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

DEPARTMENT OF LABOR

Employment Standards Administration

Wage and Hour Division

29 CFR Part 825

RIN 1215-AB35

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

AGENCY:

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

ACTION:

Report on comments from the public.

SUMMARY:

The Department of Labor's Employment Standards Administration/Wage and Hour Division undertook a review of the Family and Medical Leave Act (“FMLA” or the “Act”) and its regulations, and published a Request for Information (“RFI”) in the

Federal Register

on December 1, 2006 (71 FR 69504). The RFI asked the public to assist the Department by furnishing information about their experiences with the Act and comments on the effectiveness of the FMLA regulations. More than 15,000 comments were submitted in response to the RFI. The following report summarizes comments the Department received from its RFI.

ADDRESSES:

A complete copy of this report is also available at

http://www.dol.gov/esa/whd/fmla2007report.htm.

It may also be obtained by writing to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Foreword

No employment law matters more to America's caregiving workforce than the Family and Medical Leave Act (FMLA) of 1993. Since its enactment, millions of American workers and their families have benefited from enhanced opportunities for job-protected leave upon the birth or adoption of a child, to deal with their own serious illness, and when needed to care for family members.

After nearly fourteen years administering the law, two Department of Labor studies (1996, 2001) and several U.S. Supreme Court and lower court rulings, the Employment Standards Administration's Wage and Hour Division issued a Request for Information (RFI) on December 1, 2006.

The RFI asked the public to comment on their experiences with, and observations of, the Department's administration of the law and the effectiveness of the regulations. More than 15,000 comments were received in the next few months from workers, family members, employers, academics, and other interested parties. This input ranged from personal accounts, legal reviews, industry and academic studies, surveys, and recommendations for regulatory and statutory changes to address particular areas of concern.

There is broad consensus that family and medical leave is good for workers and their families, is in the public interest, and is good workplace policy. There are differing views on whether every provision of the law is being administered in accordance with the statute and with congressional intent. It is also evident from the comments that the FMLA has produced some unanticipated consequences in the workplace for both employees and employers.

A report of this kind is a unique step. Normally, the organization of comments received in response to a Departmental Request for Information would first be seen accompanying proposed changes to the rules. There are no proposals for regulatory changes being put forward by the Department with this Report. Rather, what we hope this Report does is provide information for a fuller discussion among all interested parties and policymakers about how some of the key FMLA regulatory provisions and their interpretations have played out in the workplace.

Finally, our thanks to the thousands of employees, employers, and other members of the public who participated in this information gathering by sharing their views, their research, and, in some cases, very personal comments. We greatly value those insights.

Victoria A. Lipnic,

Assistant Secretary of Labor, Employment Standards Administration.

June 2007.

Executive Summary

The Family and Medical Leave Act of 1993 (FMLA) opened a new era for American workers, providing employees with better opportunities to balance work and family needs. This landmark legislation provided workers with basic rights to job protection for absences due to the birth or adoption of a child or for a serious health condition of the worker or a family member.

For women dealing with difficult pregnancies or deliveries, or parents celebrating the arrival of a newborn or adopted child, the FMLA provides the opportunity to participate fully in these significant life events. For other workers—especially those who struggle with health problems or who are primary caregivers to ill family members—the FMLA has made it possible to deal with these serious challenges while holding on to jobs, health insurance, and some measure of economic security.

Background: What the Law Covers

The Family and Medical Leave Act of 1993, Public Law 103-3, 107 Stat. 6 (29 U.S.C. 2601

et seq.

) (the “FMLA” or the “Act”) was enacted on February 5, 1993 and became effective on August 5, 1993 for most covered employers. The FMLA entitles eligible employees of covered employers to take up to a total of twelve weeks of unpaid leave during a twelve month period for the birth of a child; for the placement of a child for adoption or foster care; to care for a newborn or newly-placed child; to care for a spouse, parent, son or daughter with a serious health condition; or when the employee is unable to work due to the employee's own serious health condition.

See

29 U.S.C. 2612. The twelve weeks of leave may be taken in a block, or, under certain circumstances, intermittently or on a reduced leave schedule.

Id.

When taken intermittently, the Department's regulations provide that leave may be taken in the shortest increment of time the employer's payroll system uses to account for absences or use of leave, provided it is one hour or less. 29 CFR 825.203(d).

Employers covered by the law must maintain for the employee any preexisting group health coverage during the leave period and, once the leave period has concluded, reinstate the employee to the same or an equivalent job with equivalent employment benefits, pay, and other terms and conditions of employment.

See

29 U.S.C. 2614. If an employee believes that his or her FMLA rights have been violated, the employee may file a complaint with the Department of Labor (“Department”) or file a private lawsuit in federal or state court. If the employer has violated an employee's FMLA rights, the employee is entitled to reimbursement for any monetary loss

incurred, equitable relief as appropriate, interest, attorneys' fees, expert witness fees, and court costs. Liquidated damages also may be awarded.

See

29 U.S.C. 2617.

Who the Law Covers

The law generally covers employers with 50 or more employees, and employees must have worked for the employer for 12 months and have 1,250 hours of service during the previous year to be eligible for leave. Based on 2005 data, the latest year for which data was available the time the Request for Information was published, the Department estimates that:

• There were an estimated 94.4 million workers in establishments covered by the FMLA regulations,

• There were about 76.1 million workers in covered establishments who met the FMLA's requirements for eligibility,

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and

1

Recent data submitted to the Department on the size and scope of the FMLA's reach support these estimates.

See

Chapter XI of this Report.

• Between 8.0 percent and 17.1 percent of covered and eligible workers (or between 6.1 million and 13.0 million workers) took FMLA leave in 2005.

2

2

Recent data submitted to the Department support this estimate as well.

See

Chapter XI of this Report.

• Nearly one-quarter of all employees who took FMLA leave took at least some of it intermittently.

Recent information submitted to the Department also suggests that FMLA awareness was higher in 2005 than in prior years. This information supports the Department's estimate of increased FMLA usage since prior studies of FMLA.

Request for Information and Prior FMLA Reports

After nearly fourteen years of experience implementing and administering the new law, the Department's Employment Standards Administration/Wage and Hour Division undertook a review of the FMLA regulations, culminating in the publication of a Request for Information (“RFI”) on December 1, 2006.

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The RFI asked the public to assist the Department by furnishing information about their experiences with FMLA and comments on the effectiveness of the current FMLA regulations. The RFI generated a very heavy public response: More than 15,000 comments were submitted, many of which were brief emails with very personal and, in some cases, very moving accounts from employees who had used family or medical leave; others were highly-detailed and substantive legal or economic analyses responding to the specific questions in the RFI and raising other complex issues.

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3

71 FR 69504.

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All comments are available for viewing via the public docket of the Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Many comments are also available on

www.regulations.gov.

The names of individual employees have been redacted from the Report where any personal medical information was shared.

Twice before, the Department has published reports about the FMLA and its use. The statute established a bipartisan Commission on Family and Medical Leave to study family and medical leave policies. The Commission surveyed workers and employers in 1995 and issued a report published by the Department in 1996, “A Workable Balance: Report to Congress on Family and Medical Leave Policies.” In 1999, the Department contracted with Westat, Inc. to update the employee and establishment surveys conducted in 1995. The Department published that report, “Balancing the Needs of Families and Employers: Family and Medical Leave Surveys, 2000 Update” in January 2001.

5

5

See

“Balancing the Needs of Families and Employers, Family and Medical Leave Surveys, 2000 Update,” Westat Inc., January 2001.

See also

the description of the 2000 Westat Report in Chapter XI of this Report.

See also

71 FR 69510.

Never before has the Department looked in such granular detail at the legal developments surrounding the FMLA and its implementing regulations, as well as the practical consequences of such in the workplace. The RFI's questions and subject areas were derived from a series of stakeholder meetings the Department conducted in 2002-2003, a number of rulings of the U.S. Supreme Court and other federal courts, the Department's own experience administering the law, information from Congressional hearings, and public comments filed with the Office of Management and Budget (OMB) as described by OMB in their three annual reports to Congress on the FMLA's costs and benefits.

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6

The 2001 report may be found at:

www.whitehouse.gov/omb/inforeg/costbenefitreport.pdf,

the 2002 report at:

www.whitehouse.gov/omb/inforeg/2002_report_to_congress.pdf,

and the 2004 report at:

www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf.

Unlike the 2000 Westat Report, the Department's Report on the RFI Comments is not an analysis or comparison of one set of survey data with another some years later. The RFI was not meant to be a substitute for survey research about the leave needs of the workforce and leave policies offered by employers. The record presented here is different than the previous two Departmental reports because the RFI was a very different kind of information-gathering tool than the two previous surveys. Given the differences in data-gathering approaches, the depth with which the RFI looked at the regulations, and, of course, the self-selection bias by those who took the time to submit comments to the RFI, differences in the outcomes should be expected. Care must be taken to avoid improper comparisons of information collected in the RFI with data from the two surveys.

General Overview of the Report

Commenters consistently stated that the FMLA is generally working well—at least with respect to leave related to the birth or adoption of a child or for indisputably “serious” health conditions. Responses to the RFI substantiate that many employees and employers are not having noteworthy FMLA-related problems. However, employees often expressed a desire for a greater leave entitlement, while employers voiced concern about their ability to manage business operations and attendance control issues, particularly when unscheduled, intermittent leave is needed for chronic health conditions. Indeed, the overwhelming majority of comments submitted in response to the RFI addressed three primary topics: (1) Gratitude from employees who have used family and medical leave and descriptions of how it allowed them to balance their work and family care responsibilities, particularly when they had their own serious health condition or were needed to care for a family member;

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(2) a desire for expanded benefits—

e.g.

, to provide more time off, to provide paid benefits, and to cover additional family members;

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and (3) frustration by employers about difficulties in maintaining necessary staffing levels and controlling attendance problems in their workplaces as a result of one particular issue—unscheduled intermittent leave used by employees who have chronic health conditions.

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Many of these employee comments stated that there were no problems with FMLA and there should be no changes to the program.

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Because comments on the need for expanded benefits concern matters outside the scope of the Department's authority and the purposes of the RFI, these comments are not covered in any significant detail in this Report.

Many employees offered powerful testimonials about the important role the FMLA has played in allowing them to continue working while addressing their own medical needs or family caregiving responsibilities. Chapter I,

Employee Perspectives: Experiences in the Value of FMLA, is an important representative example of how meaningful the ability to use the Family and Medical Leave Act has been for employees. The Department could have written an entire report based simply on those comments.

But, no regulatory scheme, particularly at the outset, is perfect. In 1993, the FMLA was a brand-new employment standard and many of the concepts, particularly those that took effect in the final regulations, were borrowed from other areas of law or were completely new. Thus, it should come as no surprise that RFI commenters continued to debate some of the choices made by the Department as it sought to implement the statute in a manner consistent with Congressional intent.

As is evident from both the RFI record and from many of the legal challenges to regulatory provisions over the years, the debate continues on whether the Department successfully implemented the statutory requirements and Congressional intent, or struck the right balance in all places. That debate is reflected in Chapters II-XI. In many instances, commenters expressed the view that a certain regulation was “exactly what Congress intended,” while others said of the same regulation that “it could not possibly be what Congress intended.” Because of that, in order to provide context to the comments received, in many chapters legal background is provided and/or the evolution of a particular regulatory section is retraced through the rulemaking process. Indeed, many commenters did the same thing. While this is in some cases done in great detail, without that history it may be impossible to understand not just what suggestions are being offered, but why they are being offered. These historical summaries are not intended to endorse the legitimacy of any particular comment or suggestion.

As explained in the RFI, some of the issues brought to the attention of the Department in various forums over the years are beyond the statutory authority of the Department to address.

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Nonetheless, many commenters provided suggestions for statutory changes to expand the FMLA. Among others, and in no particular order, were comments on: providing paid maternity leave, covering the care of additional family members (

e.g.

, siblings), changing the 75-mile eligibility test, reducing the coverage threshold below 50 employees, and providing coverage for part-time workers. Because these comments are beyond the Department's authority to address, we do not detail them in the chapters that follow.

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See

71 FR 69504.

Finally, this Report is not a catalogue of every comment received or every suggestion made about every part of the regulations. Nor is it a catalogue of every organization or group that submitted comments. We do believe that the comments selected for discussion are representative and the chapters that follow accurately reflect the record according to the most important subject matters presented—many of which, but not all, follow and detail the subjects and questions asked in the RFI. The chapters are designed to explain the questions asked in the RFI, provide background on the law where needed, and detail the feedback about the FMLA and the Department's implementation of it as raised in comments from employees and employers.

Given the detailed presentations in many of the responses to the RFI, and when the comments are read and studied in the aggregate, certain observations about the record stand out. Those observations follow in this Executive Summary or are found in Chapter XI: “Data: FMLA Coverage, Usage, and Economic Impact”. We believe the observations included in this Report are evident from a plain reading of the thousands of comments received from both employers and employees.

The Department's Observations Regarding the Comments

The Department is pleased to observe that, in the vast majority of cases, the FMLA is working as intended. For example, the FMLA has succeeded in allowing working parents to take leave for the birth or adoption of a child, and in allowing employees to care for family members with serious health conditions. The FMLA also appears to work well when employees require block or foreseeable intermittent leave because of their own truly serious health condition. Absent the protections of the FMLA, many of these workers might not otherwise be permitted to be absent from their jobs when they need to be.

At the same time, a central defining theme in the comments involves an area that may not have been fully anticipated: The prevalence with which unscheduled intermittent FMLA leave would be taken in certain workplaces or work settings by individuals who have chronic health conditions. This is the single most serious area of friction between employers and employees seeking to use FMLA leave. The Department is cognizant that certain of its regulatory decisions and interpretations may have contributed to this situation.

Certain types of industries and worksites and their workers appear to be more impacted by unscheduled intermittent FMLA leave-taking than others and there is considerable tension between employers and employees over the use of this leave. The Department heard, in particular, from employers, and from the representatives of employees who work with them, whose business operations have a highly time-sensitive component,

e.g.

, delivery, transportation, transit, telecommunications, health care, assembly-line manufacturing, and public safety sectors.

