The Family and Medical Leave Act

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 825

RIN 1215-AB76, RIN 1235-AA03

The Family and Medical Leave Act

AGENCY:

Wage and Hour Division, Department of Labor.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Labor's Wage and Hour Division proposes to revise certain regulations of the Family and Medical Leave Act of 1993 (FMLA or the Act), primarily to implement recent statutory amendments to the Act. This Notice of Proposed Rulemaking (NPRM) proposes regulations to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010, which extends the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the servicemember's deployment; defines those deployments covered under these provisions; and extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses. This NPRM also proposes to amend the regulations to implement the Airline Flight Crew Technical Corrections Act, which established new FMLA leave eligibility requirements for airline flight crewmembers and flight attendants. In addition, the proposal includes changes concerning the calculation of leave; reorganization of certain sections to enhance clarity; the removal of the forms from the regulations; and technical corrections of inadvertent drafting errors in the current regulations.

DATES:

Comments must be received on or before April 16, 2012.

ADDRESSES:

You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA03, by electronic submission through the Federal eRulemaking Portal

http://www.regulations.gov

. Follow instructions for submitting comments. You may also submit comments by mail. Address written submissions to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue NW., Washington, DC 20210.

Instructions:

Please submit only one copy of your comments by only one method. All submissions must include the agency name and RIN, identified above, for this rulemaking. Please be advised that comments received will be posted without change to

http://www.regulations.gov

, including any personal information provided, and should not include any individual's personal medical information. For questions concerning the application of the FMLA provisions, individuals may contact the Wage and Hour Division (WHD) local district offices (see contact information below). Mailed written submissions commenting on these provisions must be received by the date indicated for consideration in this rulemaking. For additional information on submitting comments and the rulemaking process, see the “Public Participation” heading of the

SUPPLEMENTARY INFORMATION

section of this document.

Docket:

For access to the docket to read background documents or comments, go to the Federal eRulemaking Portal at

http://www.regulations.gov

.

FOR FURTHER INFORMATION CONTACT:

Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this rule may be obtained in alternative formats (large print, Braille, audio tape or disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.

Questions of interpretation and/or enforcement of the agency's regulations may be directed to the nearest WHD district office. Locate the nearest office by calling the WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the WHD's Web site for a nationwide listing of WHD district and area offices at

http://www.dol.gov/whd/america2.htm

.

SUPPLEMENTARY INFORMATION:

I. Electronic Access and Filing Comments

Public Participation:

This NPRM is available through the

Federal Register

and the

http://www.regulations.gov

Web site. You may also access this document via the WHD's Web site at

http://www.dol.gov/whd/

. To comment electronically on Federal rulemakings, go to the Federal e-Rulemaking Portal at

http://www.regulations.gov

, which will allow you to find, review, and submit comments on Federal documents that are open for comment and published in the

Federal Register

. You must identify all comments submitted by including the RIN 1235-AA03 in your submission. The RIN identified for this rulemaking changed with the publication of the 2010 Spring Regulatory Agenda due to an organizational restructuring. The previously identified RIN was assigned to the Employment Standards Administration, which no longer exists. A new RIN has been assigned to the WHD. Commenters should transmit comments early to ensure timely receipt prior to the close of the comment period (date identified above); comments submitted after the comment period closes will not be considered. Submit only one copy of your comments by only one method. Please be advised that all comments received will be posted without change to

http://www.regulations.gov

, including any personal information provided, and should not include any individual's personal medical information.

II. Background

Subsequent to this rulemaking first appearing on the Department's Fall 2009 Regulatory Agenda, the FMLA was amended by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), Public Law 111-84, and the Airline Flight Crew Technical Corrections Act (AFCTCA), Public Law 111-119. This rulemaking, therefore, proposes regulatory changes to implement these statutory amendments. The Department continues to review the impact of regulatory revisions published in the Family and Medical Leave Act of 1993, Final Rule on November 17, 2008 (2008 final rule). 73 FR 67934.

A. What the FMLA Provides

The Family and Medical Leave Act of 1993, 29 U.S.C. 2601

et seq.,

was enacted on February 5, 1993, and became effective for most covered employers on August 5, 1993. As originally enacted, the FMLA entitles eligible employees of covered employers to take job-protected, unpaid leave, or to substitute appropriate accrued paid leave, for up to a total of 12 workweeks in a 12-month period for the birth of the employee's son or daughter and to care for the newborn child; for the placement of a son or daughter with the employee for adoption or foster care; to care for the employee's spouse, parent, son, or daughter with a serious health condition; or when the employee is unable to work due to the employee's own serious health condition.

The FMLA was amended in January 2008 by enactment of the National

Defense Authorization Act for FY 2008 (FY 2008 NDAA). Public Law 110-181. Section 585(a) of FY 2008 NDAA expanded the FMLA to allow eligible employees of covered employers to take FMLA leave because of any qualifying exigency (as determined by the Secretary of Labor) when that employee's spouse, son, daughter, or parent is a member of the National Guard or Reserves who is on, or has been notified of an impending call or order to, active duty in the Armed Forces in support of a contingency operation (referred to as “qualifying exigency leave”). Additionally, the FY 2008 NDAA amendments provided up to 26 workweeks of leave in a “single 12-month period” for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (referred to as “military caregiver leave”). These two leave entitlements are collectively referred to as “military family leave”.

The FMLA was again amended in 2009 with the enactment of the FY 2010 NDAA on October 28, 2009, and the AFCTCA on December 21, 2009. Section 565(a) of the FY 2010 NDAA amended the military family leave provisions of the FMLA by extending qualifying exigency leave to eligible family members of the Regular Armed Forces, and military caregiver leave to include care provided to certain veterans. The AFCTCA amended the FMLA to include special eligibility requirements for airline flight crewmembers and flight attendants (referred to collectively as “airline flight crew employees”). A new definition of hours of service as it applies to airline flight crew employees was included in the eligibility provisions. Each of these provisions is discussed in detail in the section-by-section analysis that follows.

FMLA leave may be taken in a block, or under certain circumstances, intermittently or on a reduced leave schedule. In addition to providing job protected family and medical leave, employers must also maintain any preexisting group health plan coverage for an employee on FMLA protected leave under the same conditions that would apply if the employee had not taken leave. 29 U.S.C. 2614. Once the leave period is concluded, the employer is required to restore the employee to the same or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Id.

If an employee believes that his or her FMLA rights have been violated, the employee may file a complaint with the Department of Labor or file a private lawsuit in Federal or State court. If the employer has violated the employee's FMLA rights, the employee is entitled to reimbursement for any monetary loss incurred, equitable relief as appropriate, interest, attorneys' fees, expert witness fees, and court costs. Liquidated damages also may be awarded. 29 U.S.C. 2617.

Title I of the FMLA is administered by the U.S. Department of Labor and applies to private sector employers of 50 or more employees, public agencies, and certain Federal employers and entities, such as the U.S. Postal Service and Postal Rate Commission. Title II is administered by the U.S. Office of Personnel Management and applies to civil service employees covered by the annual and sick leave system established under 5 U.S.C. Chapter 63 and certain employees covered by other Federal leave systems. Title III established a temporary Commission on Leave to conduct a study and report on existing and proposed policies on leave and the costs, benefits, and impact on productivity of such policies. Title IV contains provisions governing the effect of the FMLA on more generous leave policies, other laws, and existing employment benefits. Finally, Title V originally extended the leave provisions to certain employees of the U.S. Senate and House of Representatives; however, such coverage was repealed and replaced by the Congressional Accountability Act of 1995. 2 U.S.C. 1301.

B. Who the Law Covers

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

C. Regulatory History

The FMLA required the Department to issue initial regulations to implement Title I and Title IV of the FMLA within 120 days (by June 5, 1993) with an effective date of August 5, 1993. The Department published an NPRM in the

Federal Register

on March 10, 1993. 58 FR 13394. The Department received comments from a wide variety of stakeholders, and after considering these comments the Department issued an interim final rule on June 4, 1993, effective August 5, 1993. 58 FR 31794.

After publication, the Department invited further public comment on the interim regulations. 58 FR 45433. During this comment period, the Department received a significant number of substantive and editorial comments on the interim regulations from a wide variety of stakeholders. Based on this second round of public comments, the Department published final regulations to implement the FMLA on January 6, 1995. 60 FR 2180. The regulations were amended February 3, 1995 (60 FR 6658) and March 30, 1995 (60 FR 16382) to make minor technical corrections. The final regulations went into effect on April 6, 1995.

On December 1, 2006, the Department published a Request for Information (RFI) in the

Federal Register

requesting public comment on its experiences with and observations of the Department's administration of the FMLA and the effectiveness of the regulations. 71 FR 69504. The Department received comments from workers, family members, employers, academics, and other interested parties, ranging from personal accounts, surveys, and legal reviews, to academic studies and recommendations for regulatory and statutory changes to the FMLA. The Department published its Report on the comments in the

Federal Register

on June 28, 2007. 72 FR 35550.

The Department published an NPRM in the

Federal Register

on February 11, 2008 proposing changes to the FMLA's regulations based on the Department's experience administering the law, two Department of Labor studies and reports on the FMLA issued in 1996 and 2001, several U.S. Supreme Court and lower court rulings on the FMLA, and a review of the comments received in response to the RFI. 73 FR 7876. The Department also sought comments on the recently enacted military family leave statutory provisions. In response to the NPRM, the Department received thousands of comments from a wide variety of stakeholders. The Department issued a final rule on November 17, 2008, which became effective on January 16, 2009. 73 FR 67934.

D. Updates to the Military Family Leave Provisions

Section 565(a) of the FY 2010 NDAA, enacted on October 28, 2009, amends the military family leave provisions of the FMLA. Public Law 111-84. The FY 2010 NDAA expands the availability of qualifying exigency leave and military caregiver leave. Qualifying exigency leave, which was made available to family members of the National Guard and Reserve components under the FY 2008 NDAA, is expanded to include family members of the Regular Armed

Forces. The entitlement to qualifying exigency leave is expanded by substituting the term “covered active duty” for “active duty” and defining covered active duty for a member of the Regular Armed Forces as “duty during the deployment of the member with the Armed Forces to a foreign country”, and for a member of the Reserve components of the Armed Forces as “duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.” 29 U.S.C. 2611(14).

1

Prior to the FY 2010 NDAA amendments, there was no requirement that members of the National Guard and Reserves be deployed to a foreign country.

1

As with the FY 2008 NDAA, the FY 2010 NDAA references 10 U.S.C. 101(a)(13)(B), which covers call ups of the National Guard and Reserves and certain retired members of the Regular Armed Forces and Reserves in support of contingency operations. 73 FR 67954-55. For simplicity, the terms “National Guard and Reserve” and “Reserve components” are used interchangeably throughout this document and refer to these categories of military members.

The FY 2010 NDAA amendments expand the definition of a serious injury or illness for military caregiver leave for current members of the Armed Forces to include an injury or illness that existed prior to service and was aggravated in the line of duty on active duty. 29 U.S.C. 2611(18)(A). These amendments also expand the military caregiver leave provisions of the FMLA to allow family members to take military caregiver leave to care for certain veterans. The definition of a covered servicemember, which is the term the Act uses to indicate the group of military members for whom military caregiver leave may be taken, is broadened to include a veteran with a serious injury or illness who is receiving medical treatment, recuperation, or therapy, if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy. 29 U.S.C. 2611(15)(B). The amendments define a serious injury or illness for a veteran as a “qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.” 29 U.S.C. 2611(18)(B).

As was the case with the FY 2008 NDAA, the FY 2010 NDAA is silent as to the effective date of the FMLA amendments. Because the FY 2008 NDAA required the Secretary of Labor to define the term “qualifying exigency”, the Department took the position that employers were not obligated to provide qualifying exigency leave to employees until the Department defined the term through regulation. 73 FR 7925. In contrast, the Department viewed the military caregiver leave provisions of the FY 2008 NDAA as being effective as of January 28, 2008, the signing date of the amendment.

Id.

Like the FY 2008 NDAA, the FY 2010 NDAA also requires the Secretary of Labor to define a key term in the amendment—“serious injury or illness of a veteran”. Public Law 111-84, sec. 565(a)(3); 29 U.S.C. 2611(18)(B). It is the Department's position that employers are not required to provide employees with military caregiver leave to care for a veteran until the Department defines a qualifying serious injury or illnes

s

of a veteran through regulation. However, employers are not prohibited from providing leave to employees to care for an injured or ill veteran if they choose to do so before the Department issues a final rule defining those terms, although any such leave would not be FMLA-protected and would not count against the employees' FMLA entitlement. It is also the Department's position that the provisions of the FY 2010 NDAA expanding qualifying exigency leave to cover qualifying exigencies arising from the foreign deployment of a family member in the Regular Armed Forces became effective on the date of enactment, October 29, 2009.

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

On December 21, 2009, the AFCTCA was enacted, establishing a special minimum hours of service eligibility requirement for airline flight crew employees. The AFCTCA provides that an airline flight crew employee will meet the hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline flight crew employees continue to be subject to the FMLA's other eligibility requirements.

The AFCTCA is silent as to its effective date. Because the AFCTCA is explicit about how to calculate the hours of service requirement for airline flight crew employees, it is the Department's position that the amendment became effective on the date of enactment. While the AFCTCA authorizes the Department to promulgate regulations on how to calculate the FMLA leave entitlement for airline flight crew employees, the authorization is permissive and does not require the Department to engage in rulemaking (unlike the FY 2010 NDAA provision requiring the Department to define serious injury or illness of a veteran).

Because the Department is not statutorily required to issue regulations to effectuate the AFCTCA, and employers can provide leave to airline flight crew employees under the current FMLA regulations, it is the Department's position that employees became entitled to take leave under the AFCTCA as of December 21, 2009. Until the Department issues a final rule specifically addressing calculating FMLA leave usage for flight crew employees, the Department will exercise its discretion in assessing employer compliance, in light of the individual facts and circumstances, with current § 825.205.

