# The Family and Medical Leave Act of 1993

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-2062

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** February 11, 2008
- **Citation:** 73 FR 7876

## Text

DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB35
The Family and Medical Leave Act of 1993

AGENCY:

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

ACTION:

Notice of proposed rulemaking; request for comments.

SUMMARY:

The Department of Labor's Employment Standards Administration/Wage and Hour Division proposes to revise certain regulations implementing the Family and Medical Leave Act of 1993 (“FMLA”), the law that provides eligible workers with important rights to job protection for absences due to the birth or adoption of a child or for a serious health condition of the worker or a qualifying family member. The proposed changes are based on the Department's experience of nearly fifteen years administering the law, two previous Department of Labor studies of the FMLA in 1996 and 2001, several U.S. Supreme Court and lower court rulings, and the public comments received in response to a Request for Information (“RFI”) published in the
Federal Register
in December 2006 requesting information about experiences with the FMLA and comments on the effectiveness of these regulations.

The Department is also seeking public comment on issues to be addressed in final regulations regarding military family leave. Section 585(a) of the National Defense Authorization Act for FY 2008 amends the FMLA to provide leave to eligible employees of covered employers to care for injured servicemembers and because of any qualifying exigency arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active duty status in support of a contingency operation (collectively referred to herein as military family leave). The provisions of this amendment providing FMLA leave to care for a covered servicemember became effective on January 28, 2008, when the law was enacted. The provisions of this amendment providing for FMLA leave due to a qualifying exigency arising out of a covered family member's active duty (or call to active duty) status are not effective until the Secretary of Labor issues regulations defining “qualifying exigencies.” Because of the need to issue regulations under the military family leave provisions of the amendment as soon as possible, the Department is including in this Notice a description of the relevant military family leave statutory provisions, a discussion of issues the Department has identified, and a series of questions seeking comment on subjects and issues that may be considered in the final regulations.

DATES:

Comments must be received on or before April 11, 2008.

ADDRESSES:

You may submit comments, identified by RIN 1215-AB35, by either one of the following methods:

•
Electronic comments, through the Federal eRulemaking Portal:

http://www.regulations.gov.
Follow the instructions for submitting comments.

•
Mail:
Address all written submissions to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, N.W., Washington, DC 20210.

Instructions:
Please submit one copy of your comments by only one method. All submissions must include the agency name and Regulatory Information Number (RIN) identified above for this rulemaking. Please be advised that comments received will be posted without change to
http://www.regulations.gov,
including any personal information provided. Because we continue to experience delays in receiving mail in the Washington, DC area, commenters are strongly encouraged to transmit their comments electronically via the Federal eRulemaking Portal at
http://www.regulations.gov
or to submit them by mail early. For additional information on submitting comments and the rulemaking process, see the “Public Participation” heading of the
SUPPLEMENTARY INFORMATION
section of this document.

Docket:
For access to the docket to read background documents or comments received, go to the Federal eRulemaking Portal at
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-0066 (this is not a toll free number). Copies of this proposed rule may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693-0675. TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.

Questions of interpretation and/or enforcement of the agency's current regulations may be directed to the nearest Wage and Hour Division District Office. Locate the nearest office by calling the Wage and Hour Division's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the Wage and Hour Division's Web site for a nationwide listing of Wage and Hour District and Area Offices at:
http://www.dol.gov/esa/contacts/whd/america2.htm.

SUPPLEMENTARY INFORMATION:

I. Electronic Access and Filing Comments

Public Participation:
This notice of proposed rulemaking is available through the
Federal Register
and the
http://www.regulations.gov
Web site. You may also access this document via the Wage and Hour Division's home page at
http://www.wagehour.dol.gov.
To comment electronically on Federal rulemakings, go to the Federal eRulemaking Portal at
http://www.regulations.gov,
which will allow you to find, review, and submit comments on Federal documents that are open for comment and published in the
Federal Register
. Please identify all comments submitted in electronic form by the RIN docket number (1215-AB35). Because of delays in receiving mail in the Washington, DC area, commenters should transmit their comments electronically via the Federal eRulemaking Portal at
http://www.regulations.gov,
or submit them by mail early to ensure timely receipt prior to the close of the comment period. Submit one copy of your comments by only one method.

II. Background

A. What the Law Provides

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

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

Employers covered by the law must maintain for the employee any preexisting group health coverage during the leave period under the same conditions coverage would have been provided if the employee had not taken leave and, once the leave period has concluded, reinstate the employee to the same or an equivalent job with equivalent employment benefits, pay, and other terms and conditions of employment.
See
29 U.S.C. 2614.

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

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

B. Who the Law Covers

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

• There were an estimated 95.8 million workers in establishments covered by the FMLA regulations,

• There were approximately 77.1 million workers in covered establishments who met the FMLA's requirements for eligibility, and

• About 7.0 million covered and eligible workers took FMLA leave in 2005.

• About 1.7 million covered and eligible employees who took FMLA leave took at least some of it intermittently—and may have taken that intermittent leave multiple times over the course of the year.

C. Implementing Regulations

The FMLA required the Department to issue regulations to implement Title I and Title IV of the FMLA within 120 days of enactment, or by June 5, 1993, with an effective date of August 5, 1993. Given this short implementation period, 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. The Department received a total of 393 comments at that time from a wide variety of stakeholders, including employers, trade and professional associations, advocacy organizations, labor unions, State and local governments, law firms, employee benefit firms, academic institutions, financial institutions, medical institutions, Members of Congress, and others.

After considering these comments, the Department issued an interim final rule on June 4, 1993 (58 FR 31794) that became effective on August 5, 1993. The Department also invited further public comment on the interim regulations through September 3, 1993, later extended to December 3, 1993 (58 FR 45433). During this comment period, the Department received more than 900 substantive and editorial comments on the interim regulations, from a wide variety of stakeholders.

Based on this second round of public comments, the Department published final regulations to implement the FMLA on January 6, 1995 (60 FR 2180). The regulations were amended on February 3, 1995 (60 FR 6658) and on March 30, 1995 (60 FR 16382) to make minor technical corrections. The final regulations went into effect on April 6, 1995.

D. Legal Challenges

The Ragsdale Decision

Since the enactment of the FMLA, hundreds of reported Federal cases have addressed the Act and/or implementing regulations. The most significant court decision on the validity of the regulations is that of the United States Supreme Court in
Ragsdale
v.
Wolverine World Wide, Inc.,
535 U.S. 81 (2002). In its first case involving the FMLA, the Court ruled in March 2002 that the penalty provision in 29 CFR 825.700(a), which states “[i]f an employee takes * * * leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement[,]” was invalid because in some circumstances it required employers to provide leave to employees beyond the 12-week statutory entitlement. “The FMLA guaranteed [Plaintiff] 12-not 42-weeks of leave[.]”
Ragsdale,
535 U.S. at 96. While the Supreme Court did not invalidate the notice and designation provisions in the regulations, it made clear that any categorical penalty for a violation of such requirements set forth in the regulations would exceed the Department's statutory authority.
Id.
at 91-96.

Other Challenges to “Categorical Penalty” Provisions

As the Department explained in its December 2006 RFI
1

and the subsequent 2007 Report on the RFI comments,
2

Ragsdale is not the only court decision addressing penalty provisions contained in the regulations. Another provision of the regulations, § 825.110(d), requires an employer to notify an employee prior to the employee commencing leave as to whether or not the employee is eligible for FMLA leave. If the employer fails to provide the employee with such information or the information is not accurate, the regulation bars the employer from challenging eligibility at a later date, even if the employee is not eligible for FMLA leave according to the statutory requirements. The majority of courts addressing this notice provision have found it to be invalid, even prior to the
Ragsdale
decision.
See,

e.g., Woodford
v.
Cmty. Action of Greene County, Inc.,
268 F.3d 51, 57 (2d Cir. 2001) (“The regulation exceeds agency rulemaking powers by making eligible under the FMLA employees who do not meet the statute's clear eligibility requirements.”);
Brungart
v.
BellSouth Telecomm., Inc.,
231 F.3d 791, 796-97 (11th Cir. 2000) (“There is no ambiguity in the statute concerning eligibility for family medical leave, no gap to be

filled.”);
Dormeyer
v.
Comerica Bank-Illinois,
223 F.3d 579, 582 (7th Cir. 2000) (the regulation tries “to change the Act” because it makes eligible employees who, under the language of the statute, are ineligible for family leave; “The statutory test is perfectly clear and covers the issue. The right of family leave is conferred only on employees who have worked at least 1,250 hours in the previous 12 months”).

