relocates provisions 
from proposed Sec.  825.300(b)(3) to that section. Each of the major 
topics is discussed below.

General Notice (Sec.  825.300(a))

    Current Sec.  825.300 addresses the statutory posting requirement 
applicable to employers (29 U.S.C. 2619(a)). The Department proposed 
and retained the current requirement that covered employers must post 
the general notice even if no employees are eligible for FMLA leave 
(see current Sec.  825.300(a) and final Sec.  825.300(a)(2)). The 
Department also proposed and has adopted changes to allow electronic 
posting and to increase the civil money penalties for willful 
violations of the posting requirement. The Department believes that 
electronic posting of the notice can facilitate increased employee 
awareness while limiting cost burdens on employers. Although electronic 
posting should result in some cost savings for employers, the 
Department has not quantified this impact because it will depend on 
many site-specific factors such as the accessibility of the notice to 
both employees and applicants. Increasing the civil money penalties 
from $100 to $110 was statutorily required by the Federal Civil 
Penalties Inflation Adjustment Act of 1990 as amended by the Debt 
Collection and Improvement Act of 1996 and will partially address the 
erosion of the penalties due to inflation over time.
    Current Sec.  825.300(c) requires that if the employer's workforce 
is comprised of a significant portion of workers who are not literate 
in English then the employer must post the notice in a language in 
which the employees are literate. The Department proposed retaining 
this requirement that appears in the final rule in Sec.  825.300(a)(4). 
The final rule explicitly informs employers that prototypes are 
available from the Wage and Hour Division office nearest the employer 
or may be downloaded from the agency's Internet Web site. Thus, because 
no changes have been made to the requirement there are no impacts on 
workers or employers; to the extent employers avail themselves of Wage 
and Hour Division prototypes, however, their costs should be reduced.
    Under current Sec.  825.301(a)(1), the general notice must contain 
the same information that is required to be posted in current Sec.  
825.300(a), and a prototype notice is available in current Appendix C.
    In the NPRM, proposed Sec.  825.300(a)(3) required covered 
employers with eligible employees to distribute a general notice of

[[Page 68056]]

information about the FMLA to employees either 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 format, regardless of 
whether an employee requests leave. Based upon the comments received 
(see preamble discussion), the Department modified this provision in 
the final rule so that employers are required to provide the general 
notice either by including it in an employee handbook or other written 
guidance to employees concerning employee benefits or leave rights, if 
such written materials exist, or by distributing a copy to each new 
employee upon hire. The Department has retained the proposal in the 
final rule that the general notice may be distributed by electronic 
means, and has also updated Appendix C.
    In the proposal, the Department estimated the costs that would be 
incurred by employers who do not have handbooks. Id. at 7948. Many 
employers commented about the burden that the proposed requirement 
would impose.
    For the final rule, the Department has determined that because 
current Sec.  825.301(a)(2) and (c) require employers to provide the 
general notice to employees no less often than the first time in each 
six-month period that an employee gives notice of the need for leave, 
and the final Sec.  825.301(a) only requires the general notice to be 
posted and included in employee handbooks or other written guidance, or 
in the alternative, distributed to each new employee upon hiring, the 
burden and cost to employers of this subsection of the general notice 
requirements will be reduced.
    In the proposal, the Department estimated the costs that would be 
incurred by employers who do not have handbooks. Id. at 7948. Many 
employers commented about the burden that the new requirement would 
impose. For example, Spencer Fane Britt & Browne asserted ``[t]here is 
also no other federal employment law that requires such onerous notice 
requirements * * *.'' (See also the preamble discussion of Sec.  
825.300(a)(3)). However, since none of the comments specifically 
addressed the Department's approach, the Department will use the same 
approach in the final rule to estimate the increased costs for covered 
employers without handbooks with an adjustment so that costs are only 
associated with new employees:

    CONSAD estimated the number of additional notices that may be 
required for this provision, based upon data from the 2000 Westat 
Report * * * employers currently send out about 1 million general 
notices to employees requesting leave * * * Under the new provision 
* * * 6.8 million additional general notices [will be] sent out each 
year * * * 2.2 million * * * will be emailed, 4.2 million will be 
hand-delivered at work, and 0.4 million notices will be sent by 
regular mail * * * Of the 1.135 million FMLA covered establishments, 
an estimated 92,000 (8.1%) do not include FMLA information in an 
employee handbook and will be required to send annual notices to 
employees * * * the estimated cost to prepare the 29,000 email 
notices is about $1.1 million * * * and the estimated cost for 
57,000 firms to hand deliver notices is about $3.4 million * * * The 
estimated cost * * * to prepare and deliver the notice through 
regular mail is about $0.6 million * * * Adding all of these costs 
together yields a total estimated annual additional cost of about 
$5.1 million for the general notice proposal. Id. at 7948.

    After receiving these general notices when they are hired, some 
employees who previously did not take FMLA leave, may choose to do so 
because they acquire additional information from the notice regarding 
the protections afforded by the FMLA. Based upon data from Westat, in 
the PRIA the Department estimates that the number of FMLA leave-takers 
will increase by about 37,000 employees because of the proposed general 
notice provision resulting in annual estimated administrative costs of 
approximately $1.7 million. Id.
    The Department used data from the Job Openings and Labor Turnover 
Survey (``JOLTS'') to adjust the PRIA estimates for providing the 
general notice to new employees rather than all employees on an annual 
basis. According to the 2008 annual release, hires in 2007 were 
equivalent to 42 percent of employment. (USDL 08-0332 at 5.) \23\ 
Applying this 42 percent to the costs for all workers results in an 
estimated $2.1 million for the general notice (i.e., 42% of $5.1 
million) and $0.7 million for increased leave use (i.e., 42% of $1.7 
million).
---------------------------------------------------------------------------

    \23\ Available at: http://www.bls.gov/news.release/archives/
jolts_03122008.htm.
---------------------------------------------------------------------------

Eligibility Notice (Sec.  825.300(b))

    The Department proposed and adopted changes to consolidate and 
strengthen the existing eligibility notices in Sec.  825.300(b). 
Consistent with current Sec.  825.110, the employer continues to be 
responsible for communicating eligibility status.
    The Department proposed and adopted an extension to the time frame 
for the employer to respond to an employee's request for leave in Sec.  
825.300(b)(1) from 2 days to 5 days. In the final rule, the Department 
reinserted the phrase ``absent extenuating circumstances'' that appears 
in current Sec.  825.110(d).
    In the NPRM, the Department stated ``[p]roviding more time will 
reduce mistakes and provide greater certainty in the workplace, and 
this typically benefits both workers and employers.'' Id. at 7949. 
Based on the comments supporting the extension (see, for example, 
Infinisource, Hinshaw & Culbertson, U.S. Small Business 
Administration's Office of Advocacy, Community Health and Counseling 
Services, Hewitt Associates, and Southwest Airlines), the Department 
concludes that its initial assessment was correct, despite the fact 
that many comments argued for shorter or longer periods (see the 
preamble discussion of Sec.  825.300(b)).
    In the PRIA, the Department combined the savings resulting in the 
longer time given employers to provide both the eligibility and 
designation notices in a single calculation. For the final rule, the 
Department has determined that two calculations are necessary because 
the number of eligibility notices will be greater than the number of 
designation notices.
    As noted in the PRIA, CONSAD, 2.1 at 20, estimated that the 95.8 
million workers employed in establishments covered by the FMLA made 
12.7 million leave requests in 2005. See id. The Department estimates 
that the changes related to increasing the time permitted to provide 
the eligibility notices will save employers an average of five minutes 
per notice of a ``compensation and benefits specialist'' time in 
processing each request. At a cost of $36.51 per hour, saving 0.08 
hours on each of the estimated 12.7 million leaves requested results in 
a savings of about $37.1 million.
    Proposed Sec.  825.300(b)(2) required employers to notify employees 
both of their eligibility status and the availability of FMLA 
entitlement. 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. The new requirement in 
proposed Sec.  825.300(b)(2), which is retained in the final rule, is 
that when an employer determines that an employee is not, in fact, 
eligible to take FMLA leave, the employer must inform the employee and 
indicate why the employee is not eligible. If the employee is not 
eligible for FMLA leave, the proposal would have required employers to 
list the reasons why the employee is not eligible