F. Regulatory Look Back Review

In complying with Executive Order 13563, “Improving Regulation and Regulatory Review,” the Department sought public comment in March 2011 to inform its design of a framework to review its significant rules. The review would determine whether these rules are obsolete, unnecessary, unjustified, excessively burdensome, counterproductive, or duplicative of other Federal regulations. Specifically, the Department sought comment on which regulations should be considered for review, expansion, or modification. The Department utilized an interactive Web site (

www.dol.gov/regulations/regreview.htm

) and published a Request for Information in the

Federal Register

(76 FR 15224) for the public to provide comments.

The Department received three comments concerning the FMLA. The first commenter requested clarification on § 825.218, regarding substantial and grievous economic injury. Upon review of the comment, the Department determined that there was no need to clarify this section through regulatory change.

The second comment the Department received concerned § 825.204, “Transfer of an Employee to an Alternative Position During Intermittent Leave or Reduced Schedule Leave.” The commenter suggested extending the employer's ability to transfer an employee to an alternative positive for

intermittent leave that is foreseen but unscheduled. The Department responded to similar comments in the 2008 final rule. As the Department noted at that time, by expressly permitting transfers in cases of intermittent or reduced schedule leave “that is foreseeable based on planned medical treatment,” 29 U.S.C. 2612(b)(2), the statutory language strongly suggests that this is the only situation where such transfers are allowed. 73 FR 67975. The Department continues to find no statutory basis to permit transfers to an alternative position for employees taking unscheduled or unforeseeable intermittent leave, and declines to expand the situations in which an employer may temporarily transfer an employee to an alternative position.

Id.

The last comment that the Department received suggested excluding from the Act's protections medical conditions that the commenter believes are subjectively determined. The regulations provide an objective definition of “serious health condition” as well as a process for employers to request a certification of a serious health condition from the employee's (or family member's) health care practitioner. Additionally, where the employer has reason to doubt the validity of the initial certification, the employer may require a second and, if necessary, third opinion from a health care practitioner. Given the procedures available for ensuring certification of a serious health condition by a health care practitioner, the Department does not believe that issuing further regulatory changes at this time is warranted.

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

The following is a section-by-section analysis of the proposed revisions to the FMLA regulations. The primary sections of the regulations with proposed revisions to implement the FY 2010 NDAA amendments are: § 825.126 (Leave because of a qualifying exigency); § 825.127 (Leave to care for a covered servicemember with a serious injury or illness); § 825.309 (Certification for leave taken because of a qualifying exigency); and § 825.310 (Certification for leave taken to care for a covered servicemember (military caregiver leave)). Less substantive changes are proposed to § 825.122 (Definitions of spouse, parent, son or daughter, next of kin of a covered servicemember, adoption, foster care, son or daughter on active duty or call to active duty status, son or daughter of a covered servicemember, and parent of a covered servicemember) and § 825.800 (Definitions) to reflect new definitions related to military family leave. The primary sections of the regulations with proposed revisions to implement the AFCTCA are: § 825.110 (Eligible employee); § 825.205 (Increments of FMLA leave for intermittent or reduced schedule leave); § 825.500 (Record-keeping requirements); and § 825.800 (Definitions) to include definitions specific to airline flight crew employees.

The Department further proposes to move the definitions section of the regulations from § 825.800 to § 825.102, which is currently reserved. The Department believes that placing the definitions section at the beginning of the regulations is more helpful to the reader, and consistent with other regulations implementing statutes administered by the WHD. Unless specifically discussed, no further substantive changes are proposed to this section.

The Department intends to make corresponding minor changes to the FMLA poster (WHD publication 1420), the Notice of Eligibility and Rights and Responsibilities (Form WHD-381), the Certification for Qualifying Exigency Leave for Military Family Leave (Form WHD-384), and the Certification for Serious Injury or Illness of a Covered Servicemember for Military Family Leave (Form WHD-385) to reflect the FY 2010 NDAA amendments and the AFCTCA. The Department also intends to develop a new form for the certification for the serious injury or illness of a covered veteran. The Department also proposes to remove the optional-use forms and notices from the regulations' Appendices. The removed forms and notices are medical certification forms WH-380-E (Certification of Health Care Provider—Employee), WH-380-F (Certification of Health Care Provider—Family Member), WH-384 (Certification of Qualifying Exigency for Military Family Leave), and WH-385 (Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave); notification forms WH-381 (Notice of Eligibility and Rights & Responsibilities) and WH-382 (Designation Notice to Employee of FMLA Leave); and the Notice to Employees of Rights under FMLA (WH Publication 1420).

The Department's prototype forms are intended to facilitate the information collection requirements of the FMLA. These information collections are subject to the requirements of the Paperwork Reduction Act of 1995 (PRA). The Department, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information every three years in accordance with the requirements of the PRA. Substantive changes to the forms as they appear in the Appendices require additional and separate rulemaking activities.

The PRA clearance process has sometimes resulted in updates to the forms that differed from the version of the forms that appeared in the Appendices to the regulations. The Department believes that multiple versions of the forms have created needless confusion for the public, and in an effort to lessen this confusion the Department proposes to remove the forms from the regulations. The forms will continue to be available on the WHD Web site. The Department believes that removing the forms from the regulations, and thereby streamlining the clearance process, will permit the forms to be more expeditiously amended in response to statutory and other changes, as well as suggestions from the public. This will ensure that the most accurate and up-to-date forms are available to the public. Although the Department is proposing to remove the forms from the regulations, this proposed change does not alter the Department's belief that the forms facilitate employer and employee compliance with their respective obligations under the FMLA. Employers are permitted to use forms other than those issued by the Department so long as they do not require information beyond that specified in the regulations.

See

29 CFR §§ 825.306, 825.309, 825.310. However, if an employee provides sufficient certification regardless of format, no additional information may be requested.

Minor changes to more accurately reflect the new military family leave and airline flightcrew employee eligibility provisions or to delete references to Appendices for prototype forms or notices, are proposed at: §§ 825.100, 825.101, 825.107, 825.112, 825.200, 825.213, 825.300, 825.302, 825.303 and 825.306. The Department also proposes to correct inadvertent drafting errors that were made in the 2008 final rule, including correcting the cross-references in current § 825.200(g) and (f), and inserting the word “spouse” in the first lines of § 825.202(b) and (b)(1). The Department also proposes to include the word “the” in the statutory phrase “in line of duty” where used in the regulations. The URL for the WHD Web site has also been updated to link

viewers directly to the WHD site. This proposed change appears in: §§ 825.300, 825.306, and 825.309. These proposed changes are not addressed in the section-by-section analysis. The addition of definitions to current § 825.800 and its relocation to reserved § 825.102 is also not addressed in the section-by-section analysis.

A. Revisions To Implement the FY 2010 NDAA amendments

1. Section 825.122—Definitions of Spouse, Parent, Son or Daughter, Next of Kin of a Covered Servicemember, Adoption, Foster Care, Son or Daughter on Active Duty or Call or Order to Active Duty Status, Son or Daughter of a Covered Servicemember, and Parent of a Covered Servicemember

The Department proposes to add a definition of “covered servicemember” as new paragraph (a) of this section to reflect the addition of covered veterans as covered servicemembers under the FY 2010 NDAA. As a result, the Department proposes to renumber the paragraphs that follow. The Department also proposes to change the term “active duty” to “covered active duty” in each place it appears in both the title of this section and in paragraph (g), and to update the reference in this paragraph to proposed § 825.126(a)(5).

2. Section 825.126—Leave Because of a Qualifying Exigency

Section 585 of the FY 2008 NDAA provided that eligible employees of covered employers may take FMLA leave for any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. Public Law 110-181; § 585(a). The FY 2008 NDAA defined “active duty” as a call or order to active duty under a provision of law referred to in 10 U.S.C. 101(a)(13)(B).

Id.

The provisions referred to in 10 U.S.C. 101(a)(13)(B) are: sections 688, 12301(a), 12302, 12304, 12305, and 12406 of Title 10 of the United States Code; Chapter 15 of Title 10 of the United States Code; and any other provision of law during a war or during a national emergency declared by the President or Congress. These provisions are limited to duty by members of the Reserve components, the National Guard, and certain retired members of the Regular Armed Forces and retired Reserve under a call or order to active duty. The FY 2008 NDAA amendment thus limited the availability of qualifying exigency leave to family members of members of the Reserve components. The entitlement to qualifying exigency leave did not extend to family members of the Regular Armed Forces on active duty status because members of the Regular Armed Forces either do not serve “under a call or order to active duty” or are not identified in the provisions of law referred to in 10 U.S.C. 101(a)(13)(B). 73 FR 67954-55.

The FY 2010 NDAA further amends the FMLA to permit an eligible employee to take FMLA leave for any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on covered active duty, or has been notified of an impending call or order to covered active duty in the Armed Forces. Public Law 111-84, § 565(a)(1)(B);

see

29 U.S.C. 2612(a)(1)(E). The FY 2010 NDAA provisions define “covered active duty” to include duty by members of the Regular Armed Forces during deployment to a foreign country, and duty by members of the Reserve components during deployment to a foreign country under a call or order to active duty under a provision of law referred to in section 101(13)(B) of title 10, United States Code. 29 U.S.C. 2611(14). Thus, these new provisions entitle qualifying family members to FMLA leave for qualifying exigencies arising from foreign deployments of Regular Armed Forces members, and add a foreign deployment requirement to the type of call or order to active duty required for the Reserve components of the Armed Forces.

Section 825.126 is currently organized into two parts: (a) The specific circumstances under which qualifying exigency leave may be taken; and (b) an employee's entitlement to qualifying exigency leave. The Department proposes to keep these two provisions, but reverse the order in which they appear. The Department has learned from employers and employees that there is confusion about the military family provisions. The Department believes that it is more logical to outline an employee's entitlement to qualifying exigency leave first, and then to specify the circumstances under which the employee may take qualifying exigency leave. The Department expects that this reordering will be less confusing to the public. Thus, proposed § 825.126(a) covers an employee's entitlement to qualifying exigency leave (currently addressed in § 825.126(b)) and proposed § 825.126(b) identifies the specific circumstances under which qualifying exigency leave may be taken (currently addressed in § 825.126(a)). As discussed below, the Department further proposes to revise § 825.126 to incorporate the FY 2010 NDAA amendments.

The Department proposes to substitute in this section (as well as throughout the regulations wherever the term appears) “covered active duty” for “active duty” to incorporate the FY 2010 NDAA statutory language. The Department also proposes to delete references in this section (as well as throughout the regulations wherever the term appears) to “covered military member” and instead use the generic term “military member” or “member” to refer to members of the Armed Forces on covered active duty as defined by the statute. As discussed above, the FY 2008 NDAA restricted entitlement to qualifying exigency leave to an employee whose parent, spouse, son, or daughter is a member of the National Guard and Reserves under an impending call or order to active duty in support of a contingency operation. In the 2008 final rule, the Department introduced the term “covered military member” to reflect that the military member must be the parent, spouse, son or daughter of the employee. This term has also come to reflect the restrictive nature of qualifying exigency leave under the FY 2008 NDAA,

i.e.,

that such leave was limited to qualifying family members of Reserve component members. The FY 2010 NDAA amendment extends the entitlement for qualifying exigency leave to family members of Regular Armed Forces members, and therefore, the limiting term “covered military member” is no longer relevant and may be unnecessarily confusing. Similarly, the use of the term “covered active duty” rather than “active duty” will more accurately reflect the fact that there are limitations on the types of active duty that can give rise to qualifying exigency leave. The Department intends to make the provisions of qualifying exigency leave more understandable to the public by using the statutory term “covered active duty” and referring generically to the military member throughout the regulation, and seeks comment on this proposed change.

Current § 825.126(a) states the statutory entitlement that eligible employees may take FMLA leave while the employee's spouse, son, daughter, or parent is on active duty or call to active duty status (this paragraph continues by listing the specific qualifying exigencies for which leave may be taken). Similarly, proposed § 825.126(a) sets out the statutory entitlement that an eligible employee may take leave for any qualifying exigency arising out of the covered active duty or call to covered active duty status of the employee's

spouse, son, daughter, or parent. The list of specific qualifying exigencies in current paragraph (a) is moved to proposed paragraph (b).

Proposed § 825.126(a)(1) defines “covered active duty or call to covered active duty” status for a member of the Regular Armed Forces as “duty under a call or order to active duty (or notification of an impending call or order to covered active duty) during the deployment of the member with the Armed Forces to a foreign country,” and states that the active duty orders will generally specify if the member's deployment is to a foreign country. In accordance with the FY 2010 NDAA, the Department deleted the statement in current § 825.126(b)(2)(i) that family members of members of the Regular Armed Forces are not entitled to qualifying exigency leave.

Proposed § 825.126(a)(2) defines “covered active duty or call to covered active duty” status for a member of the Reserve components as duty under a call or order to active duty (or notification of an impending call or order to active duty) during the deployment of the member to a foreign country under a Federal call or order to active duty in support of a contingency operation pursuant to the provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The provisions referred to in 10 U.S.C. 101(a)(13)(B) are 10 U.S.C. 688, 12301(a), 12302, 12304, 12305, 12406; 10 U.S.C. chapter 15; and any other provision of law during a war or during a national emergency declared by the President or Congress. While FY 2010 NDAA struck the definition of “contingency operation” from the FMLA and deleted the reference to “contingency operation” in 29 U.S.C. 2612(a)(1)(E), the Department believes that the reference to 10 U.S.C. 101(a)(13)(B) in the definition of covered active duty for members of the Reserve components continues to require that members of the Reserve components be called to duty in support of a contingency operation in order for their family members to be entitled to qualifying exigency leave. Therefore, proposed § 825.126(a)(2) maintains the language in current § 825.126(b)(2) regarding duty in support of a contingency operation. The Department also proposes to use the word “Federal” in proposed paragraph § 825.126(a)(2) in describing the covered calls or orders to active duty in order to make clear that only Federal calls to duty will meet the definition of covered active duty.

