The Family and Medical Leave Act of 1993

SUMMARY: This document provides the text of final regulations

implementing the Family and Medical Leave Act of 1993, Public Law 103-

3, 107 Stat. 6 (29 U.S.C. 2601 et seq.) (FMLA or Act). FMLA generally

requires private sector employers of 50 or more employees, and public

agencies, to provide up to 12 workweeks of unpaid, job-protected leave

to eligible employees for certain specified family and medical reasons;

to maintain eligible employees' pre-existing group health insurance

coverage during periods of FMLA leave; and to restore eligible

employees to their same or an equivalent position at the conclusion of

their FMLA leave.

EFFECTIVE DATE: These rules are effective on February 6, 1995.

FOR FURTHER INFORMATION CONTACT: J. Dean Speer, Director, Division of

Policy and Analysis, Wage and Hour Division, Employment Standards

Administration, U.S. Department of Labor, Room S-3506, 200 Constitution

Avenue, NW., Washington, DC 20210; telephone (202) 219-8412. This is

not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

Recordkeeping requirements contained in these regulations

(Sec. 825.500) have been reviewed and approved for use through July

1996 by the Office of Management and Budget (OMB) and assigned OMB

control number 1215-0181 under the Paperwork Reduction Act of 1980

(Pub. L. 96-511). No substantive changes have been made in this final

rule which affect the recordkeeping requirements and estimated burdens

previously reviewed and approved under OMB control number 1215-0181.

Comments received regarding the estimate of public reporting burden for

the information collection requirements contained in these regulations

are discussed below in connection with Sec. 825.500.

II. Background

The FMLA was enacted on February 5, 1993. In general, FMLA entitles

an ``eligible employee'' to take up to a total of 12 workweeks of

unpaid leave during any 12-month period for the birth of a child and to

care for such child, for the placement of a child for adoption or

foster care, to care for a spouse or an immediate family member with a

serious health condition, or when he or she is unable to work because

of a serious health condition. Employers covered by the law are

required to maintain any pre-existing group health coverage during the

leave period and, once the leave period is concluded, to reinstate the

employee to the same or an equivalent job with equivalent employment

benefits, pay, and other terms and conditions of employment.

Title I of the Act 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.

These regulations, 29 CFR Part 825, implement Title I of the FMLA.

Similar leave entitlement provisions in Title II of the FMLA apply to

most other Federal civil service employees who are covered by the

annual and sick leave system established under 5 U.S.C. Chapter 63,

plus certain employees covered by other Federal leave systems. The U.S.

Office of Personnel Management (OPM) administers the regulations

implementing Title II of the FMLA (see 5 CFR Part 630). Title III

established a temporary ``Commission on Leave,'' which is to conduct a

comprehensive study and produce a report on existing and proposed

policies on leave and the costs, benefits, and impact on productivity

of such policies. Title IV contains miscellaneous provisions, including

rules governing the effect of the Act on more generous leave policies,

other laws, and existing employment benefits. Title V extended similar

leave provisions to certain employees of the U.S. Senate and the U.S.

House of Representatives.

Section 404 of the Act required the Department of Labor to issue

regulations to implement Title I and Title IV of FMLA within 120 days

of enactment, or by June 5, 1993, with an effective date of August 5,

1993. Title I of FMLA became effective on August 5, 1993, except where

a collective bargaining agreement (CBA) was in effect on that date, in

which case the provisions took effect on the date the CBA terminated or

on February 5, 1994, whichever date occurred earlier.

To obtain public input and assist in the development of FMLA's

implementing regulations, the Department published a notice of proposed

rulemaking in the Federal Register on March 10, 1993 (58 FR 13394),

inviting comments until March 31, 1993, on a variety of questions and

issues. A total of 393 comments were received in response to the

notice--from employers, trade and professional associations, advocacy

organizations, labor unions, State and local governments, law firms and

employee benefit firms, academic institutions, financial institutions,

medical institutions, governments, Members of Congress, and others.

After consideration of the comments received, the Department issued

an interim final rule on June 4, 1993 (58 FR 31794), which went into

effect on August 5, 1993, and which invited further public comment on

FMLA's implementing rules until September 3, 1993. On August 30, 1993,

the Department further extended the public comment period until

December 3, 1993 (58 FR 45433). The Department received more than 900

comments on the interim final rules during the extended comment period

from advocacy groups and associations, Members of Congress, employers,

union organizations, governmental entities and associations, law firms,

management consultants, marriage and family counselors and therapists,

clinical social workers, property management companies, temporary help

and employee leasing companies, professional and trade associations,

universities, and individuals. In addition to the substantive comments

discussed below, many commenters submitted minor editorial suggestions,

some of which were adopted and some were not. Finally, a number of

other minor editorial changes have been made to better organize and

simplify the regulatory text.

On December 29, 1994, a meeting was held at OMB with

representatives of Consolidated Edison Company of New York pursuant to

E.O. 12866.

The Department would like to point out that it has prepared a

lengthy preamble to accompany these regulations in an attempt to be

fully responsive to the numerous comments received. The Department

would welcome additional comments regarding employers' experience with

the implementation of the FMLA over the course of the next year or so.

Such comments will be reviewed together with the results of the

comprehensive study on existing and proposed leave policies to be

conducted by the Commission on Leave to determine whether further

revisions to these regulations will be appropriate in the future.

[[Page 2181]]

Summary of Major Comments

I. Subpart A, Secs. 825.100-825.118

Covered Employers (Sec. 825.104)

Under FMLA, any employer engaged in commerce or in an industry or

activity affecting commerce is covered if 50 or more employees are

employed in at least 20 or more calendar workweeks in the current or

preceding calendar year. The Women's Legal Defense Fund and the Food &

Allied Service Trades expressed concern that employers may manipulate

workforce levels to avoid the Act's leave requirements. In this

connection, they suggested that any intentional reduction to 49 or

fewer employees after an employee request for FMLA leave should

constitute unlawful interference with FMLA rights, and, as provided in

regulations by the State of Oregon under its Family Leave Act, deemed a

violation of the Act.

Section 825.220 discusses the prohibited acts and anti-

discrimination provisions of the Act, including violative employer

practices that attempt to interfere with an employee's exercise of

rights under the Act. It is the Department's view that manipulation of

workforce levels by employers covered by FMLA in an effort to deny

employees' eligibility for leave is a violation of the Act's

requirements, and this has been clarified in Sec. 825.220.

Two commenters (Alabama Power Company and DLH Industries, Inc.)

objected to the statement in Sec. 825.104 that individuals such as

corporate officers ``acting in the interest of an employer'' are

individually liable for any violations of the Act. They contend that

this provision could frustrate advancement to managerial positions and

unnecessarily increase costs for insurance and bonding. The California

Department of Fair Employment and Housing questioned whether managers

or supervisors can be held personally liable under FMLA.

FMLA's definition of ``employer'' is the same as the Fair Labor

Standards Act (FLSA), 29 U.S.C. 203(d), insofar as it includes any

person who acts directly or indirectly in the interest of an employer

to any of the employer's employees. Under established FLSA case law,

corporate officers, managers and supervisors acting in the interest of

an employer can be held individually liable for violations of the law.

See, e.g., Reich v. Circle C Investments, Inc., 998 F.2d 324 (5th Cir.

1993); Dole v. Elliot Travel & Tours, Inc., 942 F.2d 962 (6th Cir.

1991).

The Chamber of Commerce of the USA expressed concern about the

impact of the ``employer'' definition on various business arrangements,

e.g., leased employees, franchises, and other loosely-related business

operations. The National Automobile Dealers Association stated that

additional guidance on the application of the ``integrated employer''

test would benefit the small business community in particular.

The ``integrated employer'' test is not a new concept created

solely for purposes of FMLA. It is based on established case law, as

was explained in the preamble of the Interim Final Rule, arising under

Title VII of the Civil Rights Act of 1964 and the Labor Management

Relations Act. As FMLA's legislative history states, the definition of

``employer'' parallels Title VII's language defining a covered employer

and is intended to receive the same interpretation. Under Title VII and

other employment-related legislation, including the LMRA, when

determining whether to treat separate entities as a single employer,

individual determinations are highly fact-specific and are based on

whether there is common management, an interrelation between

operations, centralized control of labor relations, and the degree of

common ownership/financial control. They are not determined by any

single criterion, nor do all factors need to be present; rather, the

entire relationship is viewed as a whole. Because it is a fact-specific

question in each case, further detailed guidance cannot be provided in

the regulations.

The Society for Human Resource Management questioned whether the

Act applied to employers in Puerto Rico, or to such entities as the

Resolution Trust Corporation or to Indian Tribes. FMLA's coverage

extends to any State of the United States, the District of Columbia,

and to any territory or possession of the United States (Sec. 101(3) of

FMLA defines the term ``State'' to have the same meaning as defined in

Sec. 3(c) of the Fair Labor Standards Act). Employees of U.S. firms

stationed at worksites outside the United States, its territories, or

possessions are not protected by FMLA, nor are such employees counted

for purposes of determining employer coverage or employee

``eligibility'' with respect to worksites inside the United States.

This point has been clarified in Sec. 825.105 of the regulations. The

Resolution Trust Corporation can be a covered employer under Title I of

FMLA as a ``successor in interest'' of a covered employer when it

assumes control over a failing thrift as part of the resolution

process. Because FMLA is a statute of broad general applicability,

which applies to both the public and private sectors, and there is

nothing in either the statute or its legislative history which provides

an exemption for Indian tribes, it is the Department's view that Indian

tribes may be covered by the legislation where the statutory

prerequisites are met, as ``a general statute in terms applying to all

persons includes Indians and their property interests.'' FPC v.

Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). The rule in Tuscarora

contains exceptions for laws that (1) affect exclusive rights of self-

governance in purely intramural matters; (2) abrogate rights guaranteed

in Indian treaties; or (3) provide proof by legislative history or

otherwise that Congress intended the law not to apply to Indians. It is

the Department's position that these exceptions do not apply to the

FMLA, consistent with the reasoning of the Ninth Circuit in Donovan v.

Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (1985). But see EEOC v.

Cherokee Nation, 871 F.2d 937 (1989), in which the Tenth Circuit held

that the Age Discrimination in Employment Act does not apply to Indians

because its enforcement would interfere with the tribe's right of self-

government.

50 Employee/20 Workweek Threshold (Sec. 825.105)

Private sector employers must employ 50 or more employees each

working day during 20 or more calendar weeks in the current or

preceding calendar year to be covered by FMLA. Nine commenters

addressed the ``50 or more employees'' threshold test for coverage. The

Women's Legal Defense Fund and the International Ladies' Garment

Worker's Union objected to the exclusion of workers on temporary layoff

from the count. They argued that temporary workers with a reasonable

expectation of return to active employment are counted as employees

under the Worker Adjustment and Retraining Notification (WARN) Act;

that the test for evaluating who is an employee should be that of a

``continuing employment relationship'' and not the actual performance

of work during a given time period; and that only employees on an

indefinite or long-term layoff should be excluded from the count.

FMLA has significantly different statutory coverage provisions and

serves considerably different objectives than those of WARN. The FMLA

regulations attempt to define the size of an employer's workforce count

for leave purposes, and uses a ``continuing employment relationship''

principle. There is no continuing employee-employer relationship during

a layoff, as evidenced by the fact that employees on

[[Page 2182]] layoff are entitled to unemployment benefits, and laid-

off employees are not maintained on the payroll during such periods.

Furthermore, being on unpaid leave is not the same as being laid off.

Moreover, under FMLA, if, while on FMLA leave, an employee would have

been laid off, and the employment relationship terminated, the

employee's rights to continued leave and job reinstatement would not

extend beyond the date the employee would have been laid off. While the

regulations do not require actual performance of work during a given

time period for an employee to be counted as having a continuing

employment relationship (e.g., employees on employer-approved leaves of

absence are still included where there is a reasonable expectation of

return to work), based on FMLA's legislative history, the regulations

necessarily exclude all employees who are on layoff, and the employment

relationship terminated, whether the layoff is temporary, indefinite or

long-term.

Southern Electric International, Inc. felt that the treatment of

part-time workers on the same basis as full-time workers unnecessarily

broadened coverage because employer obligations under the Act,

particularly employers with large numbers of part-time workers, were

based on counting non-eligible employees. Southern Electric argued that

part-time workers should be counted, if at all, only on a pro-rata

basis, i.e., two part-time workers working 20 hours a week would equal

one equivalent full-time employee. The United Paperworkers

International Union, on the other hand, supported counting part-time

workers as consistent with the language of the Act and with Title VII

of the Civil Rights Act of 1964. The union also felt that employers

should be required to notify employees and their union representatives

when the conditions for coverage are no longer met.

FMLA's legislative history clearly states Congressional intent to

include part-time employees when counting the size of the employer's

workforce. The committee reports state that part-time employees and

employees on leaves of absence would be counted as ``employed for each

working day'' so long as they are on the payroll for each day of the

workweek. And, similarly, in aggregating the number of employees at the

worksite and within 75 miles for determining employee eligibility, the

legislative history states that all of the employees of the employer,

not just eligible employees, are to be counted. Accordingly, part-time

employees must be counted the same as full-time employees under FMLA.

With respect to adding a requirement that employers notify

employees and their representatives when they cease to be covered by

the Act, the Department believes that such a requirement would be

overly burdensome. Questions of employer coverage and employee

eligibility are fact-specific and may be subject to frequent change in

some employment situations. They should be resolved as necessary when

an employee requests leave.

Southern Electric International, Inc. also noted that the phrase

``reasonable expectation that the employee will later return to work''

is confusing as it relates to employees on long-term disability because

such employees rarely ever return to work for the same employer. The

commenter recommended that long-term disabled employees be excluded

from the 50-employee count. The National Restaurant Association also

maintained that the ``reasonable expectation'' requirement should be

deleted because it had no basis in the Act or its legislative history,

arguing further that the term was surplusage in that an employee is

either on the payroll or is not on the payroll.

An employee who is permanently disabled from work would not

reasonably be expected to return to work and, therefore, may be

excluded from the employee count. The Department continues to believe,

however, that the employer's workforce count should be based on whether

there is a continuing employment relationship between the employer and

each of its employees. A ``reasonable expectation'' that an employee on

leave will later return to work is an appropriate standard that

contributes to a better understanding of that relationship for purposes

of FMLA, and it is retained in the regulations.

Additionally, two public commenters (Association of Washington

Cities and the California Department of Fair Employment and Housing)

suggested that the phrase ``on the payroll'' needed clarification as

applied to public employers. They noted practices of local governments

to hire seasonal and temporary employees, particularly in public works

and recreation, who may or may not be rehired the following summer or

after completion of short term projects; or to use volunteer

firefighters and volunteer police reserve officers who receive only

nominal stipends for service. Because public agencies are covered

``employers'' under the Act regardless of the number of employees

employed (see Sec. 825.108(a)), these comments more appropriately raise

questions related to ``employee eligibility'' and are addressed in the

discussion of Secs. 825.110 and 825.111.