[[Page 68057]]

or that the employee has no FMLA leave available ``including as 
applicable that the employee has no remaining FMLA leave available in 
the 12-month period, the number of months the employee has been 
employed by the employer, the number of hours of service during the 12-
month period, and whether the employee is employed at a worksite where 
50 or more employees are employed by the employer within 75 miles of 
that worksite.'' Id. at 7978. However, the Department's assessment in 
the PRIA was ``that there will be very little additional burden, since 
the employer is already required to calculate such information in order 
to determine eligibility.'' Id. at 7949.
    The Department received a number of comments on this proposed 
revision. For example, National Association of Manufacturers (``NAM'') 
stated that ``[p]roposed Sec.  825.300(b)(2) may present a significant 
administrative burden on employers because it invites employees to 
request information about eligibility and entitlement without imminent 
need for leave. Currently, employers need only calculate eligibility 
and verify remaining leave if an employee has expressed a need for 
foreseeable leave, or at the time that the need for leave arises. NAM 
members are concerned that employers will be obligated to respond to 
requests for verification of eligibility and entitlement in addition to 
all of the requests they already receive from employees with an actual 
need for leave. The proposed regulation should require that employers 
need only provide information about FMLA eligibility and entitlement in 
concert with an imminent need for leave.'' Hewitt Associates stated 
``employers must send a separate notice that informs employees that 
they are ineligible * * * [This] will mean a large increase in 
notifications produced as the current regulations have not required 
employers to communicate FMLA data to ineligible employees.'' And, 
according to Society for Human Resource Management ``[t]he practical 
import of this requirement is that any time an employee requests leave 
that involves any type of medical issue, the employer would be required 
to send out paperwork indicating that the employee is not eligible or 
entitled to leave.''
    In response to these and other comments (see the preamble 
discussion of Sec.  825.300(b)(2)), the Department changed the proposed 
requirements. The provision in the final rule permits the employer to 
limit the notification that the employee is ineligible to any one of 
the potential reasons why an employee fails to meet the eligibility 
requirements. In addition, in recognition of the potential inaccuracies 
in the employer's estimates the Department modified this provision to 
indicate that the information is a ``good faith estimate.'' The 
Department disagrees with the Society for Human Resource Management's 
assertion, however, that the revised provisions will increase 
employers' burden because they will be obligated to respond to employee 
requests for verification of eligibility. Current Sec.  825.301(d), 
which has been relocated to Sec.  825.300(b)(5), specifies that 
``[e]mployers are also expected to responsively answer questions from 
employees concerning their rights and responsibilities under the 
FMLA.'' So there is no new obligation being created except for 
providing the notice in writing to workers who are ineligible to take 
FMLA leave.
    As noted in the PRIA, CONSAD estimated that 12.7 million of the 
95.8 million workers employed in establishments covered by the FMLA 
requested FMLA leave in 2005, and that these requests resulted in 7.0 
million workers taking FMLA leave. Id. at 7949. This strongly suggests 
that 5.7 million workers were denied FMLA leave either because the 
worker was found to be ineligible, or because the condition did not 
rise to the level of a serious health condition. In the PRIA, all of 
the denials were implicitly assumed to be eligible workers being denied 
due to the condition so all of the costs were attributed to changes in 
the designation notice. This is clearly not the case. For the final 
rule, the Department is attributing one-half of the denials to the 
workers being found ineligible, and one-half of the workers who were 
denied FMLA leave on the basis that the workers' or the family members' 
condition did not rise to the level of a serious health condition.
    The Department assumes that the 2.85 million workers (i.e., 5.7 
million divided by 2) who were denied FMLA leave on the basis of 
eligibility will on average receive 1.5 denial notices per year.\24\ 
The Department estimates that creating and distributing 4.3 million 
eligibility notices (i.e., 2.85 million times 1.5) to workers found to 
be ineligible will cost employers on average about 10 minutes of a 
``compensation and benefits specialist'' time for each notice. This 
estimate does not include the time for the calculations, since the 
calculations are required by both the current and revised provisions to 
determine eligibility. At a cost of $36.51 per hour for each of the 
estimated 4.3 million requests from workers found to be ineligible to 
take FMLA leave will result in additional costs of about $26.2 million 
(i.e., 4.3 million times $36.51/6).
---------------------------------------------------------------------------

    \24\ This accounts for some workers being denied multiple times 
due to different reasons. For example, a worker who is initially 
denied because they have worked less than 12 months for the employer 
may be subsequently denied on the basis that they did not work 1,250 
hours in the previous 12 months.
---------------------------------------------------------------------------

    The remainder of Sec.  825.300(b) is based upon current Sec.  
825.301(a) with some minor conforming edits such as changing the two 
day period to five days as was done in Sec.  825.300(b)(1) (see 
preamble discussion). In addition, in response to comments that 
providing a list of essential job functions with the eligibility notice 
would create an administrative burden for employers, the final rule was 
restructured so that employers are required to provide employees with 
the list of essential job functions no later than the designation 
notice, if the employer requires a fitness-for-duty certification to 
return to work. These changes from the current rule will have no impact 
on employers or workers.
    Finally, the Department estimates that the additional eligibility 
notices for the 139,000 workers taking military leave under Sec. Sec.  
825.126 and .127 will each take about 10 minutes of a Human Resource 
Compensation and Benefits Specialist's time to prepare. At an average 
hourly wage and benefits rate of $36.51, this will result in additional 
costs of $0.8 million (i.e., 139,000 x $36.51/6).

Rights and Responsibilities Notice (Sec.  825.300(c))

    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 that 
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 and also 
receive prompt notice of any change in those rights or responsibilities 
during the leave year. In addition, the final rule makes some 
clarifying changes to the

[[Page 68058]]

language of proposed Sec.  825.300(b)(3). Also, in response to comments 
that providing a list of essential job functions with the eligibility 
notice would create an administrative burden for employers (see, for 
example, Hewitt Associates, Vercruysse Murray & Calzone, ORC Worldwide, 
AT&T, and NAM), the final rule was restructured so that employers are 
required to notify employees no later than the designation notice that 
a fitness-for-duty certification is required and to provide the list of 
essential job functions at that time, if the employer wants the 
worker's ability to perform these functions addressed in the fitness-
for-duty certification. Finally, the prototype notice is referenced in 
Sec.  825.300(c)(6). Since the requirements of this section are in 
current Sec.  5.301(b)(1), these changes will have no impact on 
employers or their employees.
    However, the additional workers taking FMLA leave under the 
military leave provisions in Sec. Sec.  825.126 and 825.127 will result 
in additional rights and responsibilities notices. The Department 
estimates that each rights and responsibilities notice will take about 
20 minutes of a Human Resource Compensation and Benefits Specialist's 
time to prepare. At an average hourly wage and benefits rate of $36.51, 
preparing 139,000 rights and responsibilities notices will result in 
additional costs of $1.7 million (i.e., 139,000 x $36.51/3).