1
See
71 FR 69504, 69505 (Dec. 1, 2006).

2
See
“Family and Medical Leave Act Regulations: A Report on the Department of Labor's request for Information,” 72 FR 35550, 35560 (June 28, 2007).

Legal Challenges to the Definition of Serious Health Condition

Other regulatory provisions have been challenged as well. In particular, challenges to the regulatory section defining the term “serious health condition” as a condition causing a period of incapacity of more than three consecutive calendar days and continuing treatment, 29 CFR 825.114(a)(2)(i), has received significant attention.
See, e.g., Miller
v.
AT&T Corp.,
250 F.3d 820 (4th Cir. 2001);
Thorson
v.
Gemini, Inc.,
205 F.3d 370 (8th Cir. 2000).

As the Department explained in its December 2006 RFI
3

and subsequent Report on the RFI,
4

the Department itself has struggled with this definition. After the Act's passage, the Department promulgated § 825.114(c), which states that “[o]rdinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease,
etc.,
are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.” This regulatory language was intended to reflect the legislative history of the FMLA and expresses the Congressional intent that minor, short-term illnesses for which treatment and recovery are very brief would be covered by employers' sick leave programs and not by the FMLA.
See
H.R. Rep. No. 103-8, at 40 (1993); S. Rep. No. 103-3, at 28-29 (1993). Consequently, in an early response about the proper handling of an employee's request for leave due to the common cold, the Department responded by stating “[t]he fact that an employee is incapacitated for more than three days, has been treated by a health care provider on at least one occasion which has resulted in a regimen of continuing treatment prescribed by the health care provider does not convert minor illnesses such as the common cold into serious health conditions in the ordinary case (absent complications).” Wage and Hour Opinion Letter FMLA-57 (Apr. 7, 1995). More than a year and a half later, however, the Department reversed its interpretation, stating that Wage and Hour Opinion Letter FMLA-57 “expresses an incorrect view, being inconsistent with the Department's established interpretation of qualifying `serious health conditions' under the FMLA regulations.” Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996). The Department further stated that such minor illnesses ordinarily would not be expected to last more than three days, but if they do meet the regulatory criteria for a serious health condition under § 825.114(a), they qualify for FMLA leave. The Department received significant commentary about its changing interpretations of the definition of serious health condition in response to its RFI.
See
Chapter III of the Department's 2007 Report on the RFI comments (72 FR at 35563).

3
See
71 FR at 69506.

4
See
72 FR at 35563.

Other Legal Challenges

Many other legal issues have arisen over the nearly thirteen years the final regulations have been in effect. For example, litigation has ensued under §§ 825.302-.303 as to what constitutes sufficient employee notice to trigger an employer's obligations under the FMLA.
See, e.g., Sarnowski
v.
Air Brook Limousine, Inc.,
—F.3d ,—2007 WL 4323259 (3rd Cir. 2007) (employee with chronic heart problems who informed employer of need for continuing medical monitoring and possible surgery provided sufficient notice);
Spangler
v.
Fed. Home Loan Bank of Des Moines,
278 F.3d 847 (8th Cir. 2002) (employee who had made employer aware that she had problems with depression gave sufficient notice when she called in and indicated she was out because of “depression again”).

Among other cases, the Tenth Circuit Court of Appeals considered the definition of “worksite” for determining whether an employee seeking FMLA leave was employed at a worksite where 50 or more employees were employed by the employer within 75 miles. Section 825.111(a)(3) states that when an employee is jointly employed by two or more employers, the employee's worksite is the primary employer's office from which the employee has been assigned or to which the employee reports. In
Harbert
v.
Healthcare Services Group, Inc.,
391 F.3d 1140 (10th Cir. 2004), the Court of Appeals invalidated § 825.111(a)(3), insofar as it is applied to the situation of an employee with a long-term fixed worksite at a facility of the secondary employer. The First Circuit Court of Appeals looked at a different eligibility criterion, the requirement that the employee has been employed by the employer for at least 12 months, and addressed whether an employee who had a break in service may count previous periods of employment with the same employer toward satisfying the 12-month employment requirement (29 U.S.C. 2611(2)(A)(i); 29 CFR 825.110(a)(1) and (b)).
See Rucker
v.
Lee Holding Co.,
471 F.3d 6 (1st Cir. 2006) (a complete break in service of a period of five years does not prevent the employee from counting previous employment to meet the 12-month employment requirement). Another regulation that has been the subject of litigation is § 825.220(d), which in part discusses the impact of a light duty work assignment on an employee's FMLA rights. Further, most recently, the Fourth Circuit Court of Appeals ruled in
Taylor
v.
Progress Energy,
493 F.3d 454 (4th Cir. 2007),
petition for cert. filed,
76 U.S.L.W. 3226 (U.S. Oct. 22, 2007) (No. 07-539), that other language in § 825.220(d) prevents an employee and employer from independently settling past claims for FMLA violations without the approval of the Department or a court.

E. Prior Studies and Reports

Title III of the FMLA established a temporary Commission on Leave to conduct a study and report on existing and proposed policies on leave and the costs, benefits, and impact on productivity of such policies. The Commission surveyed workers and employers in 1995 and issued a report published by the Department in 1996, “A Workable Balance: Report to Congress on Family and Medical Leave Policies.”
5

In 1999, the Department contracted with Westat, Inc.,
6

to update the employee and establishment surveys conducted in 1995. The Department published that report, “Balancing the Needs of Families and Employers: Family and Medical Leave Surveys, 2000 Update” in January 2001.
7

5

See http://www.dol.gov/esa/whd/fmla/fmla/1995Report/Family.htm.

6
Westat is a statistical survey research organization serving agencies of the U.S. Government, as well as businesses, foundations, and State and local governments.

7
See http://www.dol.gov/esa/whd/fmla/fmla/toc.htm.

F. Request for Information

On December 1, 2006, the Department published a Request for Information (RFI) in the
Federal Register
(71 FR 69504).

The RFI asked the public to comment on its experiences with, and

observations of, the Department's administration of the law and the effectiveness of the FMLA regulations. The RFI's questions and subject areas were derived from a series of stakeholder meetings the Department conducted in 2002-2003, a number of rulings of the U.S. Supreme Court and other Federal courts as discussed above, the Department's own experience administering the law, information from Congressional hearings, and public comments filed with the Office of Management and Budget (OMB) as described by OMB in three annual reports to Congress on the FMLA's costs and benefits.
8

More than 15,000 comments were received from workers, family members, employers, academics, and other interested parties.
9

This input ranged from personal accounts, legal reviews, industry and academic studies, and surveys to recommendations for regulatory and statutory changes to address particular areas of concern. The Department published its Report on the comments received in response to the Department's RFI in June 2007 (
see
72 FR 35550 (June 28, 2007)).

8
These OMB reports may be found at the following Web sites: 2001 report at:
http://www.whitehouse.gov/omb/inforeg/costbenefitreport.pdf;
2002 report at:
http://www.whitehouse.gov/omb/inforeg/2002_report_to_congress.pdf;
and 2004 report at:
http://www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf.

9
All comments are available for viewing via the public docket of the Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Many comments are also available on
http://www.regulations.gov.

G. Stakeholder Meeting

The Department also conducted a stakeholder meeting regarding the medical certification process on September 6, 2007. This meeting included representatives from employee organizations, employer organizations, and the health care provider community.