While many employer comments used the words “abuse” and “misuse” to describe employee use of unscheduled intermittent leave, the Department cannot assess from the record how much leave taking is actual “abuse” and how much is legitimate. In some cases, the use of unscheduled intermittent leave appears to be causing a backlash by employers who are looking for every means possible (

e.g.,

repeatedly asking for more information in the medical certifications, especially in cases of chronic conditions) to reduce absenteeism.

Another area that generated significant comments is the current medical certification process. The Department recognizes that communication about medical conditions is essential to the smooth functioning of the FMLA in workplaces. However, none of the parties involved with the medical certification process—employers, employees, and health care providers—are happy with the current system. Employees are concerned about the time and cost of visits to health care providers to obtain medical certifications and the potential for invasion of their privacy. Employers, especially when it comes to intermittent leave use, seek predictability in attendance and are frustrated with medical certifications that do not provide meaningful guidance. Health care providers complain they cannot predict how many times a flare-up of a particular condition will occur.

Despite much work by the Department, it also appears that many employees still do not fully understand their rights under the law, or the procedures they must follow when seeking FMLA leave. For example, many employees are misinformed about the fact that paid leave can be substituted for, and run concurrently with, an employee's FMLA leave. Even

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

Summary of Chapters I-XI

Employee Perspective: Experiences in the Value of the FMLA (Chapter I)

Chapter I provides a representative sampling of comments received by the Department regarding the “value” FMLA provides to employees. In general, employees commented they were very happy to have the protections afforded by the FMLA. Many commented that the Act prevented job loss, allowed them to spend time with sick or injured family members, and, upon returning to work, encouraged a greater sense of loyalty to their employer. Some pointed out that their employers went above and beyond what is required by the law. Many employers also submitted comments that outlined advantages to complying with the FMLA and offering benefits beyond what the law requires.

The value of the FMLA was particularly noted by employees caring for both children and parents with serious health conditions; this observation was supported by employer comments, many of whom noted that they increasingly receive FMLA leave requests from employees with elder care responsibilities. Many employees commented that the FMLA would be more useful if it provided paid leave, if more time off was available, and if the program covered more types of family members, such as siblings, grandparents, etc.

Ragsdale Decision/Penalties (Chapter II)

This chapter discusses the impact of the Supreme Court's decision in

Ragsdale

v.

Wolverine World Wide, Inc.

on the FMLA implementing regulations.

Ragsdale

invalidated the “categorical penalty” in section 825.700(a) of the regulations, which provides that if an employer does not designate an employee's leave as FMLA leave, it may not count that leave against an employee's leave entitlement. Other courts have struck down similar “categorical penalty” rules in sections 825.110(d) (relating to deeming an employee eligible for leave) and 825.208(c) (relating to designation of paid leave). Since

Ragsdale,

many courts have applied equitable estoppel

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principles when employers either fail to communicate required information or communicate incorrect information.

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“Equitable estoppel” is a legal bar that prevents one person from taking advantage of a second person where the second party is injured by reasonably relying on the misrepresentations (or silence when there is a duty to speak) of the first person.

Employers commented that all categorical penalties should be removed from the regulations and that employers should be permitted to designate leave as FMLA leave retroactively. Some employers suggested that any penalty should be tailored to the specific harm suffered by the employee or suggested situations in which no penalty would be appropriate. Employees supported the current notice and designation requirements in the Department's regulations, with many noting that they suffer hardships when they do not know promptly whether the employer believes they are entitled to FMLA-protected leave. Some employee commenters suggested that employers be required to provide annual notices to employees regarding their FMLA eligibility status and periodic reports regarding any FMLA leave used. Employers expressed concerns that without some clarification they are unsure of their liabilities for failure to follow the notification requirements. Both groups expressed a need for the Department to clarify the impact of

Ragsdale

on the notification requirements in the current regulations.

Serious Health Condition (Chapter III)

The Department received many comments on the regulatory definition of serious health condition relating to a period of incapacity of more than three consecutive calendar days and treatment two or more times by a health care provider (sometimes called the “objective test”) contained at 29 CFR 825.114(a)(2)(i) and its interaction with 29 CFR 825.114(c) (which provides examples of conditions that ordinarily are not covered). Chapter III summarizes these comments. Many of these comments echoed (or had their origins in) earlier comments to the record the Department received in 1993 when promulgating its current regulations.

The Department received many comments from employees and employee groups who believe that the objective test is a good, clear test that is serving its intended purpose, consistent with the legislative history, while a common theme from many employers was that the regulatory definition of serious health condition is vague and/or confusing. Moreover, comments from employer groups complained that there is no real requirement that a health condition be “serious” in the regulatory definition of serious health condition.

Many employee representatives felt section 825.114(c) imposes no independent limitation on the definition of serious health condition and therefore need not be changed. Other commenters took the very opposite tack—that the objective test extinguished Congress' intent to exclude minor illnesses and that the Department should breathe life into subsection (c) by making it more of a

per se

rule, as it was initially interpreted by Wage and Hour Opinion Letter FMLA-57 (Apr. 7, 1995).

Some employers offered to give meaning to subsection (c) by changing the period of incapacity in the objective test from “calendar” days to “business” days. Still other commenters suggested that the Department maintain the substantive language of both regulatory sections but explicitly adopt a recent court interpretation of the regulations that the “treatment two or more times by a health care provider” in section 825.114(a)(2)(i)(A) must occur during the period of “more than three days” incapacity. Some commenters suggested reconciling the two regulatory provisions by simply tightening the requirements for qualifying for a serious health condition under the objective test (

e.g.

, increasing the number of days of incapacity required).

Unscheduled Intermittent Leave (Chapter IV)

Chapter IV of the Report discusses the use of unscheduled intermittent leave under FMLA. Based on the comments received, unscheduled intermittent FMLA leave is crucial to employees with chronic serious health conditions resulting in sudden, unpredictable flare-ups. Conversely, it is precisely the use of unscheduled (or unforeseeable) intermittent leave for chronic conditions that presents the most serious difficulties for many employers in terms of scheduling, attendance, productivity, morale, and other concerns. With respect to employer comments, no other FMLA issue even comes close.

The Act itself does not provide a definition of “chronic” serious health conditions. During the 1993-1995 notice-and-comment rulemaking phase, the Department filled in this gap, as the regulatory definition of “serious health condition” evolved in response to public comments urging that this

definition specifically cover chronic conditions.

Regarding intermittent leave, the Act provides for the taking of leave in small blocks, or intermittently, but does not specify the minimum increment. 29 U.S.C. 2612(b)(1). In its regulations, the Department rejected any minimum limitations on intermittent leave, citing the statute, and stating a concern that such limits would cause employees to take leave in greater amounts than necessary, and thus erode a worker's 12-week leave entitlement. 60 FR 2236. The Department also predicted initially that incidents of unscheduled intermittent leave would be unusual. 58 FR 31801.

The Act sets out a clear, 30-day notice requirement for leave that is foreseeable, but for leave foreseeable less than 30 days in advance, the Act has a less clear, “as soon as practicable” notice requirement. 29 U.S.C. 2612(e)(2)(B). The Department, through its interpretive actions, has defined “as soon as practicable” to mean two working days after the need for leave becomes known.

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See

Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999).

Fourteen years later, the comments indicate that unscheduled intermittent FMLA leave for chronic conditions has become commonplace and it is difficult for employers to determine or monitor employees' incapacity when the chronic condition does not involve any active, direct treatment or care by a health care provider (

i.e.

, self-treatment by employees with chronic conditions such as asthma, diabetes, migraine headaches, and chronic back pain).

Employers expressed frustration about what they perceive to be employees' ability to avoid promptly alerting their employers of their need to take unscheduled leave in situations when it is clearly practicable for them to do so. A common example cited by employers involves ignoring mandatory shift call-in procedures even when the employee is fully able to comply, and then later reporting the absence as FMLA-qualifying after-the-fact. Thus, some employers allege, employees may use FMLA: (1) As a pretext for tardiness or to leave work early for reasons unrelated to a serious health condition, (2) to obtain a preferred shift instead of the one assigned by the employer, or (3) to convert a full-time position to a permanent part-time one. These employers believe the Department's regulatory interpretations have exacerbated this situation.

Other commenters said that when an employer is unable to verify that an employee's unscheduled absence is in fact caused by a chronic serious health condition, and the employer cannot seek additional medical verification of the need for the absence, the employer cannot distinguish between employees who legitimately need FMLA leave and employees who misuse the protections of FMLA to excuse an otherwise unexcused absence from work.

Notice: Employee Rights and Responsibilities (Chapter V)

Chapter V of the Report summarizes comments received regarding the FMLA rights and responsibilities of employees. The comments to the RFI indicate that many employees are not knowledgeable about their rights and responsibilities under the FMLA. Even among employees who possess a general awareness of the law, many do not know how the FMLA applies to their individual circumstances. This reported lack of employee awareness may contribute to frustrations voiced by the employer community concerning employee notice of the need for FMLA leave. Employers and their representatives commented on employees not providing notice of the need for leave in a timely fashion and receiving notice without sufficient information to make a determination as to whether or not the leave is FMLA-qualifying.

The Medical Certification and Verification Process (Chapter VI)

The Department received significant comments regarding the FMLA medical certification process. These comments are discussed in Chapter VI. Generally speaking, all parties involved in the certification process—employees, employers and health care providers—believed the current process needs to be improved.

Many employers commented that they are frustrated with certifications that do not provide meaningful guidance regarding the employee's expected use of intermittent leave. They also noted that the current regulatory framework provides them with limited options for verifying that employees are using FMLA leave for legitimate reasons. Employers also stated they want to be able to talk directly with the employee's health care provider (without using a health care provider of their own) and feel that greater communication would allow decisions regarding FMLA coverage to be made more quickly.

Employees commented that employers are not using the existing FMLA procedures appropriately to challenge medical certifications and are instead simply refusing to accept certifications without seeking clarification or a second opinion. Some employees also claimed that their use of unscheduled intermittent leave for chronic conditions seems to be causing a backlash among some employers who refuse FMLA coverage for any absences that exceed what is on the medical certification. Employees also expressed concern that increased communication between the employer and their health care providers could lead to an erosion of their right to medical confidentiality.

Finally, although the certification requirement calls for an estimate of the expected use of intermittent leave, health care providers commented that often there is no way they can furnish a reliable estimate of the frequency or severity of the flare ups and thus are unable to provide all the information required in the certification. Based on the comments received, employers, employees and health care providers almost universally believe the Department's model certification form WH-380 could be improved.

Interplay Between the FMLA and the Americans with Disabilities Act (Chapter VII)

A number of commenters discussed the relationship between the FMLA and the Americans with Disabilities Act (“ADA”).

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Although the ADA also may provide employees with job-protected medical leave, the legislative history of the FMLA indicates that Congress intended for “the leave provisions of the [FMLA to be] * ** wholly distinct from the reasonable accommodation obligations of employers covered under the [ADA].”

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Nonetheless, the Department borrowed several important concepts from the ADA when finalizing the FMLA regulations. The practical realities of the workplace also mean that employee requests for medical leave often are covered by both statutes, thus requiring employers to consider carefully the rights and responsibilities imposed by each statute. Chapter VII summarizes the comments received by the Department regarding the interplay between FMLA and ADA.

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42 U.S.C. 12101-12117, 12201-12213.

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S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993).

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

reasonable leave for medical reasons and the legitimate interests of employers. Many of these commenters cited their own experience in administering the ADA as support for the idea that additional limits imposed by the FMLA were unnecessary, particularly because both statutes require employers to review similar types of medical information and make determinations about an employee's ability to work based on that information. These commenters also noted that, in many instances, the same human resources person reviews an employee's absences under both statutes, thus further blurring the line between what an employer could permissibly do under each statute.

Other commenters, including unions and other employee groups, argued that the differences between the two statutory schemes were a direct result of the distinctively different purposes of each law. These commenters noted that the ADA is intended to ensure that qualified individuals with disabilities are provided with equal opportunity to work, while the FMLA's purpose is to provide reasonable leave from work for eligible employees. These commenters generally opposed implementing procedures they viewed as placing additional limits on the availability of FMLA leave, or increasing requirements under the FMLA medical certification process.

Transfer to an Alternative Position (Chapter VIII)

The RFI did not specifically ask any questions about an employer's ability to transfer an employee to an “alternative position” but the Department received many comments on this topic. These comments are discussed in Chapter VIII of the Report. Under the FMLA, an employer may transfer an employee to an “alternative position” with equivalent pay and benefits when the employee needs to take intermittent or reduced schedule leave “that is foreseeable based on planned medical treatment[.]” 29 U.S.C. 2612(b)(2). Section 825.204 of the regulations explains more fully when an employer may transfer an employee to an alternative position in order to accommodate foreseeable intermittent leave or a reduced leave schedule.

A significant number of employer commenters questioned why the regulations only permit an employer to transfer an employee when the employee's need for leave is foreseeable based on planned medical treatment as opposed to a chronic need for unforeseeable (unscheduled) leave. Many commenters saw no practical basis for differentiating between foreseeable and unforeseeable need for leave in this context. In fact, many employers reported that the underlying rationale for the transfer provision—to provide “greater staffing flexibility” while maintaining the employee's same pay and benefits—is best served where the employee's need for leave is unforeseeable.

Substitution of Paid Leave (Chapter IX)

Chapter IX of the Report summarizes comments regarding the substitution of paid leave for unpaid FMLA leave. Under the statute, employees may substitute accrued paid leave for FMLA leave under certain circumstances. If employees forego the option to substitute paid leave, employers may then require such substitution.

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The legislative history indicates that Congress had two purposes in providing for the substitution of accrued paid leave for unpaid FMLA leave. First, Congress sought to clarify that where employers provided paid leave for FMLA-covered reasons, they were only required to provide a total of 12 weeks of FMLA-protected leave including the period of paid leave (i.e., employees could not stack 12 weeks of unpaid FMLA leave on top of any accrued paid leave provided by the employer). The second purpose of substitution of paid leave was to mitigate the financial impact of income loss to the employee due to family or medical leave.

14

29 U.S.C. 2612(d).

A major concern of the employer commenters was that when employees substitute paid vacation or personal leave for unpaid FMLA leave, they are able to circumvent certain aspects of employers' existing paid leave policies, such as notification requirements, minimum increments of leave, seniority, or time of year restrictions. These commenters stated that employees substituting such paid leave for unpaid FMLA leave are, therefore, treated more favorably than those employees who use their accrued leave for other reasons. Employee commenters noted that the ability to substitute paid leave is a critical factor in their ability to utilize their FMLA entitlements, because many employees simply cannot afford to take unpaid leave.

