# The Family and Medical Leave Act of 1993

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-32342

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 6, 1995
- **Citation:** 60 FR 2180

## Text

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.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-32342. Public record. Not legal advice.