Designation Notice (Sec.  825.300(d))

    Under current and proposed regulations, employers must notify the 
employee in writing when the leave is designated as FMLA leave. Section 
825.300(d) outlines the requirements of the designation notice an 
employer must provide to an employee. Additional requirements are 
located in Sec.  825.301. The revisions were designed to strengthen and 
clarify the existing requirements currently located in Sec.  
825.208(b). In the final rule, the Department is requiring employers to 
provide the list of essential job functions to employees (in those 
cases in which this is to be addressed in the fitness-for-duty 
certification as discussed above) no later than with the designation 
notice for those workers who are required to provide a fitness-for-duty 
certification in order to return to work. The cost of providing the 
list of essential job functions for employers is estimated below in the 
section of the RIA that discusses Sec.  825.310. Because of this 
change, several of the provisions have been renumbered.
    The proposed Sec.  825.300(c)(1) required that an employer notify 
the employee within five business days (a change from the current 
requirement of two business days) that the leave is designated as FMLA 
leave once the employer has sufficient information to make such a 
determination. In the final rule, the Department adopts this change but 
reinserts the phrase ``absent extenuating circumstances'' that appears 
in current Sec.  825.208(b)(1) and makes some minor editorial edits. 
Several comments stated that increasing the time to provide the 
designation notice would reduce the burden on employers. See, e.g., 
Retail Industry Leaders Association, Illinois Credit Union League, 
Verizon, and Cummins.
    Since the Department did not receive any comments on its 
methodology for estimating the costs of the designation notice in the 
PRIA, the Department is using a similar approach here. CONSAD estimated 
that the 95.8 million workers employed in establishments covered by the 
FMLA made 12.7 million leave requests in 2005. The Department estimated 
above, that 1.1 million leave requests were denied on the basis that 
the workers were ineligible. The remaining 11.6 million leave requests 
require designation notices. As in the PRIA, the Department estimates 
that the changes related to increasing the time permitted to provide 
the eligibility notices will save employers an average of 5 minutes per 
notice of a ``compensation and benefits specialist'' time in processing 
each request. At a cost of $36.51 per hour, saving 0.08 hours on each 
of the estimated 11.6 million determination notices results in a 
savings of about $33.9 million for employers.
    Proposed Sec.  825.300(c)(2) requires the employer to notify the 
employee if the leave is not designated as FMLA leave and the reason 
the leave was not designated. This change has also been adopted in 
Sec.  825.300(d)(1) with minor editorial changes. Since the Department 
did not receive any substantive comments on the estimates presented in 
the PRIA, a similar approach to estimate the costs is used for the 
final rule. As noted above, based on the CONSAD analysis, the 
Department estimated that 5.7 million covered employees who request 
FMLA leave each year are denied that leave. The Department assumes that 
one-half of these workers are denied FMLA leave on the basis that the 
worker was ineligible for FMLA leave, and one-half are due to the 
condition not qualifying as a serious health condition. To account for 
multiple denials based upon different conditions, the Department 
assumes that these workers would average 1.5 denials per year. Based 
upon an estimated 0.5 hours to process each of these requests at a cost 
of $36.51 per hour, the Department estimates that providing the 2.85 
million workers (i.e., 5.7 million/2) with the explanation why their 
requests for FMLA has been denied will result in a cost to employers of 
about $52.0 million (i.e., 2.85 million times $36.51/2).
    Proposed Sec.  825.300(c)(3) permits employers to provide both the 
eligibility notice and the designation notice at the same time. This 
change has been adopted as Sec.  825.300(d)(2) with minor editorial 
changes. The Department assumes that employers will have sufficient 
information to provide both the eligibility and designation notices for 
about 25 percent of the approved FMLA leaves (e.g., the employer will 
probably issue both notices at the same time for many unforeseeable 
health conditions that result in an overnight hospital stay). The 
Department estimates that the changes related to providing both notices 
at the same time will save employers an average of 10 minutes per 
notice of a Human Resource Compensation and Benefits Specialist's time 
in processing each leave. At a cost of $36.51 per hour, saving 0.17 
hours on 25 percent of 10.5 million leaves results in a savings of 
about $16.3 million for employers.
    The new provisions related to fitness-for-duty certifications are 
located in Sec.  825.300(d)(3). As discussed above, this change was 
made in response to comments that the proposed requirement to include 
this information with the eligibility notice would have unduly burdened 
employers. Since the final requirement is based upon current Sec.  
825.301(b)(1)(v) it will have no impact on employers or workers.
    Proposed Sec.  825.300(c)(4) referenced a new prototype designation 
notice. The form is referenced in Sec.  825.300(d)(4) in the final 
rule. Although the inclusion of a prototype designation notice should 
make compliance easier for employers, the Department has not assessed 
the savings.
    Proposed Sec.  825.300(c)(1) expressly required that the employer 
inform the employee of the number of hours, days or weeks that would be 
designated as FMLA leave. The Department has adopted this with the 
change discussed below as Sec.  825.300(d)(6) in the final rule. Since 
the Department did not receive any substantive comments on the 
methodology used in the PRIA (id. at 7949) to estimate the burden of 
providing the estimated amount of designated FMLA leave to workers, the 
same approach was used for the final rule. The Department assumes it 
would take an additional 10 minutes of Human

[[Page 68059]]

Resource Compensation and Benefits Specialist's time to process each 
designation because of the new requirement to provide the amount of 
time that will be designated as FMLA leave to workers. Based upon 10.5 
million leaves, this will result in about $65.9 million in additional 
costs.
    To the extent that future leave would be needed but the exact 
amount of leave was unknown, proposed Sec.  825.300(c)(1) also required 
that the employer inform the employee every 30 days that leave was 
designated as FMLA leave and advise the employee of the amount so 
designated. In the PRIA, the Department estimated that providing 
designation notices every 30 days to workers with chronic conditions 
would cost employers approximately $121.9 million per year. Id. The 
Department received many comments about the burden this provision would 
impose on employers. For example, the Chamber of Commerce of the United 
States of America (the ``Chamber''), stated ``[s]uch a requirement will 
require employers to constantly monitor and communicate with numerous, 
if not hundreds, of employees who take intermittent FMLA leave. This 
requirement is therefore unduly burdensome.'' See also, Community 
Health and Counseling Services, New York City Law Department, NY, 
Unified Government of Wyandotte County/Kansas City (KS), and Vercruysse 
Murray and Calzone. In response to these comments, Sec.  825.300(d)(6) 
of the final rule requires that if it is not possible to provide the 
hours, days or weeks that will be counted against the employee's FMLA 
leave entitlement (such as in the case of unforeseeable intermittent 
leave), then the amount of leave counted against the employee's FMLA 
leave entitlement must be provided upon the request by the employee, 
and then only every 30 days and only if the employee has taken FMLA 
leave. Since the new language in the final rule is simply a 
clarification of existing Sec.  825.301(d), this change will have no 
impact on employers or workers.
    However, the additional workers taking FMLA leave under the 
military leave provisions in Sec. Sec.  825.126 and 825.127 will result 
in additional designation notices. The Department estimates that each 
rights and responsibilities will take about 20 minutes of a Human 
Resource Compensation and Benefits Specialist's time to prepare. At an 
average hourly wage and benefits rate of $36.51, preparing 139,000 
designation notices will result in additional costs of $1.7 million 
(i.e., 139,000 x $36.51/3).

Consequences of Failing To Provide Notice (Sec.  825.300(e))

    The Department proposed in Sec.  825.300(d) and has adopted as 
Sec.  825.300(e) a remedy provision tailored to individualized harm for 
any violation of the general, eligibility, or designation notice 
requirements. This provision arises out of the U.S. Supreme Court's 
Ragsdale decision which invalidated the remedy provision in current 
Sec.  825.301(f). As in any action arising under the FMLA, any remedy 
is specific to the facts of the individual's circumstances, and a court 
may order appropriate relief. For the purposes of this RIA the 
Department assumes full compliance with the final rule and, therefore, 
has not estimated any cost associated with this provision.