The comments also identified a number of other issues affected by substitution of paid leave. For example, employers questioned the wisdom of the regulation forbidding substitution if employees are receiving payments from a benefit plan such as workers' compensation or short-term disability plans. On the other hand, employees commented that they are improperly required by employers to substitute paid leave, despite contrary language in existing collective bargaining agreements providing employees with the right to decide when to use their leave.

Joint Employment (Chapter X)

Chapter X of the Report discusses comments regarding employer coverage under FMLA in cases in which a company utilizes the services of a Professional Employer Organization (PEO). Unlike a staffing or placement agency, PEOs generally are service providers that handle payroll and other human resource work for the employer and which, under the current regulations, may qualify in some circumstances as a primary employer in a joint employment arrangement.

The comments indicated that PEOs generally are not responsible for employment decisions like hiring, firing, supervision, etc. All of the comments in this area supported the view that the primary “employer” in these cases should be the client company that actually hires and uses the employees who are provided benefit services by the PEO. Thus, according to these comments, the client company, and not the PEO, should be responsible for the placement of employees returning from FMLA leave.

Data: FMLA Coverage, Usage, and Economic Impact (Chapter XI)

The Department received a significant number of comments on the usage and impact of the FMLA, including a variety of national surveys and numerous data on FMLA leave from individual companies or government and quasi-government agencies. This information, when supplemented by the data from the 2000 Westat Report (and despite its limitations), provides considerable insight and a far more detailed picture of the workings of the FMLA, and the impact of intermittent leave, in particular. Chapter XI of this Report provides a full discussion of the data received.

Several themes arose out of the data comments submitted in response to the RFI:

• The benefits of FMLA leave include retaining valuable human capital; having more productive employees at work; lower long-run health care costs; lower turnover costs; lower presenteeism costs; and lower public assistance costs.

• There are unquantifiable impacts on both sides. On the benefit side, the value of FMLA leave is often immeasurable. On the cost side, there

can be a negative impact on customers and the public when workers do not show up for their shifts on time.

• A significant number of workers, especially for some facilities or workgroups, have medical certifications on file for chronic health conditions, and the number is increasing.

• Unscheduled intermittent FMLA leave causes staffing problems for employers requiring them to overstaff some positions and use mandatory overtime to cover other positions. Both of these increase costs and prices.

• The lack of employee notification can cause some positions to go temporarily understaffed resulting in service or production delays. This not only increases costs in the short run but also may potentially impact future business.

• Unscheduled intermittent FMLA leave can adversely impact the workplace in a variety of ways, including missed holidays and time-off for other employees, lower morale, and added stress that can result in health problems.

Further, it appears that the Department's intermittent FMLA leave estimates presented in the RFI—that about 1.5 million workers took intermittent FMLA leave in 2005, and that about 700,000 of these workers took unscheduled intermittent FMLA leave—may be too low.

While the percentage of FMLA covered and eligible workers who take FMLA leave may appear to be low relative to the total workforce and the percentage who take unscheduled intermittent leave may appear to be even smaller, the record shows that these workers can have a significant impact on the operations of their employers and their workplaces for a variety of reasons. First, as a number of commenters pointed out, these workers can repeatedly take unscheduled intermittent leave, over nine hours per week, and still not exhaust their allocation of FMLA leave for the year (generally, 12 weeks × 40 hours/week = 480 hours). Second, the record reveals that workplaces with time-sensitive operations, such as assembly-line manufacturing, transportation, transit, and public health and safety occupations can be disproportionably impacted by just a few employees who repeatedly take unscheduled intermittent leave. Third, the comments indicate that if the morale or health of workers covering for the absent employees on FMLA leave begins to suffer, either because they believe the absent workers are misusing unscheduled intermittent leave or from the stress caused by an increased workload, these workers may in turn seek and need their own FMLA certifications causing a ripple effect in attendance and productivity.

Finally, the data indicate that if unscheduled intermittent FMLA leave is taken, most employers will be able to resolve these infrequent low cost events on a case-by-case basis by using the existing workforce (or possibly bringing in temporary help) to cover for the absent worker, and likely will view unscheduled intermittent FMLA leave as an expected cost of business. On the other hand, for those establishments and workgroups with a high probability (rate) of unscheduled intermittent leave and where the cost of such leave is high, the comments suggest that none of the measures that are typically used to reduce the risk and costs associated with unscheduled intermittent FMLA leave appear to work very well. These establishments, whose risk management systems (

e.g.

, absence control policies, overstaffing, mandatory overtime) appear to be overwhelmed, are likely the employers reporting that intermittent FMLA leave has a moderate to large negative impact on their productivity and profits (1.8 to 12.7 percent of establishments according to the 2000 Westat Report). In addition, many of the traditional methods used to encourage good attendance or control absenteeism (

e.g.

, perfect attendance awards or no fault attendance polices) may not be used if they interfere with FMLA protected leave. These employers may try to make it more difficult for their workers to take unscheduled intermittent FMLA leave by repeatedly questioning the medical certifications or asking for recertifications—creating tension in the workplace.

Conclusion

In those sections of the FMLA dealing with leave for the birth of a child, for the adoption of a child, and associated with health conditions that require blocks of leave and are undeniably “serious” (

e.g.

, cancer, Alzheimer's, heart attack), the law appears to be working as anticipated and intended, and working very successfully. When addressing these areas, there is near unanimity in the comments—FMLA leave is a valuable benefit to the employee, improves employee morale, improves the lives of America's families, and, as a result, benefits employers. These aspects of the FMLA are fully supported by workers and their employers.

But to the extent that the use of FMLA leave has continued to increase in unanticipated ways, primarily in the area of intermittent leave taken as self-treatment for chronic serious health conditions, the Department has heard significant concerns. These unanticipated facets of the FMLA are the source of considerable friction in the following areas:

• How serious is “serious”?

• What does “intermittent” leave mean and how long should it go on?

• What are the rules surrounding unforeseeable leave?

• How much information can an employer require before approving leave?

• What are an employee's responsibilities under the Act?

• What workplace rules may an employer actually enforce?

• How has other legislation, including the ADA and HIPAA, affected the FMLA?

Absent the protections of the FMLA, many workers with chronic conditions might not otherwise be permitted to be absent from their jobs. This is unquestionably a valuable right. But it is precisely the use of FMLA leave by a subset of these workers—those seeking unscheduled intermittent leave for a chronic condition—that appears to present the most serious difficulties for many employers in terms of scheduling, attendance, productivity, morale, and other concerns. As was clear from the record, these comments are not inconsistent with each other. These things are true at the same time.

The success of the FMLA depends on smooth communication among all parties. To the extent that employees and employers become more adversarial in their dealings with each other over the use of FMLA leave, it may become harder for workers to take leave when they need it most.

The Department hopes that this Report will further the discussion of these important issues and is grateful to all who participated in this information-gathering process.

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

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

to catalog every comment it received in response to the Request for Information (“RFI”) about the value of the FMLA, this chapter provides a representative collection of comments recounting those personal experiences.

1

These comments also include some examples of best practices of employers in carrying out the FMLA—practices that often create or strengthen good relationships between employers and employees. These comments reflect the belief stated in the regulations that a “direct correlation exists between stability in the family and productivity in the workplace” and demonstrate that the underlying intent of the Act “to allow employees to balance their work and family life by taking reasonable unpaid leave” for certain qualifying family and medical reasons is being fulfilled. 29 CFR 825.101.

1

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

Many employees were grateful that the Act existed and that they were able to utilize the leave entitlement in a time of need. Some employees specifically commented that the Act helped them during difficult periods of caring for loved ones who were ill. For example, one employee wrote that she used FMLA leave twice, once to care for a seriously ill child and again “when my husband was injured in Afghanistan and needed assistance in his recovery[.]” An Employee Comment, Doc. 2666, at 1.

2

She noted that “without this [FMLA] protection, I probably would have lost my job and all its benefits[.]”

Id.

Another employee said he could not have cared for his ill wife without FMLA. An Employee Comment, Doc. FL18, at 1. “My wife * * * has a medical condition that is covered by the FMLA. I have used intermittent FMLA leave to take her to the doctor whose office is located approximately 4 hours away by car from where we live. I have been doing this on average once a month for approximately 3 years. I would not be able to do this without the FMLA.”

Id.

2

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

One employee, whose comment echoed the sentiment that the FMLA allows employees to balance their work obligations with the need to care for their loved ones, appreciated how his family benefited from FMLA leave. “Presently, my sister is having to care for our ailing mother while holding down a job. The Family and Medical Leave Act is very important to her as well as her family in her continued effort to care for our mother in her final days.” An Employee Comment, Doc. FL9, at 1. Another employee said, “I * * * recently returned from taking a two week FML[A leave] to care for my elderly stepfather after open heart surgery. My family and I were appreciative that because of the FML[A] I was able to request time to assist with his care and recuperation at home. We all have no doubt that my time was invaluable with his improvement once home.” An Employee Comment, Doc. 139, at 1.

Other commenters also noted the value of FMLA when they needed leave because of their own serious health conditions. For example, one employee said, “As a cancer survivor myself, I cannot imagine how much more difficult those days of treatments and frequent doctor appointments would've been without FMLA. I did my best to be at work as much as possible, but chemotherapy and radiation not only sap the body of energy, but also take hours every day and every week in treatment rooms.” An Employee Comment, Doc. 5798, at 1. Another employee, who used FMLA leave on several occasions for her own serious health condition, stated that she was “very thankful for the existence of the Family and Medical Leave Act (FMLA). As a two-time survivor of breast cancer, I have taken FMLA leave both on a continuous and an intermittent basis—continuous leave to recover from my surgeries (therapeutic and reconstructive) and intermittent for doctors appointments, radiation therapy, and chemotherapy treatments.” An Employee Comment, Doc. 234, at 1. Other employees specifically pointed out the value of the FMLA in allowing them to focus completely on recovery. For example, a correctional officer commented, “I was out of work for a short period of time due to a serious medical condition that was treatable. FMLA gives the employee the ability to tend to these concerns with their full attention, to recuperate without sacrificing their career [or] their livelihood.” An Employee Comment, Doc. FL87, at 1.

Several employees commented specifically about the value of intermittent leave under the FMLA. A railroad employee of thirty-six years said he uses intermittent leave to care for his wife, who suffers from Multiple Sclerosis (“MS”). An Employee Comment, Doc. FL115, at 1. Acknowledging the sporadic need for leave, the commenter said, “Since MS is an incurable disease without a schedule or any way of knowing when an episode is going to [occur], I cannot always foresee when I am needed at home. The only time I know I am needed is when [my wife] has an appointment with her doctor. This is subject to change if she is unable to go to the doctor due to weakness.”

Id.

Similarly, an AT&T employee commented that intermittent leave under the Act makes it possible for her to care for her mother, who has Alzheimer's disease. “I only take an hour here and there as needed. I try to work doctor appointments and other things around my work schedule. However, it is impossible to always do that. FMLA has been a life saver for me. Had I not had FMLA for this reason I don't know what I would do.” An Employee Comment, Doc. 10046A, at 1.

Many employees commented that the Act helped save their jobs. For example, one employee, who commented that her child's health condition sometimes keeps her out of work for several days at a time, said, “FMLA has tremendously helped my family. I have a child born w/[asthma], allergies & other medical issues. And, there are times I'm out of work for days[. I]f I didn't have FMLA I would have been fired [a long] time ago. I've been able to maintain my employment and keep my household from having to need assistance from the commonwealth.” An Employee Comment, Doc. 229, at 1. Another employee said, “I returned home after three months [of FMLA leave] to be told I no longer had a job. I was told it would be unfair of me to expect my coworkers to cover for me so they were forced to hire a new employee * * * When I asked the manager about the previous assurances that my job would be held until I returned I wasn't given a direct answer. I invoked the FMLA and was able to keep my job.” An Employee Comment, Doc. 61, at 1. A teacher stated, “Without [the FMLA], I couldn't have cared for both of my parents at different times in their lives and kept my job * * * Because of the act I was able to keep my parents out of nursing homes and still keep my job to support them later. This is the best thing you can do for working families around our country.” An Employee Comment, Doc. 1181, at 1.

Similarly, an employee with a chronic serious health condition commented, “I can get sick at any time and need brain surgery. This can put me out of commission for a month or two. FMLA gives me the peace of mind that I cannot be fired after I have been in a job for a year. I cannot stress how monumental that assurance is.” An Employee Comment, Doc. 159, at 1. Another employee said, “Without the availability of FMLA I'm not certain of what would have happened to my family when my husband was diagnosed with ALS 5

years ago. Thankfully it was there, so I could be with him as he was dying.” An Employee Comment, Doc. 4332, at 1. A union steward, using FMLA leave for his own serious health condition, commented that “FMLA not only allows me to take time off for * * * therapy/medical appointments but also allows [me] to take time off as needed when I have sporadic episodes in which the medicine does not work, needs to be fine tuned or changed which is essential to my well-being.” An Employee Comment, Doc. 4619, at 1. He further commented, “Without FMLA I would have been fired long ago[.] * * * FMLA saved my job and I also believe saved my life, and to this day gives me a sense of security against any discipline or termination based on my legitimate medical needs.”

Id.

The FMLA appears to be particularly valued by employees caring for both children and parents with serious health conditions. A telephone company employee providing care for her asthmatic son and for her 84-year-old mother commented: “I am part of what is known as the “Sandwich Generation”[.] * * * I have had several occasions to use FMLA[.] * * * Without FMLA protection I would have lost my job.” An Employee Comment, Doc. R133, at 1. Another employee described taking leave for a three-month period for the birth of her child, then needing leave intermittently to care for her father “for a few days after each hospitalization” for his chronic heart disease. An Employee Comment, Doc. 6311, at 1. According to this commenter, “Knowing that I was protected meant I didn't have to choose between my Father's health and my job.”

Id.

at 1.