Joint Employment (Sec. 825.106)

Administaff, Abel Temps, National Staff Leasing Association,

National Association of Temporary Services, and National Staff Network

argued that temporary help and leasing agencies should not be held

responsible, as the primary employer, for giving the required FMLA

notices, providing leave, maintaining health benefits, and job

restoration. In particular, they stressed the unique nature of their

business and the relationship with client employers, who, rather than

the temporary help or leasing agency, have control over worksites and

jobs. They argue generally that client employers, as secondary

employers, should be responsible for job restoration and other

requirements of the Act for all their own employees, including leased

or temporary employees. In the alternative, several of these commenters

urged adoption of a ``head of the line'' standard, which would limit

job restoration for temporary or leased employees where the client

employer discontinues the services of the temporary or leasing agency

or the services of the returning temporary/leased employee, to priority

consideration by the temporary or leasing agency for possible placement

in assignments with other client employers for which the employee is

qualified. Several of these commenters also proposed differing criteria

for situations where temporary or leasing agencies contract with

covered and non-covered client employers.

The Department agrees that joint employment relationships do

present special compliance concerns for temporary help and leasing

agencies in that the ease with which they may be able to meet their

statutory obligations under FMLA may depend largely on the nature of

the relationship they have established with their client-employers. Our

analysis of the statute and its legislative history in the context of

the industry comments submitted, however, revealed no viable

alternatives that could be implemented by regulation that would not

also have the unacceptable result of depriving eligible employees of

their statutory rights to job reinstatement at the conclusion of FMLA

leave. As the legislative history clearly states, the right to be

restored upon return from leave to the previous position or to an

equivalent position with equivalent employment benefits, pay and other

terms and conditions of employment is central to the entitlement

provided by FMLA. [[Page 2183]] Furthermore, it is the employment

agency which is responsible for the employee's pay and benefits, and is

in the best position to provide the rights and benefits of the Act.

FMLA does not entitle a restored employee to any right, benefit, or

position of employment other than any right, benefit, or position which

the employee would have held or been entitled to had the employee not

taken leave. This means, for example, that if, but for being on leave,

an employee would have been laid off, the employee's right to

reinstatement is whatever it would have been had the employee not been

on leave when the layoff occurred. Thus, if a client employer of a

temporary help agency discontinued the services of the temporary help

agency altogether, or discontinued contracting for the particular

services that were being furnished by the temporary employee who took

FMLA leave, during the employee's FMLA leave period, following a ``head

of the line'' approach for giving the returning employee priority

consideration for possible placement in assignments with other client

employers for which the employee is qualified would appear to be

entirely consistent with the intent of the FMLA in those circumstances.

As provided in Sec. 825.216, an employer must show that an employee

would not otherwise have been employed in order to deny restoration to

employment in the same or an equivalent position. Failure to promptly

restore a returning employee to employment at the conclusion of the

leave where the client employer continues to utilize the same services

as were previously furnished by the employee who took leave would be a

violation of FMLA's job restoration requirements.

Two commenters (William M. Mercer, Inc. and Chamber of Commerce of

the USA) noted that subsection (f) could be construed as requiring the

secondary or client employer to restore the jobs of temporary or leased

employees, which is disruptive to business and the contractual

relationship between temporary or leasing agencies and the client

employers. They felt that job restoration obligations should be the

responsibility of the temporary or leasing agency (the primary

employer).

The primary employer (temporary placement firm or leasing agency)

is responsible for furnishing eligible employees with all FMLA-required

notices, providing FMLA leave, maintaining health benefits during FMLA

leave, and restoring employees to employment upon return from leave. In

addition, although job restoration is the responsibility of the primary

employer, the purposes of the Act would be thwarted if the secondary

employer is able to prevent an employee from returning to employment.

Accordingly, the regulations are revised to provide that the secondary

employer is responsible for accepting an employee returning from leave

in place of any replacement employee. Furthermore, the secondary

employer (client employer) must observe FMLA's prohibitions in

Sec. 105(a)(1), including the prohibition against interfering with,

restraining, or denying the exercise of or attempt to exercise any

rights provided under the FMLA. It would be an unlawful practice, in

the Department's view, if a secondary employer interfered with or

attempted to restrain efforts by the primary (temporary help) employer

to restore an employee who was returning from FMLA leave to his or her

previous position of employment with the secondary (client) employer

(where the primary (temporary help) employer is still furnishing the

same services to the secondary (client) employer). Because the

secondary employer is acting in the interest of the primary employer

within the meaning of Sec. 101(4)(A)(ii)(I) of the Act, the secondary

employer has these responsibilities, regardless of the number of

employees employed.

The National Association of Plumbing-Heating-Cooling Contractors

noted a potential for misunderstandings of the ``joint employment''

criteria and the Chamber of Commerce of the USA, for similar reasons,

urged that DOL reconsider the requirement in subsection (d) that

jointly-employed employees are counted by both employers in determining

employer coverage and employee eligibility. This requirement, according

to the Chamber, was of particular concern to small businesses. To

minimize the risk of unintentional violations of the Act, the Chamber

recommended against a requirement to count employees jointly for

purposes of determining eligibility status, and urged adoption of

``good faith'' defense provisions for employers confronted with joint

employment quandaries.

In joint employment relationships, an individual employee's

eligibility to take FMLA leave is determined from counting the

employees employed by that employee's primary employer (i.e., the one

responsible for granting FMLA leave), and would exclude any

``permanent'' employees ``primarily employed'' by any secondary (joint)

employer of that same employee. Thus, in practical effect, the employee

is only counted once for purposes of determining his or her own

individual eligibility to take FMLA leave. In the example of 15

employees from a temporary help agency working with 40 ``permanent''

employees employed by an employer, the eligibility of any one of the 15

temporary help agency employees to take FMLA leave from their primary

employer (the temporary help agency) is determined by counting only the

temporary help agency employees assigned (outplaced) from or working at

the temporary help agency's ``single site of employment'' (i.e., most

likely the main placement or corporate office). Excluded from this

count is any ``permanent'' employee of any of the temporary help

agency's client employers. On the other hand, the client employer with

40 ``permanent'' employees is responsible for granting FMLA leave to

its ``permanent'' employees because it employs a total of more than 50

employees when including the jointly-employed employees, but its

obligation to grant FMLA leave extends to only its 40 ``permanent''

employees. Notwithstanding the complexities that arise in administering

the law in joint employment contexts, there is no authority to adopt by

regulation any ``good faith'' defense provisions that would take away

employees' statutory rights.

William M. Mercer, Inc. noted that the requirement in subsection

(d) relating to counting jointly-employed employees for coverage and

eligibility purposes ``whether or not maintained on a payroll''

differed from Sec. 825.111(c), which limits the employee count at a

worksite to employees maintained on the payroll. The commenter urged

clarification of ``joint employment'' principles in the case of

worksite determinations and, also, in determinations of whether or not

1,250 hours have been worked for eligibility (Sec. 825.110(d)).

As noted above, Sec. 825.106 provides particularized guidance that

addresses the special circumstances of joint employment. Because in

most joint employment situations there may be only one payroll,

maintained by only the primary employer, the guidance in Secs. 825.105

and 825.111, standing alone, would not be sufficient to address joint

employment. Section 825.106 is revised to further clarify application,

as the employee is maintained on only one payroll. In addition, in

order to clarify and prevent misunderstandings, Sec. 825.111 is revised

to add similar guidance from Sec. 825.106 on joint employment

``worksite'' determinations for purposes of determining employee

eligibility. With respect to counting the [[Page 2184]] hours worked by

jointly-employed employees to determine if the 1,250 hour threshold is

met, the calculation is relevant only with respect to the primary

employer of the employee at the time the employee requests FMLA leave.

The discussion of employment relationship in general has been

removed from this section of the regulations and a more general

discussion has been included instead in Sec. 825.105.

Successor in Interest (Sec. 825.107)

The Equal Employment Opportunity Commission (EEOC) pointed out that

while the factors for determining ``successor in interest'' are based

in part on Title VII precedent, no reference is made in this section to

whether or not the successor had ``notice'' of pending complaints

against a predecessor employer. The EEOC recommended clarifying how

``notice'' affects the liability of a successor employer or a statement

explaining that the FMLA rule departs from established Title VII

precedent in this respect.

As explained in the preamble to the Interim Final Rule, the list of

factors is derived from Title VII and Vietnam Era Veterans'

Readjustment Act of 1974 case law. The Department agrees with the court

in Horton v. Georgia-Pacific Corp., 114 Lab. Cas. (CCH) par. 12,060

(E.D. Mich. 1990), that notice should not be considered to continue the

predecessor's obligation to employees who are on leave, or for

determining coverage and eligibility of employees continuing in

employment. The Department believes, however, that notice may be

relevant in determining a successor employer's liability for violations

of the predecessor, and the rule is clarified accordingly.

The Chamber of Commerce of the USA indicated a need to clarify how

a predecessor and successor employer can allocate FMLA liability and

responsibility. In this connection, the commenter recommended adoption

of criteria provided by 20 CFR Sec. 639.4 of the Worker Adjustment and

Retraining Notification Act regulations.

The WARN Act regulations, at Sec. 639.4(c), discuss the effect of a

sale of a business between a seller and a buyer and the continuing

employer obligations, under WARN, for giving notice to employees of

plans to carry out a plant closing or mass layoff. While the Department

believes it is appropriate for a seller of a business to inform a

potential buyer of any eligible employees who are either to be out on

FMLA leave at the time the business is sold (or have announced to the

seller plans to take FMLA leave soon after the sale takes place), so

that the buyer is aware of its ``successor in interest'' obligations

under FMLA to maintain health benefits during the FMLA leave periods

and to restore the employees at the conclusion of their FMLA leave,

there is no ``allocation'' of responsibility under FMLA based on

whether the seller and buyer have exchanged such information. The

regulations are revised to make clear that an eligible employee of a

covered predecessor employer who commences FMLA leave before the

business is sold to a ``successor in interest'' employer is entitled

under FMLA to be restored to employment by the successor employer

without limitation.

The Employers Association of New Jersey questioned whether a

successor employer had to meet coverage requirements (Sec. 825.104) in

order to be considered a ``successor in interest.'' FMLA's statutory

definition of ``employer'' (Sec. 101(4)) includes ``any successor in

interest of an employer,'' which we interpret to include successor

employers that employ fewer than 50 employees after the succession of

interest. FMLA's obligations in such cases, however, are limited to

completing the cycle of any FMLA leave requests initiated by employees

of the predecessor employer, where the employees met the eligibility

criteria at the time the leave was requested.

The Contract Services Association of America posed a series of

questions related to FMLA's ``successor in interest'' obligations as

applied to service contractors performing on Federal service contracts

covered by the McNamara-O'Hara Service Contract Act (SCA). In the

example posed, Employer A has lost a service contract (through

recompetition) to Employer B. Employer B has been determined to be a

``successor in interest.'' In its bid proposal, Employer B did not

include several positions which Employer A employed on the predecessor

contract. One of the eliminated positions was occupied by an employee

of Employer A who was on FMLA leave at the time of the succession of

the contract to Employer B. The Association questioned whether Employer

A would have to continue to maintain the employee on FMLA leave and

maintain his or her group health benefits, or whether the employee

could be terminated at the time of contract turnover, treating it as a

layoff and a lack of work. Employer A would not have to maintain this

employee on FMLA leave or maintain health benefits if it can

demonstrate that the employee would not otherwise have been employed as

a result of the loss of the contract. This could be demonstrated, for

example, if other, similarly situated employees of Employer A did not

otherwise continue their employment with Employer A on other contract

work or in some other capacity. Because Employer B had no comparable

position in its bid proposal, Employer B would not be obligated to hire

this employee either.

The Association also asked if an employee on an SCA-covered

contract were on FMLA leave at the time of contract transition to

another contractor, would a ``successor in interest'' contractor be

required to hire the employee under the job protection provisions of

FMLA? The answer is ``yes'', if the employee's position continues to

exist under the successor contract (as distinguished from the facts in

the previous example, above). The successor contractor would not have a

right to ``non-select'' the employee in this example at the end of the

employee's FMLA leave. The outgoing contractor would not be required to

maintain this employee's group health plan benefits for the remaining

period of FMLA leave extending beyond the contract changeover, but the

``successor in interest'' contractor would be required to do so, and to

restore the employee to the same or an equivalent position.

With respect to the remaining questions posed by the Association,

it would be helpful for a predecessor contractor to furnish a list to

the successor in interest of the predecessor's employees who are on

FMLA leave when contractors change, and a list of benefits being

provided (so they may be maintained and/or restored at the same

levels). If lists are not furnished, the successor in interest should

attempt to determine its obligations without waiting for the employees

on FMLA leave to apply for employment with the successor.

Public Agency (Sec. 825.108)

The State of Nevada personnel department objected to the

designation of a State as a single employer, suggesting that certain

individual ``public agencies'' of a State should be treated as separate

employers based on criteria set forth in an administrative letter

ruling issued by the Wage-Hour Administrator on October 10, 1985.

Treating a State as a single employer under FMLA is a result

required by the statute. FMLA defines the term ``employer'' to include

any ``public agency'' as defined in Sec. 3(x) of the Fair Labor

Standards Act, which defines ``public agency'' to include the

[[Page 2185]] government of a State or political subdivision of a

State, and any agency of a State or a political subdivision of a State.

The 1985 letter ruling cited by the commenter was issued before the

enactment of the 1985 FLSA Amendments, under which the Congress

included specially-tailored provisions for employees of public agencies

to address special situations where they volunteer their services under

certain conditions, and perform work in fire protection, law

enforcement, or related activities on special details when hired for

such work by a ``separate and independent employer.'' Special rules to

address FLSA's particular statutory provisions are found in 29 CFR Part

553; Sec. 553.102(b) provides that the determination of whether two

agencies of the same State government constitute the same public agency

can only be made on a case-by-case basis, but one factor supporting the

conclusion that they are separate is whether they are treated

separately for statistical purposes in the Census of Governments issued

by the Bureau of the Census, U.S. Department of Commerce. Section

825.108(c) of the FMLA rules similarly provides for following the

Census of Governments publication in resolving particular questions.

FLSA's special rules for defining a public agency employer for other

unique purposes mandated under FLSA are not analogous to FMLA leave

situations, and we do not believe that any similar special rules are

required under FMLA.

The Office of Legislative Auditor, State of Louisiana questioned

the status of an agency of a State's legislative branch under FMLA,

where the agency is not subject to the State's civil service

regulations and is otherwise considered not covered under the FLSA.

Section 101(3) of the FMLA defines the term ``employee'' to have

the same meaning as defined in Sec. 3(e) of the Fair Labor Standards

Act. Section 3(e)(2)(C) of the FLSA excludes from this definition of

``employee'' individuals who are not subject to the civil service laws

of the State and who are employed in the legislative branch of that

State (other than the legislative library). Thus, employees excluded

from the FLSA statutory definition of ``employee'' would similarly be

excluded from coverage under the FMLA.

The Government Finance Officers Association felt that a public

employer, as a single employer, should not be required to notify all of

its employees about FMLA entitlements because many employees may

misunderstand that they are not eligible for FMLA leave.

FMLA imposes a statutory obligation on all covered employers to

post the notice to employees informing them of FMLA's provisions,

regardless of whether the employer has any ``eligible'' employees.

Public agencies are covered ``employers'' without regard to the number

of employees employed. There is no authorized exception that relieves

covered employers from this notice requirement when they have no

``eligible'' employees. The DOL poster, however, includes the employee

eligibility criteria and makes it apparent that FMLA's entitlement to

leave applies only to ``eligible'' employees. The individualized,

specific notice to employees required to be furnished in response to

FMLA leave requests applies only to FMLA-''eligible'' employees.

Section 825.108(b) states that the U.S. Bureau of the Census'

Census of Governments will be used to resolve questions about whether a

public entity is distinguishable from another public agency. In this

regard, the Office of the Treasurer, State of Ohio asked that more

information be provided on how the census information can be accessed.