Proposed paragraph § 825.126(a)(2)(i) lists the specific Reserve components currently found in § 825.126(b)(2)(i). Proposed paragraph § 825.126(a)(2)(ii) follows current § 825.126(b)(3) in that it provides that the active duty orders of a member of the Reserve components will generally specify if the covered active duty military member is serving in support of a contingency operation by citing the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the contingency operation as is stated in current § 825.126(b)(3). Proposed § 825.126(a)(2)(ii) also states that the active duty orders will specify that the deployment is to a foreign country.

The Department proposes in paragraph § 825.126(a)(3) to define deployment of the member with the Armed Forces to a foreign country as deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including deployment in international waters. This definition is consistent with the Department's understanding of the term “deployment” based on consultations with the Department of Defense (DOD). The Department understands that servicemembers are assigned to a home station

2

and deployment is the relocation of forces and materials from that home station to an operational area. The term does not include reassignments to a new duty station or deployment for training exercises.

2

According to The Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms, 8 November 2010 (as amended through 15 August 2011), “home station” is defined as the permanent location of active duty units and Reserve Component units (

e.g,,

location of armory or reserve center).

In addition, the definition of “deployment” in proposed paragraph § 825.126(a)(3) includes deployment of the military member to active duty in international waters. The Department understands Congress to have intended to extend the entitlement of qualifying exigency leave to family members of all branches of the military equally. The Department seeks to ensure that family members of the Navy, Coast Guard, and other military members deployed to duty in international waters have access to qualifying exigency leave. The Department seeks comment on the types of duty assignments for members of the Navy and Coast Guard that will satisfy the definition of deployment.

The Department proposes in § 825.126(a)(4) to specify, as current § 825.126(b)(2)(ii) does, that covered deployments are limited to Federal calls to active duty. Finally, the Department proposes to move the definition of “son or daughter on active duty or call to active duty status” currently located at § 825.126(b)(1) to paragraph § 825.126(a)(5).

Current § 825.126(a) lists the reasons, divided into eight categories, for which an eligible employee may take qualifying exigency leave. The qualifying exigency leave categories are: (1)

Short-notice deployment,

(2)

Military events and related activities,

(3)

Childcare and school activities,

(4)

Financial and legal arrangements,

(5)

Counseling,

(6)

Rest and recuperation,

(7)

Post-deployment activities,

and (8)

Additional activities.

The Department proposes to move this list to § 825.126(b); the paragraph numbers that correspond to the eight categories will remain the same. As noted above, the Department proposes to replace the term “active duty” with “covered active duty” and “covered military member” with “military member” or “member” throughout this section. Where no additional changes are made within a category of qualifying exigency, and the Department is not specifically requesting additional information, that category is not discussed further in this proposal.

Current § 825.126(a)(1) sets forth the requirements for

Short-notice deployment

qualifying exigency leave. Leave taken for this purpose may be used for a period of seven calendar days beginning with the date the military member is notified of an impending call or order to covered active duty. The Department seeks public comment on whether the seven calendar day period remains appropriate for this type of qualifying exigency.

Current § 825.126(a)(3),

Childcare and school activities,

allows eligible employees to take qualifying exigency leave to arrange childcare or attend certain school activities for a military member's son or daughter. The Department proposes to delete repetitive text throughout this paragraph identifying the relationship between the child and the military member. Instead, proposed paragraph § 825.126(b)(3) states that for purposes of the childcare and school activities leave listed in § 825.126(b)(3)(i) through (iv), the child must be “the military member's biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.” Proposed § 825.126(b)(3) also adds language to clarify that, as with all instances of qualifying exigency leave, the military member must be the spouse, son, daughter, or parent of the employee

requesting leave. The Department believes this clarifying language is necessary because of this section's unique relationship requirements. While the military member must be the spouse, parent, or son or daughter of the eligible employee, the child for whom childcare leave is sought need

not

be a child of the employee requesting leave. For example, the employee may be the mother of the military member and may need qualifying exigency childcare and school activities leave for the military member's child.

Current § 825.126(a)(6),

Rest and recuperation,

allows an eligible employee to take up to five days of leave to spend time with a military member on rest and recuperation leave during a period of deployment. The Department proposes in § 825.126(b)(6) to capitalize

Rest and Recuperation

to reflect that this type of leave corresponds directly to the DOD Rest and Recuperation leave programs (

e.g.,

USCENTCOM R & R leave). The Department also proposes to expand the maximum duration of Rest and Recuperation qualifying exigency leave from five to 15 days. The DOD has advised the Department that the actual number of days of Rest and Recuperation leave provided by the military varies, with some military members receiving as many as 15 days, depending upon the length of their deployment. The Department proposes to allow the amount of leave an employee may take for Rest and Recuperation qualifying exigency leave to equal that provided to the military member, up to a maximum of 15 days. The Department has received information from employees indicating that the amount of time granted to a military member for Rest and Recuperation leave is generally longer than the five days permitted by the regulations, and due to the nature of the deployments, five days, as permitted by the current regulations, is an insufficient amount of time for leave. As noted in the 2008 final rule, there are limited opportunities available for military members to spend time with their families while on active duty and it is important to foster strong relationships among military families. 73 FR 67961. The Department believes it is appropriate to make the availability of this type of FMLA-qualifying exigency leave consistent with the leave actually provided by the military to the member on covered active duty. The Department seeks comment on the expansion of

Rest and Recuperation

qualifying exigency leave and whether the proposed 15 day period is sufficient in all instances.

The Department is also proposing to add language to § 825.126(7),

Post-deployment activities.

Current § 825.126(b)(7)(ii) permits an employee to take qualifying exigency leave to address issues that arise from the death of a military member while on covered active duty status. The Department proposes to add attending funeral services as an additional example to the activities that are covered by such leave.

The Department proposes no additional qualifying exigencies for which FMLA leave may be taken, but invites comment on whether additional qualifying exigencies should be added in light of the extension of this leave entitlement to family members of members of the Regular Armed Forces. The Department notes that the categories of leave in the current and proposed regulations include activities that may take place in advance of deployment (pre-deployment activities), during deployment, and limited activities that occur after deployment has ended (post-deployment activities). While the FY 2010 NDAA defines “covered active duty” as “duty during the deployment of the member,” the Department continues to believe that it is appropriate to include certain pre-deployment activities to reflect Congressional intent to include exigencies arising from notification of “an

impending

call or order to covered active duty”. 29 U.S.C. 2612(a)(1)(E) (emphasis added). Similarly, the Department continues to believe that it is appropriate to include as qualifying exigencies limited post-deployment activities the need for which immediately and foreseeably arise from the military member's covered active duty. This interpretation and reasoning is consistent with that outlined in the 2008 final rule. 73 FR 67961.

No other changes are proposed to § 825.126.

3. Section 825.127 Leave To Care for a Covered Servicemember With a Serious Injury or Illness

Section 585(a) of the FY 2008 NDAA amended the FMLA to allow an eligible employee who is a covered servicemember's spouse, son, daughter, parent, or next of kin to take up to 26 workweeks of leave during a “single 12-month period” to care for a servicemember receiving treatment for a serious injury or illness (“military caregiver leave”). Such leave can be taken to provide care to a current member of the Armed Forces, including the National Guard and Reserves. These provisions were incorporated in current § 825.127, which explains an employee's entitlement to military caregiver leave and the specific circumstances under which military caregiver leave may be taken.

Section 565(a) of the FY 2010 NDAA further amends the FMLA to revise the definition of “covered servicemember” to include certain veterans and to expand coverage for military caregiver leave to eligible employees caring for such veterans with a qualifying (as defined by the Secretary of Labor) injury or illness. 29 U.S.C. 2611(15)(B). It also amends the FMLA to revise the definition of serious injury or illness for current members of the Armed Forces to include conditions that existed before the covered servicemembers' active duty but were aggravated by service in the line of duty on active duty. 29 U.S.C. 2611(18)(A). A serious injury or illness for a veteran similarly includes conditions that existed before the veteran's active duty but were aggravated by service in the line of duty on active duty and that manifested before or after the servicemember became a veteran. 29 U.S.C. 2611(18)(B).

The Department proposes to reorganize § 825.127 to reflect the substantive changes to the military caregiver leave provisions pursuant to the FY 2010 NDAA amendments. In addition, the proposal adds the term “military caregiver leave” to the title of this section for clarity. Current paragraph § 825.127(b), which defines the family members qualified to take caregiver leave, is moved to proposed paragraph § 825.127(d). Current paragraph § 825.127(d), which addresses circumstances when a husband and wife who are both eligible for FMLA leave work for the same employer, is moved to proposed § 825.127(f). Because no substantive changes are proposed to these sections they are not discussed further.

Current § 825.127(a) provides that an eligible employee may take FMLA leave to care for a current member of the Armed Forces, including National Guard and Reserves members, with a serious injury or illness incurred in the line of duty on active duty for which the servicemember is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list. This section of the current regulations incorporates the statutory definition of a covered servicemember pursuant to the FY 2008 NDAA, and states that the definition of a covered servicemember does not include former members of the Regular Armed Forces, former members of the National Guard and Reserves, and members on the permanent disability retired list. Consistent with the FY 2010 NDAA

expansion of military caregiver leave to care for certain veterans, the current statement that military caregiver leave does not apply to former members of the military is deleted from proposed paragraph (a). The definitions set forth in current paragraphs (a)(1) and (2) are incorporated in proposed paragraphs (b) and (c), discussed below. Proposed paragraph § 825.127(a) simply states that eligible employees are entitled to FMLA leave to care for a covered servicemember with a serious injury or illness.

Proposed § 825.127(b) provides the definition of covered servicemember for current members of the Armed Forces and for covered veterans. Proposed § 825.127(b)(1) defines covered servicemember as it applies to current members of the Armed Forces, including members of the National Guard or Reserves. This definition mirrors the statutory definition. 29 U.S.C. 2611(15)(A). This paragraph also incorporates the definition of “outpatient status” from current § 825.127(a)(2), which is applicable only to current members of the Armed Forces.

Proposed § 825.127(b)(2) defines covered servicemember, as it applies to veterans, to mean a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. It further defines a covered veteran as an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. This definition combines the FY 2010 NDAA statutory definition of a “veteran” (which incorporates the definition of veteran in 38 U.S.C. 101) and the statutory limitations on the inclusion of veterans as covered servicemembers. 29 U.S.C. 2611(15)(B) (a veteran will be a covered servicemember if he or she is “undergoing medical treatment, recuperation, or therapy for a serious injury or illness [and the veteran] was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.”); 29 U.S.C. 2611(19) (adopting 38 U.S.C. 101 definition of veteran, which defines the term as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable”). The Department proposes to measure the five-year period from the date the employee first takes leave to care for the veteran, and to permit an employee to continue leave begun within the five-year period until the end of the applicable “single 12-month period”. A veteran will be considered a covered veteran if he or she was a member of the Armed Forces within the five-year period immediately preceding the date the requested leave is to begin. If the leave commences within the five-year period, the employee may continue leave for the applicable “single 12-month period”, even if it extends beyond the five-year period. The Department believes this interpretation is consistent with the intent of Congress in limiting FMLA leave to care for certain veterans to a specified time period. This interpretation may exclude veterans of previous conflicts (

e.g.,

Gulf War veterans), and may exclude certain veterans of the War in Afghanistan and Operation Iraqi Freedom, depending on the veteran's discharge date and the date the eligible employee's leave is to begin. The Department invites comment on this interpretation.

Proposed § 825.127(c) provides the definition of serious injury or illness for current members of the Armed Forces and for covered veterans. Proposed § 825.127(c)(1) incorporates the definition of serious injury or illness of a current servicemember from current § 825.127(a)(1), and expands it to include an injury or illness that existed prior to the beginning of the member's active duty but was aggravated by service in the line of duty on active duty in the Armed Forces, consistent with the statutory definition of this term as amended by the FY 2010 NDAA. 29 U.S.C. 2611(18)(A).

For both current members of the Armed Forces and covered veterans, a serious injury or illness that existed before the beginning of the servicemember's active duty and was aggravated by service in the line of duty on active duty includes both conditions that were noted at the time of entrance into active service and conditions that the military was unaware of at the time of entrance into active service but that are later determined to have existed at that time. A preexisting injury or illness will generally be considered to have been aggravated by service in the line of duty on active duty where there is an increase in the severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness. It is the Department's understanding that individuals will not be accepted for military service in the Regular or Reserve components unless they are: (1) Free of contagious diseases that probably will endanger the health of other personnel; (2) free of medical conditions or physical defects that may require excessive time lost from duty for necessary treatment or hospitalization, or probably will result in separation for medical unfitness; (3) medically capable of satisfactorily completing required training; (4) medically adaptable to the military environment without the necessity of geographical area limitations; and (5) medically capable of performing duties without aggravation of existing physical defects or medical conditions. DOD Instruction Number 6130.03 on Medical Standards for Appointment, Enlistment or Induction in the Military Service. In light of these standards, the Department seeks comments, particularly from military members and their families, concerning types of injuries or illnesses that may exist prior to service and be aggravated in the line of duty on active duty to such an extent as to render the servicemember unable to perform the duties of the member's office, grade, rank, or rating.