In a similar vein, one commenter who administers FMLA leave for her employer noted, “What I am seeing with increasing regularity are FMLA requests for employees to care for an elderly parent who is ill and not able to afford a caregiver to attend to his/her needs. These are usually for intermittent leaves that will allow the employee to chauffer their parent to the doctor [or] attend to their parent post surgery. As our working population ages, [the need for leave related to] caring for elderly parent(s) will increase.” Doreen Stratton, Doc. 696 at 1. An employee agreed: “There are multiple factors putting stress on the American family, making the FMLA a good thing for families with children. Also, millions of baby-boomers are getting old, many of them without adequate retirement funds—so we will be seeing more family caregivers, not fewer.” An Employee Comment, Doc. 5473, at 1. As these comments show, the importance of the FMLA is growing for this key group of employees and their employers. As one commenter put it, “In most families, since both parents have to work to support themselves and their children and perhaps their older parents, the more a company provides pay and good will towards a family['s] caretaking abilities, the more that employee will be loyal to the company.” An Employee Comment, Doc. 5521, at 1.

In addition to these individual employee and employer comments, the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) conducted an “online survey among members of Working America, the Federation's community-based affiliate in response to the RFI. Within a period of two weeks, over 1,660 members responded.” Doc. R329A, at 6. As a result of their survey, several hundred personal experiences were included in an Appendix to the AFL-CIO's comment—a sampling of which is provided here:

• “My daughter was mauled by a dog. I had to take 2 months of leave (permitted under FMLA). Had FMLA not been in place, I would have lost my job for sure.”

• “FMLA has made a big difference to me. I have a chronic health condition along with being a single mother and have my aging mother living with me. I can't imagine not being able to use this so that I know that my job will still be there whether I have a [reoccurrence] of my health condition or like when my 4 year old broke his leg.”

• “My step mother had a debilitating stroke. Since I work in social services, I was [the] best person in the family to assist her with setting up her benefits. My direct supervisor did not like it, but my request could not be denied. Human Resources was more than helpful in telling me how much vacation and sick time I had accrued. It was required that I use that up while I was on FMLA. I was paid for all but a week and a half of my leave. Without FMLA, I could not have taken the 5 weeks off work.”

• When my mother was diagnosed with lung cancer, my brother and I decided I would be the one to take her to all her appointments and therapy. I would have lost my job or had to leave it without FMLA. It was difficult for the people I worked with because it put a strain on the office, however, they were, for the most part, emotionally supportive as well.”

• “My mother was diagnosed with cancer and she had a stroke that left her paralyzed and wheelchair bound. With the help of the FMLA, I was able to take her to her appointments and tell the doctors what was going on with her since I was her primary caregiver. I was able to be with her when she took her last breath and was grateful for the time I was able to [spend] with her until her death.”

Id

. at 46-59.

Similarly, the Communications Workers of America submitted several hundred examples of their members' personal experiences with FMLA “to illustrate the continued importance of the FMLA[.]” Doc. R346A, at 16. A representative sample of those experiences follows:

• “A Cingular employee with a good work record has Lupus which causes periodic flare-ups that prevent her from working and require weekly therapy and regular doctor visits. FMLA has allowed her to remain stress-free * * * because she does not need to worry about losing her job.”

• “A Pacific Bell Telephone employee with chronic lower back pain that prevents sitting or walking when it flairs up has been able to take FMLA leave when these symptoms occur without facing discipline for absence issues. As a result, this employee remains a productive and committed employee.”

• “A [Communications Workers of America] member reports that in 1995 his late wife was diagnosed with colon cancer. After she was operated on, she needed extensive chemotherapy. His employer allowed him to substitute paid leave for unpaid FMLA leave whenever he needed to go with his wife to chemotherapy treatments since she was unable to drive herself to or from these appointments. This made a big difference especially because some of the medical care was not covered by the employee's insurance.”

• “An employee of AT&T has used FMLA leave to care for her husband, her son, her elderly mother and for her own serious health condition. She reports that she learned about the availability of FMLA leave from her union and the union representatives were very helpful to her in trying to understand complicated FMLA application forms and other related documents sent to her in connection with these leaves.”

• “An employee of AT&T used FMLA leave five years ago when her father developed a brain tumor that ultimately took his life. She states that ‘it was devastating to our family, but I am so grateful that, with the FMLA I was able to help care for him in our home and was by his side when he passed. This is how life and death should be. Losing the protections of FMLA would force us to have strangers care for our [loved] ones in their time of need.’ ”

Id.

at 16-42.

Numerous employees commented that requesting and using FMLA leave was a positive experience because their employers were helpful and straightforward in providing such leave. Several of these employees commented that their employers initially suggested they request FMLA leave and helped them through the process.

See, e.g.

, Employee Comments, Doc. 4734, at 1 (“My employer did not give me any difficulty in using my sick/personal time[.] * * * I spoke to my Human Resources person and she suggested I apply [for FMLA leave].”); Doc. 874, at 1 (an employee who needed leave to care for her mother in a different state “first heard of FMLA when I contacted my HR office about my dilemma, and I was so amazed and relieved that such a worker-centric law actually existed! With the help of FMLA, I was able to spend a month in Michigan helping my Mom—away from my job—without having to worry that I would be fired.”).

Other employees observed that their employers put them at ease when they requested FMLA leave. Specifically, an employee recalled when her child became ill with a brain tumor that her “company was very understanding about granting me [FMLA] leave. I felt very safe and secure knowing that I could take leave and still have my job when I returned.” An Employee Comment, Doc. 95, at 1. Similarly, an employee said she was “[s]o thankful when my employer informed me of this law because it gave my mom peace of mind knowing that I would be available for her when she needed me.” An Employee Comment, Doc. 4773, at 1.

Often employees were thankful because their employers were sympathetic to their family needs while on FMLA leave. The National Association of Working Women provided the example of “a 41-year-old single mother in Aurora, Colorado. The FMLA allows her to take off whenever her 11-year-old son * * * has an attack caused by his chronic asthma. ‘When he does get sick, I have to be up practically 24 hours,’ [the mother] says, praising her employer, Kaiser Permanente, and her supervisor for understanding her situation.” Doc. 10210A, at 1. One employee said her employer's sympathy during FMLA leave prevented her from looking for new work: “Thanks to the FMLA, I was able to take three months off work with full salary in order to take care of [my husband] when he was reduced to a state of complete dependency. * * * I was secure in the knowledge that I could come right back to my job, and I developed a keen sense of loyalty to my employer which has more than once prevented me from looking for work elsewhere.” An Employee Comment, Doc. R62, at 1. Finally, one employee stated she did not find requesting FMLA leave to be “cumbersome or unreasonable” because her Human Resources department was “very helpful with the entire process.” An Employee Comment, Doc. 4720, at 1. Further, she noted that “the process and leave itself [was a Godsend] as caring for our Mother was very, very stressful[.]”

Id.

Many comments recounted employer policies that go above and beyond what is required under the Act.

See, e.g.

, An Employee Comment, Doc. 5069, at 1 (employer “gives paid medical leave based on how much time is medically necessary.”); Jill Ratner, President, The Rose Foundation for Communities and the Environment, Doc. 4877, at 1 (A non-profit foundation that provides “one week of paid family leave (in addition to two weeks of paid sick leave) to all employees” commented that “providing family leave is critical to recruiting and retaining qualified staff, and to maintaining staff morale and effectiveness.”); An Employee Comment, Doc. 1106, at 1 (“Altogether, I was away from work for about two months or so. My employer, Monsanto, was very generous with me. In addition to granting the time off and guaranteeing I would still have my job when I returned, they paid sick leave during this period.”); An Employee Comment, Doc. 70, at 1 (The employer of an employee who had been employed for less than one full year when she needed FMLA leave to care for her sick mother “essentially applied the FMLA rules anyway; they let me use all my vacation time and then gave me unpaid leave. I cannot tell you what a difference that made.”); National Employment Lawyers Association, Doc. 10265A, at 3 (An attorney association commented that one of her clients suffered from chronic fatigue syndrome, which shortened her work day by 1 to 2 hours, but “her employer was very cooperative with her efforts to continue working by allowing her to use her FMLA [leave] in these short blocks of time and wasn't even really counting whether she was using up her FMLA leave.”).

A professor commented that her college provided leave periods in addition to FMLA leave, lasting the length of a full school term. An Employee Comment, Doc. R79A, at 1. “I also underwent surgery, several cycles of adjuvant chemotherapy, and a series of medical tests for the management of my cancer and am currently considered to be cancer-free and doing well. These treatments were possible, not only because of my excellent medical coverage as a full-time university employee, but because I could take a one-term medical leave in the fall and still receive paychecks[.]”

Id.

Some employers also noted that making it easier on employees to use FMLA leave was a positive experience from their perspective. One employer commented:

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

Marie Alexander, President & CEO, Quova, Inc., Doc. 5291, at 1. A public sector employer commented that administering FMLA leave was “no more difficult to navigate than any other labor oriented legislation. In fact, I find it very straightforward, and it has been a literal lifesaver for some of our people.” Kevin Lowry, Nassau County Probation, Doc. 86, at 1. The commenter went on to say, “In the long run, most people will appreciate the extra protection offered by the employer during a difficult time and will return as more motivated employees once the crisis has passed.”

Id.

The benefit to employers of providing FMLA leave to employees was also the topic of another employer's comment: “As a supervisor, FMLA allowed me to keep a good employee while she cared for her terminally ill husband. After he passed away, she came back to work and has continued to contribute to [the company] in an extremely valuable way.” Chris Yoder, Doc. 922, at 1.

Some employees also noted that, upon returning from FMLA leave, they felt more productive at work and more loyal to their employer. One employee said, “My mentor allowed me to use my own sick leave and vacation and then to hold my position without pay until after my mother passed and I was able to return to work. The course of my mother's illness was quick, and I was gone about six weeks total. When I returned to work, I was able to re-engage in it and be productive.” An Employee Comment, Doc. 885, at 1. Another employee commented, “I used FMLA three times in the last 9 years (with and without pay); each time I was very grateful to know that my job status was protected when I was out on leave. All three times I returned to work and

rededicated myself to my job. FMLA helped me, my family, and my loyalty and productivity in the workplace.” An Employee Comment, Doc. R2, at 1.

A telecommunications employee also commented that taking FMLA leave allows her to be more productive: “The FMLA has changed my life. It has saved my job. Without the intermittent leave, and my taking only 1.5 days maximum per month, I would be on a disability. When I do miss work, I work twice as hard to make up for the time I am gone. I actually produce more than those who don't take the FMLA time.” An Employee Comment, Doc. 233, at 1. Another employee noted that FMLA leave is not “charity” but “instead it safeguard[s] loyal employees who, because of unforeseen circumstances need a temporary helping hand.” An Employee Comment, Doc. 4732, at 1. Further, the commenter noted, “I have known a family which has benefited tremendously by the FMLA. After assistance, they have emerged once again into a productive, tax paying, exciting family that is contributing to our community.”

Id.

While other chapters of this Report detail areas where commenters indicate the FMLA may not work as well as it could, the comments in this chapter show the continued value to employees and employers of the FMLA leave entitlements. While employees were relieved at having available job-protected leave, they also often noted their increased loyalty to their employers after using periods of FMLA leave, especially where they felt their employers were sympathetic concerning the leave circumstances and helpful with the procedures for taking leave. Employers, as well as employees often noted increased productivity among employees returning from FMLA leave and, in some instances, provided greater benefits than those required by the Act. The value of FMLA leave was pointed out for all types of qualifying leave scenarios, but was particularly referenced in regard to employees of the “sandwich generation” who frequently find themselves caring for their own health needs, those of their children, and of their aging parents.

II. Ragsdale/Penalties

In

Ragsdale

v.

Wolverine World Wide, Inc.,

535 U.S. 81 (2002), the Supreme Court held that the penalty provision in the Department's regulation at section 825.700(a) is invalid. That regulation states that “[i]f an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement.” 29 CFR 825.700(a). The Court held the provision is invalid because, in some circumstances, it requires employers to provide leave in excess of an employee's 12-week statutory entitlement. Although the Court did not invalidate the underlying notice and designation provisions in the regulations, it made clear that any “categorical penalty” for a violation of such requirements would exceed the Department's statutory authority.

The Request for Information noted that a number of courts have invalidated a similar penalty provision found in section 825.110(d), which requires an employer to notify an employee prior to the employee commencing leave as to whether the employee is eligible for FMLA leave. If the employer fails to provide the employee with such information, or if the information is not accurate, the regulation bars the employer from challenging the employee's eligibility at a later date, even if the employee is not eligible for FMLA leave pursuant to the statutory requirements.

Therefore, the Department asked commenters what “changes could be made to the regulations in order to comply with

Ragsdale

and yet assure that employers maintain proper records and promptly and appropriately designate leave as FMLA leave?” The Department received a significant number of comments regarding this issue and related notice issues.

A. Background

The FMLA entitles eligible employees of covered employers to 12 weeks of leave per year for certain family and medical reasons. 29 U.S.C. 2612(a)(1). In order to allow employees to know when they are using their FMLA-protected leave, the regulations state that “it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee.” 29 CFR 825.208(a). More specifically, “[o]nce the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave.” 29 CFR 825.208(b)(1).

See also

29 CFR 825.301(b)(1)(i) and (c). The employer's designation may be oral or in writing, but if it is oral, it must be confirmed in writing, generally no later than the following payday, such as by a notation on the employee's pay stub. 29 CFR 825.208(b)(2).

The categorical penalty provision of the regulations with regard to paid leave provides as follows:

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

29 CFR 825.208(c).

See also

29 CFR 825.700(a) (“If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement.”).

In

Ragsdale,

535 U.S. 81, the Supreme Court considered a case in which the plaintiff had received 30 weeks of leave from her employer. At that point, her employer denied her request for additional leave and terminated her employment. She alleged that her employer violated section 825.208(a), which requires an employer to designate prospectively that leave is FMLA-covered and to notify the employee of the designation. Because her employer did not do so, she alleged that she was entitled under section 825.700(a) to an additional 12 weeks of FMLA-protected leave.

The Court found that this “categorical penalty” is “incompatible with the FMLA's comprehensive remedial mechanism,” which puts the burden on the employee to show that the employer interfered with, restrained, or denied the employee's exercise of FMLA rights, and that the employee suffered actual prejudice as a result of the violation. Ragsdale, 535 U.S. at 89. The Court observed that, according to the regulation, the “fact that the employee would have acted in the same manner if notice had been given is, in the Secretary's view, irrelevant.”