H. Other Statutory and Regulatory Developments

As discussed in the RFI and the Report on the RFI, in addition to developments in the courts, several important legislative and regulatory developments have occurred that either directly or indirectly impact the FMLA regulations. In 1996, Congress enacted the Health Insurance Portability and Accountability Act (HIPAA), Public Law 104-191, which addresses in part the privacy of individually identifiable health information. On December 28, 2000, and as amended on August 14, 2002, the Department of Health and Human Services issued regulations that provide standards for the privacy of individually identifiable health information, codified at 45 CFR Parts 160 and 164 (“HIPAA Privacy Rule”). These standards apply to “covered entities,” defined as a health plan, a health care clearinghouse, or a health care provider who transmits any health information in electronic form in connection with a transaction as defined in the privacy regulations.
10

10
See
45 CFR 160.102(a) and 45 CFR 160.03.

The HIPAA Privacy Rule has had an impact on the FMLA's medical certification process in a number of ways. For example, the FMLA provides employers with the right to obtain medical information to determine that a requested leave qualifies as FMLA leave, and the employee is required to assure that this information, if requested, is provided to the employer to be entitled to FMLA leave for a serious health condition. If an employee does not do this, the absence does not qualify for FMLA leave.
11

While these rules are fairly straightforward, recent enforcement experience reveals that there is confusion with regard to the interaction of the HIPAA Privacy Rule and FMLA. For example, some employees incorrectly believe that the HIPAA Privacy Rule prevents employers from requiring FMLA certification.
See
discussion of §§ 825.306-.308 for further discussion of the impact of the HIPAA Privacy Rule on the medical certification process.

11
See
Wage and Hour Opinion Letter FMLA2005-2-A (Sept. 14, 2005).

Similarly, since the final FMLA regulations were implemented in 1995, the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing the Americans with Disabilities Act (ADA), has issued guidance with regard to the privacy of employee medical information.
See, e.g., Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (EEOC 2000). The FMLA looks to the ADA for guidance on privacy of employee medical information.
12

12
See
29 CFR 825.500(g).

III. Proposed Changes to the FMLA Regulations

The following is a section-by-section discussion of the proposed revisions. Where a change is proposed to a regulatory section, that section is discussed below.
However, even if a section is not discussed, there may be minor editorial changes or corrections that did not warrant discussion.
The titles to each section of the existing regulations are in the form of a question. The proposal would reword each question into the more common format of a descriptive title and the Department invites comments on whether this change is helpful. In addition, several sections have been restructured and reorganized to improve the accessibility of the information (
e.g.
, guidance on leave for pregnancy and birth of a child is addressed in one consolidated section; an employer's notice obligations are combined in one section).

Section 825.102 (Effective date of the Act)

The proposal deletes this section, which discussed when the Act became effective, because it is no longer needed. The section number itself is reserved to avoid extensive renumbering of other sections in the regulations.

Section 825.103 (How the Act affects leave in progress on, or taken before, the effective date of the Act)

The proposal deletes and reserves this section, which discussed how the Act affected leave in progress on, or taken before, the Act's effective date, because it is no longer needed.

Section 825.106 (Joint employer coverage)

Sections 825.106 and 825.111(a)(3) of the existing regulations govern employer coverage and employee eligibility in the case of joint employment and set forth the responsibilities of the primary and secondary employers. Under § 825.106(d), employees jointly employed by two employers must be counted by both employers in determining employer coverage and employee eligibility. Thus, for example, an employer who jointly employs 15 workers from a leasing or temporary help agency and 40 permanent workers is covered by the FMLA. Likewise, if an employer with 15 permanent workers jointly employs 40 workers from a leasing company that employer is also covered by the FMLA.

Although job restoration is the primary responsibility of the primary employer, the secondary employer is responsible for accepting the employee returning from FMLA leave if the secondary employer continues to utilize an employee from the temporary or leasing agency and the agency chooses to place the employee with that secondary employer. The secondary employer is also responsible for compliance with the prohibited acts provisions with respect to its

temporary/leased employees, and thus may not interfere with an employee's attempt to exercise rights under the Act, or discharge or discriminate against an employee for opposing a practice that is unlawful under FMLA.
See
the existing § 825.106(e).

In Wage and Hour Opinion Letter FMLA-111 (Sept. 11, 2000), the Department considered the application of the FMLA regulations' “joint employment” test in current § 825.106 to a “Professional Employer Organization” (PEO). The PEO in question had a contract with the client company under which it appeared to enter into an employer-employee relationship with the client's employees (who were leased back to the client and continued to work at the client's worksite pursuant to the terms of the contract). The PEO in this case assumed substantial employer rights, responsibilities and risks, including the responsibility for personnel management, health benefits, workers' compensation claims, payroll, payroll tax compliance, and unemployment insurance claims. Moreover, the PEO in this case had the right to hire, fire, assign, and direct and control the employees.

Based on the facts described in the incoming letter, the Opinion Letter concluded that the PEO was in a joint employment relationship with its client companies for these reasons:

1. The PEO was a separately owned and distinct entity under contract with the client to lease employees for the purpose of handling “critical human resource responsibilities and employer risks for the client.”

2. The PEO was acting directly in the interest of the client in assuming human resource responsibilities.

3. The PEO appeared to also share control of the leased employees consistent with the client's responsibility for its product or service.

The Opinion Letter stated that “it would appear that” the PEO is the “primary employer” for those employees “leased” under contract with the client. Thus, under existing § 825.106, the PEO would be responsible for giving required FMLA notices to its employees, providing FMLA leave, maintaining group health insurance benefits during the leave, and restoring the employee to the same or equivalent job upon return from leave. The “secondary employer” (
i.e.
, the client company) would be responsible for accepting the employee returning from FMLA leave if the PEO chose to place the employee with the client company. The Opinion Letter concluded that the client company, as the “secondary employer,” whether a covered employer or not under the FMLA, was prohibited from interfering with a “leased” employee's attempt to exercise rights under the Act, or discharging or discriminating against an employee for opposing a practice that is unlawful under the Act.

While no specific questions concerning PEOs were contained in the RFI, the Department did seek information on “any issues that may arise when an employee is jointly employed by two or more employers” (71 FR at 69509). In response to the RFI, a number of stakeholders commented that it is not correct to consider PEOs (sometimes called “HR Outsourcing Vendors”) to be joint employers with their client companies and explained the differences between a temporary staffing agency and a PEO. “A temporary staffing agency is a labor supplier. It supplies employees to a client while a PEO is a service provider providing services to existing employees of a company.”
See
comments by Jackson-Lewis. Unlike a temporary staffing agency, a PEO does not have the ability to place an employee returning from FMLA leave with a different client employer.
Id.

The AFL-CIO commented that PEOs engage in a practice known as “payrolling,” in which the client employers transfer the payroll and related responsibilities for some or all of their employees to the PEO, and that typically, the PEO also makes payments on behalf of the client employer into State workers' compensation and unemployment insurance funds, but the PEO does not provide placement services. In contrast with temporary staffing agencies, the AFL-CIO commented, PEOs do not match people to jobs.

The law firm of Littler Mendelson advised that “Employee leasing arrangements”—like those involving temporary services firms and other staffing companies—refer to arrangements in which the staffing firm places its own employees at a customer's place of business to perform services for the recipient's enterprise. The PEO, in contrast, assumes certain administrative functions for its clients such as payroll and benefits coverage and administration (including workers' compensation insurance and health insurance). The PEO typically has no direct responsibility over the employees of its clients including “hiring, training, supervision, evaluation, discipline or discharge, among other critical employer functions.”

The law firm of Fulbright & Jaworski commented that PEO responsibilities vary by organization and contract, but that most are not involved in the day-to-day operations of their client's business and do not exercise the right to hire, fire, supervise or manage daily activities of employees. The firm urged the Department to clarify that opinion letter FMLA-111 (Sept. 11, 2000) is about an atypical PEO that actually exercised control over the client's employees.

The Department proposes to amend § 825.106(b) to clarify that PEOs that contract with client employers merely to perform administrative functions, including payroll, benefits, regulatory paperwork, and updating employment policies, are not joint employers with their clients, provided they merely perform such administrative functions. On the other hand, if in a particular fact situation a PEO has the right to hire, fire, assign, or direct and control the employees, or benefits from the work that the employees perform, such a PEO would be a joint employer with the client company.

Some of the comments concerning PEOs suggest confusion over how to count employees jointly employed for purposes of employer coverage (“over 50 workers”) and employee eligibility (“over 50 employees within 75 miles”). Some of these comments suggest that all of the employees of both the primary and secondary employers (and even those of other secondary employers) must be combined and counted together for purposes of these two tests. However, under the existing § 825.106(d) only those employees who are
jointly employed
by the primary and each of the secondary employers are included in the employee counts of both firms. The home office employees of the primary employer and the employees placed with other secondary employers are not included, for example, in the employee counts for each secondary employer.