Employer Designation of FMLA Leave (Sec.  825.301)

    The Department proposed and has adopted the relocation of the 
requirements of current Sec.  825.301 into Sec.  825.300 (see the 
discussion above) and the requirements in current Sec.  825.208 
addressing the designation of FMLA leave, in order to consolidate all 
the designation requirements in one place. In addition, as is discussed 
in the preamble, the Department proposed and adopted several changes 
necessitated by the U.S. Supreme Court's Ragsdale decision. For 
example, the Department has changed the remedy provisions because the 
current remedy provisions have not been enforceable since Ragsdale. In 
addition, the Department made some editorial changes and clarifications 
such as removing the references to ``unpaid leave'' and ``paid'' leave 
because the provisions apply to all FMLA leave. Finally, the Department 
proposed and adopted the elimination of the ``provisional designation'' 
concept in current Sec.  825.208(e)(2) because it could cause confusion 
over whether leave is protected prior to the actual designation, 
especially in cases where the leave does not eventually qualify for the 
Act's protections.
    Although many comments supported the Department's proposal to 
delete the provisional designation, some employee representatives 
commented that workers benefit from the designation because it allows 
employers to make a quick determination. The National Partnership for 
Women & Families noted that ``DOL does not explain how this change 
could affect workers and whether the lack of a provisional designation 
accompanied by DOL's proposal to grant employers more time to respond 
to employee's requests for FMLA leave will make employees less likely 
to take FMLA leave as they will not know quickly whether the leave will 
be covered.'' See also, Communications Workers of America, American 
Association of University Women, and AFL-CIO. As noted in the preamble, 
the Department believes provisional designation gives the workers a 
false sense of comfort that their leave is job protected under the 
FMLA. If an employee takes leave under a provisional designation and 
the leave is subsequently determined not to qualify as FMLA leave then 
the leave will not be protected regardless of the provisional 
designation. The Department believes that it is better not to provide 
workers with a provisional designation so that they can make 
alternative arrangements if possible to avoid taking unprotected leave 
or take leave with the full knowledge that it may be unprotected.
    The Department, therefore, concludes that none of these changes 
should have an impact on employers and their employees.

Employees Notifying Their Employers of the Need for Leave (Sec. Sec.  
825.302, .303 and .304)

    Sections 825.302, 825.303 and 825.304 of the current regulations 
require an employee to notify his or her employer of the need for leave 
and to generally schedule leave for planned medical treatments in a way 
that the absences do not unduly disrupt the employer's business 
operations. The Department proposed and adopted several revisions to 
these requirements intended to reduce the impact of leave taking and 
uncertainty in the workplace without negatively impacting leave-
needers.
    Sections 825.302, 825.303 and 825.304 of the final rule require an 
employee who seeks leave due to a condition for which the employer has 
previously provided FMLA-protected leave to inform the employer that 
the leave is for a condition that was previously certified or for which 
the employee has previously taken FMLA leave. This change should reduce 
the burden on employers with no impact on employees. However, data is 
not available for the Department to estimate the savings that will 
result from this change.
    The final rule also requires the employee to provide notice as soon 
as practicable and comply with the employer's usual procedures for 
calling in and requesting leave, except where unusual circumstances 
exist. If the employee fails to comply with these requirements, the 
employer may delay FMLA coverage for the leave. As the Department 
stated in the PRIA the

[[Page 68060]]

``changes should reduce some of the uncertainty and disruptions caused 
by employees taking unforeseeable FMLA leave with little or no advance 
notice to their employers.'' Id. at 7950.
    As noted in both the RFI Report (72 FR at 35631) and the PRIA (73 
FR at 7950), ``unscheduled leave is more disruptive to employers than 
foreseeable leave. By its very definition, foreseeable FMLA leave can 
be anticipated and planned for as employees are aware of their need in 
advance and can easily notify their employers prior to taking FMLA 
leave. Even in cases where the exact timing of the leave is not known 
30 days in advance, the Department believes that most employees taking 
foreseeable FMLA will easily be able to comply with their employers' 
leave policies (see discussion in preamble). On the other hand, by its 
very nature, unforeseeable leave presents difficulties for both 
employees and their employers, particularly as to the requirement that 
the employee provide notice of the need for leave as soon as 
practicable.''
    In response to the NPRM, CUPA-HR stated that ``call-in procedures 
can be `critical to an employer's ability to ensure appropriate 
staffing levels.' This issue is of major concern for CUPA-HR members, 
with close to 65 percent of those participating in a recent survey 
reporting problems with notice for leave and unscheduled absences.'' 
The Society for Human Resource Management (``SHRM'') stated that 
``[w]hen unforeseen leave is used, in many cases co-workers bear the 
burden of such call-ins, because employers do not have enough time to 
adequately staff for the employee absences and still run their 
operations if the co-worker is allowed to depart from work. In other 
cases, the co-worker must bear the burden of performing their own job 
and that of the employee on FMLA leave because of the lack of notice 
provided.''
    In the PRIA the Department estimated that the ``net impact of all 
of the revisions discussed in Sec. Sec.  825.302, 825.303 and 825.304 
would be a net savings of about $121.8 million.'' 73 FR at 7951. The 
Department's estimated savings were based upon its estimate of the 
potential number of leaves impacted by the revisions. According to a 
2007 survey conducted by the Society for Human Resource Management (the 
SHRM survey),\25\ ``34 percent of FMLA leave takers for episodic 
conditions did not provide notice before the day the leave was taken 
and 12 percent provided notice more than one day after the leave was 
taken. Therefore, according to SHRM's survey about 46 percent of 
employees are not providing notice prior to the start of their workday. 
This estimate is consistent with the findings of the Employment Policy 
Foundation, which found that 41 percent of employees are not providing 
notice prior to the start of their workday or shift. Thus, the 
Department estimates that no notice is currently being provided prior 
to the start of the workday for 4.8 million leaves (i.e., 46% of 10.5 
million leaves).'' Id. at 7950.
---------------------------------------------------------------------------

    \25\ FMLA and Its Impact on Organizations: A Survey Report by 
the Society for Human Resource Management, July 2007, available at: 
www.shrm.org/hrresources/surveys_published/
FMLA%20And%20Its%20Impact%20On%20Organizations%20Survey%20Report.pdf.

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

    The JEC criticized the Department's estimate of the no or short 
notice leaves stating ``[t]he Department relies on an estimate for the 
prevalence of lack of notice that seems unreasonably high * * * the 
SHRM data are not based on a nationally representative sample, but 
rather on a survey of self-selected SHRM human resource practitioners. 
Further, the description of SHRM's analysis does not make clear how or 
if SHRM dealt with `notice' when the employee fell sick at work or 
needed to leave work to care for a sick family member. The Department's 
statement that the SHRM's finding is consistent with that of the 
Employment Policy Foundation (EPF) does not bolster the claim. The EPF 
is an industry-sponsored non-profit that has now gone out of business; 
their reports are currently not available to the public and their 
analysis should not be relied on as the basis for policymaking because 
it may be biased and is now unverifiable. It is unclear whether the 
SHRM survey is referring to all FMLA leaves or only intermittent leave 
and the final number seems much higher than expected. The term 
``episodic conditions'' implies that the survey only applies to a 
subset of leaves * * * If 46 percent of all leaves provide no advance 
notice, this implies that two-thirds of all non-new child leaves do not 
provide notice, since the Westat Report finds that a quarter of leaves 
are for pregnancy or care for a new child and are therefore foreseeable 
in most cases. This high share of employees providing no notice seems 
highly suspect * * *.''
    First, the Department notes that although the JEC asserts that the 
SHRM ``estimate for the prevalence of lack of notice * * * seems 
unreasonably high'', the JEC provides no data to support its assertion. 
If the JEC is basing its assertion on data, these data were not given 
to the Department in any of the comments to the RFI or the NRPM. Nor 
did the Department find such data in any of the comments or literature 
reviewed by CONSAD or DOL staff. Therefore, the Department concludes 
that the JEC assertion was not based upon any data; in contrast, the 
Department's PRIA estimate was based on available data.
    Next, the JEC asserts that the Department should not use the SHRM 
survey because it is unrepresentative and SHRM's findings cannot be 
confirmed by the EPF report because the EPF report is unavailable to 
the public.\26\ Although SHRM conducted a membership survey, the survey 
respondents represented a broad range of firms based upon industry, 
staff size, unionization, and region (SHRM Survey). The Department 
would normally be concerned about the over representation of medium and 
large firms, which comprised approximately 75 percent of the 
respondents that reported size; however, this is not a significant 
issue in this analysis because the FMLA specifically excludes small 
businesses with fewer than 50 employees from the scope of coverage.
---------------------------------------------------------------------------