Id.

at 88. The Court also found that the regulation “subverts the careful balance” that Congress developed with regard to “the FMLA's most fundamental substantive guarantee” of an entitlement to a total of 12 weeks of leave, which was a compromise between employers who wanted fewer weeks and employees who wanted more.

Id.

at 93-94. Thus, the Court held that the penalty provision of section 825.700(a) is “contrary to the Act and beyond the Secretary of Labor's authority.”

Id.

at 84.

The Supreme Court did not invalidate the notice and designation provisions in the regulations. Indeed, the Court recognized that there may be situations where an employee is able to show that the employer's failure to provide the required notice of FMLA rights prejudiced the employee in a specific way (such as depriving the employee of an opportunity to take intermittent leave or to return to work sooner). The Court stated, however, that the Act's remedial structure requires a “retrospective, case-by-case examination” to determine “whether damages and equitable relief are appropriate under the FMLA,” based upon the steps the employee would have taken had the employer given the required notice, rather than a categorical penalty.

Id.

at 91.

See Sorrell

v.

Rinker Materials Corp.,

395 F.3d 332, 336 (6th Cir. 2005) (remanding the case for a determination of whether the doctrine of estoppel bars the company from challenging the employee's entitlement to FMLA leave because the employer had unconditionally approved the leave request);

Duty

v.

Norton-Alcoa Proppants,

293 F.3d 481, 493-94 (8th Cir. 2002) (holding that the employer was equitably estopped from asserting that the plaintiff had exhausted his 12 weeks of FMLA leave, based on a letter expressly informing him after 22 weeks of disability leave that he still had 12 weeks of FMLA leave left);

Wilkerson

v.

Autozone, Inc.,

152 Fed. Appx. 444 (6th Cir. 2005) (based on the employer's statement that the employee had six weeks of post-partum FMLA leave, equitable estoppel applied because the employee reasonably relied on it and showed the requisite prejudice).

The

Ragsdal

e decision addressed only the penalty provision in section 825.700(a), which is applicable to both unpaid leave and paid leave (

Ragsdale

involved unpaid leave). The penalty provision in section 825.208(c) (applicable only to paid leave) is virtually identical. A number of courts have held that the rationale of the

Ragsdale

decision applies equally to section 825.208(c), and that an employee must show prejudice from the lack of notice to establish a violation of the Act.

See, e.g., Miller

v.

Personal-Touch of Va., Inc.,

342 F. Supp. 2d 499, 513-14 (E.D. Va. 2004);

Donahoo

v.

Master Data Ctr.,

282 F. Supp. 2d 540, 554-55 (E.D. Mich. 2003); and

Phillips

v.

Leroy-Somer N. Am.,

No. 01-1046-T, 2003 WL 1790941, *5-7 (W.D. Tenn. Mar. 28, 2003).

As discussed above, a number of courts also have found that the “deeming” provision in section 825.110(d) of the regulations is invalid and contrary to the statute. The FMLA establishes that employees are eligible for FMLA leave only if they have been employed by the employer “for at least 12 months” and have “at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. 2611(2)(A). The regulations generally require an employer to notify an employee whether the employee is eligible for FMLA leave prior to the employee commencing leave. If the employer confirms the employee's eligibility, “the employer may not subsequently challenge the employee's eligibility.” 29 CFR 825.110(d). Furthermore, “[i]f the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible. The employer may not, then, deny the leave. Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee's notice.”

Id.

Thus, even if an employee fails to satisfy the statutory eligibility requirements, the regulation “deems” the employee to be eligible for FMLA-protected leave. The courts have held that this regulation is invalid.

See, e.g., Woodford

v.

Comty. Action of Greene County, Inc.,

268 F.3d 51, 57 (2d Cir. 2001) (“The regulation exceeds agency rulemaking powers by making eligible under the FMLA employees who do not meet the statute's clear eligibility requirements.”);

Brungart

v.

BellSouth Telecomm., Inc.,

231 F.3d 791, 796-97 (11th Cir. 2000),

cert. denied,

532 U.S. 1037 (2001) (“There is no ambiguity in the statute concerning eligibility for family medical leave, no gap to be filled.”);

Dormeyer

v.

Comerica Bank-Ill.,

223 F.3d 579, 582 (7th Cir. 2000) (“The statutory text is perfectly clear and covers the issue. The right of family leave is conferred only on employees who have worked at least 1,250 hours in the previous 12 months.” Therefore, the Department “has no authority to change the Act,” as the regulation attempts to do, by making ineligible employees eligible for family leave).

The courts have concluded that an employee may pursue a case, based on the principle of equitable estoppel, where the employer's failure to advise the employee properly of his/her FMLA eligibility/ineligibility is determined to have interfered with the employee's rights, and the employee could have taken other action had s/he been properly notified.

See, e.g., Dormeyer,

223 F.3d at 582 (“an employer who by his silence misled an employee concerning the employee's entitlement to family leave might, if the employee reasonably relied and was harmed as a result, be estopped to plead the defense of ineligibility to the employee's claim of entitlement to family leave.”);

Kosakow

v.

New Rochelle Radiology Assocs., P.C.,

274 F.3d 706, 722-27 (2d Cir. 2001).

See also

Wage and Hour Opinion Letter FMLA2002-1 (Aug. 6, 2002).

B. Comments on

Ragsdale:

Notice and Designation Issues

A number of commenters addressed the

Ragsdale

categorical penalty issue and responded to the Request for Information's question regarding what “changes could be made to the regulations in order to comply with

Ragsdale

and yet assure that employers maintain proper records and promptly and appropriately designate leave as FMLA leave?”

The National Coalition to Protect Family Leave stated that section 825.700(a) and the similar penalty provision in section 825.208 should be removed from the regulations, and that “any `penalty' that DOL wants to impose on employers for failure to follow certain notice obligations dictated by the regulations must be tailored to the specific harm suffered by the employee for failure to receive notice.” National Coalition to Protect Family Leave, Doc. 10172A, at 43, The Coalition asserted that retroactive designation should be permitted, so that employees “could receive the FMLA protections despite their failure to adequately communicate that the FMLA is at issue, and employers who inadvertently fail to timely designate leave can have the opportunity to count the absence toward the employee's FMLA leave bank. Retroactive designation should be permitted in all cases where the employee is eligible, the condition qualifies, and the employee has adhered to his/her FMLA notice obligations that FMLA leave is at issue.”

Id.

at 44.

See also

Proskauer Rose LLP, Doc. 10182A, at 9 (the regulations should allow an employer “who initially fails to designate a leave as FMLA leave, but nevertheless grants the employee the leave, to retroactively designate the leave as FMLA leave”); Coolidge Wall Co. LPA, Doc. 5168, at 1 (the regulations should state that an employer that has an FMLA policy in its handbook, for which an employee has acknowledged receipt, can send out the FMLA notice “mid-leave and can retroactively count the employee's time”); Commonwealth of Pennsylvania, Doc. FL95, at 2-3 (retroactive

designation should be allowed “when an employee's FMLA rights were provided during the period of absence,” because the two-day verbal notification requirement is difficult to achieve, although the written notification/designation requirements “usually can occur * * * within the timeframes prescribed by the Regulations”).

The Air Transport Association of American, Inc., and the Airline Industrial Relations Conference suggested that the regulations be revised in light of

Ragsdale

, because employers do not know which regulations they must follow and which are no longer valid, and employees who read them also are confused about which regulations their employers must follow. Doc. FL29, at 15.

See also

Association of Corporate Counsel, Doc. FL31, at 10 (section 825.700 should be deleted to clarify that an employer's failure to timely designate leave does not increase the statutory leave period).

United Parcel Service, Doc. 10276A, at 2, suggested that the Department should clarify in section 825.208 the effect of an employer's mistaken designation of FMLA leave, because some courts have held that the doctrine of equitable estoppel prevents an employer from denying protected leave based on a subsequent determination that the employee was not eligible. The United States Postal Service similarly suggested that both sections 825.700(a) and 825.208(c) should be revised to clarify that “a technical violation of the notice provisions does not result in a windfall of surplus FMLA protection for an employee who suffered no harm as a result.” Doc. 10184A, at 4. A large provider of human resources outsourcing services commented that “by deleting the ‘penalty’ provision and simply reinforcing employer notification obligations,” the Department would appropriately respond to

Ragsdale

. Hewitt Associates, Doc. 10135A, at 8. Hewitt stated that employers benefit by providing more notice because they: Educate employees about their rights, responsibilities, and benefits; maximize the likelihood that employees will return to work promptly; maintain or enhance their engagement; minimize the impact on other HR administrative processes; minimize the impact on business operations; and reduce available time off balances accurately.

Id.

at 7-8.

Finally, as discussed in detail in Chapter V, a number of commenters stated that the two-day time frame for designating leave is inadequate, or that the designation requirement should apply only when employees expressly request FMLA leave. The National Association of Convenience Stores suggested that, in light of

Ragsdale

, “DOL should consider eradicating all formal employer designation requirements.” Doc. 10256A, at 7.

Other stakeholders, however, presented views in support of the current notice and designation requirements and had suggestions for changes that would provide improved and prompt information to employees. One commenter stated that the data show that two days is sufficient to allow employers to review and respond to employees' leave requests. “Most organizations spend only between thirty and 120 minutes of administrative time per FMLA leave episode to provide notice, determine eligibility, request and review documentation, and request a second opinion. Therefore, no change to the current two-day response requirement is warranted.” National Partnership for Women & Families, Doc. 10204A, at 21 (citation omitted). That commenter also noted that while the Supreme Court struck down the “categorical penalty” in the current regulations, it left intact the requirement that employers designate leave, and it “did not prohibit DOL from imposing any penalties on employers for failing to properly designate and notify employee about leave.”

Id.

at 18. Therefore, in light of the overall purposes of the notice and designation requirements, this commenter suggested that any changes to the regulations should:

• “Emphasize that the Court did not alter the obligation of employers to both designate leave promptly and notify employees of how that leave has been designated. Thus, employers must continue to adhere to these designation and notice requirements or risk penalties.”

• “Reaffirm and modify current recordkeeping requirements that require employers to keep accurate and complete records of how leave has been designated, and when the employee was notified of the designation.”

• “Prohibit employers from making any retroactive changes to how leave has been designated without notification and consultation with the employee, and require maintenance of records documenting such notification and consultation.”

• “Establish new penalties for employer non-compliance that are not automatic, but can be imposed following a complaint by the affected employee and an independent determination of the harm caused by the employer's violation.”

Id.

at 18-19.

See also

Letter from 53 Democratic Members of Congress, Doc. FL184, at 2 (noting that

Ragsdale

invalidated only the penalty provision of the regulations and that any changes in the regulations should be limited to remedying that problem and should go no further).

Another commenter suggested that “fines should be imposed” on employers that do not maintain accurate records, and they “should not be able to retroactively change how leave was originally designated without notice and consultation with the employee.” OWL, The Voice of Midlife and Older Women, Doc. FL180, at 2.

A number of commenters emphasized the hardships employees suffer when they do not know promptly whether the employer believes they are entitled to protected leave. Employees then either feel compelled not to take the time off that they need, or else they take off but are afraid because they do not know whether they will be subject to discipline for being off work.

See,

e.g.

, Frasier, Frasier & Hickman, LLP, Doc. FL60, at 1-3. As discussed in detail in Chapter V, a number of commenters therefore suggested that employers be required to inform employees promptly when they are using FMLA leave.

Another commenter noted that his employer “is able to delay, and many times deny, for many weeks and months the benefits and protections which the Act affords,” because it repeatedly asks for more information on the certification form. An Employee Comment, Doc. 10094A, at 2. During this “very lengthy approval process, the employee is subjected to attendance-related discipline when the absence should have been approved or at the very least be treated as ‘pending.’ ”

Id. See also

An Employee Comment, Doc. 5335, at 1 (noting that she had gone out on short-term disability leave for surgery but, despite her regular contact with the benefits specialist, she was not notified that the company had placed her on FMLA leave). This issue is addressed in more detail in Chapter VI relating to medical certifications.

C. Deeming Eligible Issues

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

One commenter stated that “[t]he Supreme Court's decision in the

Ragsdale

case casts grave doubt on the validity of other categorical penalties in the Regulations.” National Coalition to Protect Family Leave, Doc. 10172A, at 13. It noted that a number of courts have struck down both the provision in section 825.110(d) stating that an employer may not later challenge an employee's eligibility if it mistakenly confirms that an employee is entitled to leave, and the provision deeming an employee eligible if the employer fails to notify the employee that the employee is not eligible prior to the start of leave (if the employer had advance notice) or within two business days of receiving notice. This commenter stated that it “urges DOL to delete the language in section 825.110(d) that [the] federal courts have invalidated.”

Id.

at 14.

Another commenter stated that, in light of the

Ragsdale

decision, the penalty provision for an employer's failure to timely notify employees that they are eligible for FMLA leave should be deleted; however, the regulation should continue to require that the employer notify employees whether they are/are not eligible, but either delete the consequences from the regulation or incorporate the interference/estoppel theory approved by the Supreme Court in

Ragsdale.

“That is, if the employee can demonstrate that the failure to provide notice caused actual harm to the employee's FMLA rights the employer's notice failure is actionable interference.” Carl C. Bosland, Esq., Preemptive Workforce Solutions, Inc., Doc. 5160, at 2-3.

Another commenter suggested that, if an employer has a handbook, bulletin board, orientation materials, etc., that show employees were provided information about the FMLA, which leaves are protected, and how to apply for protected leave, “the employer should be exempted from consequences under this part of the act.” Ken Lawrence, Doc. 5228, at 1.

Hewitt Associates noted that while equitable estoppel provides some guidance, it does not provide a rule. “In fact, an employer that wishes to ‘undeem’ a leave is now required to make a subjective review of the employee's circumstances (if the employer knows them) and analyze whether it would be fair to revoke the designation. * * * [R]evoking § 825.110(d) allows employers to correct their errors by undesignating these leaves but, considering the analysis required, at an overly burdensome administrative price. The Department should craft a bright-line rule that balances the right of employers to revoke an ‘inappropriate’ FMLA designation, with fairness to employees who have relied upon that designation.” Hewitt Associates, Doc. 10135A, at 10. This commenter suggested a rule that both allows employers to count the time that an ineligible employee is permitted to remain on leave against that employee's eventual 12-week entitlement, and gives employees a “grace period” to return to work (the length of which would turn on circumstances such as the length of time left in the leave, the reason for the leave, travel, etc.). The commenter also would require the employer to provide an “immediate and thorough notification to the employee” explaining that the employee was not eligible for leave, how the absences would be treated, the length of the grace period, etc.