The FY 2010 NDAA requires the Department to define a qualifying serious injury or illness for a veteran. Proposed § 825.127(c)(2) defines serious injury or illness for a covered veteran with three alternative definitions set out in paragraphs (c)(2)(i), (c)(2)(ii), and (c)(2)(iii). Proposed § 825.127(c)(2)(i) defines a serious injury or illness of a covered veteran as a serious injury or illness of a current servicemember, as defined in § 825.127(c)(1), that continues after the servicemember becomes a veteran. Thus, if a veteran suffered a serious injury or illness when he or she was a current member of the Armed Forces and that same injury or illness continues after the member leaves the Armed Forces and becomes a veteran, the injury or illness will continue to qualify as a serious injury or illness warranting military caregiver leave. The Department believes that allowing qualifying family members to take leave to care for covered veterans who continue to suffer from these serious injuries or illnesses is consistent with Congressional intent, as evidenced by the extension of military caregiver leave provisions for veterans for a defined five-year period. As explained below, the Department believes that an eligible employee may take military caregiver leave for the same family member based on the same serious injury or illness when the family member is a current member of the Armed Forces and when the family member becomes a covered veteran.

Proposed § 825.127(c)(2)(ii) defines a serious injury or illness for a covered veteran as a physical or mental condition for which the covered veteran has received a Department of Veterans Affairs (VA) Service Related Disability Rating (VASRD) of 50 percent or higher and such VASRD rating is based, in whole or part, on the condition precipitating the need for caregiver leave. The Department's review indicates that a VASRD disability rating of 50 percent or greater encompasses disabilities or conditions such as amputations, severe burns, post traumatic stress syndrome, and severe traumatic brain injuries. The Department believes that there should be parity between a serious injury or illness of a covered veteran and a serious injury or illness for a current member of the Armed Forces, but also recognizes that veterans are in different circumstances than active duty military members. The standard for a serious injury or illness for current members of the Armed Forces cannot be directly applied to veterans because a veteran no longer has a military office, grade, rank, or rating against which to measure a condition that does not manifest until after the servicemember becomes a veteran. Further, veterans, unlike current military members, may participate in the civilian workforce.

The Department believes that a serious injury or illness that substantially impairs a veteran's ability to secure or follow a substantially gainful occupation by reason of service-connected disability should be a qualifying injury or illness for a covered veteran. The Department considered proposing the VASRD rating equal to the level at which, under VA regulations, the veteran is considered to be totally disabled,

i.e.,

that the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability.

See

38 CFR 4.16. Section 4.16(a) of the VA regulations clarifies that for a veteran with one disability, a disability rating of 60 percent or higher constitutes a total disability, and for a veteran with two or more disabilities, at least one disability must be rated at 40 percent or more with sufficient additional disabilities to bring the combined rating to 70 percent or higher. However, the Department is concerned that veterans may suffer from injuries and illnesses that do not result in a “total disability” under the VASRD rating system, but which the Department believes should qualify as a serious injury or illness for military caregiver leave. For example, burns resulting in distortion or disfigurement (

see

38 CFR 4.118), or psychological disorders resulting from stressful events (

see

38 CFR 4.129) occurring in the line of duty on active duty may not result in a VASRD rating of 60 percent or higher, but nonetheless may be severe enough to substantially impair a veteran's ability to work and therefore should be considered qualifying injuries or illnesses. The Department is particularly concerned that military caregiver leave be available to family members of veterans suffering from, or receiving treatment for such injuries or illnesses, which may include continuing or follow-up treatment for burns, including skin grafts or other surgeries, and amputations, including prosthetic fittings, occupational therapy and similar care.

The Department also considered proposing the VASRD disability rating at a percentage below 50 percent. However, the Department determined that a lower threshold may capture injuries and illnesses that Congress did not intend to qualify as serious injuries or illnesses for which employees would be entitled to 26 workweeks of FMLA leave. For example, after a review of the VASRD rating schedules, the Department understands that a 30 percent VASRD rating may encompass conditions such as the loss of one ear (

see

38 CFR 4.87), chronic laryngitis (

see

38 CFR 4.97), moderate migraine (episodes once per month over several months) (

see

38 CFR 4.124(a)), or severe acne (

see

38 CFR 4.118). In attempting to achieve parity with the standard of a serious injury or illness for a current member of the Armed Forces, the Department concluded that a VASRD rating of 50 percent will more closely approximate a condition that substantially impairs a veteran's ability to work.

The Department is also concerned that establishment of a two-tier test, as used by the VA to reflect single and multiple disabilities, may be unnecessarily complicated for the purpose of defining a qualifying serious injury or illness for military caregiver leave. Therefore, after a careful review of VA regulations, the Department proposes a single threshold of an overall VASRD rating of 50 percent or higher (whether based on a single or multiple disabilities) as a qualifying serious injury or illness.

The Department seeks comments on several aspects of this proposed definition. First, the Department invites comment on whether the VASRD rating of 50 percent is the appropriate level of injury or illness to support a request for military caregiver leave. The Department specifically seeks comment on whether the VASRD rating of 50 percent is the proper percentage of disability to capture all injuries and illnesses that would warrant an employee taking military caregiver leave to care for a covered veteran. Second, while the standard reflects the VA's determination of a disability with respect to benefits, the Department seeks comment on whether a VASRD rating appropriately correlates to the veteran's need for care and ability to work, attend school or perform other daily activities. The Department also seeks comment on whether this standard should expressly reference limitations in a veteran's ability to attend school or perform other regular daily activities. The Department invites comment on whether there are circumstances in which a veteran would be able to work but would nonetheless need care because of an inability to perform other daily activities.

Proposed § 825.127(c)(2)(iii) is the third alternative definition of a serious injury or illness for a covered veteran; it covers injuries and illnesses that are not technically within the definition proposed in (c)(2)(i) or (ii), but are of similar severity. The Department recognizes that covered veterans may have injuries or illnesses that are similar in severity to the injuries or illnesses qualifying under proposed (c)(2)(i) but for which the veterans did not obtain certification as a serious injury or illness when they were current members of the military. Similarly, the Department recognizes that covered veterans may have injuries or illnesses that are similar in severity to the injuries or illnesses qualifying under proposed (c)(2)(ii) but for which the veterans have not received a VASRD rating. The Department also recognizes that covered veterans may need a family member to provide care for injuries or illnesses that, absent treatment, would be similar in severity to those qualifying under (c)(2)(i) and (ii). This third alternative definition of serious injury or illness for a covered veteran is intended to capture these types of injuries and illnesses.

The Department proposes to define a serious injury or illness for a covered veteran in the third alternative as a physical or mental condition that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment. This proposed definition is intended to replicate the VASRD 50 percent disability rating standard under (c)(2)(ii) for situations in which the veteran does not have a service-related disability rating from the VA. The Department

expects that, when making determinations of serious injury or illness under this proposed definition, private health care providers will do so in the same way they make similar determinations for Social Security Disability claims and Workers' Compensation claims. Particularly with respect to Social Security Disability, health care providers must determine that an injury or illness “substantially impairs” the individual and determine whether the individual is able to gain or keep a “substantially gainful occupation.”

As noted above, the standard in (c)(2)(ii) is based on VA regulations and disability determinations. For example, a covered veteran with post traumatic stress disorder who is usually able to work may need care from an employee-family member when an event triggers a reoccurrence of the associated depression and anxiety to a level that the veteran would be unable to work absent treatment. Although paragraph (c)(2)(iii) is intended to have the same degree of incapacity as that set forth in paragraph (c)(2)(ii), a certification of serious injury or illness under this section serves only to establish that the veteran has a condition that entitles his or her family member to military caregiver leave under the FMLA. Such a determination provides no basis for a determination of status, rights, or benefits for the VA or other agencies. The VA is the sole agency qualified to make any rating determination for purposes of VA-related rights or benefits.

The Department seeks comments from employees, employers, health care providers, and veterans as well as current military members on this proposed alternative definition. Specifically, the Department seeks comments on whether this proposal will be effective at capturing the serious injuries and illnesses that covered veterans suffer for which caregiving is needed by qualifying employee-family members and which will not be covered under proposed paragraphs (c)(2)(i) and (ii). In addition, the Department seeks comments on the ability of health care providers to certify a serious injury or illness for a covered veteran and the ability of employers to administer leave associated with a serious injury or illness for a covered veteran under this proposed definition. The Department is particularly concerned that this provision comprehensively encompasses traumatic brain injuries, post traumatic stress disorder, and other such conditions that may not manifest until some time after the member has become a veteran. Therefore, the Department also seeks comment on the types of injuries and illnesses that typically manifest after the member becomes a veteran, whether a family member is needed to care for the veteran for such injuries or illness and, if so, whether this proposed definition would cover such situations.

The Department notes another means through which the severity of an injured veteran's disability may be assessed. VA's Program of Comprehensive Assistance for Family Caregivers (

see Caregivers and Veterans Omnibus Health Services Act of 2010,

Public Law 111-163 and 38 CFR part 71) is designed to provide health care, travel, training, and financial benefits to certain eligible caregivers of veterans who are eligible for the program. In general, a veteran or servicemember undergoing medical discharge from the Armed Forces, is eligible for VA's Program of Comprehensive Assistance for Family Caregivers if the individual has incurred or aggravated a serious injury (including traumatic brain injuries, psychological trauma, or other mental disorders) in the line of duty on or after September 11, 2001; the serious injury renders the individual in need of a minimum of six continuous months of personal care services based on a variety of clinical criteria listed under 38 CFR 71.20 (c)(1)-(4); and it is in the best interest of the individual to participate in the program.

See

38 CFR 71.20. According to VA, approximately 86 percent of veterans currently enrolled in the program have received a VASRD rating of 50 percent or greater, with approximately 50 percent having received a VASARD rating of 100 percent.

In an effort to minimize the burden placed on military families, the Department has worked with VA to understand the requirements that must be met to enroll in VA's Program of Comprehensive Assistance for Family Caregivers and utilize FMLA leave. Based on the eligibility requirements for VA's Program of Comprehensive Assistance for Family Caregivers, the Department believes that most veterans who qualify for the program meet the requirement of having a serious injury or illness as defined in this proposal for the purpose of FMLA caregiver leave. Accordingly, the Department is considering adding a fourth alternative to the definition of serious injury or illness of a veteran, enrollment in VA's Program of Comprehensive Assistance for Family Caregivers, and invites comment on whether this would appropriately help reduce the burden placed on military and veterans' families in being able to take FMLA leave.

As with the three definitions proposed in paragraphs (c)(2)(i)-(iii), enrollment in VA's Program of Comprehensive Assistance for Family Caregivers would establish only that the veteran has a serious injury or illness, and would not mean that the caregiver is automatically entitled to take FMLA leave. The person seeking to take FMLA military caregiver leave must qualify as a family member under the FMLA and meet the other eligibility criteria, and the veteran must meet the definition of a “covered veteran” in proposed § 825.127(b)(2).

The Department seeks comment, especially from caregivers and veterans who are currently enrolled in VA's Program of Comprehensive Assistance for Family Caregivers, on whether including enrollment in this program as another possible definition for establishing a qualifying serious injury or illness required to take FMLA leave would be helpful to veterans and caregivers in seeking FMLA leave for a covered veteran. Finally, the Department welcomes comments proposing other definitions not included above that would achieve the goals that the proposed definitions seek to achieve—namely, coverage of injuries or illnesses that covered veterans experience that approximate the severity of a serious injury or illness for current members of the military as defined in the statute and regulations.

Current § 825.127(c) explains how the “single 12-month period” in which eligible employees are entitled to take up to 26 workweeks of military caregiver leave is applied. This provision is moved to proposed paragraph § 825.127(e) (the numbering of the subparagraphs within this provision remain the same). Proposed paragraph § 825.127(e)(2) (current § 825.127(c)(2)) provides that the 26-workweek entitlement is to be applied as a per-covered servicemember, per-injury entitlement. Because the FY 2010 NDAA establishes two distinct categories of covered servicemembers (

i.e.,

a current member of the Armed Forces and a covered veteran) and because military caregiver leave is applied on a per-covered servicemember basis, an eligible employee could potentially take military caregiver leave to care for a covered servicemember who is a current member of the Armed Forces and then, at a later point when the same servicemember becomes a covered veteran, could take a subsequent period of military caregiver leave. The Department notes that all of the normal eligibility requirements,

such as the hours of service requirement, would apply in such a situation. Additionally, an employee may not take more than a combined total of 26 workweeks of FMLA leave during a “single 12-month period.” The Department seeks comment on this interpretation of the “single 12-month period” limitation.

The Department notes that under this provision, an eligible employee may take up to 26 workweeks of leave to care for the same covered servicemember with a subsequent serious injury or illness. As the Department explained in the 2008 final rule, a subsequent serious injury or illness of the same covered servicemember could arise either from an injury or illness incurred by a current member in a subsequent deployment, or from the subsequent manifestation of a second serious injury or illness to either a current member or a covered veteran that relates back to the initial incident. 73 FR 67969. For example, if a servicemember is injured in the line of duty on active duty and suffers severe burns, an eligible employee is entitled to 26-workweeks of caregiver leave. If the servicemember later manifests a traumatic brain injury that was incurred in the same incident as the burns, the eligible employee would be entitled to an additional 26-workweeks of leave to care for the same servicemember. The Department requests comment on whether the current regulatory language is sufficiently clear as to the situations in which an employee would be permitted to take a second period of military caregiver leave due to the subsequent serious injury or illness of the same covered servicemember.

Lastly, the Department proposes to make minor edits to internal references throughout this paragraph to reflect the reorganized structure of this section, to delete references to “as described in paragraph (c) of this section” as unnecessary, and to make two minor changes to paragraph (e)(3) (current § 825.127(c)(3)): adding internal numbering to facilitate readability, and changing “week” to “workweek” consistently throughout the paragraph.

4. Section 825.309 Certification Requirements for Leave Taken Because of a Qualifying Exigency

The FY 2010 NDAA amends 29 U.S.C. 2613(f), which addresses certification for qualifying exigency leave. Accordingly, as it did in § 825.126, the Department proposes to substitute “covered active duty” for “active duty” wherever it appears in this section. Consistent with the proposed change in § 825.126, the Department also proposes to substitute “military member” or “member” for “covered military member” wherever it appears.