The Census Bureau takes a census of governments at five-year

intervals. Volume 1, Government Organization, contains the official

count of the number of State and local governments. It includes

tabulations of governments by State, type of government, size, and

county location. Also produced is a universe list of governmental

units, classified according to type of government. Copies of Volume 1

and subsequent volumes are available from the Superintendent of

Documents, U.S. Government Printing Office, Washington, D.C. 20402;

District Offices of the U.S. Department of Commerce; and Regional and

selective depository libraries. For a list of all depository libraries,

write to the U.S. Government Printing Office, 710 N. Capitol Street,

NW, Washington, D.C. 20402.

Federal Agency Coverage (Sec. 825.109)

The Farm Credit Administration, the Chesapeake Farm Credit, and a

number of other farm credit system institutions argued that system

institutions should not be listed in this section dealing with Federal

agencies, citing express legislation that defederalized system

institution employees.

These commenters are correct. This section of the regulations has

been revised to delete the former reference to the Farm Credit

Administration. These employees will be treated in the same manner as

employees in the private sector when determining employer coverage and

employee eligibility under FMLA.

Section 825.109(b) further states that employees of the Library of

Congress are covered by Title I provisions of FMLA, rather than Title

II which is administered by the Office of Personnel Management (OPM). A

review of applicable legislative authority indicates that employees of

the Library of Congress should be covered by Title II of FMLA within

the jurisdiction of OPM. The regulations have been revised to delete

the Library of Congress from coverage under Title I.

12 Months and 1,250 Hours of Service (Sec. 825.110)

To be eligible for FMLA leave, an employee must have been employed

for at least 12 months with the employer, and the 12 months need not be

consecutive. Several commenters stated that determining past employment

was burdensome, too indefinite, and urged various limitations on a 12-

month coverage test. The Burroughs Wellcome Company suggested excluding

any employment experience prior to an employee resignation or employer-

initiated termination that occurred more than two years before the

current date of reemployment. Another commenter, the State of Kansas

Department of Administration, suggested limiting the 12 months of

service to the period immediately preceding the commencement of leave.

The ERISA Industry Committee argued that the 12 months should be either

consecutive months, or 12 months of service as computed under bridging

rules applicable to employer's pension plans.

Many employers require prospective employees to submit applications

for employment which disclose employees' previous employment histories.

Thus, the information regarding previous employment with an employer

should be readily available and may be confirmed by the employer's

records if a question arises. Further, there is no basis under the

statute or its legislative history to adopt these suggestions.

A number of commenters urged clarifications with respect to the

determination of 1,250 hours of service during the 12-month period

preceding the commencement of leave. The Equal Rights Advocates argued

that any FMLA leave taken in the previous 12 months should be included

in the calculation of the requisite 1,250 hours of work. The State of

New York Metropolitan Transportation Authority stated that it was not

clear whether time paid but not worked (i.e., vacation and personal

days) should be counted and urged limiting the determination to only

[[Page 2186]] actual hours worked. The Edison Electric Institute made

the same observation but noted that the standard in Sec. 825.105 for

determining coverage--50-employee test--is based on employees appearing

on the employer's payroll. In addition to vacation time, the Society

for Human Resource Management asked whether overtime hours worked are

to be included in the calculation. The Air Line Pilots Association also

urged inclusion of all compensated hours (vacation, holiday, illness,

incapacity, lay-off, jury duty, military duty, official company

business, leave of absence or official union business) in determining

the 1,250 hours of service. Finally, the Tennessee Association of

Business requested clarification of the status of employees who are

temporarily laid off for 2 or 3 weeks because of a plant shutdown.

The eligibility criteria are set forth in Sec. 101(2) of FMLA as a

statutory definition of ``eligible employee.'' One component of the

definition (Sec. 101(2)(C)) states that for purposes of determining

whether an employee meets the hours of service requirement, the legal

standards established under Sec. 7 of the FLSA shall apply. The

legislative history explains that the minimum hours of service

requirement is meant to be construed in a manner consistent with the

legal principles established for determining hours of work for payment

of overtime compensation under Sec. 7 of the FLSA and regulations under

that act, citing specifically 29 CFR Part 785 (Hours Worked [Under the

FLSA]) and referencing 29 CFR 778.103 (which in turn states that the

principles for determining what hours are hours worked within the

meaning of the FLSA are discussed in 29 CFR Part 785). ``Hours worked''

does not include time paid but not ``worked'' (paid vacation, personal

or sick leave, holidays), nor does it include unpaid leave (of any

kind) or periods of layoff. Whether the hours are compensated or

uncompensated is not determinative for purposes of FMLA's 1,250-hours-

of-service test. The determining factor in all cases is whether the

time constitutes hours of work under FLSA. Because overtime hours

worked are ``hours worked'' within the meaning of FLSA, they are

included.

The National Restaurant Association noted that the determination of

the 1,250 hour/12 months test must be made as of the date leave

commences; whereas the 50 employee within 75 miles test is to be

determined when the employee requests FMLA leave. The Association

argued that the same date should be used for determining all

eligibility requirements. The USA Chamber of Commerce argued that

Sec. 825.110(d) as written forces an employer to avoid providing an

ineligible employee with an estimated date of eligibility, a potential

benefit for both employee and employer, because the employer that makes

such an estimate is precluded from later challenging the employee's

eligibility. This, according to the Chamber, ignores the very real

possibility that an employee may reach the projected date and still not

be eligible.

As explained in the preamble of the Interim Final Rule, the purpose

and structure of FMLA's notice provisions intentionally encourage as

much advance notice of an employee's need for leave as possible, to

enable both the employer to plan for the absence and the employee to

make necessary arrangements for the leave. Both parties are served by

making this determination when the employee requests leave. Tying the

worksite employee-count to the date leave commences as suggested could

create the anomalous result of both the employee and employer planning

for the leave, only to have it denied at the last moment before it

starts if fewer than 50 employees are employed within 75 miles of the

worksite at that time. This would entirely defeat the notice and

planning aspects that are so integral and indispensable to the FMLA

leave process. Accordingly, no changes have been made in response to

the comments received from the National Restaurant Association and the

Chamber of Commerce of the USA.

Several commenters (Nationsbank Corporation and South Coast Air

Quality Management District) indicated that the terms ``employee'' and

``eligible employee'' required clarification regarding independent

contractors, contract employees, and consultants. The Dow Chemical

Company suggested that students working in co-op programs approved by

their schools should not be deemed an employee eligible for FMLA

benefits.

FMLA's definitions of ``employ'' and ``employee'' are ``borrowed''

from the FLSA. If a particular arrangement in fact constitutes an

employee-employer relationship within the meaning of the FLSA (and case

law thereunder) as contemplated by the statutory definitions, and the

``employee'' satisfies FMLA's eligibility criteria, the employee is

entitled to FMLA's benefits. A true independent contractor relationship

within the meaning of the FLSA would not constitute an employee-

employer relationship. Thus, an independent consultant operating his or

her own business ordinarily would not be considered an ``employee'' of

the business that hires the consultant's services. Employees hired for

a specified term to perform services under contract (``contract

employees'') would ordinarily be subject to FMLA if they otherwise meet

FMLA's 12 months and 1,250-hours-of-service (with the ``employer'')

eligibility criteria. It has been our experience that such persons

rarely qualify as independent contractors under the FLSA, and,

therefore, they would rarely qualify as independent contractors under

FMLA. There would be no authority under the statute to exclude students

working in co-op programs approved by their schools if the arrangement

otherwise meets the criteria for an employee-employer relationship.

Many such students, however, may not be ``eligible'' under FMLA if they

have not worked for the employer for at least 12 months and for at

least 1,250 hours.

With respect to the 1,250 hours of service test, the California

Rural Legal Assistance, Inc. expressed concern about situations where

employers fail to keep required records of hours worked, and urged a

reference to the ``Mt. Clemens Pottery rule'' as being applicable to

such situations.

This comment refers to the U.S. Supreme Court's decision in

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), which

provided a lighter burden of proof for employees where employers failed

to maintain required records. The regulations already provide that

eligibility is presumed for FLSA-exempt employees who have worked at

least 12 months. The regulations have been revised in this section to

provide the same presumption where FMLA-covered employers with 50 or

more employees fail to keep records required for purposes of

establishing employee eligibility for FMLA leave.

The American Federation of Teachers and the National Education

Association expressed concern that employers may intentionally reduce

or otherwise manipulate an employee's hours to avoid FMLA eligibility,

and urged that such conduct be treated as a violation of the Act. This

matter will be addressed in Sec. 825.220(b) (the ``prohibited acts''

section of the regulations) by providing that FMLA-covered employers

that intentionally limit or manipulate employees' work schedules to

foreclose their eligibility for FMLA leave will be held in violation of

the provisions of FMLA and these regulations which prohibit interfering

with employees' exercise of rights.

The Air Line Pilots Association (ALPA) requested clarification of

the [[Page 2187]] discussion in the preamble about determining 1,250

hours of service, specifically the statement that on-call time includes

``* * * hours of service where it meets the FLSA hours-worked

requirements (29 CFR Part 785.17), as would ground time for flight

crews.'' According to the ALPA, the term ``ground time'' requires

clarification as applied in the airline industry, which typically

distinguishes between ``flight'' time (time an airplane is actually in

the air from take-off to landing), ``duty'' time (hours a pilot is on

duty beginning with checkin for departure until returning to the

domicile) and ``reserve'' time (designated on-call period when pilot

must be available to be reached by phone, and must be able to report to

the airport within one to three hours' notice). Pilots typically

receive different rates of pay for the reserve time, the flight time

and an hourly per-diem for all duty time. The commenter argues that all

hours credited for such pay should be credited for hours of service.

Crediting the time attributable to all such pay would exceed the

number of actual hours worked within the meaning of the FLSA and thus

be contrary to FMLA's provisions on crediting hours of service based on

FLSA ``hours worked'' principles. Hours of service would normally

include all ``duty'' time. ``Reserve'' time would not be included

unless employees have further restrictions on their time so that they

would be unable to use the time for their own purposes.

The International Brotherhood of Teamsters argued that the 1,250

hours of service test as currently defined effectively precludes

coverage of airline crew members under FMLA. While Sec. 825.110(c)

applies FLSA principles for determining hours of service, the commenter

notes that section 13(b) of the FLSA excludes any employee of a carrier

by air subject to the provisions of Title II of the Railway Labor Act

from the Act's provisions in section 207. According to the commenter,

airline crew members' work schedules and pay formulas are predicated on

``flight hours,''--generally amounting to one-third of the hours of

employees covered by the FLSA--and flight crew members are prohibited

by regulation from exceeding 1,000 flight hours in a 12-month period.

The commenter contends that it is improper to compare flight crew

``hours of service'' with the ``hours of service'' performed by FLSA-

covered employees and that airline crew members should be specifically

exempted from the minimum hours of service requirement.

Section 13(b) of the FLSA provides exemptions from FLSA's

requirement to pay overtime compensation in certain cases; they are not

exemptions from the rules on what constitutes ``hours worked'' within

the meaning of the FLSA. The fact that a particular class of employee

is exempt from overtime under FLSA Sec. 13(b) has no impact on the

applicability of FLSA's ``hours worked'' rules under 101(2)(C) of the

FMLA. Because the eligibility criteria are statutory, DOL lacks the

authority to exempt airline crew members from the minimum hours of

service criteria. As pointed out above, however, other ``duty'' time

would normally be hours of service, in addition to the flight time.

50 Employees within 75 Miles (Sec. 825.111)

One of the tests for employee eligibility for FMLA leave requires

that there be 50 employees employed by the employer within 75 miles of

the worksite. This section described how ``worksite'' is construed and

how to measure the 75 miles under this test.

The Equal Rights Advocates questioned measuring the 75 mile

requirement by road miles and advocated a broader interpretation such

as actual mileage between two employment facilities. The Medical Group

Management Association stated that measuring a radius around a single

point using road miles was very difficult and suggested a standard of

traveling ``75 miles in any direction using public surface

transportation.''

The regulations have been clarified by deleting the reference to

``radius,'' a term not found in the statute. The 75-mile distance will

be measured by surface miles using available transportation by the most

direct route between worksites.

The Institute of Real Estate Management and 29 other associated

real estate management companies complained that the 75-mile rule for

determining employee eligibility creates unique hardships for most

property management companies and could cause serious economic harm in

the absence of industry-specific modifications.

The National Association of Temporary Services was also concerned

over the impact of the 50-employee/75-mile eligibility test on

temporary help offices, noting that most temporary help offices operate

with very small office staffs but on any given day may have a

significant number of temporary employees assigned to customer

worksites. Because temporaries assigned to customers within 75 miles of

the office are included in the eligibility determination, staff

employees of two or three person offices become eligible for FMLA

leave, which, according to the commenter, works a hardship on small

temporary help offices. The commenter urged an exception which would

permit such offices to exclude from the eligibility test those

temporary employees assigned out of any particular office--temporaries

would still be eligible if secondary employers have a total of 50

employees within 75 miles of their worksite. In support of this

position, the commenter points to a colloquy between Congressman

Derrick and Congressman Ford on H.R. 1 (Cong. Rec. 139, H396-7 (Feb. 3,

1993)) in which Congressman Ford indicated that the matter of temporary

help offices with small staffs would be an appropriate subject for

rulemaking and his hope that implementing regulations would address

such situations taking into account the broad purpose of the Act to

provide protection to as many employees as possible and, at the same

time, the legitimate concerns of small businesses.

Employees employed by a temporary help office have, as their

``single site of employment'' worksite under FMLA, the site from which

their work is assigned (i.e., the temporary help office). Thus, all

temporary employees assigned from the temporary help office, regardless

of whether the customers' worksites are within 75 miles of the

temporary help office, are included in the employee count for the

temporary help office in determining if staff employees are eligible

for FMLA leave. This provision, in our judgment, is required by the

express intention of the Congress in the committee reports that the

WARN Act regulations be used to determine ``worksite.'' We believe that

the implementing regulations accurately reflect, consistent with the

express confines of the statute itself, the Congress' broad purpose to

provide FMLA's protection to as many employees as possible while, at

the same time, considering the legitimate concerns of small businesses.

Section 825.111(d) provides that eligibility determinations are to

be made by employers when the employee requests the leave; once

eligibility has been established in response to the request, subsequent

changes in the number of employees employed at or within 75 miles of

the employee's worksite will not affect the employee's eligibility or

leave once commenced. These provisions attracted considerable comment.

The California Rural Legal Assistance, Inc. argued that using the

date the employee requests leave as the ``trigger'' date will deprive

eligibility to many seasonal employees, especially if they

[[Page 2188]] give the requisite 30-days notice, because the 50-

employee threshold may not be reached until the peak employment season.

The commenter urges an alternate test for seasonal and other employers

whose workforce varies greatly during the year, in particular that the

test should allow a determination of eligibility at the time of the

request if the employer can be expected to have at least 50 employees

during any period in which FMLA leave is to be taken. This commenter

would also apply such a test for teachers because many teachers are not

actually under contract until just before or even after the school year

has begun. In the alternative, the commenter suggested a position that

an employee should be considered on the payroll as long as he or she is

on an involuntary layoff with a reasonable expectation of returning to

work within a reasonable period of time.

The Women's Legal Defense Fund, the Service Employees International

Union, and the United Paperworkers International Union also expressed

concern about determining eligibility from an employee count on a

single day, i.e., date of request, stating that such a test is

arbitrary and subject to wide variation due to workforce fluctuations.