Id.

at 11.

As discussed in detail in Chapter V, a substantial number of employers emphasized the difficult and time-consuming nature of making eligibility determinations, with regard to calculating both the number of hours worked in the past 12 months and the amount of FMLA leave used. They objected to any revision to the regulations that would require employers to provide periodic reports to employees about the amount of FMLA leave they have remaining.

See,

e.g.

, United Parcel Service, Doc. 10276A, at 7-8. On the other hand, a few employers noted that they use payroll tracking systems that tell them whether employees are eligible for FMLA leave.

Other commenters emphasized the importance to employees of knowing promptly whether they are eligible for leave, and they suggested that the FMLA regulations should encourage employers to provide accurate, thorough and timely information about FMLA eligibility and procedures. As discussed in Chapter V, these commenters emphasized that many employees still do not know whether they are protected by the FMLA; they do not have information about their leave options; and they do not know whether their leave is being designated as FMLA leave. Therefore, a number of commenters suggested that the Department should consider regulations that require employers to provide notice to employees, when they have worked for one year and on an annual basis, explaining their eligibility status, their leave entitlement, and the procedures for applying for FMLA leave.

See, e.g.

, American Federation of Labor and Congress of Industrial Organizations, Doc. R329A, at 40.

III. Serious Health Condition

The Department asked two questions in its Request for Information about the definitions of serious health condition contained at 29 CFR 825.114: (1) “Section 825.114(c) states ‘[o]rdinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.’ Have [the] limitations in section 825.114(c) been rendered inoperative by the regulatory tests set forth in section 825.114(a)?''; and (2) “Is there a way to maintain the substantive standards of section 825.114(a) while still giving meaning to section 825.114(c) and congressional intent that minor illnesses like colds, earaches, etc., not be covered by the FMLA?''

The regulatory definition of serious health condition is central to the FMLA because the primary reason that people take FMLA leave is to attend to their own or a family member's health needs.

See

Westat, “Balancing the Needs of Families and Employers, Family and Medical Leave Surveys, 2000 Update,” January 2001, at 2-5 (hereinafter “2000 Westat Report”) (83.3% of employees report “own health” or health of parent, child, or spouse as reason for taking leave);

see also

National Coalition to Protect Family Leave, Doc. 10172A, Darby Associates, Attachment at 10 (“The [employee's] own health * * * was the predominant reason for leave[.]”).

3

The Department received an overwhelming response to these questions. In order to fully understand these comments, though, and to give them some context it is necessary to explain the regulatory history of the definition of serious health condition.

3

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

A. History and Background

1. The Family and Medical Leave Act of 1993

Under the Act, an employee may be entitled to FMLA leave for any one of the four following reasons:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the

employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

29 U.S.C. § 2612(a)(1). The Act defines a serious health condition as “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. 2611(11). The term “continuing treatment” is not defined by the statute. The FMLA expressly grants to the Secretary of Labor the authority to “prescribe such regulations as are necessary to carry out [the Act].” 29 U.S.C. 2654.

The legislative history of the Act states that “[w]ith respect to an employee, the term ‘serious health condition’ is intended to cover conditions or illnesses that affect an employee's health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery.” H. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 28 (1993). The scope of coverage intended by “serious health condition” is not unlimited, however:

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

Id

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

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

H. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993). The committee reports state, “All of these conditions meet the general test that either the underlying health condition or the treatment for it requires that the employee be absent from work on a recurring basis or for more than a few days for treatment or recovery.”

Id

. The reports further explained that these covered conditions either involve inpatient care or significant continuing treatment.

See id.

(“For example, someone who suffers a heart attack generally requires both inpatient care at a hospital and ongoing medical supervision after being released from the hospital. * * * Someone who has suffered a serious industrial accident may require lengthy treatment in a hospital and periodic physical therapy under medical supervision thereafter.”).

Significantly, the committee reports characterize covered FMLA conditions as ones that are not only serious but also cause the employee to be absent from work: “With respect to an employee, the term ‘serious health condition’ is intended to cover conditions or illnesses that affect an employee's health to the extent that he or she must be absent from work[.]” H. Rep. No. 103-8, at 40; S. Rep. No. 103-3, at 28. “All of these health conditions require absences from work[.]” H. Rep. No. 103-8, at 41; S. Rep. No. 103-3, at 29.

2. Department of Labor Regulations (1993-1995)

The Act, including the definition of serious health condition described above, was enacted on February 5, 1993. Congress gave the Department 120 days to promulgate regulations under the new statute.

See

29 U.S.C. 2654.

Pursuant to the Act, the Department promulgated interim regulations on June 4, 1993, which became effective August 5, 1993 (the effective date of the Act). The Department then received public comments on the regulations and used the comments to further refine the regulations. Final regulations were issued on January 6, 1995. These final regulations, adopted pursuant to this notice-and-comment rulemaking, established the comprehensive framework that exists today for determining a serious health condition.

The final rulemaking yielded six separate definitions of serious health condition that exist today. A statutory definition of serious health condition that involved only two parts (inpatient care or continuing treatment) has thus been expanded to six separate and distinct regulatory tests for determining a serious health condition. Giving meaning to the broad and undefined statutory term “continuing treatment” presented a daunting task for the Department. Moreover, the Department had to be careful to ensure the definition covered every type of serious health condition that Congress intended to cover while not extending the Act's protections to those conditions Congress intended to exclude.

The first regulatory definition in the regulations is a stand-alone definition from the statute—“inpatient care (i.e., an overnight stay) in a hospital.” This is followed by five separate definitions for “continuing treatment,” all of which also qualify as serious health conditions.

See

29 CFR § 825.114(a)(1)-(2). One of these five definitions is “incapacity due to pregnancy,” which is a discrete definition clearly articulated in the legislative history (“ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, * * * the need for prenatal care, childbirth, and recovery from childbirth.”).

Of the four remaining definitions of serious health condition, stakeholders have focused significantly on one definition:

4

4

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

(i) A period of incapacity of more than three consecutive calendar days * * * that also involves:

(A) Treatment two or more times by a health care provider * * * or

(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR 825.114(a)(2)(i)(A)-(B). This is an objective definition of continuing treatment the Department established based in part on state workers' compensation laws and the Federal Employees' Compensation Act (“FECA”), which apply a three-day waiting period before compensation is paid to an employee for a temporary disability.

See

60 FR 2180, 2192 (Jan. 6, 1995). “A similar provision [to FECA] was included in the FMLA rules; a period of incapacity of ‘more than three days’ was used as a ‘bright line’ test based on references in the legislative history to serious health conditions lasting ‘more than a few days.’ ” 60 FR at 2192.

This objective test changed little during the rulemaking process despite the numerous proposed revisions submitted to the Department. These comments received in response to the interim regulations represented a multitude of permissible alternative directions the Department might have gone with this test, but were rejected as the Department adhered to its original

standard, which is reflected in the current regulations stated above. It is worth examining what some of those comments were to the original rulemaking record to better inform the comments received to the current RFI.

First, several parties contended that the period of incapacity—whatever the exact length of days—should be judged by “absence from work” as opposed to calendar days. 60 FR at 2192. Some stakeholders to the rulemaking noted that the Department's proposed “calendar day” rule contradicted the legislative intent (reflected in the committee reports) that “the employee must be absent from work for the required number of days[.]”

Id.

at 2192. Another commenter noted that under the three-calendar-day rule, employers would have no way of verifying incapacity because a single absence on a Friday followed by a weekend of incapacity could qualify as a serious health condition.

See id.

Other commenters similarly favored the workday schedule because it was more compatible with other sick leave and short-term disability programs and “removes any doubt as to whether an employee was otherwise incapacitated and unable to work during days the employee was not scheduled to work.”

Id.

The Department originally chose “calendar days” in the interim regulations. After receiving comments, the Department chose, for two policy reasons, to retain calendar days as opposed to work days: “The Department has * * * concluded that it is not appropriate to change the standard to working days rather than calendar days because the severity of the illness is better captured by its duration rather than the length of time necessary to be absent from work.”

Id.

at 2195. The Department further explained: “[A] working days standard would be difficult to apply to serious health conditions of family members or to part-time workers [who might be incapacitated but not necessarily absent from work].”

Id.

Second, there was also a broad range of suggestions as to what length or type of incapacity was appropriate for defining a serious health condition. Some comments rejected any fixed day limitation at all, stating that a minimum durational limit had been specifically rejected during a committee markup of the bill.

See id.

at 2192. Still others suggested that three days was “unreasonably low and trivialized the concept of seriousness[.]”

Id.

“Fifteen commenters suggested extending the three-day absence period to 5, 6, 7, or 10 days[,] * * * two weeks[,] * * * or 31 days[.]”

Id.

Other commenters suggested eschewing a strict day standard in favor of adopting each individual state's waiting period for workers compensation benefits or, alternatively, the EEOC's definition of disability.

See id.

at 2193. The Department rejected these various proposals in favor of its original standard: “Upon review, the Department has concluded that the ‘more than three days’ test continues to be appropriate. The legislative history specifically provides that conditions lasting only a few days were not intended to be included as serious health conditions, because such conditions are normally covered by employers' sick leave plans.”

Id.

at 2195.

The Department did make one change of note in the definition of serious health condition, however. After the 1993 interim regulations were promulgated, several commenters urged “clarifications [that would] exclude from the definition [of serious health condition] minor, short-term, remedial or self-limiting conditions, and normal childhood or adult diseases (

e.g.

, colds flu, ear infections, strep throat, bronchitis, upper respiratory infections, sinusitis, rhinitis, allergies, muscle strains, measles, even broken bones).” 60 FR at 2193. Still others suggested that the Department expressly list every ailment that would qualify as a serious health condition.

See id

. While the Department declined to provide a “laundry list of serious health conditions,” 60 FR at 2195, we did enumerate in the final regulations examples of ailments that customarily would not be covered by the Act: “Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.” 29 CFR § 825.114(c). This language would become the subject of much reported confusion in the regulated community (reflected in, among other things, the many comments on this subject submitted in response to the RFI).

3. Wage and Hour Opinion Letters

In 1995, shortly after the regulations became final, the Department provided its initial interpretation of the serious health condition objective test when responding to an employer's objections that the definition in sections 825.114(a)(2)(i)(A)-(B) did not reflect the intent of the Act's authors. The Department's response reflects an ongoing struggle to reconcile this objective test in the regulatory definition (more than three calendar days of incapacity plus treatment) with the legislative intent also reflected in the regulations that common conditions like colds and flus not be covered by the Act.

The Department's opinion letter response in 1995 stated that a minor illness such as the common cold could not be a serious health condition because colds were on the regulatory list of non-covered ailments. “The fact that an employee is incapacitated for more than three days, has been treated by a health care provider on at least one occasion which has resulted in a regimen of continuing treatment prescribed by the health care provider does not convert minor illnesses such as the common cold into serious health conditions in the ordinary case (absent complications).” Wage and Hour Opinion Letter FMLA-57 (Apr. 7, 1995). More than a year and a half later, however, the Department reversed course, stating that Wage and Hour Opinion Letter FMLA-57 “expresses an incorrect view, being inconsistent with the Department's established interpretation of qualifying “serious health conditions” under the FMLA regulations[.]” Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996). In the second letter, the Department stated that such minor illnesses ordinarily would not be expected to last more than three days, but if they did meet the regulatory criteria for a serious health condition under section 825.114(a), they would qualify for FMLA leave. Complications, per se, need not be present to qualify as a serious health condition if the objective regulatory tests of a period of incapacity of “more than three consecutive calendar days” and a “regimen of continuing treatment by a health care provider” are otherwise met.

See id.

In reversing its position in this second opinion letter, the Department explained that the regulations reflect the view that, ordinarily, conditions like the common cold and flu would not routinely be expected to meet the regulatory tests. But such conditions could qualify under FMLA where the objective tests are, in fact, met in particular cases.

See id.

“For example, if an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment,

e.g.

, a visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics, the individual has a qualifying ‘serious health condition’ for purposes of FMLA.”

Id.

4. United States Court of Appeals Decisions

Employers challenged the Department's objective regulatory definition of serious health condition in two U.S. Courts of Appeals. In both cases, the regulatory test was upheld as a permissible legislative rule pursuant to a congressional delegation of authority under the Act.

See Thorson

v.

Gemini, Inc.,

205 F.3d 370 (8th Cir. 2000);

Miller

v.

AT&T Corp.,

250 F.3d 820 (4th Cir. 2001). The Eighth Circuit in

Thorson

found the statutory term “serious health condition” was not precisely defined in the statute and legislative history: “[W]e do not see th[e] legislative history as Congress speaking ‘directly’ to the question of what constitutes a ‘serious health condition.’ ”

Id.

at 381. Thus, the court deferred to the Department's reasonable legislative rule implementing the statute: “DOL's objective test for ‘serious health condition,’ which avoids the need for employers—and ultimately courts—to make subjective decisions about statutory ‘serious health conditions,’ is a permissible construction of the statute.”

Id.

The Court acknowledged that this test might result in findings of serious health conditions for “minor illnesses” that Congress did not intend to cover, but that “the DOL reasonably decided that such would be a legitimate trade-off for having a definition of ‘serious health condition’ that sets out an objective test that all employers can apply uniformly.”

Id.

The Fourth Circuit even more squarely and directly upheld the objective test in the regulations because the plaintiff in that case was suffering from the flu—an illness listed in the regulations at 825.114(c) (reflecting legislative history) as an example of an illness that is generally not a serious health condition. The Fourth Circuit directly confronted the tension between the objective test and the list of ailments:

There is unquestionably some tension between subsection (a), setting forth objective criteria for determining whether a serious health condition exists, and subsection (c), which states that certain enumerated conditions “ordinarily” are not serious health conditions. Indeed, that tension is evidenced by Miller's illness. Miller was incapacitated for more than three consecutive calendar days and received treatment two or more times; thus, she satisfied the regulatory definition of a serious health condition under subsection (a). But, the condition from which Miller suffered—the flu—is one of those listed as being “ordinarily” not subject to coverage under the FMLA.