Proposed § 825.309(a) follows current § 825.309(a) and states that the first time an employee requests leave because of a qualifying exigency, an employer may require the employee to provide a copy of the military member's covered active duty orders or other documentation issued by the military which indicates that the military member is on covered active duty or call to covered active duty status, and the dates of the military member's covered active duty service. This information need only be provided once to the employer, unless a need for qualifying exigency leave arises out of a different call to covered active duty status of the same military member or the call to covered active duty status of a different military member. The Department proposes to delete the phrase “in support of a contingency operation” from current § 825.309(a) to reflect the expansion of qualifying exigency leave to family of the Regular Armed Forces. As discussed in § 825.126, the contingency operation requirement does not apply to members of the Regular Armed Forces.

As previously discussed, the FY 2010 NDAA amended the qualifying exigency provisions to require that both members of the Reserve components and members of the Regular Armed Forces be deployed to a foreign country in order for their service to be considered covered active duty entitling their family members to qualifying exigency leave. It is the Department's understanding that the military member's active duty orders will specify the location of the deployment and will provide sufficient information to establish that the duty is, in fact, covered active duty. Both current and proposed § 825.309(a) permit an employee to use either a copy of the military member's active duty orders or “other documentation issued by the military” to establish that the military member is on covered active duty or call to covered active duty status. The Department has received information from employees and employers indicating that family members have experienced difficulty obtaining copies of active duty orders or that the available documentation is insufficient to comply with current certification requirements. The Department specifically seeks feedback from the public on whether active duty orders of members of the Regular and Reserve components of the Armed Forces contain sufficient information to determine that the call to covered active duty involves deployment to a foreign country (and, in the case of the Reserve components that the member is being called up in support of a contingency operation), and, if not, what other documentation would meet the certification requirements. The Department also seeks comment on whether employees have experienced difficulty in obtaining copies of active duty orders or other military documents establishing their family member's covered service, and whether employers have experienced difficulty in confirming covered service.

As with other FMLA certifications, the certification process for qualifying exigency leave is optional for the employer. Accordingly, the proposal revises the regulatory language at § 825.309(a) to make it clear that new active duty orders or documentation do not automatically need to be provided; rather new active duty orders or documentation need only be provided upon request by the employer. The proposed change is consistent with the general certification process, which provides that an employer may require certification upon an employee request for qualifying exigency leave.

Current § 825.309(b) addresses information that may be required to support a request for qualifying exigency leave. Consistent with the proposed expansion of Rest and Recuperation qualifying exigency leave to be equivalent to the period of time the military member has for such leave, up to 15 days, the Department believes that it is appropriate for the employee to provide a copy of the military member's Rest and Recuperation orders in order to determine the specific leave period available. The Department therefore proposes a new § 825.309(b)(6) to require that certification of qualifying exigency leave for Rest and Recuperation include a copy of the members Rest and Recuperation leave orders, or other documentation issued by the military, and the dates of the leave. No other change is proposed to § 825.309(b).

Current § 825.126(c) identifies an optional-use Form WH-384 which may be used in requesting qualifying exigency leave and states that another form containing the same basic information may be used by an employer as long as no information beyond that specified in this section is required. As discussed above, the Department proposes to delete the optional-use forms from the Appendices to part 825. Accordingly, the Department proposes to delete the reference in current § 825.309(c) to Appendix H and proposes to add language explaining that Form WH-384 may be obtained from local Wage and

Hour offices or the Wage and Hour Web site. No other changes are proposed for § 825.309(c).

Current § 825.309(d) indicates that where a complete and sufficient certification is submitted in support of a request for leave, an employer may not request additional information from an employee. Where the qualifying exigency involves a third party, employers may contact the individual or entity for purposes of verifying the meeting or appointment and the nature of the meeting. The employee's permission is not required to conduct such verification, but the employer may not request additional information. Employers may also contact the appropriate unit of the DOD to verify that the military member is on active duty or call to active duty status; no additional information may be requested and the employee's permission is not required for such verification. The Department solicits information on how this provision has been working for employers and employees. The Department would like to know whether any privacy issues have arisen for employees, or whether any employees have been denied qualifying exigency leave because their employers have been unable to verify their leave requests. The Department also seeks information on whether employers have encountered any difficulties in making third party verifications, and if so, why and whether they have denied an employee leave as a result.

5. Section 825.310 Certification for Leave Taken To Care for a Covered Servicemember (Military Caregiver Leave)

Section 825.310 sets forth the certification process and the elements of a complete certification for military caregiver leave. Current § 825.310(a) permits an employer to require that a request for leave to care for a covered servicemember with a serious injury or illness be supported by a certification issued by an authorized health care provider, defined as: (1) A DOD health care provider; (2) a VA health care provider; (3) a DOD TRICARE network authorized private health care provider; or (4) a DOD non-network TRICARE authorized private health care provider. Thus, current paragraph (a) limits the type of health care providers who may complete a medical certification for military caregiver leave for current members of the military.

Proposed paragraph § 825.310(a)(5) adds health care providers, as defined by regulation in § 825.125, as a fifth component to the definition of an authorized health care provider from whom medical certification can be obtained for a serious injury or illness. The Department understands that in some circumstances, for example when seeking treatment for a mental health condition, some current servicemembers may wish to seek care from a health care provider unaffiliated with DOD. The Department believes that a family member of a current servicemember who is seeking treatment outside of the military's network for an injury or illness that was incurred or aggravated in the line duty on active duty should be eligible for FMLA leave under this provision. As such, the Department no longer believes that it is appropriate to limit a current servicemember's selection of health care provider more than it is limited for an individual seeking FMLA leave for a serious health condition. The expansion of authorized health care providers will apply equally to covered servicemembers who are covered veterans. The Department understands that veterans may use private health care providers rather than DOD, VA, TRICARE network health care providers, and some veterans may no longer be entitled to seek care through DOD or VA affiliated health care providers. Veterans may also be covered by the private health care plans of a spouse or parent and may utilize the services of private health care providers through these plans. Whether it is because there is no VA center in the area or due to other circumstances, the Department believes that families of veterans should be able to rely upon the determination of the veteran's own private health care provider, who otherwise meets the definition of an FMLA health care provider at § 825.125, in determining if the treated condition is a qualifying serious injury or illness. The Department also believes that expanding the pool of health care providers will avoid increasing the administrative burdens on the VA and DOD. The Department invites comment on the proposal to allow any FMLA health care provider as defined in § 825.125 to certify a serious injury or illness for military caregiver leave.

While the Department believes that it is appropriate to include as authorized health care providers under this section health care providers as defined in § 825.125, the Department is nonetheless concerned that private health care providers will not have the specialized information available to DOD, VA, and TRICARE network health care providers that is necessary to make several of the military-related determinations, and may need to obtain that information from DOD or VA in order to make a determination of whether the condition is related to the covered servicemember's service and/or whether the condition meets the definition of serious injury or illness. The Department seeks comments related to the available processes for a private health care provider to obtain information related to whether an injury or illness was incurred in the line of duty while on active duty or whether the covered servicemember's injury or illness existed before beginning service and was aggravated by service in the line of duty while on active duty. The Department also seeks comments on whether a covered servicemember will have a copy of medical records from his or her military service, or would the covered servicemember, or family member, be able to access medical records or other documentation that would support the determination that an injury or illness was incurred in the line of duty while on active duty, and the types of documentation that may be available to the covered servicemember or family member. Specific to veterans, the Department seeks comment on whether a veteran or family member has access to documentation of a VASRD disability rating.

Current § 825.310(b) sets forth the information an employer may request from the health care provider in order to support the employee's request for leave. The Department proposes to modify paragraphs (b)(1)-(4), as discussed below. The Department proposes no other changes to § 825.310(b). Current § 825.310(b) permits an authorized health care provider who is unable to make certain military determinations to rely on determinations from an authorized DOD representative. In light of the extension of military caregiver leave to covered veterans, proposed § 825.310(b) indicates that an authorized health care provider may rely on military-related determinations from an authorized DOD representative or an authorized VA representative. Current § 825.310(b)(1) allows an employer to request certain information from the health care provider. Consistent with the Department's proposal to allow covered servicemembers to utilize any health care provider as defined in § 825.125, the Department proposes to add a new provision (b)(1)(v) clarifying that the medical certification may be provided by a health care provider as defined by § 825.125.

Current paragraph (b)(2) allows an employer to request information that specifies whether the covered servicemember's injury or illness was

incurred in the line of duty while on active duty. The Department proposes to add language to this paragraph to allow an employer to obtain information that specifies whether the covered servicemember's injury or illness existed before beginning service and was aggravated by service in the line of duty while on active duty. The proposed language incorporates the FY 2010 NDAA statutory amendment to the definition of serious injury or illness which provides that a serious injury or illness for both current members of the military and covered veterans includes an injury or illness that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces. The Department seeks comment on what processes are or may be used to determine that an injury or illness existed prior to active duty service and was aggravated by service in the line of duty on active duty. Comment is also sought on the basis a non-DOD or non-VA health care provider would determine that an injury or illness is a condition that existed before the military member's service and was aggravated in the line of duty on active duty.

Current § 825.310(b)(3) allows an employer to request the approximate date on which the serious injury or illness commenced and its probable duration. In light of the statutory amendments to the definition of serious injury or illness, proposed § 825.310(b)(3) allows an employer to request the approximate date on which the serious injury or illness commenced or was aggravated and its probable duration.

Current § 825.310(b)(4) allows an employer to request a statement of appropriate medical facts regarding the covered servicemember's health condition for which leave is requested and specifies what medical facts must be included in a certification in order to support the need for leave. The Department proposes to move the description of what medical facts must be included in the certification for a serious injury or illness of a current member of the military from current § 825.310(b)(4) to proposed § 825.310(b)(4)(i). Proposed § 825.310(b)(4)(i) retains the same requirements as in current paragraph (b)(4) that a sufficient certification for a serious injury or illness of a current member of the military must include information on whether the injury or illness may render the current servicemember unfit to perform the duties of the servicemember's office, grade, rank, or rating and whether the servicemember is receiving medical treatment, recuperation, or therapy. The Department further proposes to describe in § 825.310(b)(4)(ii) what medical facts must be included in the certification for an injury or illness of a covered veteran. Proposed § 825.310(b)(4)(ii) states that a sufficient certification for a serious injury or illness of a covered veteran must include information on whether the veteran is receiving medical treatment, recuperation, or therapy for an injury or illness that is a continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces; involves a physical or mental condition for which the veteran has received a VASRD rating of 50 percent or higher, and that such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; or, a physical or mental condition that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment.

As noted earlier, the Department is considering adding enrollment into VA's Program of Comprehensive Assistance for Family Caregivers as another possible definition for establishing a qualifying serious injury or illness for a covered veteran. The Department seeks comments on whether the medical documentation required for enrollment in the VA's Program for Comprehensive Assistance for Family Caregivers provides sufficient medical facts to support the need for FMLA leave. The Department notes that under the current proposed definition of serious injury or illness of a veteran, medical documentation prepared in connection with the VA's Program of Comprehensive Assistance for Family Caregivers may be submitted as part of the FMLA certification process under proposed § 825.127(c)(2)(ii) and (c)(2)(iii). To the extent that additional information is necessary to establish a complete and sufficient FMLA certification (

i.e.,

information showing the relationship of the employee to the covered servicemember for whom the employee is requesting leave to care), the employee seeking leave would be responsible for providing the employer with the additional information.

Current § 825.310(c) outlines the information that employers may require from employees as part of the certification. No change is proposed to current § 825.310(c)(1)-(5). The Department proposes to add a new paragraph (c)(6) and renumber current paragraph (c)(6) as (c)(7). Proposed paragraph (c)(6) permits an employer to require that the employee or covered servicemember indicate whether the member is a veteran, the date of separation, and whether the separation was other than dishonorable. It also permits the employer to request documentation confirming this information, and permits the employee to provide a copy of the veteran's DD Form 214 or other proof of veteran status to satisfy such documentation requirement.

Current § 825.310(d) identifies an optional-use form that may be used to provide certification for military caregiver leave. As discussed above, the Department proposes to delete the forms from the Appendices and therefore proposes in paragraph (d) to delete the reference to Appendix H and instead to insert language stating that the applicable form may be obtained either from a local WHD office or the WHD Web site. The Department intends to amend current form WH-385 to reflect that a health care provider as defined in § 825.125 may certify a serious injury or illness for a current servicemember. The Department is also considering the development of a new form to capture the above identified information for military caregiver leave for a covered veteran. The Department seeks comments on whether it will be less confusing to develop two forms to use for military caregiver certification or whether adapting the current WH-385 would be preferable.

Current § 825.310(d) also provides that an employer may seek authentication and/or clarification of the certification for military caregiver leave; however, second and third opinions are not permitted. In the 2008 final rule, the Department reasoned that the statutory standard for determining whether a military member has a serious injury or illness is dependent on several determinations which can only be made by the military. Therefore, it would be inappropriate to permit second and third opinions regarding those determinations. 73 FR 68029. With the proposed change to allow families of covered servicemembers to rely upon the determination of health care providers unaffiliated with DOD, VA, or TRICARE, the certification process, when done by a private health care provider that is not one of the types identified in § 825.310(a)(1)-(4), is more akin to the certification process for the serious health condition of civilian family members. Therefore, the Department believes that in such situations there is no basis to prohibit employers from obtaining second and third opinions. Consequently, the

Department proposes in § 825.310(d) to state that second and third opinions are not permitted when the certification has been completed by one of the types of health care providers identified in § 825.310(a)(1)-(4), but second and third opinions are permitted when the certification has been completed by a health care provider that is not one of the types identified in § 825.310(a)(1)-(4). The Department seeks comment on the proposal to permit second and third opinions on military caregiver leave certifications that are completed by health care practitioners who are not affiliated with the military or VA.