They urged adoption of the counting method in the Act for determining

employer coverage on the grounds that it is the only counting method

statutorily based and is consistent with the legislative history. Thus,

under this position, an employee would be eligible for FMLA leave if

the employer has employed 50 or more employees within 75 miles of the

employee's worksite for each working day during each of 20 or more

calendar workweeks in the current or preceding calendar year.

A number of commenters stated that the ``date of request'' as a

trigger date would be burdensome for employers in cyclical industries.

Several commenters (California Department of Fair Employment and

Housing and the Greater Cincinnati Chamber of Commerce) endorsed the

option discussed in the preamble to the interim final rule: ``* * *

where notice is given 30 or more days prior to the commencement of

leave, the count would be made on the 30th day preceding the start of

leave, or, at the employer's option, as of the date leave is requested;

where 30 days notice is not given, the count would be made at the time

notice is given or the date leave begins, whichever is earlier.'' The

Society of Human Resource Management supported a trigger date of ``30

days prior to the onset of leave.'' To accommodate the particular needs

of seasonal employers under the ``date of request'' trigger date,

Southern Electric International, Inc. suggested that employers be

permitted to cancel or reduce requested leave if the employee count

falls below some reasonable number, i.e., 40, by the time the leave is

to be taken. The National Restaurant Association argued that the same

date should be used for determining all eligibility requirements and

the law firm of Sommer & Barnard also recommended a uniform eligibility

criteria determination date, endorsing the ``date of commencement of

leave.'' The United Paperworkers International Union also endorsed

uniformity in the methods of counting eligible employees and covered

employers.

The USA Chamber of Commerce noted that under Sec. 825.111(d)

eligibility is a continuing, day-to-day determination, even during FMLA

leave, and that an employee who is initially ineligible can

subsequently become eligible. The commenter argues that the rationale

should be consistent: if an ineligible employee can become eligible,

then an eligible employee should be able to subsequently become

ineligible and, thus, not be entitled to continue FMLA leave.

The Department has given careful consideration to all of the

comments submitted in connection with the rule for determining employee

eligibility based on the number of employees maintained on the payroll

as of the date that an employee requests leave. We see no justifiable

basis for altering our earlier policy decisions as reflected in the

Interim Final Rule. In our view, none of the recommendations suggest a

course that would be entirely consistent with the literal language of

the FMLA, its remedial purpose, or the expressions of Congressional

intent contained in the legislative history. Congress directly

addressed the treatment to be accorded seasonal, temporary and part-

time employees by establishing statutory employer coverage and employee

eligibility criteria. The Act exempts smaller and certain seasonal

businesses by limiting coverage to employers with 50 or more employees

in 20 or more calendar weeks of the year. It does not cover part-time

or seasonal employees working less than 1,250 hours a year. To be

eligible for leave, an employee must have worked for the employer for

at least 12 months and for at least 1,250 hours during the 12-month

period preceding the commencement of the leave. The employer must also

employ at least 50 employees within 75 miles of the employee's

worksite. Given Congress' specific treatment of these issues in the

legislation, DOL lacks authority to write special rules for determining

employee eligibility for seasonal workers in ways that depart from the

statutory standards adopted in the legislation.

As explained in the preamble of the Interim Final Rule (and as

noted above), the purpose and structure of FMLA's notice provisions

intentionally encourage as much advance notice of an employee's need

for leave as possible, to enable both the employer to plan for the

absence and the employee to make necessary arrangements for the leave.

Both parties are served by making this determination when the employee

requests leave. But, at the same time, both parties need to be able to

rely on the commitments they are making. Tying the worksite employee-

count to the date leave commences as suggested could result in both the

employee and the employer planning for the leave, only to have it

denied at the last moment before it starts if fewer than 50 employees

are employed within 75 miles of the worksite at that time. This would

entirely defeat the notice and planning aspects that are an integral

part of the FMLA leave process. The same would be true if employers

were permitted to cancel or reduce requested leave if the employee

count fell below some arbitrary number (e.g., 40) at the time leave was

being taken. As explained in the preamble to the Interim Final Rule,

use of both a fixed date and the same date for determining employer

coverage were previously considered and rejected as being inconsistent

with the literal language of the Act and the legislative history, which

both use the present tense in describing ``eligible'' employees (i.e.,

employee is eligible if employed at least 12 months by the employer ``*

* * with respect to whom leave is requested * * *''; but excludes any

employee ``* * * at a worksite at which such employer employs less than

50 employees if the total * * * [within 75 miles] is less than 50.'').

Accordingly, while clarifications are included to more carefully

explain the applicable principles, no significant changes are included

in this section to alter the policy on the timing of determining

employee eligibility.

The term ``worksite'' also generated considerable comment. The Los

Angeles County Metropolitan Transportation Authority and Society for

Human Resource Management stated that additional guidance was needed to

determine eligibility, particularly with respect to salespersons who

work out of their homes. The International Organization of Masters,

Mates & Pilots stated that the applicable ``worksite'' in the case of

maritime employment should be defined as the home office of

[[Page 2189]] the employer from which the job assignment originates,

and the United Paperworkers International Union stated that, in the

case of workers without a fixed worksite, the reference point should be

those employees defined in the bargaining unit by any applicable

collective bargaining agreement. For employees who typically have no

fixed worksite, the USA Chamber of Commerce urged a provision that

makes clear that an employee has only one worksite for purposes of

making eligibility and coverage determinations.

In the case of pilots and flight crew members, the Air Line Pilots

Association, Association of Professional Flight Attendants and

Independent Federation of Flight Attendants contend that the

characterization of a home base as an employee's worksite would be

inappropriate in the airline industry because the actual ``worksite''

ranges across a particular carrier's entire route system due to the

availability and flexibility of the large number of employees employed

in such job categories. They argue that employees at worksites with

less than 50 employees within 75 miles should be eligible for FMLA

leave if the employer (airline) employs more than 50 employees at all

of its worksites and such employer can replace the employee on leave

with another current employee through an employer-wide seniority system

in the affected job classification.

Many of the comments reflect a misunderstanding of the ``worksite''

concept under the FMLA regulations. FMLA's legislative history explains

that when determining if 50 employees are employed by the employer

within 75 miles of the worksite of the employee intending to take

leave, the term ``worksite'' is intended to be construed in the same

manner as the term ``single site of employment'' under the WARN Act

regulations (20 CFR Part 639). The legislative history further states

that where employees have no fixed worksite, as is the case for many

construction workers, transportation workers, and salespersons, such

employees' ``worksite'' should be construed to mean the single site of

employment to which they are assigned as their home base, from which

their work is assigned, or to which they report. The regulations

included these concepts.

Accordingly, salespersons who work out of their homes have as their

single site of employment the site ``from which their work is assigned

or to which they report'' (for example, the corporate or regional

office). Their homes are not their ``single site of employment'' in any

case. Tracking the number of employees in a collective bargaining unit,

or defining the worksite for flight crew members as a carrier's entire

route system, would deviate significantly from the legislative

history's discussion of the applicable principles and cannot be adopted

as suggested in the comments. (Members of flight crews thus have as

their ``worksite'' the ``site to which they are assigned as their home

base, from which their work is assigned, or to which they report.'')

One commenter, Employers Association of New Jersey, indicated that

more guidance was needed on what employees are to be counted. The

commenter asked whether only eligible employees as defined in

Sec. 825.110 are counted, or are temporarily inactive employees

counted, such as those on leave of absence, strike, etc. As noted

above, the employee count must include all employees of the employer

who are ``maintained on the payroll,'' including part-time, full-time,

eligible and non-eligible employees. It must also include employees on

paid or unpaid leaves of absence. Employees who have been laid off

(whether temporary, indefinite, or long-term) are not included. (See

the discussion of related issues under Sec. 825.105.) In effect, the

test of whether an individual is counted as an ``employee'' depends

upon whether there is a continuing employment relationship, and being

``maintained on the payroll'' is used as a proxy for establishing the

continuing nature of the relationship.

Leave Entitlement (Sec. 825.112)

Section 825.112 sets forth the basic statutory circumstances for

which employers must grant FMLA leave. A number of commenters addressed

these circumstances with suggestions, recommendations, or requests for

clarifications. For example, Lancaster Laboratories suggested that an

employer should not be required to approve prenatal care visits if such

appointments could be scheduled outside of normal working hours. United

Federal Credit Union felt that employers should be able to place a cap

on how many employees may be on FMLA leave at any one time, with

discretion linked to business needs. Another commenter indicated that

FMLA leave should be allowed for a sister or brother living with the

employee. The Society for Human Resource Management asked whether the

terms ``placement * * * for adoption'' covered the situation where a

child was placed in a new home for adoption and time was needed for

bonding between the new parent and the child. The Society also asked if

a pregnant employee were well enough to return to work after six weeks,

but had requested 12 weeks, could the employer require the employee to

return to work after six weeks. Oregon Bureau of Labor and Industries

observed that Sec. 825.112(d) states there is no age limit on a child

being adopted or placed for foster care, but Sec. 825.113(c) defines

``son or daughter'' to be a person under the age 18, or 18 or older and

incapable of self-care, and questioned whether FMLA leave was available

for adoption of a child age 18 or older who is capable of self-care.

The Equal Employment Advisory Council argued, with respect to an

employee who marries and requests FMLA leave to be with new

stepchildren, that such leave should be explicitly prohibited unless

the employee formally adopts the stepchildren.

California Department of Fair Employment and Housing and the law

firm of Fisher and Phillips urged Sec. 825.112 be expanded to

incorporate provisions stated elsewhere in the regulations.

Specifically, they argued that the definition of ``son or daughter'' in

Sec. 825.113 as it relates to the availability of FMLA leave to an

employee who stands in loco parentis to a child should be added to

Sec. 825.112(a)(1), and that Sec. 825.112(d) should be amended to

reference the limitation in Sec. 825.203 on the use of intermittent

leave for purposes of birth, adoption or placement of a foster child

that such leave is available only if the employer agrees. Sommer &

Barnard noted that while an employee may be eligible for FMLA leave

before ``the actual date of birth'' or ``actual placement,'' there is

no provision in the regulations that would permit an employer to

require verification that leave requested for such purposes is for a

statutory purpose.

With respect to scheduling prenatal care doctor's visits, the Act

and regulations require that in any case where the need for leave is

foreseeable based on planned medical care, the employee shall make a

bona fide, reasonable effort to schedule the leave in a manner that

does not unduly disrupt the employer's operations (subject to the

approval of the employee's (or family member's) health care provider).

However, it would be contrary to the statute for an employer to place

any cap on the number of employees who could be eligible for FMLA leave

at any one time, or for the regulations to require employers to grant

the same type of leave entitlement for a sister or brother living with

the employee as FMLA provides for a spouse (although employers could

adopt more generous leave policies than the [[Page 2190]] minimums

established by FMLA). With respect to leave for the birth of a child,

the statute entitles an employee to FMLA leave for a period of up to 12

weeks for the birth and care of a child. Under the circumstances

described by the Society for Human Resource Management, the employee

may not be required to return to work after six weeks if the employee

desires 12 weeks of FMLA leave for the birth of her child.

In response to the question on whether FMLA's leave entitlement for

placement for adoption includes ``bonding'' time between the parent and

child, we note from the legislative history's discussion of the need

for family and medical leave legislation that:

Adoptive parents also face difficulties in the absence of a

reasonable family leave policy. Most adoption agencies require the

presence of a parent in the home--some for as long as four months--when

a child is placed with the family to allow them adequate time for

proper bonding. * * *

The legislative history's discussion of the leave provisions

themselves provides:

Section 102(a)(2) requires that leave provided under Sec. 102(a)(1)

(A) or (B) to care for a newborn child or a child newly placed with the

employee for adoption or foster care be taken before the end of the

first 12 months following the date of the birth or placement. * * *

Clearly, the intent of FMLA's leave entitlement in the case of

leave for placement of a child with the employee for adoption or foster

care includes ``bonding'' time with the newly-placed child, during the

12 months following the date of placement.

In response to the commenter who questioned whether FMLA leave is

available for adoption of a child age 18 or older who is capable of

self-care, upon reexamination of the statutory definitions and leave

entitlement provisions of the Act, we have concluded that the

availability of leave for adoption of a child age 18 or older is

limited to those who are incapable of self-care because of a mental or

physical disability, consistent with the statutory definition of ``son

or daughter'' in Sec. 101(12) of the FMLA. The regulations have been

revised to delete the statement that there is no maximum age limit for

a child placed for adoption or foster care. Regarding the employee who

marries and requests FMLA leave to be with new stepchildren, FMLA leave

would only be available if the employee in that case formally adopted

the stepchildren, as the commenter pointed out. However, if one of the

children subsequently has a serious health condition, the stepparent

would be entitled to FMLA leave to care for the child.

Many comments suggesting clarification or reiteration of provisions

contained elsewhere in the regulations are being adopted. The

regulations are also being revised at Sec. 825.113 to permit an

employer to request that employees provide reasonable documentation

that verifies the legitimacy of an FMLA leave request, i.e., that

requested leave is for a qualifying statutory purpose. Reasonable

documentation of a qualifying reason for FMLA leave can take the form

of a simple signed statement by the employee. The employer's policies

in this area should be communicated in advance to employees and be

applied uniformly, and employees must be given a reasonable opportunity

to respond.

Section 825.112(e) provides that ``State'' action must be involved

in foster care placement to qualify for FMLA leave. The Community Legal

Services, Inc. and Women's Legal Defense Fund stated that the ``State''

involvement requirement was not supported by the statute, legislative

history, or sound public policy, and argued that the statutory

definition of a ``son or daughter,'' which includes a ``child of a

person standing in loco parentis,'' implies that FMLA leave should be

available whenever an employee takes primary responsibility for the

care of a child with the intention of adopting or otherwise having day-

to-day caretaking responsibility for that child. Thus, for example,

parents of addicts who assume responsibility as primary caretakers for

the addicts' children is a form of ``foster'' care in which FMLA leave

should be available to such parents.

Section 102(a)(1)(B) of FMLA entitles an eligible employee to take

FMLA leave ``[b]ecause of the placement of a son or daughter with the

employee for adoption or foster care'' (emphasis added). Thus, the

entitlement to leave under this section of the Act relates only to the

actual placement with the eligible employee of an adopted or foster

child. The act of providing ``foster care,'' in and of itself, is not a

qualifying reason for taking FMLA leave under the statute. On the other

hand, in the example of parents of addicts who assume the primary, day-

to-day responsibilities to care for and financially support the

addicts' children, the in loco parentis relationship thus established

could entitle the in loco parentis parents to take FMLA leave under a

different section of the FMLA, Sec. 102(a)(1)(C), if the in loco

parentis parent was needed to care for the ``child'' (of the person

standing in loco parentis) for a serious health condition (subject to

the Act's medical certification provisions). FMLA's legislative history

fully supports this view:

The terms ``parent'' and ``son or daughter'' * * * reflect the

reality that many children in the United States today do not live in

traditional ``nuclear'' families with their biological father and

mother. Increasingly, those who find themselves in need of workplace

accommodation of their child care responsibilities are not the

biological parent of the children they care for, but their adoptive,

step, or foster parents, their guardians, or sometimes simply their

grandparents or other relatives or adults. This legislation deals with

such families by tying the availability of ``parental'' leave to the

birth, adoption, or serious health condition of a ``son or daughter''

and then defining the term ``son or daughter'' to mean ``a biological,

adopted, or foster child, a stepchild, a legal ward, or a child of a

person standing in loco parentis * * *.'' * * *

Definition of Spouse, Parent, Son or Daughter (Sec. 825.113)

FMLA entitles an eligible employee to take leave ``in order to care

for the spouse, or a son, daughter, or parent, of the employee, if such

spouse, son, daughter, or parent has a serious health condition''

(emphasis added). Section 825.113(a) defines the term ``spouse'' to

mean a husband or wife as defined or recognized under State law for

purposes of marriage, including common law marriage in States where it

is recognized. A considerable number of comments urged that this

definition be broadened to include domestic partners in committed

relationships including same-sex relationships, or, in the alternative,

to include all unions recognized by State or local law. The Society for

Human Resource Management questioned whether an employer located in one

State which does not recognize common law marriages would be required

to grant FMLA leave to its employees with common law spouses who reside

in another State that recognizes common law marriages. William M.