For the reasons discussed above, existing paragraph (b) of § 825.106 is proposed to be changed to paragraph (b)(1) and a new paragraph (b)(2) is proposed to be added to clarify how the joint employment rules apply to PEOs. Under the proposal, PEOs that contract with client employers merely to perform administrative functions—including payroll, benefits, regulatory paperwork, and updating employment policies—are not joint employers with their clients, provided: (1) They do not have the right to exercise control over the activities of the client's employees, and do not have the right to hire, fire or supervise them, or determine their rates of pay, and (2) do not benefit from the work that the employees perform. On the other hand,

if in a particular fact situation a PEO has the right to hire, fire, assign, or direct and control the employees, or benefits from the work that the employees perform, such a PEO would be a joint employer with the client employer. The proposal also includes a cross-reference in paragraph (d) to proposed § 825.111(a)(3), which, as discussed below, would change the determination of the “worksite” for purposes of employee eligibility with respect to employees who are placed by a primary employer at the worksite of a secondary employer for more than 12 months.

Section 825.108 (Public agency coverage)

This section addresses what constitutes a “public agency” for purposes of coverage under the Act. Under the current regulations, the dispositive test for determining whether a public agency is a separate and distinct entity (and therefore a separate employer for determining employee eligibility) or simply is part of another public agency is the U.S. Bureau of the Census' “Census of Governments.”
See
U.S. Census Bureau, 2002 Census of Governments, Volume 1, Number 1, Government Organization, GC02(1)-1, U.S. Government Printing Office, Washington, DC 20002
13

(
http://www.census.gov/prod/2003pubs/gc021x1.pdf
). In contrast, regulations issued under the Fair Labor Standards Act (FLSA) use this test merely as
one factor
in determining what constitutes a separate public agency for its purposes.
See
29 CFR 553.102. The Department proposes no changes to this section. Because the FMLA definition of “public agency” refers to the definition under the FLSA (29 U.S.C. 203(x)), however, the Department seeks public comment on whether this test in the FMLA regulations should be amended to conform with the test in the FLSA regulations.

13
The Census of Governments is taken at five-year intervals.

Section 825.109 (Federal agency coverage)

This section of the existing regulations identifies the Federal agencies that are covered by the Department of Labor's FMLA regulations. Shortly after these regulations were promulgated, Congress enacted the Congressional Accountability Act of 1995, 2 U.S.C. 1301 (CAA), which in part amended the FMLA by repealing Title V of the FMLA pertaining to Congressional employees.
See
Section 504(b), Public Law 104-1. As a result, Congressional employees are now covered by the CAA as administered by the Office of Compliance created by the CAA.

Section 202(c) of the CAA also specifically provided that the General Accounting Office (now named the Government Accountability Office) (GAO) and Library of Congress (LOC) are subject to Title I of the FMLA. For those agencies, the FMLA is administered by the Comptroller General and the Librarian of Congress, respectively.
See
29 U.S.C. 2611(4)(A)(iv) and 2617(f).

The CAA also called for a study of how the FMLA is administered for the Government Printing Office (GPO), as well as the GAO and LOC. 2 U.S.C. 1371. The Congressional Office of Compliance issued its study on December 31, 1996. The study concluded that the GPO is covered by Title II and the Office of Personnel Management's regulations, rather than Title I and the Department of Labor regulations. In a letter dated April 25, 2000, the GPO asked the Department to amend its FMLA regulations to delete the reference to GPO coverage, because that agency is covered by Title II. In its response of January 31, 2001, the Department concurred with the conclusion that the GPO is covered by Title II and stated that it would amend the regulations accordingly whenever they were next modified. The proposal would amend paragraphs (a) and (d) of this section to reflect these changes.

Pursuant to section 604(f) of the Postal Accountability and Enhancement Act, Public Law 109-435, Dec. 20, 2006, 120 Stat. 3242, the Postal Rate Commission was redesignated as the Postal Regulatory Commission, and the proposed rule would amend paragraph (b)(2) of this section to reflect this change.

Section 825.110 (“Eligible” employee)

Current § 825.110 sets forth the eligibility standards employees must meet in order to take FMLA leave. Specifically, current § 825.110(a) restates the statutory requirement that to be eligible for FMLA leave, an employee must have been employed by an employer for at least 12 months, have been employed for at least 1,250 hours of service during the 12 months preceding the leave, and be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite.

Current § 825.110(b) provides detail on the requirement that the employee must have been employed by the employer for at least 12 months, stating that the 12 months need not be consecutive. It further explains that if the employee was maintained on the payroll for any part of a week, that week counts towards the employee's fulfilling the 12 months employment requirement and that 52 weeks is deemed equal to 12 months.

In its RFI, the Department sought comment on whether and how to address the treatment of combining nonconsecutive periods of employment to meet the 12 months of employment requirement. (71 FR at 69508) This eligibility criterion has been the subject of litigation. In
Rucker
v.
Lee Holding, Co.,
471 F.3d 6 (1st Cir. 2006), the court considered whether an employee's previous employment of five years counted toward the 12-month employment eligibility requirement even though it was separated by a five-year break in service from his current employment. The First Circuit Court of Appeals held that “the complete separation of an employee from his or her employer for a period of years, here five years, does not prevent the employee from counting earlier periods of employment toward satisfying the 12-month requirement.”
Id.
at 13. In regard to whether a break in service of more than five years would be permissible, the court stated that this important policy issue should be resolved by the Department in the first instance as a part of its exercise of its statutory authority.
Id.

A number of commenters urged the Department to support the
Rucker
decision that prior months of service may be combined for eligibility purposes even when separated by breaks in service of many years. The National Partnership for Women & Families, for example, stated that “an arbitrary time limit on how long a worker could leave the employment of a particular employer would operate as an unfair and disproportionate burden on women workers. Many women leave work for extended periods of time, for example, to stay home with young children during their formative years.” (
See
comments by National Partnership for Women & Families.)

Employer comments received on this issue overwhelmingly disagreed with the First Circuit ruling on combining prior periods of service together. For example, the University of Notre Dame stated, “There is a tremendous administrative burden associated with adopting the First Circuit Court of Appeals' interpretation of section 825.110 that an employer has the duty to aggregate non-consecutive service to establish ‘12 months of service.’ As we understand this possible interpretation, the ability to aggregate past service with current service to equate to 12 months

is virtually unlimited.” Other comments received on this issue included suggestions for amending the regulations to allow the employer to: disregard prior employment periods if all ties between the company and worker were severed; follow company policy or State law regarding the treatment of previous employment; and require that the 12 months of employment be consecutive. Employer commenters cited the administrative burden associated with combining previous employment periods as the rationale for their recommendations including that the FMLA itself only requires recordkeeping for three years and not indefinitely.

The Department received comments similar to these in response to the 1993 interim final regulations, which suggested limiting the period of time used in determining whether the employee had been employed by the employer for 12 months. In the final regulations, however, the Department declined to include such a limit, reasoning that “[m]any 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.” (60 FR at 2185) Furthermore, the Department did not find a basis under the statute or its legislative history for adopting the recommendations received in response to the Interim Final Rule.
Id.
Indeed, the statute does not directly address the issue of whether the 12 months of employment must be consecutive, and the legislative history provides limited insight into Congressional intent regarding extended breaks in employment. The Senate Committee Report in discussing the requirement that the employee must have worked for the employer for 12 months states “[t]hese 12 months of employment need not have been consecutive.” S. Rep. No. 103-3, at 23 (1993). The House Committee Report uses the same language in describing the 12-month requirement.
See
H.R. Rep. No. 103-8, pt. 1, at 35 (1993).