Id.

at 831. The Court concluded—even without deferring to the second Wage and Hour opinion letter—that “§ 825.114(c) is properly interpreted as indicating merely that common ailments such as the flu will not qualify for FMLA leave because they generally will not satisfy the regulatory criteria for a serious health condition.”

Id.

at 832. However, “[s]ection 825.114(c) simply does not automatically exclude the flu from coverage under the FMLA. Rather, the provision is best read as clarifying that some common illnesses will not ordinarily meet the regulatory criteria and thus will not be covered under the FMLA.”

Id.

Having concluded the objective test was the dispositive one, the

Miller

court, like the

Thorson

court, upheld the regulatory definition as consistent with legislative intent. The court noted that these regulations were promulgated pursuant to an express delegation from Congress and should be given controlling effect “unless arbitrary, capricious, or manifestly contrary to statute.”

Id.

at 833 (quotations omitted). The court stated that “when a regulatory choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or the legislative history that the accommodation is not one that Congress would have sanctioned.”

Id.

(quotations omitted). The court held that the Department clearly was within its statutory purview in this case, stating: “Consistent with the statutory language, the regulations promulgated by the Secretary of Labor establish a definition of “serious health condition” that focuses on the effect of an illness on the employee and the extent of necessary treatment rather than on the particular diagnosis. This policy decision is neither unreasonable nor manifestly inconsistent with Congress' intent to cover illnesses that ‘require[ ] that the employee be absent from work on a recurring basis or for more than a few days for treatment or recovery’ and involve ‘continuing treatment or supervision by a health care provider.’ ” 250 F.3d at 835 (citations omitted). Finally, like the Eighth circuit, the Fourth Circuit noted:

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

Id.

B. Request for Information Comments and Recommendations

The responses to the RFI demonstrate that the definition of serious health condition continues to be a source of concern in the regulated community in terms of its scope and its meaning. While the Department asked only two narrow questions about the objective test and the list of ailments, commenters to the Request for Information voiced a wide array of opinions about the regulatory test in general.

A common theme the Department heard from various parties was that the regulatory definition of serious health condition is vague and/or confusing. The American Academy of Family Physicians stated: “The definition of a serious health condition within the Act creates confusion not only for the administrators of the program and employers but also for physicians. Requiring a physician to certify that a gastrointestinal virus or upper respiratory infection is a serious health condition in an otherwise healthy individual is incongruous with medical training and experience. * * * [Moreover, t]he categories of ‘Serious Health Conditions’ are overly complicated and * * * contradictory.” Doc. FL25, at 1. The American College of Occupational and Environmental Medicine agreed: “The term ‘serious health condition’ is unnecessarily vague. Employees, employers and medical providers would be well served if the FMLA were to more clearly define the criteria for considering a health condition serious.” Doc. 10109A, at 2. Other commenters echoed this same concern: “Uniformly, employers have found the definition of ‘serious health condition’ and the criteria for determining whether or not an employee has a ‘serious health condition’ to be extremely broad and very confusing.” ORC Worldwide, Doc. 10138A, at 2. “This [serious health condition] definition is widely considered to be vague and overly broad, and has caused unnecessary confusion.” Florida Power & Light Company, Doc. 10275A, at 2. “What constitutes a serious health condition? The definition is not clear.” City of Philadelphia, Doc. 10058A, at 1. “The current definition is so vague that it is nearly impossible to define a condition that does not qualify as a serious medical condition.” Northern Kentucky Chamber of Commerce, Doc. 10048A, at 2.

Commenters often pointed to the language in section 825.114(c) regarding minor ailments as the primary source of definitional confusion. Whereas the first

part of the regulatory definition of serious health condition in subparagraph (a)(2) provides objective standards for leave (irrespective of the person's medical diagnosis) in terms of “days” and “incapacity” and “health care provider” visits, this language in subparagraph (c) suggests the opposite: excluding common illnesses by diagnosis/name without regard to seriousness. The American Bakers Association stated: “[The definition of serious health condition] has also caused unnecessary confusion for employers who rely on regulatory language that states, ‘Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.’ 29 CFR 825.114(c).” American Bakers Association, Doc. R354A, at 4. The Association of Corporate Counsel made a similar point: “[T]he Department should clarify its guidance in section [825.114](c) on when conditions such as the common cold, the flu, earaches, upset stomach, minor ulcers, headaches, and routine dental or orthodontia problems could be considered as serious health conditions. The current regulation indicates that such conditions should not normally be considered serious health conditions.” Doc. FL31, at 14.

Overall, it is probably fair to characterize the comments from employer groups about the regulatory definition of “serious health condition” as having written “serious” out of serious health condition. For example, the University of Minnesota stated:

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

University of Minnesota, Doc. 4777A, at 1-4. “Please redefine serious medical condition to cover truly serious needs, not the common flu.” Debbie Robbins, Human Resources, City of Gillette, Doc. 5214, at 1. “[T]he intent of the regulations was not to find conditions such as the flu, earaches, headaches, and upset stomach qualifying; however, as a result of DOL opinion letters it is practice for FMLA to be granted for these conditions when the regulatory criteria defining a serious health condition [are] met.” Carle Clinic Association, Doc. 5449A, at 1. “The DOL needs to limit the definition of serious health condition to what it was originally intended by Congress. For example, while a common cold or flu were never intended to be serious health conditions, in case law courts have essentially done away with all the exclusions from the original definition by stating that `complications' (without defining this) could cause virtually anything (a cold, an earache, a cut on finger) to become a serious health condition.” Coolidge Wall Co. LPA, Doc. 5168, at 1. “As [the definition of a `serious health condition'] has been interpreted, a common cold or flu bug lasting three days creates a FMLA qualifying event. * * * As it is, a `runny nose' for three days would qualify as long as you saw the doctor for it. To call a `common cold' a serious health condition significantly devalues the FML Act.” Mark Costa, Human Resources Director, Team 1 Michigan, Doc. 5172, at 1. “[T]he current Regulations seemingly extend coverage to considerably more than just serious health conditions and, in practice, the general definition often swallows up the so-called `minor ailment exception.' ” Proskauer Rose LLP, Doc. 10182, at 5. “Contrary to what Congress intended, the DOL regulation bypasses `serious' in `serious health condition' by assuming a condition is serious if an employee can get a physician to certify [that] he/she cannot work for three or more days and that he/she has seen a health care provider at least once and was prescribed continuing treatment by that health care provider, or that the employee has seen a health care provider twice regardless of whether any continuing treatment was prescribed.” Southwest Airlines Co., Doc. 10183A, at 9.

The Department also received many comments from employees and employee groups, however, who felt that the objective test is a good, clear test that is serving its intended purpose. “[T]he current regulations are crafted appropriately to provide guidance on what constitutes a serious health condition without imposing overly rigid criteria that could hinder the ability of workers to take leave when necessary.” National Partnership for Women & Families, Doc. 10204A, at 7. “[N]o definition, if it is to be effective, can impose precise categories for every health condition. The practical reality is that serious health conditions will differ from person to person. Thus, the regulations must necessarily have the flexibility to be applied to different individual circumstances.” Faculty & Staff Federation of Community College of Philadelphia, Local 2026 of the American Federation of Teachers, Doc. 10242A, at 4. A letter from 53 Democratic Members of Congress also lauded the current definition of serious health condition as both expansive and flexible. The letter cited congressional intent of a “general test” that defines serious health condition: “We urge the Department to adhere to that test. Ultimately, Congress and the Department are not physicians, and we cannot evaluate every medical condition or necessary course of treatment. The presence of a serious health condition is something that is readily determined by medical professionals[.]” Letter from 53 Democratic Members of Congress, Doc. FL184, at 2. “To protect employers from employee abuse of this provision, the regulations establish an objective criteria to be used to determine whether conditions presented qualify for leave. This criteria creates a standard that can be applied in individual cases with sufficient flexibility to adjust for differences in how individuals are affected by illness. It also specifies that routine health matters cannot be considered serious health conditions, unless complications arise.” Families USA, Doc. 10327A, at 3.

The AFL-CIO emphasized that the current objective test in the regulations best reflects congressional intent to cover health conditions that have a “serious” effect on the individual regardless of the label of the impairment or illness.

See

Doc. R329A, at 21-24. “The regulations correctly do not define serious health condition by relying on nonexhuastive [e]xamples of serious health conditions that Congress provided in the legislative history to the Act * * * [but rather by defining] a serious health condition as an illness, injury or impairment, or physical condition that requires either inpatient care * * * or continuing treatment by a health care provider. * * * [W]e believe that the brightline tests set forth in Section 825.114(a) continue to provide the best means of determining what qualifies as a serious health condition.”

Id

. at 22, 24 (quotation marks and

citations omitted). The Coalition of Labor Union Women concurred: “Not only does this definition establish an objective basis for determining when an individual employee will and will not qualify for leave, but it also recognizes that every individual is different and thus likely to experience a particular medical condition differently from others. Our members have described various medical problems that affected them or their family members and reported how many supervisors or managers express a biased attitude toward these medical conditions based on a stereotypical view of the condition.” Doc. R352A, at 3. Moreover, the Communication Workers of America provided a relevant example of a worker being uniquely affected by a common illness: “An employee of Verizon experienced an extreme allergic reaction to poison oak which made it impossible for her to sit or perform regular job functions for a week. The FMLA protected her during this period.” Doc. R346A, at 12-13.

Finally, the Legal Aid Society pointed out that after Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996), the meaning of “serious health condition” should be perfectly clear to the regulated community. It simply may not be as “serious” as some would like:

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

The Legal Aid Society-Employment Law Center, Doc. 10199A, at 2.

There was also no shortage of answers to the two questions we asked in the RFI: whether the limitations in section 825.114(c) have been rendered inoperative by the regulatory tests set forth in section 825.114(a), and whether there is a way to maintain the substantive standards of section 825.114(a) while still giving meaning to section 825.114(c) and congressional intent that minor illnesses like colds, earaches, etc., not be covered by the FMLA. Below are some of the most common answers and suggestions we received.

1. Section 825.114(c) Imposes no Independent Limitation on Serious Health Condition and Therefore Need Not Be Changed

One common suggestion proffered for reconciling sections 825.114(a)(2) and (c) is to construe the list of ailments in subsection (c) as imposing no limitations on the definition of serious health condition. “We do not agree * * * that Section 825.114(c) places ‘limitations’ on Section 825.114(a)'s regulatory tests.” American Federation of Labor and Congress of Industrial Organizations, Doc. R329A, at 21. The AFL-CIO noted that Congress did not express a specific intention to exclude “minor illnesses like colds, earaches, etc.,” but rather to exclude from serious health condition only “short-term conditions [whatever named] for which treatment and recovery are very brief[.]” American Federation of Labor and Congress of Industrial Organizations, Doc. R329A, at 21 n.34 (quoting S. Rep. No. 103-3, at 28). Thus, “subsection (c) [only] clarifies that certain conditions are not serious health conditions for FMLA purposes unless they meet all of the regulatory measures of subsection (a). * * * [T]hese examples do not modify or limit the objective tests set forth in subsection (a)[.]”

Id.

at 23.

These commenters believe section 825.114(c) is merely an illustrative list of conditions that usually would not qualify as serious health conditions, but that the objective test is what matters and what is applied: “Section 825.114(c) of the regulations includes a list of conditions that ordinarily would not be considered serious health conditions, such as the common cold, the flu, earaches, or an upset stomach. But the regulation on its face also makes clear that complications can arise to make what is usually a routine health matter much more serious.” National Partnership for Women & Families, Doc. 10204A, at 8. “The list of conditions set out in 825.114(c) is useful in setting out what ‘ordinarily’ would not be a qualifying serious health condition[.] * * * But the operative word in 825.114(c) is ‘ordinary.’ While these conditions would not ‘ordinarily’ constitute a serious health condition, there are extraordinary situations where these conditions do just that. In determining what those situations are, all employers have to do * * * is apply ‘the general tests’ * * * that were incorporated into the Department's regulations at 825.114(a).” Association of Professional Flight Attendants, Doc. 10056A, at 2 (citations omitted). “The existing regulations properly define ‘serious health condition’ by applying objective criteria, including the duration of an illness and the number of treatments, to a worker's individual case, rather than categorically excluding any set of health conditions from FMLA coverage.” Faculty & Staff Federation of Community College of Philadelphia, Local 2026 of the American Federation of Teachers, Doc. 10242A, at 3. “As long as a diagnosis meets the ‘objective criteria’ of subsection (a), then subsection (c) makes it clear that the employee has a ‘serious health’ condition that qualifies for FMLA leave.” American Federation of Labor and Congress of Industrial Organizations, Doc. R329A, at 23.

This view, commenters maintained, is the correct interpretation of the Act: “The statute itself recognizes the need for such flexibility. Congress expressly chose to forego excluding any conditions from the definition of a serious health condition and instead defined a serious health condition according to objective criteria.” Women's Employment Rights Clinic, Golden Gate University School of Law, Doc. 10197A, at 5.

Commenters favoring a flexible definition of “serious health condition” generally believed no changes to the regulatory definition are necessary. “In light of [our] experience, we do not believe that there is any need to retreat from the existing regulatory definition of a ‘serious health condition.’ ” Communication Workers of America, Doc. R346A, at 7. “We urge DOL to retain the regulatory language in 29 CFR 825.114(a) and not to alter those provisions so that conditions like earaches, flus, and similar illnesses can never constitute a serious health condition.” Women's Employment Rights Clinic, Golden Gate University School of Law, Doc. 10197A, at 5. “We strongly oppose any efforts to restrict or narrow the definition of a serious health condition. The FMLA enables eligible workers to take family or medical leave for serious health conditions, and its regulations establish objective criteria to be used to determine whether conditions qualify for leave. While the regulations set parameters to help define serious health conditions, they do not include an exhaustive list of conditions deemed ‘serious’ or ‘not serious.’ ” National Partnership for Women & Families, Doc. 10204A, at 7. “Imposing additional requirements on the nature or length of treatment, or the duration of incapacity, will inevitably exclude, with no basis whatsoever, serious medical conditions from the ambit of the FMLA. The Department should resist making any changes in the definition of serious health condition.” American Federation

of Labor and Congress of Industrial Organizations, Doc. R329A, at 24. “I strongly oppose any changes to eligibility standards that would impose additional barriers for workers seeking FMLA leave, [and] regulatory revisions that would scale back the definition of ‘serious health conditions’ covered under the act[.]” Judith Stadman Tucker, The Mothers Movement Online, Doc. 4766, at 1. “It is especially important to me that the definition of ‘serious health condition’ is not narrowed and that leave remains flexible.” An Employee Comment, Doc. 4790, at 1. “Altering the definition [of serious health condition to ten days or more] will leave out numerous serious conditions from pneumonia to appendicitis where a person could be treated and be back on the job under 10 days. We are concerned that altering the definition of a serious health condition will remove much needed job protection for millions of Americans when they need it most.” Women's City Club of New York, Doc. 10003A, at 1. “We are strongly opposed to any revisions to the regulation that would narrow the current definition. As the regulation is currently written, it adequately addresses the fact that some conditions (e.g., a head cold) can grow into a serious health condition needing repeated treatment and an absence from work of more than three days.” University of Michigan's Center for the Education of Women, Doc. 10194A, at 1. “Imposing categorical changes to the definition of serious health condition, such as increasing the required number of days of incapacity, could have a devastating impact on employees.” Service Employees International Union District 1199P, Doc. FL104, at 2.