No changes are proposed for § 825.310(e), which addresses the use of “invitational travel orders” (ITO) or “invitational travel authorizations” (ITA) issued for medical purposes, in lieu of a certification form, other than to update internal references. However, the Department seeks comment on the effectiveness of the substitution of ITOs and ITAs in support of a need for military caregiver leave.

Current § 825.310(f) states that it is the employee's responsibility to provide the employer with a complete and sufficient certification and describes the consequences of failing to do so. The Department proposes to add text that clarifies this requirement, providing that “an employee may not be held liable for administrative delays in the issuance of military documents, despite the employee's diligent, good-faith efforts to obtain such documents.” While current § 825.305(b) already provides that employees who are unable to provide requested FMLA certification (including certification for military caregiver leave) within 15 days despite their diligent, good faith efforts must be provided with additional time, the Department believes that it is important to reiterate this principle in § 825.310(f). As discussed in the preamble to the 2008 final rule, the Department acknowledges concerns regarding timely receipt of military documentation and hopes to clarify that employees may not be held responsible for administrative delays in the issuance of military documents where a good faith attempt is made by the employee to obtain such documents. 73 FR 68011.

B. Revisions To Implement the AFCTCA Amendments

1. Section 825.110 Eligible Employee

Current § 825.110 sets forth the eligibility standards an employee must meet in order to take FMLA leave. To be eligible, an employee must have been employed by the employer for at least 12 months, must have been employed for at least 1,250 hours of service in the 12-month period immediately preceding the commencement of the leave, and must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles. Whether an employee has worked the required 1,250 hours of service is based on FLSA hours-worked principles contained in 29 CFR 785. The Department proposes revisions to § 825.110(a), (c), and (d) to reflect the AFCTCA's expanded definition of the “hours of service” requirement for airline flight crew employees. No changes are proposed to § 825.110(b) and (e).

Section 825.110(a) sets forth the general employee eligibility requirements. In § 825.110(a)(2) the Department proposes to add a reference to proposed paragraph § 825.110(c)(2), which sets forth the hours of service requirement for airline flight crew employees. No other changes are proposed in § 825.110(a).

Current § 825.110(b)(2)(i) concerns determining an employee's eligibility when there is a break in service occasioned by the fulfillment of the employee's National Guard or Reserve military service. The Department proposes to modify the language in the first sentence to reference the Uniformed Services Employment and Reemployment Rights Act (USERRA) and to clarify that the protections afforded by USERRA extend to all military members (active duty and reserve) returning from USERRA-qualifying military service. Current § 825.110(c)(2) provides rules pursuant to USERRA for crediting an employee returning from a National Guard or Reserve obligation with the hours of service that would have been performed but for the military service when evaluating whether the “hours of service” eligibility requirement has been met. The Department proposes to renumber current paragraph (c)(2) as paragraph (c)(3) and to spell out the title of USERRA, which is currently referred to in this section by the acronym only. In addition, the Department proposes to modify the language in the first sentence of this paragraph in recognition that USERRA rights may extend to certain employees returning to civilian employment from service in the Regular Armed Forces. The Department also proposes to modify this paragraph to refer more generally to the hours of service requirement.

The AFCTCA requires employers to calculate hours of service for eligibility in a different manner for airline flight crew employees. The Department proposes to separately define the hours of service eligibility requirement for these employees in proposed § 825.110(c)(2) and (c)(3). The Department notes that the hours of service requirement will continue to be determined based on “hours worked” as defined under the FLSA for all employees other than airline flight crew employees. Proposed paragraph § 825.110(c)(2) states the AFCTCA requirement that the hours of service criteria will be met if during the previous 12-month period the airline flight crew employee has worked or been paid for not less than 60 percent of the applicable monthly guarantee and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation leave or sick or medical leave).

Proposed paragraph § 825.110(c)(2)(i) states the statutory definition of applicable monthly guarantee for airline flight crew employees on reserve and non-reserve status. The Department proposes to refer to airline flight crew employees who are not on reserve status as “line holders”, which the Department understands to reflect industry terminology. The applicable monthly guarantee is determined by the employer's policies or collective bargaining agreement and differs depending on whether the airline flight crew employee is a line holder or on reserve status and on the employee's job classification (

i.e.,

pilot, co-pilot, flight attendant, or flight engineer). For airline employees who are on reserve status, the applicable monthly guarantee means the number of hours for which an employer has agreed to pay the employee for any given month. For line holders, the applicable monthly guarantee is the minimum number of hours for which an employer has agreed to schedule such employee for any given month. It is the Department's understanding that the schedule for line holders is based on duty hours, and that duty hours include the

flight

or

block

hours as determined by the Federal Aviation Administration (FAA) as well as additional time before and after the flight as determined by employer policy or applicable collective bargaining agreement. The Department seeks comments on whether this is an accurate interpretation of what comprises the line holders' scheduled hours, or whether some other basis such as flight or block hours would be more appropriate for this calculation.

In § 825.110(c)(2)(ii) the Department proposes to base the number of hours that an airline flight crew employee has worked on the employee's duty hours during the previous 12-month period. While duty hours may not always reflect all hours that would be considered

hours worked under the FLSA, it is the Department's understanding that duty hours are closely tracked in a similar manner by all employers in the industry. Therefore, the Department believes that duty hours provide the most accurate and uniform basis for making eligibility determinations for hours of service for airline flight crew employees. Regarding the calculation of the number of hours that an airline flight crew employee has been paid, it is the Department's understanding that all airline flight crew employees are generally paid on an hourly basis, and that these hours are routinely tracked by each airline. The hours an airline flight crew employee has been paid is the number of hours for which an employee received wages during the previous 12-month period. As required by the AFCTCA, personal commute time, vacation, and medical or sick leave do not count towards the hours worked or paid calculation. The Department notes that airline flight crew employees are eligible if they have either the required number of “hours worked” or “hours paid”. The Department invites comments on whether these calculation methods for hours worked and hours paid are the most appropriate bases for determining whether an airline flight crew employee has worked or been paid for 504 hours during the previous 12-month period.

The Department proposes to renumber current paragraph § 825.110(c)(3), which explains an employer's burden when it does not maintain accurate records of hours worked for an employee, as new § 825.110(c)(4), and to add language clarifying the application of this rule to airline flight crew employees.

Finally, the Department proposes to replace the phrase “worked for the employer for at least 1,250 hours” in the first sentence of current § 825.110(d) with the more general “met the hours of service requirement”, to provide uniformity with the rest of the section in reflecting the AFCTCA requirements. The Department also proposes to replace the general reference to “eligibility requirements” in the second sentence of this paragraph with a specific reference to the “12-month eligibility requirement” to clarify the application of this principle.

The Department seeks comments on all aspects of the application of the AFCTCA eligibility provisions, particularly on the proposal to interpret the requirement of 504 hours worked to be 504 hours of duty time, as well as the Department's understanding that scheduled hours for line holders encompasses duty hours. The Department recognizes that the airline industry has unique timekeeping practices and it is the Department's intent to utilize existing industry records to make FMLA eligibility determinations.

2. Section 825.205 Increments of FMLA Leave for Intermittent or Reduced Schedule Leave

Section 825.205 of the current regulations explains how to count increments of leave in cases of intermittent or reduced schedule leave. The Department proposes several changes to this section. The changes implement the AFCTCA provisions and address how FMLA leave usage is counted for all employees.

Current § 825.205(a) defines the minimum increment of FMLA leave to be used when taken intermittently or on a reduced schedule as an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that it is not greater than one hour. The Department proposes to add language to paragraph (a)(1) stating that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave. This concept was included in § 825.203(d) of the 1995 final rule. The Department believes it is appropriate to reinsert it into the regulations to emphasize the statutory requirement that an employee's FMLA leave entitlement not be reduced beyond the amount of leave actually taken in accounting for leave taken on an intermittent or reduced schedule basis. 29 U.S.C. 2612(b)(1). The proposed regulatory text makes clear that this principle is subject to the increment of leave rule set forth in this paragraph as well as to the physical impossibility rule in paragraph (a)(2) and the special rules for intermittent leave for school employees in §§ 825.601 and 825.602. As explained in the 2008 final rule, the other situation in which an employee may use more FMLA leave than necessary to address the circumstances requiring leave is when the employee elects to substitute paid leave and must use a larger amount of leave in order to satisfy the employer's paid leave policy. In such instances, the entire period of leave taken is FMLA-protected and counts against the FMLA entitlement. 73 FR 67981. While an employer can require an employee to utilize a larger amount of FMLA leave than necessitated by the FMLA condition if the employee wishes to substitute paid leave, the employee always has the option to take unpaid FMLA leave in the smallest increment of leave used by the employer.

The Department also proposes to add to paragraph (a)(1) language from the preamble to the 2008 final rule that further clarifies two important aspects of the calculation of FMLA leave. First, the Department proposes to add an example to illustrate the principal that where an employer uses different increments to account for different types of leave (

e.g.,

sick leave in one-half hour increments and annual leave in increments of one hour), the employer must use the smallest of the increments to account for FMLA leave usage. 73 FR 67976. Additionally, the Department proposes to clarify in the regulatory text that FMLA leave may only be counted against an employee's FMLA entitlement for leave taken and not for time that is worked for the employer.

Id.

Accordingly, where an employer chooses to waive its increment of leave policy in order to return an employee to work—for example where an employee arrives a half hour late to work due to an FMLA-qualifying condition and the employer waives its normal one hour increment of leave and puts the employee to work immediately—only the amount of leave actually taken by the employee may be counted against the FMLA entitlement. The Department believes these clarifications in the regulatory text will aid employers and employees in understanding the application and counting of FMLA leave usage.

Current § 825.205(a)(1) also permits employers to utilize different increments of FMLA leave at different times of the day or shift under certain circumstances. Under this provision, for example, if an employer utilizes a larger increment of leave at the beginning or the end of a shift an employee needing FMLA leave during those periods may be required to take the leave in the size of the smallest increment of leave permitted at that particular time. The Department's enforcement experience indicates some confusion regarding this provision including some employers who have interpreted this language to permit the use of a larger increment of FMLA leave at certain points in a shift than the increment used for other forms of leave in the same time period. Consequently, the Department proposes to remove the language allowing for varying increments at different times of the day or shift in favor of the more general principle of using the employer's shortest increment of any type of leave at any time. The Department requests comment on the proposal to remove this language from the regulations.

Current § 825.205(a)(2) sets forth the physical impossibility provision which provides that where it is physically impossible for an employee to commence or end work mid-way through a shift, the entire period that the employee is forced to be absent is counted against the employee's FMLA leave entitlement. The Department has reviewed this position in connection with the AFCTCA because of the impact of the physical impossibility provision on the airline industry. As discussed in the preamble to the 2008 final rule, the physical impossibility provision is intended to apply only in very narrow circumstances. 73 FR 67977. The Department is concerned, however, that the provision may be being applied more broadly than intended. Accordingly, the Department proposes adding language at paragraph (a)(2) emphasizing that it is an employer's responsibility to restore an employee to his or her same or equivalent position at the end of any FMLA leave as soon as possible. The proposed language further emphasizes the Department's intent that the physical impossibility provision be applied in only the most limited circumstances and only where it is, in fact, physically impossible to allow the employee to leave his or her shift early or to restore the employee to his or her same position or to an equivalent position at the time the employee no longer needs FMLA leave. Thus, for example, if after three hours of FMLA leave use it was physically possible to restore a flight crew employee to another flight, the employer would be required to do so. If, however, no other flight is available to which the employee could be assigned, or no other equivalent work is available, restoration could be delayed and the employee's FMLA entitlement reduced for the entire period the employee is forced to be absent. The Department reiterates that employers have an obligation not to discriminate between employees taking FMLA leave and employees taking other forms of leave in restoring employees or offering alternative work. 73 FR 679678. Alternatively, the Department is considering deleting the physical impossibility provision in its entirety. The 2008 final rule explained that the Department intended the provision to protect employees from discipline when a short FMLA-protected absence resulted in a much longer absence because of the unique nature of the worksite. 73 FR 67977. However, the Department is concerned that this exception may be misused, delaying restoration in instances where restoration to an equivalent position is possible or where restoration to the same position may be possible but inconvenient to the employer. The Department seeks comments on whether the physical impossibility provision has indeed protected employees from inappropriate discipline, or if it has been misused to unduly extend employees' FMLA leave and diminish their FMLA entitlement, and whether it should be retained in the regulations.

Current § 825.205(b) addresses the rules concerning the calculation of leave usage when leave is taken on an intermittent or reduced leave schedule (calculation of leave for airline flight crew employees is separately addressed in § 825.205(d)). The Department proposes only clarifying changes to this paragraph. The Department proposes to include in the regulatory text language from the 2008 final rule preamble to reinforce the requirement that the employee's total available entitlement is 12 workweeks (or 26 workweeks in the case of military caregiver leave), that FMLA leave does not accrue at any particular hourly rate, and that the specific number of hours contained in the workweek is dependent upon the hours the employee would have worked but for the taking of the FMLA leave. 73 FR 67978. The Department also proposes minor edits making uniform the references to fractions contained in this paragraph.

Current § 825.205(c) addresses when overtime hours that are not worked may be counted as FMLA leave. The Department proposes to change the term “serious health condition” in the last sentence in paragraph (c) to “FMLA qualifying reason.” This editorial change is consistent with the language used in the first sentence of the paragraph and more accurately reflects that overtime hours missed by an employee may be due to any FMLA-qualifying reason and are not limited to a serious health condition.