Mercer, Inc. also recommended clarification of which State law would be

controlling when the employee works in a different State.

FMLA defines the term ``spouse'' to mean ``a husband or wife, as

the case may be.'' In discussing this definition during Senate

consideration of the legislation, Senator Nickles noted:

[[Page 2191]] * * * This is the same definition that appears in

Title 10 of the United States Code (10 U.S.C. 101).

Under this amendment, an employer would be required to give an

eligible female employee unpaid leave to care for her husband and an

eligible male employee unpaid leave to care for his wife. No

employer would be required to grant an eligible employee unpaid

leave to care for an unmarried domestic partner.

This simple definition will spare us a great deal of costly and

unnecessary litigation. Without this amendment, the bill would

invite lawsuits by workers who unsuccessfully seek leave on the

basis of their unmarried adult companions. (Cong. Rec. (S 1347),

Feb. 4, 1993.)

Accordingly, given this legislative history, the recommendations

that the definition of ``spouse'' be broadened cannot be adopted. The

definition is clarified, however, to reference the State ``in which the

employee resides'' as being controlling for purposes of an employee

qualifying to take FMLA leave to care for the employee's ``spouse''

with a serious health condition.

Section 825.113(b) of the regulations defined ``parent,'' as

provided in Sec. 101(7) of the FMLA, to mean a biological parent or an

individual who stands or stood in loco parentis to an employee when the

employee was a child. The regulatory definition noted that the term did

not include a parent ``in-law.'' Several commenters (City of

Alexandria, Virginia; Fairfax Area Commission on Aging; Northern

Virginia Aging Network; the Brooklyn and Green Mountain Chapters of the

Older Women's League; Sisters of Charity of Nazareth; Retail, Wholesale

and Department Store Union; and University of Vermont) viewed the

regulatory definition as too restrictive, recommending in some

instances that the term ``parent'' be broadened to specifically include

parents ``in-law.'' (An additional 107 cards or letters were received

from individuals endorsing this view.)

Standard rules of statutory construction require that we interpret

the availability of FMLA leave for a ``parent'' in a manner consistent

with FMLA's definition of ``parent,'' which is limited to the

employee's biological parent or an individual who stood in loco

parentis to the employee when the employee was a child, and does not

extend to a parent ``in-law.'' Moreover, the leave entitlement under

Sec. 102(a)(1)(C) of FMLA is expressly limited to ``* * * care for the

* * * parent, of the employee, if such * * * parent has a serious

health condition.'' Thus, each eligible spouse may take qualifying FMLA

leave to care for his or her own biological (or in loco parentis)

``parent'' who has a serious health condition, but the leave

entitlement cannot be extended by regulation to parents ``in-law.''

FMLA Sec. 101(12) defines ``son or daughter'' in part as one who is

under age 18, or age 18 or older and ``incapable of self-care because

of a mental or physical disability.'' The Older Women's League, in

commenting on the ``incapable of self-care'' provisions defined in

Sec. 825.113(c)(1), was concerned that requiring that an individual

need active assistance or supervision to provide daily self-care in

``several'' of the ``activities of daily living'' would be interpreted

to mean three or more, absent clarification, which they believe would

unduly restrict eligibility for FMLA leave. The Consortium for Citizens

With Disabilities, the Epilepsy Foundation of America, and the United

Cerebral Palsy Association recommended that the definition of

``incapable of self-care'' be supplemented with additional criteria

which more accurately reflect the needs of all people with

disabilities, suggesting that ``instrumental activities of daily

living'' or IADL's (activities necessary to remain independent) should

be added to address the needs of people with mental and cognitive

impairments.

In response to the comments received on this section, ``incapable

of self-care'' is defined in the final rule to include, in addition to

the ``activities of daily living,'' the ``instrumental activities of

daily living,'' as recommended. We interpret ``several'' to mean more

than two but fewer than many, i.e., three or more (see Webster's;

Black's Law).

The Equal Employment Opportunity Commission (EEOC), in commenting

on ``physical or mental disability'' in Sec. 825.113(c)(2), noted that

the DOL rule cited, as a cross-reference, EEOC's entire regulatory part

under the Americans with Disabilities Act (ADA), 29 CFR 1630, for

defining ``physical or mental disability.'' Because the current illegal

use of drugs is not a disability within the meaning of the ADA, EEOC

expressed concern that the broader cross-reference to the entire

regulatory part could create confusion over whether an adult child

currently engaging in the illegal use of drugs would be ``disabled''

for purposes of a parent qualifying to take FMLA leave. EEOC suggested

that DOL be more specific in citing to the pertinent ADA regulations to

foreclose the argument that ``physical'' or ``mental'' disability in

this context would not include the current illegal use of drugs. We

have adopted EEOC's suggestion in the final rule. An eligible

employee's son or daughter who illegally uses drugs may be disabled for

purposes of an eligible parent (employee) taking FMLA leave.

The University of Michigan includes in-laws, domestic partners, and

other relatives within a broader definition of ``family'' for purposes

of its family leave policies. The University suggested that the

regulations enable employers that have extended their family leave

policies to such ``non-traditional'' families to count as part of an

employee's FMLA leave entitlement leave that is taken to care for such

broader definitions of ``family.'' This issue is addressed in

Sec. 825.700 of the regulations, which discusses the effect of employer

policies that provide greater benefits than those required by FMLA. We

interpret the statute as prohibiting an employer from counting as a

part of an employee's FMLA leave entitlement leave granted for a reason

that does not qualify under FMLA.

The law firm of Orr and Reno, and the Chicagoland Chamber of

Commerce, et al., urged that in addition to medical certifications

presently required, the regulations should include provision for

requests relating to child care because it is not always obvious that

the leave is justified, particularly with respect to a father or in

foster care situations.

Although leave to provide ``child care'' would not ordinarily

qualify as FMLA leave if the child is not a newborn (in the first year

after the birth) and is otherwise healthy, FMLA leave is ``justified''

(and may not be denied by the employer) if it is taken for one of

FMLA's qualifying reasons, including where a father wants to stay home

with a healthy newborn child in the first year after the birth, or

needs to be home to care for a child with a serious health condition,

or for placement with the employee of a child for foster care. The

regulations have been amended in Sec. 825.113(d) to permit employers to

require reasonable documentation from the employee for confirmation of

family relationships.

Definition of ``Serious Health Condition'' (Sec. 825.114)

Section 101(11) of FMLA defines ``serious health condition'' to

mean

* * * an illness, injury, impairment, or physical or mental

condition that involves--

(A) inpatient care in a hospital, hospice, or residential medical

care facility; or

(B) continuing treatment by a health care provider.

This scant statutory definition is further clarified by the

legislative history. The congressional reports did indicate that the

term was not intended [[Page 2192]] to cover short-term conditions for

which treatment and recovery are very brief, as Congress expected that

such conditions would be covered by even the most modest of employer

sick leave policies. While the meaning of inpatient care is evident

(i.e., an overnight stay in the hospital, etc.), the concept of

``continuing treatment'' presents more difficult issues. Under the

Interim Final Rule, ``continuing treatment'' required two or more

visits to a health care provider or a single visit followed by a

prescribed regimen of treatment, or a serious, incurable condition

which existed over a prolonged period of time under the continuing

supervision of a health care provider. When deciding upon the

regulatory guidance for the definition in the Interim Final Rule, the

Department relied heavily upon definitions and concepts from the Office

of Workers' Compensation Programs. For example, under many State

workers' compensation laws and the Federal Employees' Compensation Act

(FECA), a three-day waiting period is applied before compensation is

paid to an employee for a temporary disability. A similar provision was

included in the FMLA rules; a period of incapacity of ``more than three

days'' was used as a ``bright line'' test based on the references in

the legislative history to serious health conditions lasting ``more

than a few days.''

Eighty-eight comments were received on the regulatory definition of

``serious health condition.'' Many commenters objected to the language

in Sec. 825.114(a)(3), which provided that a period of incapacity of

more than three calendar days was an indicator of a serious health

condition, and Sec. 825.114(b)(2), which defined continuing treatment

as including one visit to a health care provider which results in a

regimen of continuing treatment under the supervision of the health

care provider, e.g., a course of medication or therapy to resolve the

health condition. Some contended that the ``more than three days'' test

encouraged employees to remain absent from work longer than necessary

for the absence to qualify as FMLA leave, or that the duration of the

absence was not a valid indicator of serious health conditions that are

very brief (e.g., a severe asthma attack that is disabling but requires

fewer than three days for treatment and recovery to permit the

employee's return to work). Some commenters felt the three-day rule was

unreasonably low and trivialized the concept of seriousness, suggesting

it more appropriately defined a ``health condition'' rather than a

``serious health condition.''

Nine commenters (9 to 5, National Association of Working Women;

Federally Employed Women; Women's Legal Defense Fund; Federal Express;

Linda Garcia; Kerryn M. Laumer; Epilepsy Foundation of America;

International Ladies' Garment Workers' Union; Service Employees

International Union) stated that the three-day rule was contrary to the

statute and legislative history. The Women's Legal Defense Fund and the

Epilepsy Foundation of America pointed out that the House Education and

Labor Committee specifically rejected a minimum durational limit during

a markup of the bill. These commenters, together with the Consortium

for Citizens with Disabilities, National Community Mental HealthCare

Council, and United Cerebral Palsy Associations, contended that

seriousness and duration do not necessarily correlate, particularly for

people with disabilities; that a fixed time limit fails to recognize

that some illnesses and conditions are episodic or acute emergencies

which may require only brief but essential health care to prevent

aggravation into a longer term illness or injury, and thus do not

easily fit into a specified linear time requirement; and that

establishing arbitrary time lines in the definition only creates

ambiguity and discriminates against those conditions that do not fit

the average. The Women's Legal Defense Fund made the observation from

the legislative history that Congress intended the severity and normal

length of disabling conditions to be used as ``general tests,'' not

bright-line rules, and suggested that if a condition is sufficiently

severe or threatening, duration is irrelevant.

The 9 to 5, National Association of Working Women, Los Angeles

County Metropolitan Transportation Authority, Baptist Health Care, St.

Vincent Medical Center, Chamber of Commerce of the USA, Chicagoland

Chamber of Commerce, and Service Employees International Union,

contended that a three-day absence requirement will inevitably result

in employees with minor short-term afflictions unnecessarily extending

their absences just to qualify for FMLA leave.

Fifteen commenters suggested extending the three-day absence

requirement to a longer period, such as 5, 6, 7, or 10 days (Care

Providers of Minnesota, Cincinnati Gas & Electric Company, Chicagoland

Chamber of Commerce, Nevada Power Company, Federal Express, Chevron,

PARC, Consolidated Edison Company of New York, Inc., Village of

Schaumburg (Illinois) Human Resources, Food Marketing Institute,

Society for Human Resource Management, Southwestern Bell Corporation,

New York State Metropolitan Transportation Authority), two weeks

(United HealthCare Corporation), or 31 days (the American Apparel

Manufacturers Association, Inc., suggested that the definition should

reflect the initial study by the U.S. General Accounting Office that

estimated FMLA's cost impact, noting further that the three-day rule is

significantly more lenient than the ``31 days or more of bed rest

required to remedy the condition'' used by GAO).

The Ohio Public Employer Relations Association strongly objected to

the three-calendar-day rule on the grounds that a single workday

absence on Friday followed by a weekend would qualify (or a Monday

absence following a weekend). The law firm of Sommer and Barnard stated

that it was not clear from the regulations or comments in the preamble

whether the three days are consecutive or non-consecutive calendar days

of work. The Chamber of Commerce of the USA questioned whether the

rule, as drafted, could be construed as requiring three cumulative days

in a calendar year as opposed to three consecutive calendar days.

Several additional commenters urged that the period be measured by

business or working days in lieu of calendar days, while still others

distinguished ``consecutive'' calendar days of absence from

``consecutive'' work days of absence as alternative suggestions (i.e.,

more than five consecutive work days or seven consecutive calendar

days). The Hospital Council of Western Pennsylvania argued that the

standard should be one of incapacity requiring absence from work for

more than three ``consecutively scheduled workdays,'' as a workday

standard is compatible with other sick leave and short-term disability

programs and removes any doubt as to whether an employee was otherwise

incapacitated and unable to work during days the employee was not

scheduled to work. Chicagoland Chamber of Commerce commented that, with

respect to an employee's own serious health condition, the qualifying

standard pertains to work days and not calendar days, and yet the

regulatory language would allow one to argue that an inability to carry

out regular daily activities over the weekend counts toward the

qualifying period. The Burroughs Wellcome Company emphasized that the

committee reports clearly state that an employee must be absent from

work for the required number of days and that absence from ``school or

other regular daily activities'' [[Page 2193]] relates only to a

child's, spouse's, or parent's serious health condition.

The Chamber of Commerce of the USA and the National Association of

Manufacturers recommended that DOL's definition of serious health

condition adopt each State's waiting period for qualifying for workers'

compensation benefits, noting that many States use as much as seven

work days. As an alternative, the Chamber of Commerce and Consumers

Power Company (Michigan) suggested that the ADA's definition of

``disability'' could be used--a mental or physical impairment that

substantially limits a major life activity. EEOC, which enforces the

ADA, has advised that ADA ``disability'' and FMLA ``serious health

condition'' are different, and that they should be analyzed separately.

Massmutual noted that while the one incentive in FMLA to limit

employee abuse of FMLA leave was the stipulation that leave is unpaid,

some companies (like Massmutual) provide fully paid sick leave for

short-term absences. Thus, for companies with similar programs, there

is no incentive for employees not to abuse sick leave because they

would always be paid and could not be disciplined for the abuse due to

FMLA's employment protections. Massmutual recommended that the

definition of serious health condition be limited to a period of

incapacity requiring an absence of at least five working days or to

those days when an employee is scheduled for actual treatment and/or

recovery from a treatment.

The Burroughs Wellcome Company observed that the definition does

not refer at all to the types of health conditions involved, as does

the legislative history, but instead focuses only on what the committee

reports call the ``general test'' of incapacity for more than a few

days and continuing medical treatment or supervision. Thus, the

understanding of the test that Congress provided by listing examples of

conditions that meet the test is lost. The Equal Employment Advisory

Council recommended that the regulations include as serious health

conditions all the conditions enumerated in the legislative history

and, for those not enumerated, apply the general test. Federal Express

similarly argued that a fixed number of consecutive absences and visits

to a health care provider do not accurately reflect Congressional

intent, as colds and flu could be included as ``serious health

conditions.'' Federal Express recommended the definition focus on the

seriousness of the illness rather than on an arbitrary time period, and

that the health conditions listed in the legislative history be used in

conjunction with the general test in the legislative history for

determining whether an illness constitutes a serious health condition.