2. Section 825.114(c) Should be Converted into a Per Se Rule.

Other commenters took essentially the opposite tack: that the congressional intent to exclude minor illnesses (reflected in section 825.114(c)) has been rendered inoperative by the objective test and that the Department should breathe life into subsection (c) by making it more of a per se rule as it was interpreted by Wage and Hour Opinion Letter FMLA-57 (Apr. 7, 1995). Employers were largely in agreement that the regulatory list of ailments has been rendered inoperative: “[T]he limitations in Section 825.114 (c) have been rendered inoperative by the regulatory test in Section 825.114(a) largely by the interpretation of the Department in holding that even minor illnesses can meet the definition of ‘serious health condition.’ ” ORC Worldwide, Doc. 10138A, at 2. “Section 825.114(c) * * * has been rendered effectively inoperative by the regulatory tests set forth in Section 825.114(a). * * * Wage and Hour letter of interpretation of December 1996 expanding ‘serious health condition’ to include colds and flu further erodes Section 825.114(c)'s potency as a brightline standard for what does not constitute a ‘serious health condition.’ ” U.S. Chamber of Commerce, Doc. 10142, at 9. Some commenters pointed to legislative history from 1990-1991 that shows Congress expressly considered ailments like colds and flus and intended them not to be covered:

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

Pilchak Cohen & Tice, P.C., Doc. 10155A, at 8 (quoting Senate hearing). These commenters also cited to similar words spoken by a co-sponsor of the FMLA: “We're talking about a seriously ill child, not someone who has a cold here.”

Id.

at 8 (quoting statement of Senator Dodd at Senate hearing).

This group of stakeholders suggested that unless verifiable medical complications arise, the health conditions in the section 825.114(c) list—such as colds and flus—should never qualify as serious health conditions. “[T]he easiest solution to this dilemma is to rescind opinion letter FMLA-86 and carve minor illnesses out of section 825.114(c). This carve-out should include a list of example ailments that do not qualify as serious health conditions absent serious complications—in much the same way opinion letter FMLA-57 attempted to do. This list should, at a minimum, include the common cold, the flu, earaches, an upset stomach, minor ulcers, headaches, routine dental or orthodontia problems, and periodontal disease.” Porter, Wright, Morris & Arthur LLP, Doc. 10124B, at 2. “[Fairfax County Public Schools] urges the department to return to its earlier interpretations, which emphasize that minor ailments do not qualify as ‘serious.’ Section 825.114(a) should be modified so that it no longer contradicts section 825.114(c). * * * Additional examples of minor, nonqualifying illnesses would be a useful addition to this subsection.” Fairfax County Public Schools, Doc. 10134, at 1. “[Section] 825.114(c) should be clarified in that even where the common cold results in more than three consecutive days of missed work or school, it is not considered incapacitating or otherwise within FMLA's protections.” Pilchak Cohen & Tice, P.C., Doc. 10155A, at 9. The Pilchak law firm further reasoned that if a cold or flu became truly incapacitating, “the illness would typically elevate to an ailment that is indeed within the FMLA's contemplation. For example, a common cold should never be an FMLA qualifying condition. However, if it progressed to pneumonia, then this is the type of incapacitating condition within the FMLA's contemplation.”

Id.

at 9. “The substantive standards of section 825.114(a) cannot be maintained while giving meaning to section 825.114(c), and the legislative intent that not all conditions are covered cannot be secured unless and until section 825.114(c) is revised to state that, ‘Unless complications arise, the common cold, the flu, ear aches, upset stomach, periodontal disease, and similar conditions are not serious health conditions and do not qualify for FMLA leave.’ Absent such a revision, the DOL must further define other terms in Section 825.114(c), such as ‘treatment.’ ” Fisher & Phillips LLP, Doc. 10262A, at 5. “[W]hen Congress passed FMLA, its intent was not to cover short-term illnesses where treatment and recovery are brief. By listing examples of conditions that would generally qualify and conditions that would generally be excluded, employers could reduce the use of FMLA leave for minor conditions in which treatment and recovery are brief. The Department should generally exclude from the list of conditions minor conditions such as colds, minor headaches, and flu and provide an improved definition of ‘chronic conditions.’ ” National Business Group on Health, Doc. 10268A, at 2.

See also

Small Business Administration Office of Advocacy, Doc. 10332A, at 4-5 (collecting various proposals to exclude minor illnesses by name).

3. “More Than Three Days” Of Incapacity Should be Changed From Calendar Days to Work Days.

Another suggestion offered to give meaning to subsection (c) was to change the period of incapacity in the objective test from “calendar” days to “business” days. “The current regulations of the Department of Labor allow for protected leave when there is a ‘more than three-day incapacity,’ this should be defined as a ‘more than three-day absence from work.’ ” Ken Lawrence, Doc. 5228, at 1. “My suggestion is that FMLA leave should have a waiting period, just like a disability plan. * * * Most truly serious health conditions, as defined by the act, last longer than 5 consecutive

business days and would warrant the need for the employee to be absent from work.” Cheryl Rothenberg, Human Resources Specialist, Doc. 4756, at 1. “[W]e suggest * * * [u]sing work days, rather than calendar days allows the employer to have actual knowledge of the employee's incapacity * * * [I]t is difficult for the employer to verify employee incapacity over the weekend or to have knowledge sufficient to know that the employee might be in need of FMLA leave.” Foley & Lardner LLP, Doc. 10129A, at 2. “The current * * * ‘more than three-day incapacity’ * * * should be defined as a ‘more than three-day absence from work.’ ” Bob Kiefer, Baldor Electric, Doc. 5141, at 1. “Redefine a period of incapacity to mean a period of more than five work days or seven consecutive calendar days, instead of the current just more than 3 days of ‘incapacity, before an employee is qualified for FMLA leave.” U.S. Chamber of Commerce, Doc. 10142A, at 9. “We recommend that the definition be changed to ‘three work days.’ Health conditions that occur ‘over the weekend’ or other time off should * * * not be considered.” Lorin Simpson, Manager of Operational Systems & Labor Relations, Utah Transit Authority, Doc. 10249A, at 1. “[W]e request that the Department amend this provision to require an absence for a specified length of ‘consecutive scheduled work days’ rather than ‘consecutive calendar days.’ Employers are most likely to be unaware of employees’ sicknesses over a weekend so when employees take FMLA leave at the beginning of a workweek, this places a hardship on employers. With this clarification, employers will have advance notice of an employee taking FMLA leave.” National Business Group on Health, Doc. 10268A, at 7. “[I]f the three-day standard is maintained, this should be defined as three scheduled work days[.]” The Miami Valley Human Resource Association, Doc. 10156A, at 3. “I think it would help if the criteria for incapacity were 5 work days as opposed to three calendar days. * * * [Five] days would be consistent with most short term disability waiting period requirements and with many waiting period time frames for indemnity payments for workers compensation. (Kentucky has a 7 day waiting period prior to the start of workers comp indemnity payments.)” Sharon Pepper, Doc. 5325, at 1.

4. The “Treatment Two Or More Times by a Health Care Provider” Must Occur During the Period of Incapacity.

Many commenters suggested the Department maintain the substantive language of both regulatory sections but explicitly adopt a recent United States Court of Appeals interpretation of the regulations that the “treatment two or more times by a health care provider” in subsection 825.114(a)(2)(i)(A) must occur during the period of “more than three days” incapacity.

See Jones

v.

Denver Pub. Sch.

, 427 F.3d 1315, 1323 (10th Cir. 2006) (“[U]nder the regulations defining ‘continuing treatment by a health care provider,’ the ‘[t]reatment two or more times’ described in 825.114(a)(2)(i)(A) must take place during the ‘period of incapacity’ required by 825.114(a)(2)(i).”). “The Regulations need to be clarified to state that each examination must occur during the period of incapacity that has resulted in an employee's absence from work.” South Central Human Resource Management Association, Doc. 10136, at 4. “WMATA proposes that an individual's illness or incapacity require the treatments by a health care provider to occur during the period of incapacity (rather than, for example, weeks later) in order to qualify as a serious health condition.” Washington Metropolitan Area Transit Authority, Doc. 10147A, at 2. “We urge the Department to * * * require the employee or covered family member to be treated on two or more occasions during the period of incapacity and delete the reference to treatment on one occasion plus a regiment of continuing treatment.” The Miami Valley Human Resource Association, Doc. 10156A, at 3.

5. The Period of Incapacity Should Be Increased From “More Than Three Days” to a Greater Number of Days

A number of stakeholders suggested reconciling the two regulatory provisions by simply tightening the requirements for qualifying for a serious health condition under the objective test. The primary suggestion (though by no means the only one) was to increase the minimum number of days an employee needs to be incapacitated to qualify for a serious health condition. Stakeholders suggested changing the current regulatory threshold of “more than 3 days” to as many as “10 days or more.” Miles & Stockbridge, P.C., Doc. FL79, at 2. “I would like to see the definition changed to require someone to miss work for at least a full week before it would qualify as FMLA, requiring 4 full days is at least a start.” Ed Carpenter, Human Resources Manager, Tecumseh Power Company, Doc. R123, at 1. “[We] would recommend that the Department expand the more than three-day period in 825.114(a)(2)(i) to more than seven days. This would eliminate most minor illnesses and would also mirror more closely what employers have in their short-term and sick leave plans.” ORC Worldwide, Doc. 10138, at 2. “Increasing the time to at least five work days would help in eliminating some * * * minor illnesses from coverage. Thus, the burden on physicians and employers would be reduced without significant impact upon employees with a serious medical situation.” American Academy of Family Physicians, Doc. FL25, at 1.

Oxbow Mining suggested that “ ‘serious health condition’ should be a period of incapacity of no fewer than ten (10) consecutive work days as defined by an individual's work schedule.” Doc. 10104, at 1. The Society for Human Resource Management and the U.S. Chamber of Commerce both proposed that the required incapacity continue for a minimum of five business days or seven consecutive calendar days.

See

Society for Human Resource Management, Doc. 10154A, at 4; U.S. Chamber of Commerce, Doc. 10142A, at 9. “MedStar Health requests that this regulatory test be modified to utilize a more than five calendar days of incapacity requirement.” MedStar Health Inc., Doc. 10144, at 8. “Incorporate a longer period for the time of incapacitation to five (5) days.” Kim Newsom, Personnel Director, Randolph County, North Carolina, Doc. 4764, at 1.

See also

Edison Electric Institute, Doc. 10128A, at 3 (“In order to limit FMLA leave to those conditions that are truly serious in nature, we believe the regulations should require a period of incapacity of more than five calendar days, the length of a typical workweek, before the condition may constitute a serious health condition.”).

Other stakeholders suggested ranges in their comments. Foley & Lardner stated the Department should “extend the number of days of incapacity required to qualify as a ‘serious health condition[ ]’ * * * from the current ‘more than three day’ period to five, seven or ten consecutive work days[, which] would exclude most common, non-serious conditions, such as flu, bronchitis, sinus infections and similar common illnesses.” Doc. 10129A, at 1. The Proskauer Rose law firm advocated “the extension of the three-day period of incapacity requirement to a five or ten day period of incapacity requirement.” Doc. 10182, at 6. “The definition should be revised so that the period of incapacity is at least five consecutive days or the average waiting period provided by employer short-term disability periods.” Detroit Medical Center, Doc. 10152A, at 2.

IV. Unscheduled Intermittent Leave

The Department asked several questions in the Request for Information about the use of the FMLA for unscheduled intermittent leave.

5

This type of leave has long been a matter of particular concern for employers and employees alike, as shown by previous stakeholder input and public commentary presented during congressional hearings, as well as comments filed with OMB concerning the costs and benefits of regulations. The RFI sought comments on the following issues, among others:

5

Commenters tended to use the terms “unscheduled” and “unforeseeable” to mean essentially the same thing: arising suddenly and with little or no opportunity for advanced notice.

• How the FMLA affects the ability of employers to enforce attendance policies;

• Whether unscheduled intermittent FMLA leave presents costs or benefits different from those associated with regularly scheduled leave;

• Whether the duration of FMLA leave affects the manner in which employers cover the work of employees taking leave;

• Whether and to what extent employees misuse unscheduled intermittent leave;

• How best to accommodate employers' operational concerns and employees' interests in legitimate unscheduled intermittent leave;

• Whether and to what extent concerns arise regarding employees not providing prompt notice when taking unscheduled intermittent leave;

• Whether and to what extent the use of unscheduled intermittent leave affects employee morale and productivity; and

• Whether the availability of intermittent leave reduces employee turnover.

Based on the number and tone of the comments the Department received, these questions, along with several related issues involving unscheduled intermittent leave, remain at the forefront of the debate regarding the FMLA and its regulations. The responses to the RFI generally fall into two categories: comments highlighting the disruption that unscheduled intermittent leave causes in the workplace, particularly when that leave is taken in a manner perceived by employers as “abusive”; and comments emphasizing the importance of this kind of leave for workers with certain types of chronic ailments. For example, according to one law firm, “[B]y far, the most problematic type of FMLA leave is unscheduled, intermittent leave due to chronic serious health conditions.” Foley & Lardner LLP, Doc. 10129A, at 3.

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Many employers echoed this view, indicating that unscheduled intermittent leave due to chronic conditions results in decreased productivit

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