Proposed § 825.205 (d)(1) provides the method for calculating leave usage for airline flight crew employees who are line holders and is based on principles established for the calculation of leave for all employees found in paragraph (b)(1) of this section. For line holders, the number of duty hours scheduled will be used in determining the employee's workweek for purposes of calculating FMLA leave usage. Duty hours scheduled means the hours that the individual employee is scheduled to work in the workweek in which FMLA leave is needed. It is the Department's understanding that the line or block awarded to the employee would readily yield the duty hours scheduled for any given week. Further, it is the Department's understanding that duty hours include the flight or block hours as determined by the FAA, as well as the additional time before and after the flight encompassing pre- and post-flight duties, as determined by employer policy or applicable collective bargaining agreement. The Department believes the employee's duty time best represents the time spent on the job and provides an accurate characterization of the time needing job protection in the event FMLA leave is needed by the employee.

Proposed paragraph (d)(2) of this section provides the method for calculating leave usage for airline flight crew employees on reserve status. The Department proposes to base the leave entitlement and calculation of the employee's workweek on an average of the greater of the applicable monthly guarantee or actual duty hours worked over the prior 12 months. Under this proposal, the employee's average workweek would be calculated by adding the greater of the applicable monthly guarantee (the number of hours for which an employer has agreed to pay the employee for any given month) or actual duty hours worked in each of the previous 12 months and dividing by 52 weeks per year. This average workweek would be the basis for FMLA leave usage for the 12-month FMLA leave year. For example, if a reserve flight attendant has worked or been paid an average of 20 hours per week over the prior 12 months, the employee would be entitled to 12 workweeks of 20-hours for FMLA leave (or 26 workweeks in the case of leave to care for a covered servicemember). If the flight attendant needs four hours of FMLA leave in one workweek, the employee would use one-fifth (

1/5

) of a workweek (4 hours ÷ 20 hours/workweek). The principles established for the calculation of leave for all employees found in paragraph (b)(1) of this section continues to apply to these airline flight crew employees. Due to the Department's understanding of the variation in scheduling and actual hours worked by reserve airline flight crew employees and variation during different times of the year, the Department proposes this averaging method for calculating FMLA leave usage. The Department acknowledges that, as with any averaging method, actual workweeks will vary in any given situation.

In developing a proposed method to calculate FMLA-leave usage for airline flight crew employees on reserve status, the Department considered a methodology based on FLSA principles of “hours worked,” as is used for

employees other than airline flight crew employees. However, airline flight crew employees are not paid strictly on a FLSA “hours worked” basis but rather based in part on the applicable monthly guarantee. Airline flight crew employees on reserve status may work all, few, or none of the hours for which they are paid in a given month. Thus, after considering applying the FLSA “hours worked” method of leave calculation to airline flight crew employees, the Department concluded that the unique way in which airline flight crew employees are scheduled and paid made this methodology impracticable. Through consultations with airline employers and employee representatives, the Department understands that airlines are already tracking and recording airline flight crew employees' hours in a number of ways pursuant to FAA regulations, including flight hours, duty hours, and mandatory rest periods.

See

14 CFR pt. 91. The Department believes that imposing a FLSA “hours worked” methodology on the airline industry and thus mandating yet another recordkeeping system would be unduly burdensome and costly for employers, as well as unnecessarily confusing for employees.

Rather, the Department believes the method of averaging in proposed paragraph (d)(2) is better suited to the variable scheduling of reserve airline flight crew members. Additionally, the method proposed is consistent with current § 825.205(b)(3), which provides that, where an employee's schedule varies from week to week to such an extent the employer is unable to determine the hours the employee would have worked but for the taking of FMLA leave, the employer has the option to establish a leave entitlement by using the weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period. The Department believes proposed paragraph (d)(2) is consistent with current FMLA calculation methods, best reflects Congressional intent, and will provide access to FMLA leave for the largest number of flight crew employees without requiring dramatic changes to existing industry systems.

The Department also understands that some line holders may also request additional work in reserve status. Where an employee is both a line holder and on reserve status, the Department proposes that the leave calculation should be made using the method set forth for reserve airline flight crew employees, as this method is flexible enough to encompass both the applicable monthly guarantee and duty hours. The Department requests comment on industry practice in this area and application of the FMLA regulations to such a scenario. The Department also seeks comment on the proposed calculation of leave methods for both line holders and airline flight crew employees on reserve status and welcomes suggestions for alternative methods that equitably reflect the employee's total normally scheduled hours and actual FMLA leave taken.

3. Section 825.500 Recordkeeping Requirements

Current § 825.500 details the recordkeeping requirements under the FMLA. The Department proposes to add a new sentence at the end of paragraph (g) setting forth the employer's obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). To the extent that records and documents created for FMLA purposes contain “family medical history” or “genetic information” as defined in the GINA, employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.

The Department proposes to define in a new paragraph (h) the statutory requirement that employers of airline flight crew employees maintain on file with the Secretary certain records. Consistent with other recordkeeping requirements, proposed paragraph (h) makes clear that records are to be maintained by the employer by making, keeping, and preserving records in accordance with the requirements already delineated in § 825.500, with no actual submission to the Secretary unless requested.

Additionally, proposed paragraph (h)(1) outlines additional records that are required to be kept specific to employers of airline flight crew employees. These additional records include any records or documents that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies, including any relevant collective bargaining agreements or employer policy documents that establish the applicable monthly guarantee; as well as records of hours scheduled, in order to be able to apply the leave calculation principles contained in proposed § 825.205(d).

C. Proposed Revisions to Forms, Appendices, and Definitions

1. Section 825.300 Employee and Employer Rights and Obligations Under the Act

As previously discussed, the Department is proposing to delete the Appendices to part 825 and to provide copies of the optional use forms and the poster through local Wage and Hour Offices and the Wage and Hour Web site. References to the Appendices have been deleted from the following sections: § 825.300 (Employer notice requirements), § 825.306 (Content of medical certification for leave taken because of an employee's own serious health condition or the serious health condition of a family member), § 825.309 (Certification for leave taken because of a qualifying exigency), § 825.310 (Certification for leave taken to care for a covered servicemember (military caregiver leave)), and § 825.800 (Definitions). The Department also proposes minor edits to § 825.300 to reflect provisions of the FY 2010 NDAA and AFCTCA.

2. Section 825.800 Definitions

The current § 825.800 contains the definitions of significant terms, phrases, and acronyms used in the regulations. The Department proposes to move this section of the regulations to § 825.102. This reorganization is intended to enhance the utility of the regulations by defining terms before they are used and in advance of the substantive provisions. Moving the definitions section to the beginning of the regulations is consistent with other regulations implementing statutes administered by the WHD.

The Department proposes to make changes to definitions and regulatory references in this section to maintain consistency with the Department's proposed changes to the regulatory text. Specifically, the terms modified are

covered servicemember, eligible employee,

serious injury or illness,

and

son or daughter on covered active duty or an impending call or order to covered active duty.

Only the references were updated to

contingency operation, next of kin of a covered servicemember,

outpatient status, parent of a covered servicemember,

and

son or daughter of a covered servicemember.

In addition, the Department proposes terms be added or removed to reflect the regulatory changes made to incorporate the FY 2010 NDAA and AFCTCA amendments to the regulations. The terms added are

airline flight crew employee, covered active duty or call to covered active duty status,

applicable

monthly guarantee, line holder,

and

covered veteran.

The terms removed are

active duty or call to active duty status

and

covered military member.

The Department also proposes to add terms previously not listed in this section but used in the current regulations and unchanged by this NPRM as an aid and service to the reader. These terms are

ITO or ITA, key employee,

military caregiver leave, reserve components of the Armed Forces,

and

TRICARE.

IV. Paperwork Reduction Act

In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR part 1320, the Department seeks to minimize the paperwork burden for individuals, small businesses, educational and non-profit institutions, Federal contractors, State, local, and tribal governments, and other persons resulting from the collection of information by or for the agency. The PRA typically requires an agency to provide notice and seek public comments on any proposed collection of information contained in a proposed rule.

See

44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. Persons are not required to respond to the information collection requirements as contained in this proposal unless and until they are approved by the Office of Management and Budget (OMB) under the PRA at the final rule stage.

This paperwork burden analysis estimates the burdens for the proposed regulations as drafted. The proposed regulations, as they relate to the PRA, implement amendments to the military leave provisions made by the FY 2010 NDAA, which extends the availability of FMLA leave for qualifying exigencies to employee-family members of members of the Regular Armed Forces and defines the deployments covered by such leave, and extends FMLA military caregiver leave to employee-family members of certain veterans with a serious injury or illness and expands the provision of such leave to cover serious injuries or illnesses that existed prior to a covered servicemember's active duty and were aggravated in the line of duty while on active duty. The proposed regulations also implement the AFCTCA, which establishes new eligibility requirements for airline flight crew members and flight attendants.

As will be more fully explained later, many of the estimates in the analysis of the paperwork requirements derive from data developed for the Preliminary Regulatory Impact Analysis (PRIA) under Executive Orders 13563 and 12866. However, the specific needs that the PRA analysis and PRIA are intended to meet often require that the data undergo a different analysis to estimate burdens imposed by the paperwork requirements from the analysis used in estimating the effect the regulations will have on the economy. In addition for certain sections, a range of values is provided in the PRIA; the PRA uses the midpoint of those ranges. Consequently, the differing treatment that must be undertaken in the PRA analysis and the PRIA of the proposed regulatory changes may result in different results. For example, the PRA analysis measures the additional burden of the information collection on those who are providing information due to the proposed regulatory changes; however, the PRIA measures the incremental changes expected to result in the broader economy due to the proposed regulatory changes. Thus, this PRA analysis will calculate the additional paperwork burden in relation to the existing FMLA information collection burden arising from this rule. Conversely, the regulatory definition for collection of information for PRA purposes specifically excludes the public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public. 5 CFR 1320.3(c)(2). The PRIA, however, may need to consider the impact of any regulatory changes in such notifications provided by the government. Finally, the PRA definition of “burden” can exclude the time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the normal course of their activities (

e.g.,

in compiling and maintaining business records) if the agency demonstrates that the reporting, recordkeeping, or disclosure activities needed to comply are usual and customary. 5 CFR 1320.3(b)(2). The PRIA, however, must consider the economic impact of any changes in the proposed regulation.

Circumstances Necessitating Collection:

The FMLA requires private sector employers of 50 or more employees and public agencies to provide up to 12 weeks of unpaid, job-protected leave during any 12-month period to eligible employees for certain family and medical reasons (

i.e.,

for the birth of a son or daughter and to care for the newborn child; for placement with the employee of a son or daughter for adoption or foster case; to care for the employee's spouse, son, daughter, or parent with a serious health condition; to care for the employee's own serious health condition that makes the employee unable to perform the functions of his or her job; and to address qualifying exigencies related to the military call up of a spouse, son, daughter, or parent), and to provide up to 26 weeks of unpaid, job-protected leave during a single 12-month period to eligible employees to provide military caregiver leave to a covered servicemember. FMLA section 404 requires the Secretary of Labor to prescribe such regulations as necessary to enforce this Act. 29 U.S.C. 2654. The proposed regulations, which primarily pertain to the expansion of the military family leave entitlements and the expansion of FMLA protections to airline flight crews, will create additional burdens on the following information collections.

A.

Notice to Employee of FMLA Eligibility and Rights and Responsibilities

[29 CFR 825.300(b) and (c)]. When an employee requests FMLA leave or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying condition, the employer must notify the employee within five business days of the employee's eligibility to take FMLA leave, or, alternatively, at least one reason why the employee is not eligible for FMLA leave (

e.g.,

applicable number of months the employee has been employed by the employer, the number of hours of service in the 12-month period, whether the employee is employed at a worksite where 50 employees are employed at or within 75 miles of that worksite.) At the same time that the employer provides eligibility notice, the employer must provide information detailing the specific responsibilities of the employee, including any additional requirements for qualifying for FMLA leave, and explain any consequences of a failure to meet these responsibilities. If the specific information provided by the notice changes, the employer must inform the employee of the change within five business days of receipt of the employee's first notice of the need for FMLA leave subsequent to such change.

B.

Designation Notice

[29 CFR 825.300(d)]. The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee. When the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave. Only one notice of designation is required for each FMLA-qualifying reason per

applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave.

C.

Medical Certification and Recertification

[29 CFR 825.100(d) and 825.305 through 825.308]. An employer may require that an employee's leave to care for the employee's seriously ill spouse, son, daughter, or parent, or due to the employee's own serious health condition that makes the employee unable to perform one or more essential functions of the employee's position, be supported by a certification issued by the health care provider of the eligible employee or of the ill family member. The employer must provide notice of this requirement in writing. The employer may contact the employee's health care provider for purpose of authentication and clarification of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies. In addition, an employer must advise an employee whenever it finds a certification incomplete or insufficient and state in writing what additional information is necessary to make the certification complete and sufficient. An employer, at his or her own expense and subject to certain limitations, also may require an employee to obtain a second and third medical opinion. In addition, an employer may also request recertification under certain conditions. The employer must provide the employee at least 15 calendar days to provide the initial certification and any subsequent recertification. The employer must provide seven calendar days (unless not practicable under the particular circumstances despite the employee's good faith efforts) to cure any deficiency identified by the employer.

D.

Fitness-for-duty Medical Certification

[29 CFR 825.100(d) and 825.312]. As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (

i.e.,

same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate in providing a complete and sufficient certification to the employer in the fitness-for-duty certification process as in the initial certification process. An employer is permitted to require an employee to furnish a fitness-for-duty certificate every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist concerning the employee's ability to perform his job.

E.