    \26\ A similar criticism of the SHRM survey was made by the 
Institute for Women's Policy Research.
---------------------------------------------------------------------------

    Moreover, as discussed previously, the Department attempted to 
validate estimates including those from the Westat surveys by comparing 
them to estimates from alternative sources. The Department agrees with 
the JEC that this validation is particularly important when using data 
from membership surveys. Although this validation was not always 
possible despite the Department's efforts to collect data in the RFI, 
in this instance the SHRM estimate was collaborated by estimates from 
the EPF. In spite of some limitations in both the SHRM and EPF surveys, 
the fact that their estimates are very close to each other provides 
confidence in the use of these estimates. The JEC's assertion that the 
Department cannot use the EPF survey to validate the SHRM survey 
because the EPF report is unavailable to the public is incorrect. The 
Department placed the EPF report in the publicly available RFI docket 
\27\ as it did many other materials (e.g., the Westat report \28\) that 
were referenced in the RFI. These materials are still available on the 
regulations.gov Web site.
---------------------------------------------------------------------------

    \27\ Available at: www.regulations.gov/fdmspublic/
ContentViewer?objectId=09000064801e8894&disposition=attachment&conten
tType=pdf.
    \28\ Available at: www.regulations.gov/fdmspublic/
ContentViewer?objectId=09000064801ec387&disposition=attachment&conten
tType=pdf.
---------------------------------------------------------------------------

    The JEC makes a valid point that the application of SHRM's 46 
percent rate to all leaves may have overstated the impacts of the 
revisions because the 46 percent rate applied to ``episodic 
conditions'' implying that it only applies to a subset of leaves. So 
the

[[Page 68061]]

Department has reassessed the findings of the SHRM survey and presents 
a summary of the review below.
    SHRM found that 8 percent of workers at covered establishments took 
FMLA leave in the past year (SHRM survey), which is comparable to 
CONSAD's estimate of 7.3 percent based upon adjusted Westat survey data 
(73 FR at 7943). As previously discussed in the PRIA, the issue with 
both the SHRM and Westat surveys is that employees may take leave that 
involves more than one event or episode. ``There also is some 
uncertainty over how respondents interpreted the term `leave' (i.e., 
whether it means each incident/absence or a group of absences for a 
single qualifying condition). For example, 1.3 percent of the covered 
and eligible leave-takers who reported taking leave intermittently 
reported taking no FMLA leaves. Another 53.2 percent of the covered and 
eligible leave-takers who reported taking leave intermittently reported 
taking only one FMLA leave. Thus, it would appear that many workers 
considered a leave to be a single qualified reason (e.g., pregnancy and 
birth of a child) regardless of the number of incidents/absences (e.g., 
for pre-natal care, morning sickness, childbirth, recovery from child 
birth).'' Id. at 7944.
    When reviewing the findings in the SHRM survey for the PRIA, the 
Department felt that it was not appropriate to remove leave taken for 
family reasons, even though SHRM reported (at 17) that employees can 
and do provide significant notice for the actual birth or adoption. 
Similarly, the Department did not feel that it was appropriate to 
remove leave taken for catastrophic events even though the SHRM survey 
breaks these out in Figure 7 (at 17). For example, while SHRM states 
``[f]or catastrophic event[s], it should come as no surprise when an 
employee provides notice on the same day of leave due to its 
unforeseeable nature (50%),'' the Department felt that the employee may 
have subsequent episodes of treatment, rehabilitation, and flare-ups. 
Therefore, in the PRIA the Department applied the rate for episodic 
conditions to all leaves.
    However, based upon its reconsideration of the SHRM survey, the 
Department has reanalyzed the data towards the goal of applying the 
rate for episodic conditions to only a subset of leaves that may be a 
better estimate of those leaves that are truly episodic. According to 
Table 10 of the SHRM survey, leaves for family-related reasons \29\ 
account for 38 percent of leaves and leaves for medical reasons \30\ 
account for 59 percent of leaves. Together these two reasons account 
for nearly 100 percent or all reasons for leave given rounding errors. 
Since Table 10 also states that leaves for episodic conditions \31\ 
account for 32 percent of leaves, the leave for episodic conditions 
must overlap the leave for family-related and medical reasons.
---------------------------------------------------------------------------

    \29\ Family-related reasons include maternity, birth or adoption 
of a child or newly placed foster child. (SHRM Survey)
    \30\ Medical reasons include an employee's serious health 
condition or care for a child, spouse or parent who has a serious 
health condition. (SHRM Survey)
    \31\ Episodic condition includes ongoing injuries, ongoing 
illnesses and/or non-life-threatening conditions. (SHRM Survey)
---------------------------------------------------------------------------

    Moreover, the estimated number of episodic leaves based on the 2000 
Westat Report can be calculated by subtracting the Department's 
estimate of 7.0 million workers who had at least one FMLA leave episode 
in 2005 from its estimate of 10.5 million FMLA leaves taken in 
2005.\32\ If the resulting 3.5 million episodic (or multiple event) 
FMLA leaves is divided by the 10.5 million estimated total FMLA leaves, 
then episodic conditions accounted for 33 percent of leaves in the 2000 
Westat employee survey, a figure almost identical to the SHRM estimate. 
Therefore, the Department now believes that it is appropriate to only 
apply SHRM's notification rate for episodic conditions to one-third of 
FMLA leaves. Thus, the Department estimates that no notice is currently 
being provided prior to the start of the workday for 1.6 million leaves 
(i.e., 46 percent of the estimated 3.5 million leaves for episodic 
conditions).\33\
---------------------------------------------------------------------------

    \32\ Note these estimates do not include the estimated 200,000 
employees who will take an estimated 300,000 leaves under the 
military leave provisions of the NDAA because when estimating the 
costs of Sec. Sec.  825.126 and .127 the Department did not include 
costs that would be saved by the revisions to Sec. Sec.  825.302, 
.303 and .304.
    \33\ The Department notes that SHRM's 46% estimate is not only 
consistent with the EPF estimates as was noted previously, but is 
also consistent with the WorldatWork estimate that 51% of 
intermittent leaves are unscheduled and that notice for 56% of 
intermittent leaves occurs either on the day of the absence (43%) or 
the day following the absence (10%).
---------------------------------------------------------------------------

    The Department believes that this estimate probably understates the 
actual amount of leave taken for episodic conditions because, as 
previously stated, the 10.5 million estimated number of leaves may be 
understated because of issues with the term ``leave.'' However, this is 
somewhat, although not completely, compensated by the fact that some 
leaves for episodic conditions will not be affected by the revisions to 
Sec. Sec.  825.302, 825.303 and 825.304.\34\ As was noted by the JEC, 
there has been no attempt to estimate the number of employees who 
either fell sick at work or needed to leave work to care for a sick 
family member. As is the case for catastrophic events, the changes to 
Sec. Sec.  825.302, 825.303 and 825.304 will not increase the amount of 
notice that the employees can provide for these unforeseeable leaves, 
so these leaves should not be included in the basis for the savings 
resulting from the changes.
---------------------------------------------------------------------------

    \34\ According to WorldatWork, notice of 7% of intermittent 
leaves occurs during the work shift. However, WorldatWork also 
estimated that notice for 56% of intermittent leaves occurs either 
on the day of the absence or the day following the absence. So if 
the notices given during the work shift are removed, then according 
to WorldatWork, notice for 49% of intermittent leaves was either 
provided on the day of the absence but prior to the shift or the day 
after the shift. (1528.1, attachment at 7) This estimate is slightly 
higher than the 46% SHRM estimate of the no or short notice leaves 
used by the Department.
---------------------------------------------------------------------------

    Since there were no comments on the remainder of the Department's 
analysis of the revisions to Sec. Sec.  825.302, 825.303 and 825.304, 
the Department simply divided the PRIA estimate of $121.8 million by 
three to arrive at an estimated net savings of about $40.6 million.