Chicagoland Chamber of Commerce presented similar views, arguing that

it is contrary to obvious legislative intent (and grossly over-

inclusive) for the regulation to focus on the extent to which medical

consultation is sought rather than on the degree of incapacitation.

Several employers and law firms contended in their comments that

the definition was too broad and inconsistent with the purpose of the

Act, in that a common cold (or any particular illness) which

incapacitates an employee for more than three days and involves two

visits to a health care provider could be considered within the

definition of ``serious health condition.'' Giant Food Inc., Kennedy

Memorial Hospitals, and LaMotte Company recommended clarifications to

exclude from the definition minor, short-term, remedial or self-

limiting conditions, and normal childhood or adult diseases (e.g.,

colds, flu, ear infections, strep throat, bronchitis, upper respiratory

infections, sinusitis, rhinitis, allergies, muscle strain, measles,

even broken bones). Southwestern Bell Corporation likewise requested

that the regulations distinguish routine illness (measles, chicken pox,

common ear infections) from serious health conditions by providing a

sample list of health conditions which are not considered serious

unless complications arise. Fisher and Phillips stated that pre-

delivery maternity leave should not be available where the pregnancy

does not render the employee unable to perform the functions of the

job. Nevada Power Company recommended excluding: Routine preventive

physical examinations; illnesses and injuries which require less than

six visits to a health care provider; conditions relating to

transvestism, transsexualism, pedophilia, exhibitionism, voyeurism,

gender disorders, or other sexual behavior disorders, kleptomania,

pyromania or substance abuse disorders resulting from illegal use of

drugs; other conditions which are neither life-threatening nor

prolonged.

A number of commenters (City of Alexandria (Virginia), Fairfax Area

Commission on Aging, Federally Employed Women, Northern Virginia Aging

Network, the Brooklyn and Green Mountain Chapters of the Older Women's

League, and Sisters of Charity of Nazareth) stated that the definition

was too restrictive and recommended that it be expanded to specifically

include chronic illnesses and long-term conditions which may not

require inpatient care or treatment by a health care provider. The

University of Vermont suggested that illnesses requiring respite care

also be included. The LaMotte Company asked whether it would matter if

an absence for a chronic illness (such as asthma) occurs infrequently--

e.g., would the absences have to be consecutive days or could they be

one day this week and one the next, or one every month?

Blue Cross and Blue Shield of Texas, Inc., posed the issue as a

quandary faced by employees and employers over the lack of definitive

guidelines as follows: Is there a liability in covering less serious

illnesses (such as chicken pox or a broken leg) as FMLA leave? If the

employer does count time toward the 12-week entitlement, can the

decision be challenged if, later in the year, a more severe condition

arises and the employee has less than sufficient entitlement remaining?

Five commenters (Older Women's League, Women's Legal Defense Fund,

Consortium for Citizens with Disabilities, Epilepsy Foundation of

America, and United Cerebral Palsy Associations) took issue with the

provisions in the definition which characterized ``continuing

treatment'' for a chronic or long-term condition that is ``incurable.''

These commenters contended that curability is not a proper test for

either a serious health condition or for continuing treatment, is

ambiguous and subject to change over time, and should be deleted,

noting that many incurable disabilities require continuing treatment

that has nothing to do with curing the condition. Some pointed out that

conditions such as epilepsy, traumatic brain injury, and cerebral palsy

are typically conditions which are not ``curable'' in the generally

accepted sense, but are conditions for which training and therapy can

help restore, maintain or develop function or prevent deterioration,

and noted that people with disabilities have struggled for a generation

or more to overcome the image that disabilities are, or should be

viewed as, curable or incurable. United Cerebral Palsy Associations

noted that cerebral palsy is a term used to describe a group of chronic

conditions affecting body movement and muscle coordination that are

neither progressive nor communicable; that it is not a disease and

should never be referred to as such, although training and therapy and

assistive technology may help to restore, maintain or increase

function.

Several commenters raised additional concerns on various aspects of

the ``continuing treatment'' definition. The [[Page 2194]] Equal Rights

Advocates suggested that continuing treatment include situations where

a serious health condition exists that, if left unattended, would

result in a hospital stay of more than three days.

Burroughs Wellcome stated that because the committee reports make

it clear that ``continuing treatment'' involves absences from work, the

regulation misses the mark by including one visit to a physician plus

medication. Sommer and Barnard was concerned that the discussion on

continuing treatment lacked clarity due to the lack of a clearly

defined time frame for multiple treatments; further, that a typical

employer could not determine from the information in the medical

certification whether a condition is ``so serious that, if not treated,

it would likely result in a period of incapacity of more than three

calendar days.'' This application does not call for a medical judgment

and the ``likely'' standard cannot possibly be administered. Sommer and

Barnard also stated the regulations lack a meaningful definition of

what constitutes a regimen of continuing treatment--would it include

bed rest, home exercise, or instructions to use a non-prescription drug

or medication? Sesco Management Consultants suggested the definition

invalidly broadens the concept of continuing treatment by allowing

``following courses of medication and therapy'' to qualify, which could

thus include taking aspirin for a few days while staying home, getting

bed rest and stretching limbs, drinking liquids, etc., which, this

commenter contends, the Congress did not remotely suggest would qualify

under FMLA.

Chicagoland Chamber of Commerce also considered the ``continuing

supervision'' concept too vague, questioning whether ``supervision''

required the individual to actually be examined by the health care

provider or to report in on some regular basis, or whether instructions

to report in if the condition changes were sufficient. It considered

treatment a definitive concept which could be proven, whereas

``supervision'' could not which would invite abuse and litigation.

The Food Marketing Institute commented that the Act defines a

serious health condition to require continuing treatment by a health

care provider, which necessarily means at least two visits to the

health care provider. Conditions which result in self-treatment (e.g.,

taking medication) ``under the supervision of'' a doctor are typically

not serious health conditions as contemplated by the FMLA, according to

this commenter. Similarly, the Society for Human Resource Management

recommended that ``continuing treatment'' be redefined so that taking

medications does not count the same as an office visit.

The Ohio Public Employer Labor Relations Association noted that

while stress may contribute to illness in some persons, it is not an

illness or a medical condition. The commenter recommended that

treatment for stress without a commonly accepted and recognized medical

diagnosis should not be included in the definition of a serious health

condition.

Ten commenters raised various concerns regarding the availability

of FMLA leave for treatment for substance abuse. The Epilepsy

Foundation of America stated that substance abuse programs and mental

health services must be included in the definition of serious health

condition. William M. Mercer, Inc., suggested that the preamble

discussion from the Interim Final Rule on treatment for substance abuse

should be set forth in the rule itself. Consolidated Edison Company of

New York, Inc. commented that employees should be allowed FMLA leave

for substance abuse treatment only if they are not current users of

illegal drugs, consistent with the approach followed under the ADA's

protections. Consumers Power Company (Michigan) also recommended

excluding absences for an employee's illegal use of drugs, and limiting

FMLA leaves to inpatient substance abuse treatment programs with

durations of no less than 14, or preferably, 28 days. Nationsbank

Corporation (Troutman Sanders) suggested the regulations specifically

state: (1) FMLA does not prohibit discipline for an employee's drug use

in violation of the employer's policy; (2) an employee may not use FMLA

to avoid potential discipline or drug testing; and (3) an employee

returning from FMLA leave for substance abuse may be drug tested as a

condition of return to work and following return to work, pursuant to

an employer's post-treatment drug policy. Nevada Power Company

suggested that an employer should not have to offer more than one leave

of absence for drug or alcohol rehabilitation; and that employers which

expend funds to reform substance abusers should be allowed to terminate

employees if they begin to abuse drugs or alcohol again. Edison

Electric Institute also suggested employers should only have to provide

professional rehabilitative service and support to drug abusers one

time.

The American Trucking Association, in contrast, advocated

eliminating substance abuse from the definition of serious health

condition, because protection of substance abusers jeopardizes efforts

by the trucking industry and the U.S. Department of Transportation to

eradicate substance abusers from the nation's highways. Federal Highway

Administration regulations require trucking companies to conduct

substance abuse testing, but do not permit a motor carrier to test a

driver who voluntarily admits to abuse because such an admission,

without more, fails to trigger the duty to test under any of the five

categories, in essence enabling the employee to ``beat the system'' by

triggering FMLA rights before a drug test could be conducted. It was

unclear to the Association under FMLA whether such an admission would

preclude a motor carrier's ability to test a driver scheduled for a

random drug test. The Association recommended changing the regulations

to either totally exclude substance abuse from the definition of

serious health condition, or exclude those persons who are subject to

FHWA drug testing requirements from FMLA protections insofar as those

protections include treatment for substance abuse. This commenter would

also support an exclusion limited to those persons in the

transportation industry subject to federal drug testing requirements,

and also suggested the regulations make clear that persons currently

engaged in illegal use of drugs have no FMLA protections, consistent

with the provisions of the ADA.

The Chamber of Commerce of the USA recommended clarifications to

provide that current illegal use of drugs during treatment for illegal

drug use, or resumption of the illegal use of drugs following

completion of treatment, removes such treatment from the category of

``serious health condition'' under FMLA, and that an employee who fails

a drug test would be subject to the employer's normal disciplinary

procedures and would not be protected by FMLA.

Louisiana Health Care Alliance (Phelps Dunbar) suggested that

clarification be provided to ensure that employers have the continued

right to enforce legitimate policies for drug- and alcohol-free

workplaces, by explicitly stating in the regulations that nothing in

FMLA prohibits an employer from terminating or otherwise disciplining

an employee pursuant to a legitimate drug testing program.

The Department has carefully reviewed the comments and re-examined

the legislative history and the definition of ``serious health

condition'' in an attempt to assure that it is consistent with

Congressional intent, and that FMLA leave is available in

[[Page 2195]] those situations where it is really needed. As a result

of this review, the regulation has been significantly re-crafted, as

discussed below.

As summarized above, comments were submitted opposing any duration

limit, and equally strong comments suggested the standard was much too

short. Upon review, the Department has concluded that the ``more than

three days'' test continues to be appropriate. The legislative history

specifically provides that conditions lasting only a few days were not

intended to be included as serious health conditions, because such

conditions are normally covered by employers' sick leave plans. The

Department has also concluded that it is not appropriate to change the

standard to working days rather than calendar days because the severity

of the illness is better captured by its duration rather than the

length of time necessary to be absent from work. Furthermore, a working

days standard would be difficult to apply to serious health conditions

of family members or to part-time workers. (It is noted that throughout

the regulations, where a number of days is prescribed, calendar days is

intended unless the regulation explicitly states business days.) The

regulation has been revised, however, to make it clear that the absence

must be a period of incapacity of more than three consecutive calendar

days. ``Incapacity,'' for purposes of this definition, means inability

to work, attend school or perform other regular daily activities due to

the serious health condition, treatment therefor, or recovery

therefrom. Any subsequent treatment or incapacity relating to the same

condition would also be included.

The regulation also retains the concept that continuing treatment

includes either two visits to a health care provider (or to a provider

of health care services on referral of a health care provider) or one

visit followed by a regimen of continuing treatment under supervision

of the health care provider. Regimen of continuing treatment is

clarified in paragraph (b) of this section to make it clear that the

taking of over-the-counter medications, bed-rest, drinking fluids,

exercises, and other similar activities that can be initiated without a

visit to a health care provider is not, by itself, sufficient to

constitute a regimen of continuing treatment for purposes of FMLA

leave. Prescription drugs or therapy requiring special equipment, for

example, would be included. It is envisioned that a patient would be

under continuing supervision in this context, for example, where the

patient is advised to call if the condition is not improved.

The Department concurs with the comments that suggested that

special recognition should be given to chronic conditions. The

Department recognizes that certain conditions, such as asthma and

diabetes, continue over an extended period of time (i.e., from several

months to several years), often without affecting day-to-day ability to

work or perform other activities but may cause episodic periods of

incapacity of less than three days. Although persons with such

underlying conditions generally visit a health care provider

periodically, when subject to a flare-up or other incapacitating

episode, staying home and self-treatment are often more effective than

visiting the health care provider (e.g., the asthma-sufferer who is

advised to stay home and inside due to the pollen count being too

high). The definition has, therefore, been revised to include such

conditions as serious health conditions, even if the individual

episodes of incapacity are not of more than three days duration.

Pregnancy is similar to a chronic condition in that the patient is

periodically visiting a health care provider for prenatal care, but may

be subject to episodes of severe morning sickness, for example, which

may not require an absence from work of more than three days. It is

clear from FMLA's legislative history that pregnancy was intended to be

treated as a serious health condition entitling an individual to leave

under the Act, and the definition therefore includes any period of

incapacity due to pregnancy, or for prenatal care.

The Department has also included a definition to deal with serious

health conditions which are not ordinarily incapacitating (at least at

the current state of the patient's condition), but for which treatments

are being given because the condition would likely result in a period

of incapacity of more than three consecutive calendar days in the

absence of medical intervention or treatment. The regulation requires

multiple treatments, and includes as examples patients receiving

chemotherapy or radiation for cancer, dialysis for kidney disease, or

physical therapy for severe arthritis. Multiple treatments for

restorative surgery after an accident or other injury is also

specifically included. The previous requirement that the condition be

chronic or long-term has been deleted because cancer treatments, for

example, might not meet that test if immediate intervention occurs.

The portion of the definition dealing with long-term, chronic

conditions such as Alzheimer's or a severe stroke has been modified to

delete the reference to the condition being incurable, and to require

instead that the condition involve a period of incapacity which is

permanent or long-term and for which treatment may not be effective.

Therefore, in this situation, as under the interim final rule, it is

only necessary that the patient be under the supervision of a health

care provider, rather than receiving active treatment.

The Department did not consider it appropriate to include in the

regulation the ``laundry list'' of serious health conditions listed in

the legislative history because their inclusion may lead employers to

recognize only conditions on the list or to second-guess whether a

condition is equally ``serious'', rather than apply the regulatory

standard. However, the regulation does provide, as examples, that,

unless complications arise, the common cold, the flu, earaches, upset

stomach, minor ulcers, headaches other than migraine, routine dental or

orthodontia problems, and periodontal disease are not ordinarily

serious health conditions. In addition, the regulation specifically

states that routine physicals, eye examinations and dental examinations

are not considered treatment, although examinations to determine if a

serious health condition exists and evaluations of the condition are

considered treatment.

The regulation has also been revised in paragraph (c) to delete the

reference to ``voluntary'' treatments for which treatment is not

medically necessary, and restrict the exclusion to cosmetic treatments

(unless inpatient care is required or complications develop). The term

``voluntary'' was considered inappropriate because all treatments and

surgery are voluntary. Furthermore, the Department did not wish to

encourage employers to second-guess a health care provider's judgment

that a treatment is advisable (e.g., orthoscopic knee surgery on an

out-patient basis) by questioning whether it is ``necessary''.

The regulation continues to recognize that substance abuse may be a

serious health condition if the criteria of the regulation are met.

However, the regulation is revised to make it clear that an absence

because of the employee's use of the substance, rather than for

treatment, is not protected. See also Sec. 825.112(g) of the

regulations, which has been revised to make it clear that an employer

may take disciplinary action against an employee pursuant to a

uniformly applied policy regarding substance abuse, provided the action

is not being taken because the employee has exercised his or her right

to take FMLA leave.