Qualifying Exigency Leave

[29 CFR 825.309]. Under the FY 2010 NDAA, qualifying exigency leave was expanded to include the members of the Regular Armed Forces along with members of the National Guard and Reserves, and to require that the deployment of both types of military members be to a foreign country. Section 825.309 establishes that an employer may require an employee to provide certification of the servicemember's covered active duty or call to covered active duty status. Pursuant to current § 825.309(a), the employee may provide a copy of the servicemember's active duty orders or other documentation issued by the military which indicates that the servicemember is on active duty or has been notified of an impending call or order to active duty and the dates of the servicemember's active duty service. Current section 825.309(b) establishes that when leave is taken for one of the qualified exigencies specified in § 825.126, an employer may require the eligible employee to provide certification that sets forth certain information. Current section 825.309(c) describes the optional use form developed by the Department for employees' use in obtaining certification that meets the FMLA's certification requirements. Current section 825.309(d) establishes the verification process for the certifications.

F.

Leave to Care for a Covered Servicemember

[29 CFR 825.310]. The FY 2010 NDAA expanded the definition of covered servicemember to include veterans, and permitted eligible employees to take leave to care for certain veterans with a qualifying serious injury or illness. It also permits leave to be taken for a covered servicemember whose previously existing condition was aggravated by service in the line of duty on active duty, and in the case of veterans, when the serious illness or injury manifested before or after the servicemember became a veteran. When an eligible employee requests FMLA leave to care for a covered servicemember with a serious injury or illness, the employer may require the employee to provide sufficient certification of the serious injury or illness issued by an authorized health care provider. Current section 825.310(a) permits an employer to require that certain necessary information support the request for leave and defines the health care providers who are authorized to provide such certification. Current section 825.310(b) and (c) set forth the information an employer may require from the authorized health care provider and the employee, respectively, in order to support the request for leave. Current section 825.310(d) describes the optional form developed by WHD for employees' use in obtaining certification that meets the FMLA's certification requirements. Current section 825.310(e) describes alternatives to the optional form that employers must accept from employees obtaining certifications in certain circumstances.

G.

Notice to Employees of Change of 12-Month Period for Determining FMLA Entitlement

[29 CFR 825.200(d)(1)]. An employer generally must choose a single uniform method from four options available under the regulations for determining the 12-month period in which the 12-week entitlement occurs for the purposes of FMLA leave. An employer wishing to change to another alternative is required to give at least 60 days notice to all employees.

H.

Key Employee Notification

[29 CFR 825.216(b), 825.217 through 825.219 and 825.300(c)(1)(v)]. An employer that believes that it may deny reinstatement to a key employee must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer's operations would result if the employer were to reinstate the employee from FMLA leave. If the employer cannot immediately give such notice, because of the need to determine whether the employee is a key employee, the employer must give the notice as soon as practicable after receiving the employee's notice of a need for leave (or the commencement of leave, if earlier). If an employer fails to provide such timely notice, it loses its right to deny restoration, even if substantial and grievous economic injury will result from reinstatement.

As soon as an employer makes a good faith determination—based on the facts available—that substantial and grievous economic injury to its operations will result if a key employee who has given notice of the need for FMLA leave or is

using FMLA leave is reinstated, the employer must notify the employee in writing of its determination; that the employer cannot deny FMLA leave; and that the employer intends to deny restoration to employment on completion of the FMLA leave. The employer must serve this notice either in person or by certified mail. This notice must explain the basis for the employer's finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.

An employee may still request reinstatement at the end of the leave period, even if the employee did not return to work in response to the employer's notice. The employer must then determine whether there will be substantial and grievous economic injury from reinstatement, based on the facts at the time. If the employer determines that substantial and grievous economic injury will result from reinstating the employee, the employer must notify the employee in writing (in person or by certified mail) of the denial of restoration.

I.

Periodic Employee Status Reports

[825.300(c)(2) and 825.311]. An employer may require an employee to provide periodic reports regarding the employee's status and intent to return to work.

J.

Notice to Employee of Pending Cancellation of Health Benefits

[29 CFR 825.212(a)]. Unless an employer establishes a policy providing a longer grace period, an employer's obligation to maintain health insurance coverage ceases under FMLA if an employee's premium payment is more than 30 days late. In order to drop the coverage for an employee whose premium payment is late, the employer must provide written notice to the employee that the payment has not been received. Such notice must be mailed to the employee at least 15 days before coverage is to cease and advise the employee that coverage will be dropped on a specified date at least 15 days after the date of the letter unless the payment has been received by that date.

K.

Documenting Family Relationship

[29 CFR 825.122(j)]. Current section 825.122(j) permits an employer to require an employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a child's birth certificate, a court document, or a simple statement of the employee regarding family relationship. The employee is entitled to the return of any official document submitted for this purpose.

L.

Recordkeeping

[29 CFR 825.500]. The FMLA provides that covered employers shall make, keep, and preserve records pertaining to the FMLA in accordance with the recordkeeping requirements of Fair Labor Standards Act section 11(c), 29 U.S.C. 211(c), and regulations issued by the Secretary of Labor. 29 U.S.C. 2616. The FMLA provides that no employer or plan, fund, or program shall be required to submit books or records more than once during any 12-month period unless the Department has reasonable cause to believe a violation of the FMLA exists or is investigating a complaint. 29 U.S.C. 2616(c).

Current section 825.500(c) requires employers to maintain basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid; dates FMLA leave is taken by FMLA eligible employees (available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA; if FMLA leave is taken by eligible employees in increments or less than one full day, the hours of leave; copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all written notices given to employees as required under FMLA and these regulations; any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave; premium payments of employee benefits; records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement. Under the AFCTCA amendment, employers in the airline industry must also maintain records that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies and must make these records available to the Secretary of Labor upon request.

Current section 825.500(d) requires covered employers with no eligible employees to maintain certain basic payroll and identifying employee data. Current section 825.500(e) requires covered employers that jointly employ workers with other employers to keep all the records required by the regulations with respect to any primary employees, and to keep certain basic payroll and identifying employee data with respect to any secondary employees.

Current section 825.500(f) provides that if FMLA-eligible employees are not subject to FLSA recordkeeping regulations for purposes of minimum wage or overtime compliance (

i.e.,

not covered by, or exempt from, FLSA), an employer need not keep a record of actual hours worked (as otherwise required under FLSA, 29 CFR 516.2(a)(7)), provided that: Eligibility for FMLA leave is presumed for any employee who has been employed for at least 12 months; and with respect to employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee agree on the employee's normal schedule or average hours worked each week and reduce their agreement to a written record.

Current section 825.500(g) requires employers to maintain records and documents relating to any medical certification, recertification, or medical history of an employee or employee's family member, created for FMLA purposes as confidential medical records in separate files/records from the usual personnel files. Employers must also maintain such records in conformance with any applicable Americans with Disability Act (ADA) confidentiality requirements; except that: Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the employee's physical or medical condition might require emergency treatment; and government officials investigating compliance with the FMLA, or other pertinent law, shall be provided relevant information upon request. To the extent that records and documents created for FMLA purposes contain “family medical history” or “genetic information” as defined in the Genetic Information Nondiscrimination Act of 2008 (GINA), employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.

The FLSA record keeping requirements, contained in 29 CFR part 516, are currently approved under Office of Management and Budget (OMB) control number 1235-0018; consequently this information does not duplicate their burden, despite the fact that for the administrative ease of the regulated community this information collection restates them.

Purpose and Use:

The Department created optional use forms: WHD Publication 1420, WH-380-E, WH-380-F, WH-381, WH-382, WH-384, and WH-385, and is considering the creation of a new optional use form for the certification of leave to care for a covered veteran, to assist employers and employees in meeting their FMLA third party notification obligations. WHD Publication 1420 allows employers to satisfy the general notice requirement.

See

§ 825.300(a). Form WH-380-E allows an employee requesting FMLA-leave for his or her own serious health condition to satisfy the statutory requirement to furnish, upon the employer's request, appropriate certification to support the need for leave for the employee's own serious health condition.

See

§ 825.305(a). Form WH-380-F allows an employee requesting FMLA-leave for a family member's serious health condition to satisfy the statutory requirement to furnish, upon the employer's request, appropriate certification to support the need for leave for the family member's serious health condition.

See

§ 825.305(a). Form WH-381 allows an employer to satisfy the regulatory requirement to provide employees taking FMLA leave with written notice concerning eligibility status and detailing specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.

See

§ 825.300(b) and (c). Form WH-382 allows employers to satisfy the regulatory requirement of designating leave as FMLA-qualifying.

See

§ 825.301(a). Form WH-384 allows an employee requesting FMLA leave based on a qualifying exigency to satisfy the statutory requirement to furnish, upon the employer's request, appropriate certification to support leave for a qualifying exigency.

See

§ 825.309. Form WH-385 currently allows an employee requesting FMLA leave based on an active duty covered servicemember's serious injury or illness to satisfy the statutory requirement to furnish, upon the employer's request, a medical certification from an authorized health care provider.

See

§ 825.310. The Department is considering the development of a separate optional form for the certification for a serious injury or illness of a covered veteran, or alternatively amending form WH-385 to cover certification of the serious injury or illness of both an active duty servicemember and a covered veteran.

While use of the Department's forms is optional, the regulations require employers and employees to make the third-party disclosures that the forms cover. The FMLA third-party disclosures ensure that both employers and employees are aware of and can exercise their respective rights and meet their respective obligations under the FMLA. The recordkeeping requirements are necessary in order for the Department to carry out its statutory obligation under FMLA § 106, 29 U.S.C. 2616, to investigate and ensure employer compliance. The WHD uses these records to determine employer compliance.

Information Technology:

The proposed regulations continue to prescribe no particular order or form of records.

See

§ 825.500(b). The preservation of records in such forms as microfilm or automated word or data processing memory is acceptable, provided the employer maintains the information and provides adequate facilities to the Department for inspection, copying, and transcription of the records. In addition, photocopies of records are also acceptable under the regulations.

Id.

Aside from the basic requirement that third-party notifications be in writing, with the possible exception for the employee's FMLA request (which depends on the requirements of the employer's leave policies), there are no restrictions on the method of transmission. Employers and employees may meet many of their notification obligations by using DOL-prepared forms and publications available on the WHD Web site,

www.dol.gov/whd.

These forms are in a PDF, fillable format for downloading and printing. Employers may keep records that comply with the recordkeeping requirements covered by this information collection in any form, including electronic.

Minimizing Duplication:

The FMLA information collections do not duplicate other existing information collections. In order to provide all relevant FMLA information in one set of requirements, the recordkeeping requirements restate a portion of the records employers must maintain under the FLSA. Employers do not need to duplicate the records when basic records maintained to meet FLSA requirements also document FMLA compliance. With the exception of records specifically tracking FMLA leave, the additional records required by the FMLA regulations, including records that must be maintained by covered employers in the airline industry as outlined in proposed § 825.500(h), are records that employers ordinarily maintain in the usual and ordinary course of business. The regulations do impose, however, a three-year minimum time limit that employers must maintain the records. The Department minimizes the FMLA information collection by accepting records maintained by employers as a matter of usual or customary business practices to the extent those records meet FMLA requirements. The Department also accepts records kept due to other governmental requirements (

e.g.,

records maintained for tax and payroll purposes). The Department has reviewed the needs of both employers and employees to determine the frequency of the third-party notifications covered by this collection to establish frequencies that provide timely information with the least burden. The Department has further minimized any burden by developing prototype notices for the third-party disclosures covered by this information collection.

Agency Need:

The Department is assigned a statutory responsibility to ensure employer compliance with the FMLA. The Department uses records covered by the FMLA information collection to determine compliance, as required of the agency by FMLA § 107(b)(1). 29 U.S.C. 2617(b)(1). Without the third-party notifications required by the law and/or regulations, employers and employees would have difficulty knowing their FMLA rights and obligations.

Special Circumstances:

Because of the unforeseeable and often urgent nature of the need for FMLA leave, notice and response times must be of short duration to ensure that employers and employees are sufficiently informed and can exercise their FMLA rights and obligations. The discussion above outlines the circumstances necessitating the information collection and provides the details of when employees and employers must provide certain notices.

Public Comments:

The Department seeks public comments regarding the burdens imposed by the information collection contained in this proposed rule. In particular, the Department seeks comments that evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have

practical utility; evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; enhance the quality, utility, and clarity of the information to be collected; and minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,

e.g.,

permitting electronic submissions of responses. Commenters may send their views about these information collections to the Department in the same way as all other comments (

e.g.,

through the regulations.gov Web site). All comments received will be made a matter of public record, and posted without change to

http://www.regulations.gov,

including any personal information provided.

An agency may not conduct an information collection unless it has a currently valid OMB approval, and the Department has submitted the identified information collection contained in the proposed rule to OMB for review under the PRA under Control Number 1235-0003.

See

44 U.S.C. 3507(d); 5 CFR 1320.11. While much of the information provided to the OMB in support of the information collection request appears in this preamble, interested parties may obtain a copy of the full supporting statement by sending a written request to the mail address shown in the

ADDRESSES

section at the beginning of this preamble or by visiting the

http://www.reginfo.gov/public/do/PRAMain

Web site.

In addition to having an opportunity to file comments with the Department, comments about the FMLA information collection requirements may be addressed to the OMB. OMB encourages commenters to submit comments by emailing them to

OIRA_submissions@omb.eop.gov

or faxing them to (202) 395-7285. While commenters are encouraged to email or fax their comments to OMB to ensure timely receipt of comments, commenters may mail OMB their comments by using the following mailing address: Office of Information and Regulatory Affairs, Attention: OMB Desk Officer for the Wage and Hour Division, Office of Management and Budget, 725 17th Street NW., Room 10235, Washington, DC 20503.

Confidentiality:

Much of the information covered by this information collection consists of third-party disclosures. Employers generally must maintain records and documents relating to any medical certification, recertification, or medical history of an employee or employee's family members as confidential medical records in separate files/records from usual personnel files. Employers must also generally maintain such records in conformance with a

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