Medical Certifications (Sec. Sec.  825.305, 825.306 and 825.307)

    Sections 25.305, 825.306 and 825.307 specify the requirements for 
medical certifications. Each section is discussed below, followed by 
the Department's estimate of the impact of the combined updates to the 
medical certification provisions.

General Rule for Medical Certifications (Sec.  825.305)

    Section 825.305 sets forth the general rules governing employer 
requests for medical certification to substantiate an employee's need 
for FMLA leave due to a serious health condition. The Department 
proposed and adopted a change to Sec.  825.305(b) to increase the usual 
time frame during which an employer should request medical 
certification from two business days to five business days after the 
employee provides notice of the need for FMLA leave. This change is 
consistent with the modifications made to Sec.  825.300. The Department 
also proposed and adopted a change to Sec.  825.305(b), in order to 
make it consistent with the timing requirements of Sec.  825.311, by 
requiring the employee to provide the requested certification to the 
employer within the time frame requested by the employer (which must 
allow at least 15 calendar days after the employer's request),

[[Page 68062]]

unless it is not practicable under the particular circumstances to do 
so despite the employee's diligent, good faith efforts.
    The Department proposed and adopted additions to Sec.  825.305(c) 
to clarify the meaning of incomplete and insufficient certifications 
and set forth a procedure for curing incomplete or insufficient 
certifications. As a result, the final rule requires the employer to 
notify the employee in writing of what information is necessary for 
completing the medical certification and to provide the employee at 
least seven calendar days to furnish the additional information.
    The Department proposed and adopted changes to Sec.  825.305(d) to 
clarify that if an employee fails to submit a complete and sufficient 
certification despite the opportunity afforded by the provisions of 
Sec.  825.305(c), the employer may deny the taking of FMLA leave. In 
addition, the Department proposed and adopted a clarification that when 
the employer requires a certification, the employee's obligation to 
provide either a complete and sufficient certification or provide any 
necessary authorization for the healthcare provider to release a 
complete and sufficient certification directly to the employer applies 
to initial certifications, recertifications, second and third opinions 
and fitness-for-duty certifications.
    Finally, the Department proposed and adopted the deletion of Sec.  
825.305(e), which specified that if the employee's sick leave plan had 
less stringent requirements than the FMLA, only the less stringent 
requirements may be required when the employee substitutes any form of 
paid leave for FMLA leave. The Department proposed and adopted updates 
to Sec.  825.305(e), consistent with Opinion Letter FMLA2005-2-A, 
clarifying that an employer can require annual medical certifications 
in those cases where a serious health condition extends beyond a single 
leave year.
    Both Sec. Sec.  825.305(b) and 825.305(c) provide employees with 
additional time or a more specific time period to either initially 
submit the medical certification or to cure a deficiency. Section 
825.305(b) increases the time an employer can request medical 
certification from the employee from two business days to five business 
days after receiving the employee notice of the need for leave. 
Providing more time will reduce mistakes and provide greater certainty 
in the workplace, and this typically benefits both workers and 
employers. The clarification in Sec.  825.305(c) of the meaning of 
incomplete and insufficient certifications should also provide greater 
certainty in the workplace, benefiting both workers and employers. 
Finally, the change in Sec.  825.305(c), requiring that when an 
employer determines that a medical certification is incomplete or 
insufficient, the employer must state in writing what additional 
information is necessary and provide the employee with seven calendar 
days to cure the deficiency (additional time must be allowed where the 
employee is unable to obtain the additional information despite 
diligent good faith efforts) will also provide greater certainty in the 
workplace and benefit both workers and employers.
    As discussed in the preamble, several commenters believe these 
updates will ``immediately and drastically improve FMLA 
communications'' (the Chamber); reduce the number of times ``the 
employees are forced to go back to their health care providers 
repeatedly in a vain attempt to guess what the * * * [employer] would 
like'' (National Postal Mail Handlers Union); and ``alleviate delay and 
uncertainty in the FMLA approval process as well as unnecessary 
administrative burdens associated with repeated follow-up 
communications related to the certification process * * * both 
employers and employees will understand what their obligations are in 
the certification process'' (Society for Human Resource Management).

Content of the Medical Certifications (Sec.  825.306)

    Section 825.306 addresses how much information an employer can 
obtain in the medical certification to substantiate the existence of a 
serious health condition. It also references optional form WH-380 for 
use in the certification process and specifies that while other forms 
may be used, no additional information beyond that contained in WH-380 
may be required.
    The Department proposed and adopted several revisions to the 
medical certification form in Sec.  825.306 to implement the statutory 
requirements for ``sufficiency'' of the medical certification as set 
forth in 29 U.S.C. 2613(b), and to make it easier for health care 
providers to understand and complete. The Department also proposed and 
adopted with modifications several revisions to optional form WH-380. 
The Department proposed and adopted the deletion of Sec.  825.306(c), 
which contained language similar to that deleted from Sec.  825.305(e). 
The Department proposed and adopted the incorporation of language from 
current Sec.  825.307(a)(1), explaining the interaction between 
workers' compensation and the FMLA with regard to the clarification of 
medical information in Sec.  825.306(c). Finally, the Department 
proposed and adopted additions to this provision clarifying that if an 
employee is required to submit additional information to receive 
payments under a paid leave or benefit plan, the employer may require 
that the employee provide the information to receive those payments as 
long as it is made clear to the employee that the additional 
information is requested only in connection with qualifying for paid 
leave and does not affect the employee's right to unpaid FMLA leave. 
The Department also added new Sec.  825.306(d) clarifying that where a 
serious health condition is a disability under the ADA, employers are 
not prevented from following the procedures under the ADA for 
requesting medical information, and new Sec.  825.306(e) codifying the 
Department's long-standing position that employers may not require 
employees to sign a release of their medical information as a condition 
of taking FMLA leave, but that employees must submit a complete and 
sufficient certification upon request.
    Similar to the changes made to Sec.  825.305, the clarifications in 
Sec.  825.306 should provide greater certainty in the workplace, 
benefiting both workers and employers. As the CUPA-HR noted in its 
comments, ``[i]n the past, there has been unnecessary confusion over 
certifications, with close to 70 percent of CUPA-HR members responding 
to a survey reporting that they received vague information in 
certifications and close to half reporting challenges in authenticating 
or verifying information * * *.''

Authentication and Clarification of the Medical Certification (Sec.  
825.307)

    Current Sec.  825.307 addresses the employer's ability to clarify 
or authenticate an FMLA certification. Section 825.307(a) permits an 
employer, with the employee's permission, to have its own health care 
provider contact the employee's health care provider in order to 
clarify or authenticate an FMLA certification. The Department proposed 
and adopted a change to Sec.  825.307(a) that allows employers to 
contact the employee's health care provider directly. In response to 
privacy concerns expressed by employees and their representatives, the 
Department added a requirement to the final rule that specifies the 
employer's representative contacting the employee's health care 
provider must be a human resource professional, a leave administrator, 
or a management official, but in no case may it be the employee's 
direct supervisor.