Based on the Department's experience in administering the FMLA, the First Circuit's ruling in
Rucker,
and comments received in response to the RFI, the Department proposes a new § 825.110(b)(1) to provide that although the 12 months of employment need not be consecutive, employment prior to a continuous break in service of five years or more need not be counted. Thus, under the proposed rule, if an employee in 2008 has worked five months for an employer and worked for the same employer for two full years in 1997-8, the employer would not have to consider the two years of prior employment in determining whether the employee currently is eligible for FMLA leave. The FMLA requires covered employers to maintain records for three years. 29 CFR 825.500(b) (“[E]mployers must keep the records specified by these regulations for no less than three years and make them available for inspection, copying, and transcription by representatives of the Department of Labor upon request.”). The Department is not proposing to change the three-year record keeping requirements under FMLA. Thus, employers would have documentation to confirm previous employment for a former employee who at the time of rehiring had a break in service of three years or less. Where an employee relies on a period of employment that predates the employer's records, it will be incumbent upon the employee to put forth some proof of the prior employment. This is consistent with the employee's obligation to establish he or she is an eligible employee.
See Novak
v.
MetroHealth Medical Center,
503 F.3d 572, 577 (6th Cir. 2007);
Burnett
v.
LFW, Inc.,
472 F.3d 471, 477 (7th Cir. 2006). Of course, in determining whether an employee has met the eligibility criterion, an employer may have a policy to consider employment prior to a longer break in service, but in that event must do so in a uniform manner for all employees with similar breaks in service.

The Department considered several alternatives in developing this proposed change to § 825.110(b). Because the legislative history states that the 12 months of employment need not be consecutive, the Department could not adopt suggestions that
any
break in service “resets” the count for determining whether the employee has met the 12 months employment eligibility criterion. On the other hand, the Department believes it is not reasonable that the time frame used for considering prior employment for eligibility should be without end. At the same time, the Department is mindful of the comment by the National Partnership for Women & Families about the burden on women workers who may leave and reenter the workforce after the formative years of their children.
But see
S. Rep. No. 103-3, at 16 (1993). The Department believes that the proposed outer limit of a five year break in service is a permissible interpretation of the statute and strikes an appropriate balance between providing re-employed workers with FMLA protections and not making the administration of the Act unduly burdensome for employers.

However, the Department also proposes new paragraph (b)(2) of this section to address two exceptions to the general rule contained in proposed new paragraph (b)(1): a break in service resulting from the employee's fulfillment of military obligations; and a period of approved absence or unpaid leave, such as for education or child-rearing purposes, where a written agreement or collective bargaining agreement exists concerning the employer's intent to rehire the employee. In these situations, employment prior to the break in service must be used in determining whether the employee has been employed for at least 12 months, regardless of the length of the break in service.

The current discussion of how weeks are counted for fulfilling the 12 months requirement is proposed to be re-designated as paragraph (b)(3) of this section.

Further, the Department proposes to add a new paragraph (b)(4) in this section to note that nothing prevents an employer from considering employment prior to a continuous break in service of more than five years when determining if an employee meets the 12-month employment criterion provided the employer does so uniformly with respect to all employees with similar breaks in service.

Paragraph (c) of § 825.110 is proposed to be revised to address hours an employee would have worked for his or her employer but for the employee's fulfillment of military service obligations. This revision codifies the protections and benefits offered by the Uniformed Services Employment and Reemployment Rights Act (USERRA).

In addition, the Department proposes several changes to § 825.110 in light of the
Ragsdale
decision. Current § 825.110(c) may result in some instances in employees who are ineligible for FMLA leave nonetheless being “deemed eligible” because of an employer's failure to meet its burden of maintaining records needed to establish the employee's eligibility. Current § 825.110(d) may also result in an employee who is not eligible for FMLA leave being “deemed eligible” based on the employer's lack of (or incorrect) notice to the employee. Read in concert with
Ragsdale
, in which the U.S. Supreme Court invalidated a similar provision in the current § 825.700(a),

the Department believes these provisions in current § 825.110(c) and (d) need to be modified.

On the other hand, the Court in
Ragsdale
suggested that if an employer fails to notify an employee of his or her FMLA rights, the employee may have a remedy if the employee can show that the employer interfered with, restrained or denied the employee the exercise of his or her FMLA rights and that the employee suffered damages as a result.
See Ragsdale
, 535 U.S. at 89. Therefore, the Department has incorporated into the proposed text of § 825.300 a statement that in these situations if an employee shows individualized harm because the employer interferes with, restrains or denies the employee of his or her FMLA rights, the employee is entitled to the remedies provided by the statute. The Department also proposes to add this language to § 825.220, which addresses how employees are protected when they assert their FMLA rights, and proposed § 825.301, which addresses designation of FMLA leave.

For organizational purposes, the notice provisions contained in current § 825.110(d) have been moved to proposed § 825.300(b) with other notice requirements employers must provide to employees under the regulations. This organizational change should make it easier for employees and employers to locate these requirements by consolidating them into one section. The proposal includes a cross-reference to § 825.300 in paragraph (d) of § 825.110.

The Department also proposes to clarify the language in current § 825.110(d) stating that employee eligibility determinations “must be made as of the date leave commences.” This language has led to confusion when employees who have fulfilled the 1,250 hours worked requirement for eligibility, but not the 12 months of employment requirement, begin a block of leave. (Although periods of leave do not count towards the 1,250 hour requirement because leave is not “hours worked,” periods of leave do count towards the 12 months of employment requirement because the employment relationship continues, and has not been severed, during the leave.) For example, where an employee who has worked for an employer for 11 months and 1,300 hours commences a three month block of leave for birth and bonding, confusion exists as to whether that portion of the leave that occurs after the employee reaches 12 months of employment is FMLA protected.
Compare Babcock
v.
BellSouth Advertising and Publishing Corp.,
348 F.3d 73 (4th Cir. 2003), with
Willemssen
v.
The Conveyor Co.,
359 F.Supp.2d 813 (N.D. Iowa 2005). The proposal clarifies that when an employee is on leave at the time he or she meets the 12-month eligibility requirement, the period of leave prior to meeting the statutory requirement is non-FMLA leave and the period of leave after the statutory requirement is met is FMLA leave.

The Department proposes to delete current § 825.110(e), regarding counting periods of employment prior to the effective date of the FMLA, because the revisions proposed in § 825.110(b) discussed above render the provision unnecessary.

The Department proposes no changes to current paragraph (f) (paragraph (e) in the proposal) of this section, which states that whether an employee works for an employer who employs 50 or more employees within 75 miles of the worksite is determined as of the date the leave request is made. In the RFI, the Department sought comment on the differing regulatory tests used for determining employee eligibility: the determination of whether the employee has been employed for at least 12 months and for at least 1,250 hours in the 12 months preceding the leave is made as of
the date the leave is to commence;
however, the determination of whether 50 employees are employed by the employer within 75 miles of the worksite is made as of
the date the leave request is made
(emphasis added). (71 FR at 69508). Some of the comments received in response to the RFI urged the Department to make these tests the same, namely, to require the determination of employee eligibility in both cases as of the date the leave is to begin. The Department appreciates the difficulty experienced by many employers in complying with these different regulatory tests; however, the proposal does not adopt this suggestion for the reasons discussed in the preamble to the 1995 final regulations:

[T]he 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.

(60 FR at 2186)

Section 825.111 (Determining whether 50 employees are employed within 75 miles)

Current § 825.111 sets forth the standards for determining whether an employer employs 50 employees within 75 miles for purposes of employee eligibility. Paragraph (a)(3) of this section provides that when an employee is jointly employed by two or more employers, the employee's worksite is the primary employer's office from which the employee is assigned or reports.

In
Harbert
v.
Healthcare Services Group, Inc.,
391 F.3d 1140 (10th Cir. 2004), the Court of Appeals held that § 825.111(a)(3), as applied to the situation of an employee with a long-term fixed worksite at a facility of the secondary employer, was arbitrary and capricious because it: (1) Contravened the plain meaning of the term “worksite” as the place where an employee actually works (as opposed to the location of the long-term care placement agency from which Harbert was assigned); (2) contradicted Congressional intent that if any employer, large or small, has no significant pool of employees nearby (within 75 miles) to cover for an absent employee, that employer should not be required to provide FMLA leave to that employee; and (3) created an arbitrary distinction between sole and joint employers.

The court noted that Congress did not define the term “worksite” in the FMLA, and it concluded that the common understanding of the term “worksite” is the site where the employee works. With respect to the employee eligibility requirement of 50 employees within 75 miles, the court noted that Congress recognized that even potentially large employers may have difficulty finding temporary replacements for employees who work at geographically scattered locations. The court stated that Congress determined that if any employer (large or small) has no significant pool of employees in close geographic proximity to cover for an absent employee, that employer should not be required to provide FMLA leave to that employee. Therefore, the court concluded:

An employer's ability to replace a particular employee during his or her period of leave will depend on where that employee must perform his or her work. In general, therefore, the congressional purpose underlying the 50/75 provision is not effected if the “worksite” of an employee who has a regular place of work is defined as any site other than that place.