In response to the question by Blue Cross and Blue Shield of Texas

regarding liability in covering less [[Page 2196]] serious illnesses,

the regulatory procedures in Sec. 825.208 prescribe the method for an

employer to designate FMLA leave. Under this procedure, an employee has

an opportunity to counter an employer's designation of leave and

resolve the dispute. See Sec. 825.208(b).

As suggested, the reference in the interim final rule to stress as

a possible serious health condition has been revised to mental illness

resulting from stress.

Unable To Perform the Functions of the Position (Sec. 825.115)

An eligible employee may take FMLA leave due to a ``serious health

condition'' that makes the employee ``unable to perform the functions''

of the employee's position. Section 825.115 of the Interim Final Rule

states that an employee is ``unable to perform the functions of the

position'' where the health care provider has found the employee either

unable to work at all, or unable to perform any of the essential

functions of the position within the meaning of the ADA and its

implementing regulations (29 CFR Part 1630). For employers that request

employees to furnish medical certification from the employee's health

care provider to support the leave request, the regulations provide the

employer the option of furnishing a statement (list) of the employee's

essential functions for the health care provider to review when

certifying to the employee's condition.

The Women's Legal Defense Fund, California Department of Fair

Employment and Housing, and Consumers Power Company, Michigan commented

that this section was unclear as to whether an employee must be found

unable to perform each and every essential function (i.e., all), or

only any single one, or some of several of the essential functions.

Several commenters (Alabama Power Company (Balch & Bingham); Chamber of

Commerce of the USA; Credit Union National Association, Inc.; National

Restaurant Association; Society for Human Resource Management; William

M. Mercer, Inc.) either questioned the effect of ``reasonable

accommodations'' and ``job restructuring'' or modified ``light duty

assignments'' on FMLA leave requests, or suggested that the FMLA

regulations be interpreted to mean ``unable to perform any of the

essential functions with or without reasonable accommodation within the

meaning of the ADA.'' Thus, under this latter view, FMLA leave could be

denied to an employee with a serious health condition who, although

unable to perform the essential job functions, would be able, despite

the condition, to perform those functions if offered ``reasonable

accommodation.'' Some commenters noted the utility of creating ``light

duty'' assignments for employees who suffer on-the-job injuries, and

the impact on State workers' compensation benefits which can be

suspended if an employee refuses to accept a medically-approved ``light

duty'' assignment. The Consortium for Citizens with Disabilities,

Epilepsy Foundation of America, and United Cerebral Palsy Associations

noted a difference in the language in this section of the regulations

and that of Sec. 825.306(b) (discussing medical certifications) and

suggested conforming changes so that both sections would be interpreted

to mean ``any one (or more) of the essential functions'' (not all of

the essential functions). The EEOC noted once again that the DOL rule

cited to the entire body of the ADA regulations in the cross-reference

and suggested refining the cite to the specific ADA rule that defines

``essential functions'' (29 CFR 1630.2(n)).

This section was intended to reflect that an employee would be

considered ``unable to perform the functions of the position'' within

the meaning of the regulations if the employee could not perform any

one (or more) of the essential functions of the job held by the

employee at the time the need for FMLA leave arose, and the final rule

is so clarified (in Secs. 825.115 and 825.306). EEOC's recommendation

to cite to the specific ADA rule defining ``essential functions'' has

also been adopted. The cite has been so revised, to make it clear that

reasonable accommodation is irrelevant for purposes of FMLA.

The relationship between FMLA's leave provisions and other laws

like the ADA and State workers' compensation laws is addressed under

Title IV of the FMLA and in Subpart G of the FMLA regulations

(Secs. 825.700-825.702). As will be discussed further in connection

with Secs. 825.701 and 825.702 below, FMLA entitles an employee to take

up to 12 weeks of job-protected leave, from the position of employment

of the employee when the employee gives notice or when leave commences

(whichever is earlier), for a serious health condition that makes the

employee unable to perform any one of the essential functions of the

employee's position (the position held by the employee when the notice

was given or the leave commenced). FMLA also entitles such an employee

to be restored to that same position of employment (the one held by the

employee when notice was given or the leave commenced), or to an

equivalent position with equivalent employment benefits, pay, and other

terms and conditions of employment. Under these statutory terms, if an

employee qualifies under FMLA for job-protected leave, the employee may

not be forced, before the employee's FMLA job-protected leave

entitlement has expired, to return to work in a ``light duty'' (i.e.,

an unequal, modified, or restructured) position, instead of continuing

FMLA leave until the entitlement has been exhausted. To do so would

violate an employee's job-protected rights to be restored to the same

or an equivalent position. Furthermore, the circumstances in which an

employer is permitted to place an employee in an alternative position

are explicitly addressed in the Act (Sec. 102(b)(2)).

Regarding the comment that worker's compensation benefits may be

suspended if an employee refuses a light duty assignment, we do not

interpret the FMLA as prohibiting that result under applicable State

workers' compensation statutes. In our view, where an employee is

injured on the job and the injury also results in a serious health

condition that makes the employee unable to perform any one of the

essential functions of the employee's position within the meaning of

FMLA, the employee effectively qualifies for both workers' compensation

benefits and job-protected leave under the FMLA. This would mean that,

in addition to the employee receiving payments from the workers'

compensation fund for replacement of lost wages, the employer would be

obligated to maintain (at least until the employee's FMLA leave

entitlement is exhausted) any of the employee's pre- existing health

benefits coverage under the same terms and conditions as if the

employee had continued to work. If, as part of the workers'

compensation claim process, the employee is offered a medically-

approved ``light duty'' assignment, the employee may decline the

assignment offer and instead choose to begin or continue to exercise

FMLA rights and remain on leave for the remaining portion of the

employee's FMLA leave entitlement. As discussed in Sec. 825.220(d), if

the employee freely accepts the ``light duty'' assignment offer in lieu

of FMLA leave or returns to work before exhausting his or her FMLA

leave entitlement, the employee would retain his or her right to the

original or an equivalent position until 12 weeks have passed,

including all FMLA leave taken that year. At the conclusion of the 12-

week period, if the employee is not able to perform the essential

functions of the original [[Page 2197]] position, the employee's right

to restoration ceases. The relationship between State workers'

compensation laws and FMLA will be discussed in further detail in

connection with Sec. 825.702.

It should be noted that FMLA does not modify or affect any law

prohibiting discrimination on the basis of disability, such as the ADA.

Thus, if a ``qualified individual with a disability'' within the

meaning of the ADA is also an ``eligible employee'' entitled to take

FMLA leave, an employer has multiple compliance obligations under both

the ADA and the FMLA. When one of these laws offers a superior right to

an employee on a particular issue, the employer must provide that

superior right to the employee. These issues will be discussed in

further detail in connection with Sec. 825.702.

This section is also revised to make it clear, as stated in the

legislative history and in the preamble to the Interim Final Rule, an

employee who is absent to receive medical treatment for a serious

health condition is unable to perform the essential functions of the

employee's job while absent for treatment.

Needed To Care for a Family Member (Sec. 825.116)

An eligible employee may take FMLA leave ``in order to care for''

an immediate family member (spouse, son, daughter, or parent) with a

serious health condition. This section, in discussing what was meant by

``needed to care for'' a family member, provided that both physical and

psychological care or comfort were contemplated under this provision of

FMLA. Giant Food, Inc. recommended that a distinction be made between

physical and psychological care and supervisory care, suggesting also

that reasonable efforts should be made by employees to develop

alternate day care plans in the event of a childhood illness to lessen

the impact that excessive absenteeism can have on an employer's

operations. The Ohio Public Employer Labor Relations Association

objected to allowing FMLA leave solely to provide psychological comfort

for a family member rather than actual physical assistance and care,

and suggested that employers should have discretion to consider whether

other care is being provided to the family member through health-care

services as well as other family members. The Women's Legal Defense

Fund, Consortium for Citizens with Disabilities, Epilepsy Foundation of

America, National Community Mental Healthcare Council, and United

Cerebral Palsy Associations objected to the reference to individuals

``receiving inpatient care'' in paragraph (a), because many individuals

are in other situations, such as in the home, which require this type

of care and assistance from family members. Several of these commenters

also objected to use of the phrase ``seriously-ill'' as too limiting

and recommended replacing it with the statutory term ``serious health

condition'' for consistency with other sections of the regulations.

Some of these commenters, in addition to the Food and Allied Service

Trades, also recommended that ``spouse'' be added to the list of family

members in this section.

The final rule has been revised to add ``spouse'' to the last

sentence of paragraph (a), to delete ``inpatient care,'' and to replace

``seriously-ill'' with ``serious health condition.'' No further changes

have been made in response to the remaining comments. The legislative

history clearly reflects the intent of the Congress that providing

psychological care and comfort to family members with serious health

conditions would be a legitimate use of FMLA's leave entitlement

provisions. Because FMLA grants to eligible employees the absolute

right to take FMLA leave for qualifying reasons under the law,

employers have no discretion in this area and cannot deny the

legitimate use of FMLA leave for such purposes without violating the

prohibited acts section of the statute. See Sec. 105 of FMLA.

Medical Need for Intermittent/Reduced Schedule Leave (Sec. 825.117)

FMLA permits eligible employees to take leave ``intermittently or

on a reduced leave schedule'' under certain conditions. Intermittent

leave may be taken for the birth of a child (and to care for such

child) and for the placement of a child for adoption or foster care if

the employer and employee agree to such a schedule. Leave for a serious

health condition (either the employee's or family member's) may be

taken intermittently or on a reduced leave schedule when ``medically

necessary'' (Sec. 102(b)(1) of FMLA). An employer may request that an

employee support an intermittent leave request for a serious health

condition with certification from the health care provider of the

employee or family member of the medical necessity of the intermittent

leave schedule and its expected duration. Employees must make a

reasonable effort to schedule their intermittent leave that is

foreseeable based on planned medical treatments so as not to unduly

disrupt the employer's operations (subject to the approval of the

health care provider), and employers may assign employees temporarily

to alternative positions with equivalent pay and benefits that better

accommodate such recurring periods of intermittent leave. (See also

Sec. 825.203.)

The Employee Assistance Professional Association, Inc. commented

that no rationale was provided for why intermittent leave or reduced

leave schedules are not available to an employee seeking to take leave

to care for a family member. Intermittent leave to care for an

immediate family member is allowed, as discussed in Sec. 825.116.

The Women's Legal Defense Fund recommended that the regulations

state explicitly that the determination of medical necessity for

intermittent or reduced leave schedules is made only by the health care

provider of the employee, in consultation with the employee. The

Department's medical certification form, as discussed in Sec. 825.306,

is the vehicle for obtaining certification of the medical necessity of

intermittent leave or leave on a reduced leave schedule, and such

determinations are made exclusively by the health care provider of the

employee or employee's family member (subject to an employer's right to

request a second opinion at its own expense if it has reason to doubt

the validity of the certification provided).

HCMF (long term care facilities) questioned what reasonable efforts

are required by employees to consult with the employer and attempt to

schedule intermittent leave so as not to unduly disrupt the employer's

operations. Cincinnati Gas & Electric Company suggested that it would

be reasonable for an employer to request that an employee attempt to

schedule planned medical treatment outside normal work hours. The Equal

Employment Advisory Council recommended the rules state that an

employer may deny intermittent or reduced leave schedules when the

reason for the leave can be accommodated during non-work hours, because

the need for leave in such circumstances is not ``medically

necessary.'' Gray, Harris & Robinson asked what would constitute an

undue disruption, if it were analogous to ADA's ``undue hardship''

standard, and to what extent could an employer deny the leave. The

Chamber of Commerce of the USA also recommended clarifications in the

rules of the impact of an employee's failure to satisfy the obligation

to avoid disruptions to the employer's operations.

As discussed in Secs. 825.302 (e) and (f), the employee and

employer should attempt to work out a schedule which meets the

employee's FMLA leave needs without unduly disrupting the employer's

operations. The ultimate [[Page 2198]] resolution of the leave

schedule, however, always remains subject to the approval of the health

care provider and the schedule established for the planned medical

treatments. It should be noted that under this section, the health care

provider either already has, or will, establish the medical necessity

for the intermittent leave schedule; it is a prerequisite for the

leave. Thus, denial of the leave would be out of the question. Even

delay of the leave would be inappropriate unless the health care

provider agreed to reschedule the medical treatments. What would be a

``reasonable effort'' by the employee and an ``undue disruption'' of

the employer's operations are fact-specific in each case. Requesting

that an employee attempt to schedule planned medical treatments outside

the normal work hours when scheduling them during work hours would not

unduly disrupt the employer's operations would not be ``reasonable'' or

consistent with FMLA's requirements.

Definition of ``Health Care Provider'' (Sec. 825.118)

FMLA entitles eligible employees to take leave for a serious health

condition (of either the employee or an immediate family member).

``Serious health condition'' is defined to include an injury, illness,

impairment, or physical or mental condition involving either inpatient

care or ``continuing treatment by a health care provider.'' In

addition, FMLA's medical certification provisions allow an employer to

request that leave for a serious health condition ``* * * be supported

by a certification issued by the health care provider * * *'' of the

employee or family member. Section 101(6) of the Act defines ``health

care provider'' as a doctor of medicine or osteopathy authorized in the

State to practice medicine or surgery (as appropriate) or ``any other

person determined by the Secretary [of Labor] to be capable of

providing health care services.''

After reviewing definitions under several programs, including rules

of the U.S. Office of Personnel Management and Medicare, DOL developed

FMLA's regulatory definition of ``health care provider'' by beginning

with the definition of ``physician'' under the Federal Employees'

Compensation Act (5 U.S.C. 8101(2)), which also includes podiatrists,

dentists, clinical psychologists, optometrists, and chiropractors

(limited to treatment consisting of manual manipulation of the spine to

correct a subluxation as demonstrated by X-ray to exist) authorized to

practice in the State and performing within the scope of their practice

as defined under State law, and by adding nurse practitioners and

nurse-midwives (who provide diagnosis and treatment of certain

conditions, especially at health maintenance organizations and in rural

areas where other health care providers may not be available) if

performing within the scope of their practice as allowed by State law.

Finally, the definition included Christian Science Practitioners to

reflect the Congressional intent that such practitioners be included

(as expressed in colloquies on the floors of both the House and Senate,

and as reflected in the Committee report accompanying Title II of FMLA

applicable to Federal civil service employees).

Fifty-seven commenters submitted views on the regulatory definition

of ``health care provider.'' Most advocacy groups and various trade and

professional associations viewed the definition as too restrictive and

suggested that it be expanded to include a broad range of additional

providers of health care and related services.

Federally Employed Women and the Women's Legal Defense Fund noted

that OPM's definition for Federal civil service employees under Title

II of FMLA includes those providers recognized by the Federal

Employee's Health Benefits Program, and suggested a similar approach be

used by DOL for Title I. They contended that including any providers

covered by the employers health insurance plan avoids confusion as to

whether the services would be reimbursed and ensures ease of

administration.

Alabama Power Company (Balch & Bingham) considered the definition

as written too broad and suggested DOL follow the lead of the States

with FMLA-type laws, confining the definition to doctors and

osteopaths. The ERISA Industry Committee felt that employers should not

be required to recognize service providers not recognized by their

health plans. Burroughs Wellcome Company suggested that Christian

Science Practitioners not be included.