[[Page 68063]]

    As discussed in the preamble, two types of contact between the 
employer and the employee's health care provider are permitted. An 
employer may contact the employee's health care provider for the 
purposes of clarification and authentication of the medical 
certification. In both cases, however, the employer may request no 
additional information beyond that included in the certification form 
and any sharing of individually identifiable health information by a 
HIPAA-covered health care provider must be in compliance with the HIPAA 
Privacy Rule at 45 CFR Parts 160 and 164. The revision also specifies 
that the employee is not required to permit his or her health care 
provider to communicate with the employer, but that if such contact is 
not permitted and the employee does not otherwise clarify an unclear 
certification, the employer may deny the designation of FMLA leave. The 
revision also specifies that prior to making any contact with the 
health care provider, the employer must first provide the employee an 
opportunity to cure any deficiencies in the certification pursuant to 
the procedures set forth in Sec.  825.305(c).
    In Sec.  825.307(b), the Department also proposed and adopted the 
consolidation of current Sec.  825.307(a)(2) and (b) setting forth the 
requirements for an employer to obtain a second opinion and added 
language requiring the employee or the employee's family to authorize 
his or her health care provider to release any medical information 
pertaining to the serious health condition at issue if such information 
is requested by the second opinion health care provider. The Department 
also proposed and adopted a similar requirement for the third opinion 
in Sec.  825.307(c).
    The new provision in Sec.  825.307(d) extends the time allowed for 
an employer to provide the results of second and third opinions of 
medical certifications from two business days to five.
    No changes were made to Sec.  825.307(e) and (f) involving travel 
expenses for second and third opinions. In response to comments 
regarding medical certifications from foreign health care providers, 
the final rule modifies Sec.  825.307(f) to require that employees 
provide a written translation of any certification by a foreign health 
care provider that is completed in a language other than English. The 
Department believes that in most situations either the employee or a 
member of the employee's family will be able to provide the 
translation, so this change should have a minimal impact on workers.
    The changes to Sec.  825.307 should expedite the certification 
process, thereby reducing the uncertainty to both employers and their 
employees. Similar to the changes made to Sec. Sec.  825.305 and .306, 
providing greater certainty in the workplace should benefit both 
workers and employers. SHRM stated that the current regulatory 
requirement ``creates unnecessary delay and expense for employers'' and 
that ``the proposed changes should help ensure that the certification 
process is more efficient and less burdensome.'' The Chamber stated the 
changes ``will streamline the medical certification'' and ``are among 
the most impactful changes proposed by the Department.'' The National 
Coalition to Protect Family Leave noted that smaller employers will no 
longer ``have to incur the unnecessary expense of finding a health care 
provider to make contact with the employee's provider and educate them 
on what information the employer needs to be clarified.'' The National 
Newspaper Association applauded the Department on its proposed 
revisions to streamline the medical certification process stating that 
the ``bright-line rule helps to eliminate confusion and frustration for 
both the employee and employer'' and that ``permitting the employer to 
authenticate the certificate directly with the health care provider is 
a significant improvement in the FMLA regulations for small 
businesses.''

Estimated Impacts of the Revisions to the Medical Certification 
Requirements

    In the PRIA, the Department estimated the savings that would result 
from the changes to medical certification requirements in Sec. Sec.  
825.305, 825.306 and 825.307 based upon the estimated number of leaves 
that involve serious health conditions and thus may require medical 
certifications. ``According to the 2000 Westat Report, 73.6 percent of 
leave-takers took leave for a serious health condition (either their 
own or for a covered family member), and 92 percent of covered 
establishments required medical documentation for covered leave due to 
a serious health condition. [footnote omitted] The Department estimates 
that these provisions will affect about 7.1 million FMLA leaves taken 
for serious health conditions (i.e., 7.0 million leave-takers x 73.6% x 
1.5 leaves x 92% = 7.1 million). The Department also estimates that 
these changes, as well as the changes discussed above, will result in a 
net savings to employers of on average about 15 minutes of a 
`compensation and benefits specialist' time in processing each leave 
request. [footnote omitted] At a cost $36.51 per hour, saving 0.25 
hours on each of the estimated 7.1 million leaves taken results in a 
savings of about $64.8 million for employers.'' Id. at 7951.
    Since the Department received no substantive comments on this 
estimate, it is retaining it in this analysis.

Recertifications (Sec.  825.308)

    Current Sec.  825.308 addresses the employer's ability to seek 
recertification of the employee's medical condition. The changes to 
this section are intended to address the uncertainty regarding how 
often an employer can seek recertification.
    Section 825.308(a) of the current regulations sets forth the rule 
for recertification for pregnancy, chronic or permanent/long-term 
conditions and generally permits recertifications no more often than 
every 30 days in connection with an absence. The Department proposed 
and has adopted in the final rule a clarification to Sec.  825.308(a) 
entitled the ``30 day rule'' that sets forth a general rule permitting 
recertification every 30 days in connection with an absence.
    Section 825.308(b)(1) of the current regulations states that where 
a certification specifies a minimum duration of incapacity of more than 
30 days, generally employers may not request recertifications until the 
specified minimum duration has passed. Section 825.308(b)(2) of the 
current regulations states that for FMLA leave taken intermittently or 
on a reduced leave schedule basis, generally employers may not request 
recertification in less than the minimum period specified on the 
certification as necessary for such leave.
    As discussed in the preamble, the Department proposed to resolve 
the uncertainty under current Sec.  825.308 as to how often employers 
could seek recertification of chronic conditions where the 
certification indicates that the duration of the condition is 
``lifetime.'' Under the current regulation, it is unclear whether such 
certification would be subject to recertification every 30 days under 
Sec.  825.308(a) because the conditions are chronic, or whether they 
would never be subject to recertification under Sec.  825.308(b)(2) 
because the certification indicated the need for intermittent leave for 
the employee's lifetime. As noted in the NPRM, the Department proposed 
in Sec.  825.308(b) to permit employers, in all cases, to request 
recertifications in connection with absences every six months if the 
certification indicated the ongoing need for intermittent leave. The 
proposal represented a change in the Department's position, which had

[[Page 68064]]