391 F.3d at 1150.

In comparing how the regulations apply the term “worksite” to joint employers and sole employers, the court stated:

The challenged regulation also creates an arbitrary distinction between sole employers and joint employers. For example, if the employer is a company that operates a chain of convenience stores, the “worksite” of an employee hired to work at one of those convenience stores is that particular convenience store.
See
58 Fed. Reg. 31794, 31798 (1993). If, on the other hand, the employer is a placement company that hires certain specialized employees to work at convenience stores owned by another entity (and therefore is considered a joint employer), the “worksite” of that same employee hired to work at that same convenience store is the office of the placement company.

Id.

Importantly, the court did not invalidate the regulation with respect to employees who work out of their homes: “We do not intend this statement to cast doubt on the portion of the agency's regulation defining the ‘worksite’ of employees whose regular workplace is his or her home.
See
29 C.F.R. § 825.111(a)(2).”
Id.
at 1150 n.1. Nor did the court invalidate the regulatory definition in § 825.111(a)(3) with respect to employees of temporary help companies: “An employee of a temporary help agency does not have a permanent, fixed worksite. It is therefore appropriate that the joint employment provision defines the ‘worksite’ of a temporary employee as the temporary help office, rather than the various changing locations at which the temporary employee performs his or her work.”
Id.
at 1153.

The RFI requested specific information, in light of the court's decision in
Harbert,
on the definition in § 825.111 for determining employer coverage under the statutory requirement that FMLA-covered employers must employ 50 employees within 75 miles.

Some commenters who argued that the current regulations are sound and do not require change pointed to the legislative history that the term “worksite” is to be construed in the same manner as the term “single site of employment” under the WARN Act and the regulations under that Act.
See
comments by AFL-CIO and National Partnership for Women & Families. The AFL-CIO agreed with the dissent in
Harbert
that the Secretary's interpretation of “single site of employment” under the WARN Act regulations as applying equally to employees with and without a fixed worksite is a “permissible and reasonable interpretation” and does not result in arbitrary differences between sole and joint employers under the FMLA. The National Partnership commented that the purpose of designating the primary office as the worksite is to ensure that the employer with the primary responsibility for the employee's assignment is the one held accountable for compliance with these regulations. The National Partnership stated that the same principles articulated in the regulations with regard to “no fixed worksite” situations also should apply to this factual scenario. “In cases where employees have long-term assignments, we believe the purposes of the FMLA are best served by using the primary employer from which the employee is assigned as the worksite for determining FMLA coverage.”

On the other hand, the law firm of Pilchak Cohen & Tice commented that, under the current regulations, employees at the same size establishment are treated differently because one works for a traditional sole employer and the other works for a staffing firm:

For example, where a small retail store chain may have many employees nationwide, each store could employ fewer than 50 employees. Those employees clearly would not be eligible for FMLA in the traditional employment context. Yet, under the current regulation, if that same retail chain utilized contract employees from an entity which employed more than 50 employees from its home office and that is where the contract employees received their assignments from or reported to, those contract employees could have FMLA rights at the retail chain. This creates an arbitrary distinction between sole and joint employers. . . .Under 29 C.F.R. § 825.106(e), an employer could contract for an engineer, Employee A, for a six-month project, and then find out after the employee has only been there for two weeks, that Employee A will need 12 weeks off due to the upcoming birth of his child. Upon Employee A's departure, the employer would then have to spend the time and expense training Employee B only to [be] forced to return Employee A to the position, even though it had already spent time training two individuals. The employer would then have to spend additional time and expense bringing Employee A “up to speed” on the project and complete the training initially started.

Pilchak Cohen & Tice stated that the regulation would be more palatable if, to qualify for FMLA job restoration with the client company, the contract employee had to have at least 12 months of service at that location.

The National Coalition to Protect Family Leave commented that the court in
Harbert
was correct in distinguishing between a jointly-employed employee who is assigned to a fixed worksite and a jointly-employed employee who has no fixed worksite and changes worksites regularly. “As for the former, the worksite for purposes of determining whether they are eligible employees * * * would be the fixed worksite of the secondary employer. As for the latter, the worksite would continue as stated in the regulation[.]”

After weighing the comments on this issue submitted in response to the RFI, the Department believes it needs to amend the regulations to reflect the decision in
Harbert
. The proposed rule would modify § 825.111(a)(3) to state that after an employee who is jointly employed is stationed at a fixed worksite for a period of at least one year, the employee's worksite for purposes of employee eligibility is the actual physical place where the employee works. No changes are proposed with respect to employees whose worksite has not been fixed for at least one year. Also, no changes are proposed for § 825.111(a)(2) with respect to employees who work out of their homes, except to update the current language “as under the new concept of flexiplace” to give it a more modern meaning, “as under the concept of flexiplace or telecommuting.”

The Department has not adopted the comment from Pilchak Cohen & Tice that in order to qualify for FMLA job restoration with the client company, a contract employee should have at least 12 months of service at that location. To do so would take away the job restoration protections for an employee who is entitled to FMLA leave under the law. However, the primary responsibility for placement following FMLA leave rests with the primary employer, the staffing firm in the example given. The client company must consent to the placement only if it has used another contract employee from the same staffing firm to temporarily fill the position during the period of the FMLA leave.
14

14

See
29 CFR 825.106(e). In the preamble to the final rule, the Department agreed with comments that joint employment relationships 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. However, the Department found there were no viable alternatives that could be implemented by regulation that would not also deprive eligible employees of their statutory rights to job reinstatement at the conclusion of FMLA leave.
See
60 FR at 2182.

Section 825.112 (Qualifying Reasons for Leave, General Rule)

To make it easier to find information in the regulations, the Department has

reorganized some sections, including portions of current § 825.112, which sets forth the qualifying reasons that entitle an eligible employee to FMLA-protected leave. For example, there is no single place in the current regulations for the provisions that address leave taken for the birth of a child or placement of a child for adoption or foster care. Rather, these provisions are scattered throughout several sections of the current regulations, including paragraphs (c) and (d) of current § 825.112.

No changes have been made to current paragraphs (a) and (b) of this section except for the addition of new paragraph titles. Language from current paragraphs (c) and (d) addressing leave taken prior to the birth of a child or placement of a child for birth or adoption has been moved to new sections in the proposed regulations that cover pregnancy, birth, adoption and foster care.
See
proposed §§ 825.120 and 825.121.

Current paragraph (e) of this section that addresses foster care has been moved to proposed § 825.122, which provides definitions for the various family relationships covered by the Act. Similarly, current paragraph (g) of this section, which addresses leave for substance abuse treatment and an employer's ability to take disciplinary action in connection with substance abuse, has been moved to proposed § 825.119 that specifically addresses leave in connection with substance abuse.

Sections 825.113, 825.114, and 825.115 (Serious Health Condition, Inpatient Care, and Continuing Treatment)

In response to the RFI, the Department received extensive commentary on the regulatory definition of a serious health condition. The full range of comments is discussed in detail in Chapters III and IV of the Department's 2007 Report on the RFI comments (
see
72 FR at 35563; 35571). There are six separate definitions of serious health condition in the regulations. Many stakeholders addressed their comments toward what is called the “objective test” contained in the regulations at § 825.114(a)(2), which defines “continuing treatment” as:

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

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

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

29 CFR 825.114(a)(2)(i)(A)-(B). Many of the comments—including several from health care providers—reported that the current regulatory definition is “vague and confusing.” The American College of Occupational and Environmental Medicine stated, “The term ‘serious health condition’ is unnecessarily vague. Employees, employers and medical providers would be well served if the FMLA were to more clearly define the criteria for considering a health condition serious.” The American Academy of Family Physicians agreed: “The definition of a serious health condition within the Act creates confusion not only for the administrators of the program and employers but also for physicians. Requiring a physician to certify that a gastrointestinal virus or upper respiratory infection is a serious health condition in an otherwise healthy individual is incongruous with medical training and experience. * * * . [Moreover, t]he categories of ‘Serious Health Conditions’ are overly complicated and * * * contradictory.”