The American Association for Marriage and Family Therapy, 14 State

Associations for Marriage and Family Therapy, Teton Youth & Family

Services, and the Women's Legal Defense Fund suggested that marriage

and family therapists be included in the definition. Fourteen

organizations (American Board of Examiners in Clinical Social Work;

California Society for Clinical Social Work; Catholic Charities, Inc.;

Council on Social Work Education; the Maryland, Mississippi, New

Hampshire, New York State, Ohio, Rhode Island, Texas and Utah Chapters

of the National Association of Social Workers; Women's Legal Defense

Fund; and 9 to 5, National Association of Working Women), the Personnel

Department of the City of Newport News, and five Members of Congress

recommended that ``clinical social workers'' be added to the definition

of ``health care providers.'' In addition, 436 cards/letters (generally

uniform in style and content) were received from practicing social

workers also urging that ``clinical social workers'' be added.

The Consortium for Citizens with Disabilities, Epilepsy Foundation

of America, and United Cerebral Palsy Associations suggested that the

regulations include providers of specialized health-related services

for the disabled, health care providers licensed by States or

accredited by national certification organizations, a non-exclusive

list of types of providers (whether or not licensed or accredited), and

a procedure for applying to DOL to add ``emerging'' health care

provider services. The Service Employees International Union also

supported flexibility in the regulations to include other types of

providers of services as new roles evolve with changes in the health

care system.

The American Academy of Physician Assistants, Community Legal

Services, Inc., Equal Rights Advocates, Hospital Council of Western

Pennsylvania, 9 to 5, National Association of Working Women, and Older

Women's League recommended that physician assistants be included. The

National Acupuncture and Oriental Medicine Alliance recommended

including Acupuncturists and Oriental Medicine Practitioners. Employee

Assistance Professional Association, Inc. recommended that Certified

Employee Assistance Professionals be recognized as ``providers''

capable of making determinations of whether an employee is able to work

or unable to return to work.

The American Chiropractic Association and William M. Mercer, Inc.

objected to the parenthetical phrase concerning chiropractors that

limited treatment to manual manipulation of the spine to correct a

subluxation demonstrated by X-ray to exist. The American Psychological

Association recommended replacing ``clinical psychologist'' with

``doctorally trained psychologist whose scope of competence includes

clinical activities.''

The American Psychiatric Association suggested that a distinction

should be maintained between doctors of medicine or osteopathy and non-

[[Page 2199]] physician health care professionals, and that

certification for intermittent or reduced leave schedules should be

accepted only from doctors of medicine or osteopathy, not non-physician

health care providers. The Consortium for Citizens with Disabilities,

on the other hand, suggested that the medical certification form be

revised so that it does not appear that only a medical doctor or

osteopath can sign off on the form.

California Rural Legal Assistance, Inc., Equal Rights Advocates,

and William M. Mercer, Inc. recommended that foreign-certified or

foreign-licensed health care providers should be recognized under FMLA,

to account for the fact that many workers' parents, spouses or children

do not reside in the U.S. or that such family members may become ill

while abroad. (California Rural Legal Assistance, Inc. stated that many

U.S. residents rely on Mexican doctors for health care.)

The law firm of Fisher & Phillips recommended that DOL delay

exercising its authority to designate health care providers until there

is an opportunity to determine the impact on the President's health

care proposal.

After giving careful consideration to the numerous suggestions for

changes in the definition of ``health care provider,'' we have revised

the final rule in the following respects. The definition will be

expanded to include any health care provider that is recognized by the

employer or accepted by the group health plan (or equivalent program)

of the employer. To the extent that the employers or the employers'

group health plans recognize any such individuals for certification of

the existence of a health condition to substantiate a claim for health

care and related services that are provided, they would be included in

the revised definition of ``health care provider'' for purposes of

FMLA. Clinical social workers will also be included because our review

reveals that they are ordinarily authorized to diagnose and treat

without supervision under State law. Physician's assistants are not

included as health care providers under the regulations because they

are ordinarily only permitted to practice under a doctor's supervision.

An employee, however, may receive treatment by a physician's assistant

or other health care professional under the supervision of a doctor or

other health care provider without first seeing the health care

provider and obtaining a referral. In addition, any services recognized

by the plan which are furnished as a result of a referral while under

the continuing supervision of a health care provider would qualify as

medical treatment for purposes of FMLA leave (see

Sec. 825.114(c)(2)(i)(A)).

II. Subpart B, Secs. 825.200-825.220

Amount of Leave (Sec. 825.200)

Employers must choose from among four options a single uniform

method for calculating the 12-month period for determining ``12

workweeks of leave during any 12-month period.'' The choice of options

was intended to give maximum flexibility for ease in administering FMLA

in conjunction with other ongoing employer leave plans, given that some

employers establish a ``leave year'' and because of State laws that may

require a particular result.

The California Department of Fair Employment and Housing

recommended this section include cautionary advice to employers that

the availability of options may be limited by State law (the California

Family Rights Act starts the 12-month period with the date the employee

first uses qualifying leave). William M. Mercer, Inc. questioned

whether State family leave laws would control the employer's

administration of FMLA, and also whether leave accrues under the

backward rolling method on a daily basis. The State of New York's

Department of Civil Service and the State of Nevada's Department of

Personnel recommended that each agency or department within a State

government be allowed to select a separate (i.e., different) 12-month

period.

The State of South Carolina's Division of Human Resource

Management, the State of South Dakota's Bureau of Personnel, and the

Edison Electric Institute recommended provisions be added to limit the

amount of FMLA leave available to an employee for the birth or adoption

of a child to a single 12-week period per event (e.g., under the

calendar year method, an employee who adopts or gives birth to a child

late in the year would not be entitled to take additional leave in the

second calendar year period because of the adoption or birth of that

child). Similarly, Cincinnati Gas and Electric Company recommended the

final rules prohibit an employee from receiving 24 weeks of protected

leave for a single FMLA-covered event (e.g., where the initial 12-week

absence ends at the same time the next annual 12-week allotment

begins). (See also the discussion of similar comments received on the

section that follows, Sec. 825.201.)

The Women's Legal Defense Fund recommended that DOL explicitly

define the method rather than allowing employer choices, to prevent

manipulation, and suggested the period be calculated as the 12-month

period following commencement of an employee's first FMLA leave

(Sec. 825.200(b)(3)). If choices are allowed, they urge that the 12-

month period rolling backward method (paragraph (b)(4)) be rejected

because it curbs employee flexibility and is confusing to them. The

American Federation of Teachers/National Education Association

concurred with WLDF's comments. The AFL-CIO and Service Employees

International Union submitted similar views. (SEIU also suggested

clarifying that employers may not switch methods to deny employees

leave, and that such action would violate FMLA's anti-interference

provisions.) The United Paperworkers International Union suggested that

the 12-month period be calculated by using each individual employee's

anniversary date, as employees are not eligible until they have worked

for at least 12 months, and this would prevent employers from

manipulating the 12-month period to avoid FMLA obligations.

Fisher & Phillips suggested that the regulations refer to the 12-

month ``rolling period'' as the default method for employers that have

not designated a 12-month period.

The Society for Human Resource Management questioned whether the

12-week entitlement was for each separate reason specified under FMLA

(12 weeks for childbirth, plus 12 weeks for a sick parent, plus 12

weeks for the employee's serious health condition, etc., all in the

same 12-month period), or for all reasons (total for all events in a

12-month period limited to 12 weeks). This commenter also questioned

whether an employer must allow an employee to return to work early in

the situation where the employee requested 12 weeks of leave and, three

weeks into the leave, the employee asks to return to work.

Black, McCuskey, Sourers & Arbaugh stated that employees of

employers who selected the calendar year should be entitled to only

five weeks of FMLA leave for the period between August 5, 1993, and

December 31, 1993. The Department cannot agree with this line of

reasoning, which would suggest that employees of employers who select

the calendar year would be entitled to less leave other employees. Nor

do we believe that Congress intended that an employee be entitled to

one week of leave for each remaining month of the year after

eligibility is established.

The final rule has been clarified in response to several of the

comments [[Page 2200]] received. The rule notes that an employer may be

unable to choose one method from among the available regulatory options

if a particular method is dictated by a State family leave law. In this

regard, employers operating in multiple States with differing State

family/medical leave provisions affecting the 12-month calculation must

follow the method required by the State laws. Absent a conflict with

State law, employers must select a single, uniform policy covering its

entire workforce. Employers must inform employees of the applicable

method for determining FMLA leave entitlement when informing employees

of their FMLA rights. If an employer fails to designate one of the

methods, employees will be allowed to calculate their leave entitlement

under whichever method is most beneficial to them. The employer in that

case would subsequently be able to designate a choice prospectively,

but would have to follow the rule for employers wishing to change to

another alternative (i.e., give 60 days notice to all employees, and

employees retain the full benefit of 12 weeks of leave under whichever

method yields the greatest benefit to employees during the 60-day

transition period).

When determining the amount of FMLA leave taken, a holiday

occurring within a week of FMLA leave has no effect--the week is still

counted as a week of FMLA leave. If however, the employer's activities

temporarily cease for one or more weeks and employees generally are not

expected to report for work (e.g., a school that closes two weeks for

the Christmas and New Year holiday or for the summer vacation; a plant

that closes two weeks for repairs or retooling), the days on which the

employer's activities have ceased do not count against an employee's

FMLA leave entitlement.

The ``rolling backward'' method is a snapshot of the 12-month

period that changes daily (i.e., as each new day is added to the 12-

month period, one day from 12-months ago is eliminated). While many

comments were received opposing this method, it has been retained as

one of the available options because it is the one method that most

literally tracks the statutory language.

Once the 12-month period is determined, an employee's FMLA leave

entitlement is limited to a total of up to 12 workweeks of leave in

that 12-month period for any and all reasons that qualify for taking

leave under FMLA. If an employer selects the calendar year as the 12-

month period, there is no authority under the statutory language to

limit an employee's entitlement to a ``per event'' concept. (This would

be akin to saying that if an employee under the calendar year method

suffered a heart attack in the month of December, that employee would

no longer qualify, once the new year arrived, to take FMLA leave for

that serious health condition. We ardently reject this strained

interpretation.) The only limitation the Act places on an employee's

taking FMLA leave in a subsequent 12-month period to care for a newborn

or newly-adopted child is that the entitlement to leave for such

purposes expires 12 months after the date of the birth or placement.

If an employee begins a requested 12-week leave of absence and,

three weeks into the leave, asks to return to work earlier than

originally planned, the employer is obligated to promptly restore the

employee. An employee may only take FMLA leave for reasons that qualify

under the Act, and may not be required to take more leave than is

necessary to respond to the need for FMLA leave. If circumstances

change and the employee no longer has a need for FMLA leave (which

could include a parent's changed decision not to stay home with a

newborn child as long as originally planned), the employee's FMLA leave

is concluded and the employee has an absolute right under the law to be

promptly restored to his or her original or an equivalent position of

employment. This view does not mean that employees do not also have

obligations to provide notice to the employer of such changing

circumstances. If an employee's status changes and the employee is able

to return to work earlier than anticipated, the employee should give

the employer reasonable advance notice, generally at least two working

days. This is addressed in Sec. 825.309(c). An employer may also obtain

such information through periodic status reports on the employee's

intent to return to work.

Conclusion of Leave for Birth or Adoption (Sec. 825.201)

Under Sec. 102(a)(2) of FMLA, an employee's entitlement to leave

for a birth or placement of a son or daughter ``shall expire at the end

of the 12-month period beginning on the date of such birth or

placement'' (emphasis added). This section of the regulations repeated

the statutory terms with the added qualifications that State law may

require, or an employer may permit, a longer period; any such FMLA

leave, however, must be concluded within this statutory 12-month

period.

The Los Angeles County Metropolitan Transportation Authority

recommended this section be revised to state clearly that leave for the

birth of a child, or placement of a child with the employee for

adoption or foster care, must be initiated and completed within 12

months after the birth or placement. Nationsbank Corporation (Troutman

Sanders) stated that the termination date for an employee's entitlement

to leave under this section should occur 12 months after the first FMLA

leave is taken in connection with the event, rather than 12 months

after the date of birth or placement, suggesting this approach would be

more consistent with other regulatory provisions allowing such leave to

begin before the actual date of birth or placement. (Otherwise, they

suggest, the 12 weeks of leave could be spread over a period greater

than the 12-month period provided by FMLA's requirements.)

The Employers Association of New Jersey questioned whether a

provision under the New Jersey law that requires leave to commence (but

it need not conclude) within one year of the date of birth would

prevail over the FMLA.

The Women's Legal Defense Fund considered the language in this

section of the regulations too restrictive, suggesting it removes

scheduling flexibility for employees. WLDF suggested replacing

``concluded'' with ``begun'' (which, thus, would read like the New

Jersey law cited above).

The Chamber of Commerce of the USA suggested modifications that

would limit an employee's leave entitlement to a single 12-week period

for the birth or placement of a child, to make it clear that an

employee is not entitled to ``stack'' leave periods in connection with

a single birth or placement. The Association of Washington Cities

expressed similar views.

Our review of the statute and its legislative history in the

context of the comments received has confirmed our initial views on

this section. The statute clearly states that the entitlement to leave

expires at the end of one year following the date of birth or placement

of the child. Thus, the leave must be concluded (i.e., completed)

within the statutory entitlement period. There is no authority to

provide by regulation that the leave need only begin within the

statutory 12-month period. If a State provision (as is the case in New

Jersey) allows for a longer or more generous period, the more generous

State provision would prevail but such leave beyond what FMLA requires

would not count as FMLA leave (see Sec. 401(b) of FMLA, discussed below

in connection with Sec. 825.701 of the regulations). There is no

authority to shorten the statutory 12-month period under the

regulations where an employee begins leave for the [[Page 2201]] birth

or placement prior to the actual birth of placement. Nor is there

authority to limit an employee's entitlement to a ``per event''

standard.

Limitation for Spouses Employed by the Same Employer (Sec. 825.202)

Section 102(f) of FMLA specifically limits the total aggregate

number of workweeks of leave to which an ``eligible'' husband and wife

are both entitled if they work for the same employer to 12 workweeks of

leave (combined between the two spouses) if the leave is taken for: (1)

the birth of a child; (2) the placement of a child for adoption or

foster care; or (3) to care for a sick parent. The regulations

specified which FMLA-covered purposes for taking leave were subject to

the special limitation, and gave examples of how the limitation would

apply when leave taken during the 12-month period is for both a reason

subject to the limitation and one that is not (leave for an employee's

own serious health condition, and ``family'' leave if it is for care of

a spouse, son, or daughter, is not subject to the statutory

limitation).

Twelve comments were received on this section. Many commenters

misunderstood the relationship under the statute between leave taken

for a reason subject to the combined limit of 12 weeks, and leave taken

for reasons not within the limitation. Several commenters took issue

with the reasoning for limiting leave entitlements for spouses employed

by the same employer. Two individuals opposed the limitations as being

discriminatory against spouses.

Martin, Pringle, Oliver, Wallace & Swartz and the Virginia Maryland

Delaware Association of Electric Cooperatives both noted that the

regulations provide no guidance in connection with siblings employed by

the same employer. The Society for Human Resource Management noted that

two employees living together but not legally married can each take 12

weeks for the birth or placement of a child, and recommended revising

the regulations to provide that the 12-week-total limitation would also

apply where both parents of a child work for the same employer. The

Ohio Public Employer Labor Relations Association felt that employers

should be able to limit the leave of spouses for the care of a

seriously-ill child for the same reason spouses are limited for the

birth or adoption of a child. G

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