previously been that certifications indicating an ``indefinite'' or 
``unknown'' duration were subject to recertification every 30 days. See 
Wage and Hour Opinion Letter FMLA2004-2-A (May 25, 2004), where 
implicit in the four scenarios that are the subject of the opinion 
letter is the assumption that each scenario would involve some 
intermittent or reduced schedule leave. In the PRIA, the Department 
assumed that ``this clarification will not impact either employers or 
employees.'' Id. 7951.
    Further, as noted in the preamble above, the current 825.308(b) has 
two subsections, the first of which addresses certifications specifying 
a minimum period of incapacity in excess of 30 days, and the second of 
which addresses certifications specifying a minimum period during which 
intermittent or reduced schedule leave will be needed; in both 
situations an employer may not request recertification until the 
minimum period has passed. The Department has interpreted current Sec.  
825.308(b) as applying to those situations in which the certification 
states that an employee will need leave due to a serious health 
condition for a specified period in excess of 30 days, regardless of 
whether that leave is taken as a single continuous block of leave or on 
an intermittent or reduced schedule basis.
    In the final rule, Sec.  825.308(b) has also been modified to 
clarify that the rule applies to conditions where the minimum duration 
of the condition, as opposed to the minimum duration of the incapacity, 
exceeds 30 days. This is a clarification, not a change in the 
Department's enforcement position. The final rule also provides an 
example of how the six-month recertification provision would apply.
    Section 825.308(c) of the current regulations provides that in all 
situations not covered by Sec.  825.308(a) and (b), employers may 
generally request recertifications at any reasonable interval, 
including less than every 30 days, but only if certain circumstances 
exist as described in current Sec.  825.308(c)(1), (2), and (3). The 
Department proposed and adopted entitling Sec.  825.308(c) ``Less than 
30 days'' which explains, similar to current Sec.  825.308(c)(1), (2), 
and (3), under what circumstances the employers could request 
recertifications more frequently than every 30 days. Examples were also 
added to this provision.
    Section 825.308(d) of the current regulations requires employees to 
provide recertifications within 15 calendar days of the employer's 
request, unless it is not practicable to do so despite the employee's 
diligent, good faith efforts. The only change made to Sec.  825.308(d) 
was entitling it ``Timing.''
    Section 825.308(e) of the current regulations provides that 
recertification is at the employee's expense and that no second opinion 
may be required for recertification. Current Sec.  825.308(e) was 
redesignated as Sec.  825.308(f) with no other change.
    The Department proposed and adopted the addition of new 
recertification requirements in Sec.  825.308(e), entitled ``Content,'' 
which clarifies that an employer may request the same information on 
recertification as required for the initial certification in Sec.  
825.306, and that the employee has the same obligation to cooperate in 
providing the recertification as in providing the initial 
certification. In addition, the Department proposed and adopted a 
clarification that employers may provide the employee's health care 
provider with a record of the employee's absence pattern and ask 
whether the leave is consistent with the employee's serious health 
condition.
    The Department received significant comments from both employers 
and employees regarding this proposal that confirmed the confusion that 
exists in this area. Some employers and their representatives 
interpreted proposed Sec.  825.308(b) as diminishing their 
recertification rights, while others interpreted it as increasing their 
rights. Most employees and their representatives interpreted proposed 
Sec.  825.308(b) as increasing their recertification burden. However, 
the AFL-CIO supported the proposed change, arguing that 
recertifications on a 30-day basis for long-term conditions are 
burdensome on employees.
    The Institute for Women's Policy Research provided an alternative 
estimate of the potential increased burden on workers. ``According to 
the Federal Register document, there are 2 million FMLA leave-takers 
with a chronic health condition. Analysis of the 2006 National Health 
Interview Survey shows that 10.9 percent of workers with one of five 
major chronic health diseases (diabetes, chronic obstructive pulmonary 
disease, asthma, congestive heart disease, and hypertension) have not 
seen a physician in the last year, and another 14.2 percent have 
visited a physician only once in the past year (Institute for Women's 
Policy Research analysis). If workers with other chronic health 
diseases have similar health-care utilization rates, requiring these 
leave-takers to have at least two doctor visits per year will result in 
an additional 720,000 doctor visits annually. At an average cost of 
$71.72 and assuming each visit takes two hours of workers' time 
(including travel and waiting), valued at $17.57 per hour (the wage 
used by the DOL in its impact estimates), and that that time is unpaid, 
this requirement will cost nearly $77 million per year in medical 
expenses and lost wages.''
    The Department disagrees with this estimate for two reasons. First, 
as explained in the preamble, and noted above, the proposed and final 
Sec.  825.308(b) represents a change in the Department's position from 
permitting a recertification every 30 days for chronic or permanent/
long-term conditions regardless of whether the leave is taken as a 
single continuous block of leave or on an intermittent or reduced 
schedule basis to permitting a recertification every six months where 
the certification provides no time-frame, or indicates a minimum 
duration of ``lifetime,'' or ``indefinitely.'' Arguably, this will 
reduce the burden on workers.
    Second, a chronic serious health condition within the meaning of 
Sec.  825.114(a)(2)(iii) of the current FMLA regulations requires 
periodic treatment by a health care provider. General statistics 
involving all workers with chronic conditions are inappropriate. The 
fact that over 10 percent of the workers in the study analyzed by the 
Institute for Women's Policy Research reported not seeing a physician 
in the past year indicates that either their conditions did not meet 
the requirements of current Sec.  825.114(a)(2)(iii)(A), and thus are 
not chronic serious health conditions qualifying for FMLA leave, or 
they were answering the question specifically concerning physicians as 
opposed to all qualifying health care providers for FMLA purposes such 
as physician assistants. Moreover, the analysis submitted by the 
Institute for Women's Policy Research does not include the savings that 
would result from the change under the proposed and final rule that 
recertifications for chronic serious health conditions cannot be 
required more frequently than once every six months, which is less 
frequently than some employers currently require.
    In reexamining this proposed and final provision, and carefully 
considering all of the comments, the Department concludes that this 
provision will not increase the burden on either employers or 
employees, and arguably may reduce the costs associated with 
recertifications. However, data limitations prevent the Department from 
making a specific estimate.

[[Page 68065]]

    The proposed and adopted change to Sec.  825.308(e) will provide 
employers with a tool to determine if the employee's pattern of FMLA 
leave is consistent with their condition, or possible misuse. However, 
as noted in the RFI Report, the Department cannot assess from the 
record how much leave taking is actual abuse and how much is 
legitimate, and therefore cannot estimate what impact this proposal 
would have on the alleged misuse of FMLA leave. See id. at 7951.

Certification for Leave Taken Because of a Qualifying Exigency (Sec.  
825.309)

    Under the military family leave provisions of the NDAA, an employer 
may require that leave taken because of a qualifying exigency be 
``supported by a certification issued at such time and in such manner 
as the Secretary may by regulation prescribe.'' While the Department 
has attempted to mirror the existing FMLA certification process 
wherever possible for qualifying exigency leave, the unique nature of 
this leave necessitates that an employee provide different information 
in order to confirm the need for leave. In the final rule, the 
certification requirements for leave taken because of a qualifying 
exigency are set forth in Sec.  825.309.
    Section 825.309(a) of the final rule establishes that an employer 
may require an employee to provide a copy of the covered military 
member's active duty orders or other documentation issued by the 
military which indicates that the 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, and the dates of the 
covered military member's active duty service. Sec.  825.309(b) 
establishes that each time leave is first taken for one of the 
qualifying exigencies specified in Sec.  825.118, an employer may 
require an employee to provide a certification that sets forth certain 
information. Section 825.309(c) of the final rule describes the 
optional form developed by the Department for employees' use in 
obtaining certification that meets the FMLA's certification 
requirements. Section 825.309(d) of the final rule establishes the 
verification process for certifications.
    The Department estimates that requesting, reviewing and verifying 
the certifications for the estimated 110,000 workers taking exigency 
leave under Sec.  825.126 will take an average of about 20 minutes of a 
Human Resource Compensation and Benefits Specialist's time. At an 
average hourly wage and benefits rate of $36.51, this will result in 
additional costs of $1.3 million (i.e., 110,000 x $36.51/3).

Certification for Leave Taken To Care for a Covered Servicemember 
(Sec.  825.310)

    The military family leave provisions of the NDAA amended the FMLA's 
certification requirements to permit an employer to request that leave 
taken to care for a covered servicemember be supported by a medical 
certification. The FMLA's existing certification requirements, however, 
focus on providing information related to a serious health condition--a 
term that is not relevant to leave taken to care for a covered 
servicemember.
    Section 825.310 of the final rule provides that when leave is taken 
to care for a covered servicemember with a serious injury or illness, 
an employer may require an employee to support his or her request for 
leave with a sufficient certification. Section 825.310(a) permits an 
employer to require that certain necessary information support the 
request for leave. Section 825.310(b) of the final rule sets forth the 
information an employer may request from an employee in order to 
support his or her request for leave. Section 825.310(c) of the final 
rule describes the optional form developed by the Department for 
employees' use in obtaining certification that meets the FMLA's 
certification requirements. Section 825.310(d) describes alternatives 
to the optional form that employers must accept from employees 
obtaining certifications.
    The Department estimates that requesting, reviewing and verifying 
the certifications for the estimated 29,100 workers taking caregiver 
leave under Sec.  825.127 will take an average of about 30 minutes of a 
Human Resource Compensation and Benefits Specialist's time. At an 
average hourly wage and benefits rate of $36.51, this will result in 
additional costs of $0.5 million (i.e., 29,100 x $36.51/3).

Intent To Return To Work (Sec.  825.311)

    The Department did not propose any changes in Sec.  825.309 in the 
NPRM and received no significant comments on this section. In the final 
rule, Sec.  825.309 is renumbered as Sec.  825.311 to account for the 
new military family leave sections (Sec. Sec.  825.309 and 825.310) and 
is otherwise adopted as proposed. This change will not result in any 
costs to employers or workers.

Employer Refusal To Reinstate an Employee (formerly Sec.  825.312)

    Current Sec.  825.312 addresses the conditions under which an 
employer can refuse to reinstate an employee after FMLA leave. Current 
Sec.  825.312(a)-(f) address when an employer can delay or deny FMLA 
leave to an employee, or deny reinstatement after FMLA leave, when an 
employee fails to timely provide the required notifications and 
certifications set forth in the regulations. As these sec