Many in the employer community focused their comments on the perceived lack of “seriousness” inherent in certain conditions the definition covers. The Coolidge Wall Company stated: “The DOL needs to limit the definition of serious health condition to what it was originally intended by Congress. For example, while a common cold or flu were never intended to be serious health conditions, in case law courts have essentially done away with all the exclusions from the original definition by stating that ‘complications’ (without defining this) could cause virtually anything (a cold, an earache, a cut on finger) to become a serious health condition.” ORC Worldwide concurred: “Uniformly, employers have found the definition of ‘serious health condition’ and the criteria for determining whether or not an employee has a ‘serious health condition’ to be extremely broad and very confusing.” The City of Philadelphia wrote, “What constitutes a serious health condition? The definition is not clear.”

Stakeholders proposed a number of potential revisions to the current definition of serious health condition. First, many commenters focused on the list of ailments in § 825.114(c), which states “Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach * * *
etc.,
are examples of conditions that do not meet the definition of a serious health condition.” These commenters recommended that, consistent with the legislative intent that these conditions are not FMLA-covered conditions, this list be converted into a
per se
rule whereby these conditions can
never
be covered under the Act. That is, the flu—no matter how severe—could not be a serious health condition. Second, some commenters recommended that the “more than three days” period of incapacity in the objective test be measured by
work
days as opposed to
calendar
days. Here, too, the commenters cited to legislative history to support their position: “[w]ith respect to an employee, the term ‘serious health condition’ is intended to cover conditions or illnesses that affect an employee's health to the extent that he or she
must be absent from work
on a recurring basis or for more than a few days for treatment or recovery.” H.R. Rep. No. 103-8, at 40 (1993); S. Rep. No. 103-3, at 28 (1993) (emphasis added). Third, a number of stakeholders commented that the two health care provider visits in § 825.114(a)(2)(i)(B) must occur during the “more than three days” period of incapacity. Finally, a number of comments recommended that the required period of incapacity be extended from “more than three days” to five or seven or ten days or more.

At the same time, the Department also received many comments from employees and employee groups who felt that the current objective test is a good, clear test that is serving its intended purpose. For example, the National Partnership for Women & Families stated, “[T]he current regulations are crafted appropriately to provide guidance on what constitutes a serious health condition without imposing overly rigid criteria that could hinder the ability of workers to take leave when necessary.” Families USA concurred: “To protect employers from employee abuse of this provision, the regulations establish an objective criteria to be used to determine whether conditions presented qualify for leave. This criteria creates a standard that can be applied in individual cases with sufficient flexibility to adjust for differences in how individuals are affected by illness. It also specifies that routine health matters cannot be considered serious health conditions, unless complications arise.”

After a review of the statute, the legislative history, and the significant feedback received from stakeholders in response to the RFI, the Department has not identified an alternative approach to the definition that would still cover all the types of conditions Congress intended to cover under the FMLA, but without also including some conditions that many believe the legislative history indicated should not be covered. The Department is well aware, as evidenced

by the extensive comments on this issue to the RFI, that many of the policy choices made in defining a serious health condition have not been without consequence. For example, the Department could put a higher degree of “seriousness” into the regulatory definition if we chose to adopt any one of the suggestions offered by employers to increase the required number of days of incapacity or to simply adopt a
work
days rather than a
calendar
days standard. Doing so would also go a long way to eliminate what many employers believe to be the “weekend” problem—that is, employers' inability to know or verify that an employee, who works a regular Monday through Friday schedule, is off on Saturday and Sunday, then calls in sick on Monday claiming an FMLA absence, was in fact incapacitated during the two days he or she was off work for the weekend, and meets the more than three consecutive calendar days standard (
see e.g.
, comment by Southwest Airlines Co., “Unscheduled intermittent leave, which is typically based on recurring episodes of minor health conditions, gives employees many opportunities to misuse FMLA leave—to take vacations or a long weekend when they otherwise would be unable to do so * * *.”). However, Congress itself did not provide a statutory “bright line” of demarcation for “seriousness.” The Act defines serious health condition as either “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. 2611(11). “Continuing treatment” is not further defined by the Act and Congress declined to establish any bright-line rules of what was covered and what was not.
See
discussion infra about chronic conditions specifically.

A review of the Preamble accompanying the current regulations reflects the struggle then, as now, to craft such an objective definition of serious health condition that covers all the conditions intended to be covered by the Act while still giving meaning to the legislative history that minor ailments like colds and flus generally not be covered. It also reflects the choice then, as now, between an objective test versus a list of types of health conditions that would qualify as serious.
See
60 FR at 2191. There is no question, as explained by the legislative history, that Congress expected minor conditions (those that last less than a few days) to not be covered by the FMLA because they would likely be covered by a company's sick leave policy.
See
H.R. Rep. No. 103-8, at 40 (1993); S. Rep. No. 103-3, at 28 (1993). The difficulty is in adequately drawing the line between conditions that usually resolve in a few days, and those that are “serious.” Medical conditions that are benign to some may be truly incapacitating to others. For example, the Communication Workers of America submitted a comment to the RFI noting an employee who had a severe reaction to poison oak and was incapacitated for more than three days even though most individuals would have only a mild reaction to poison oak. As a result of all these factors, the Department has retained essentially the current definition of “serious health condition,” with some slight modifications as discussed below.

The Department has reorganized the structure of the definition so both employees and employers can better understand what constitutes a serious health condition. As noted above, serious health condition is currently defined in six different ways, and only one of the alternatives actually requires an absence of more than three consecutive calendar days under the current regulations. The Department believes that the new proposed structure will make the definition clearer.

Section 825.113 (Serious Health Condition)

Current § 825.113 addresses the definition of a parent, spouse, son or daughter. In the proposed regulations, the Department has moved this to § 825.122 for purposes of organization. Proposed § 825.113 is titled “Serious health condition” and provides the general rules and accompanying definitions governing what constitutes a serious health condition. Proposed § 825.113(a) provides the basic definition of what constitutes a serious health condition currently found in § 825.114(a). Proposed paragraph (b) contains a definition of what constitutes “incapacity” and incorporates language from current § 825.114(a)(2)(i) and (ii) without change. Proposed paragraph (c) contains the definition of “treatment” found in current § 825.114(b) without change.

Proposed paragraph (d) addresses the types of treatments and conditions not ordinarily expected to be covered by the definition and incorporates language from current § 825.114(c). As discussed above, this section has been the focus of considerable debate as to when the list of conditions enumerated (colds, flus,
etc.
) are or are not serious health conditions. The Department received many comments in response to the RFI on this issue from both employer and employee groups but has not been able to construct an alternative regulatory definition better than the objective test of more than three days incapacity plus treatment. The language of current § 825.114(c) listing common ailments and conditions—“Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, * * *
etc.,
are examples of conditions that do not meet the definition of a serious health condition”—was intended to be merely illustrative of the types of conditions that would not
ordinarily
qualify as serious health conditions. This sentence was not intended to create its own substantive definition of serious health condition that categorically excluded the listed conditions. Section 825.114(c) did not create a definition of covered conditions separate and apart from the regulatory definitions of serious health condition in § 825.114(a).

The Department's original opinion letter in 1995 stated that a minor illness such as the common cold
could not
be a serious health condition because colds were on the regulatory list of non-covered ailments. “The fact that an employee is incapacitated for more than three days, has been treated by a health care provider on at least one occasion which has resulted in a regimen of continuing treatment prescribed by the health care provider does not convert minor illnesses such as the common cold into serious health conditions in the ordinary case (absent complications).” Wage and Hour Opinion Letter FMLA-57 (Apr. 7, 1995). Unfortunately, this was an incorrect statement of the law. As the Department explained in its subsequent 1996 opinion letter:

The FMLA regulations * * * provide examples, in section 825.114(c), of conditions that
ordinarily,
unless complications arise, would not meet the regulatory definition of a serious health condition and would not, therefore, qualify for FMLA leave: the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc. Ordinarily, these health conditions would not meet the definition in 825.114(a)(2), as they would not be expected to last for more than three consecutive calendar days and require continuing treatment by a health care provider as defined in the regulations. If, however, any of these conditions met the regulatory criteria for a serious health condition,
e.g.
, an incapacity of more than three consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA.

Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996) (emphasis in original). This objective regulatory definition was upheld as a reasonable implementation of the Act by two United States Courts of Appeals even though the definition may sweep into its coverage some conditions Congress did not necessarily anticipate would be covered.
See Miller
v.
AT&T Corp.,
250 F.3d 820, 835 (4th Cir. 2001) (“It is possible, of course, that the definition adopted by the Secretary will, in some cases— and perhaps even in this one—provide FMLA coverage to illnesses that Congress never envisioned would be protected. We cannot say, however, that the regulations adopted by the Secretary are so manifestly contrary to congressional intent as to be considered arbitrary.”);
Thorson
v.
Gemini, Inc.
, 205 F.3d 370, 380 (8th Cir. 2000) (“Under the DOL's definition, it is possible that some absences for minor illnesses that Congress did not intend to be classified as `serious health conditions' may qualify for FMLA protection. But the DOL reasonably decided that such would be a legitimate trade-off for having a definition of `serious health condition' that sets out an objective test that all employers can apply uniformly.”).

The Department considered whether the list of examples of non-serious ailments such as colds and flus in current § 825.114(c) should be deleted as surplusage. Both the Fourth and Eighth Circuit courts treated the list of examples of non-serious ailments in current § 825.114(c) as merely clarifying that common ailments such as colds and flu normally will not qualify for FMLA leave because they generally will not satisfy the regulatory criteria for a serious health condition. The Department continues to believe that the § 825.114(c) list serves a baseline purpose as explanatory language similar to that which is included in a preamble. Therefore, the sentence has been retained in the proposed regulations. Nevertheless, the Department agrees with the Fourth and Eighth Circuit Courts of Appeals and restates its view that the Department's objective regulatory definition is dispositive.

Section 825.114 (Inpatient Care)

Proposed § 825.114, titled, “Inpatient care,” defines what constitutes inpatient care. As noted above, the Department proposes a stand-alone definition of “incapacity” in § 825.113(b) in contrast to the current regulations. Therefore, the definitional language of incapacity has been removed from the definition of “inpatient” care, but the requirement remains and a cross-reference to § 825.113(b) has been included.

Section 825.115 (Continuing Treatment)

Proposed § 825.115, titled “Continuing treatment,” defines continuing treatment for purposes of establishing a serious health condition. The five different definitions are contained in § 825.115(a)-(e). Proposed § 825.115(a) (“Incapacity and treatment”) incorporates language from current § 825.114(a)(2)(i)(A) and (B), which establishes that an employee can meet this definition if, in connection with a period of incapacity of more than three consecutive calendar days, the employee or family member has one visit to a health care provider and a regimen of continuing treatment, such as a prescription, or two visits to a health care provider.

As discussed further below concerning proposed § 825.125, the Department proposes a conforming change in the definition of “continuing treatment” to generally recognize physician assistants as health care providers, which eliminates the need to refer to them separately in this section as performing “under direct supervision of a health care provider” (
see
current §§ 825.114(a)(2)(i)(A) and (iii)(A)). Otherwise, the current definition has been retained with one further proposed clarification. The Department proposes to specify that the two visits to a health care provider must occur within 30 days of the beginning of the period of incapacity unless extenuating circumstances exist, instead of the completely open-ended time frame under the current regulations. Accordingly, if an ill employee visits his/her health care provider, is told not to report to work for more than 3 days due to the health condition but is not prescribed any medication, whether the condition is considered a serious health condition for FMLA purposes will depend on whether the health care provider determines that additional treatment is needed within 30 days of the beginning of the initial period of incapacity (for example, whether the provider determines that an additional follow-up appointment should be scheduled in two weeks or two months). The beginning of the period of incapacity will usually correspond with the date of the employee's first absence, however, as under the current regulations, the more than three calendar day period of incapacity may commence on a day on which the employee is not scheduled to work. See 60 FR 2195.

The Department proposes this clarification because it believes, as a practical matter, that leaving the treatment requirement open-ended does not provide sufficient guidance for determining when the employee has a qualifying serious health condition. For example, under the current definition, an employer could decide that an employee does not qualify for FMLA coverage a week after an employee has been to see a health care provider on one occasion and has had more than three days of incapacity but no follow-up visit during that week-long time period. If the employee had a follow-up visit three months later, however, the test would be met but the employer may not be aware of that fact. The Department does not believe the regulations should leave such determinations open-ended and unresolved indefinitely. Rather, the period of incapacity and the timing of the health care provider's treatment regimen should be connected in a temporal sense to meet the definitional requirement and not left undefined as under the current rule.

The Department received many comments to the record on this issue, including a number suggesting that the Department adopt into regulation the interpretation offered by the United States Court of Appeals for the Tenth Circuit that the two treatments actually occur during the period of more than three days' incapacity in order to qualify as a serious health condition.
See Jones
v.
Denver Pub. Sch.,
427 F.3d 1315, 1323 (10th Cir. 2005) (“[U]nder the regulations defining `continuing treatment by a health care provider,' the `[t]reatment two or more times' described in 825.114(a)(2)(i)(A) must take place during the `period of incapacity' required by 825.114(a)(2)(i).”). However, the Department believes the proposed 30-day limitation is more appropriate in that it guards against employers making quick judgments that deny FMLA leave when employees otherwise should qualify for FMLA protections. The Department is also aware that occasionally an employee may need a second visit to a health care provider or further diagnostic testing within a 30-day period but may experience difficulty scheduling the second appointment in time. The regulations therefore acknowledge an “extenuating circumstances” exception to the 30-day rule in proposed § 825.115(a)(1).

The Department is not proposing to extend the 30-day rule to treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. The Department's enforcement

experience suggests that the doctor visit which results in a regimen of continuing treatment generally occurs close in time to the more than three days of incapacity. Accordingly, the 30-day limitation is not needed and could, in fact, extend the time period for receiving the regimen of treatment well beyond what is current practice. The Department, however, seeks comments on this approach, and whether this regulatory provision should be changed.

Proposed § 825.115(b), titled “Pregnancy or prenatal care,” incorporates language from current § 825.114(a)(2)(ii) without change except for a reference to the new consolidated section found in proposed § 825.120 addressing leave for pregnancy and childbirth discussed in detail below. The Department wishes to emphasize, however, that the phrase “incapacity due to pregnancy, or for prenatal care” includes time spent with a health care provider for prenatal care purposes. By definition, while an employee is visiting a health care provider for prenatal care purposes (
i.e.
, a doctor's appointment), the employee is unable to work and therefore incapacitated. In contrast, however, an employee is not entitled to FMLA leave to visit the store to purchase infant clothes because the employee is not incapacitated in such circumstances. In a case where a male employee is needed to care for (as defined by proposed § 825.124) a pregnant spouse who is incapacitated or requires prenatal care, the male employee will be entitled to FMLA leave. For example, a male employee's pregnant spouse may have severe morning sickness and need his assistance. Similarly, a male employee may be entitled to FMLA leave to accompany his pregnant spouse to a doctor's appointment for prenatal care. In this case, physical care may not be needed, but psychological care may be involved.

Proposed § 825.115(c), titled “Chronic conditions,” incorporates language from current § 825.114(a)(2)(iii) with one modification. The Department received extensive comments about the definition of “chronic” serious health conditions in response to the RFI. As a result, the Department provided extensive discussion and explanation in its Report on the RFI to the evolution of the “chronic” serious health condition definition.
See
Chapter IV of the RFI Report, 72 FR at 35571.

As the Department explained in the Report on the RFI comments, “[t]here is no definition or specific mention of a `chronic' serious health condition in the Act. The House and Senate Committee Reports do, however, refer to conditions where `the underlying health condition or treatment for it requires that the employee be absent from work on a recurring basis * * * [A] patient with severe arthritis may require periodic treatment such as physical therapy.' ” 72 FR at 35572 (internal citations omitted). Many employer commenters were highly critical of the choice made by the Department in the 1995 final rule to allow employees to “self-treat” for “any” period of incapacity due to chronic conditions.
See current
§ 825.114(e): “Absences attributable to incapacity under paragraphs (a)(2)(ii) or (iii) [chronic conditions] qualify for FMLA leave even though the employee or the family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three days.” Indeed, many employer commenters believe that coverage for absences due to chronic conditions which are accompanied only by self-treatment impermissibly undercuts the statutory requirement that intermittent leave may be taken only when medically necessary (29 U.S.C. 2612(b)(1)) as there is no way to verify the medical necessity of an absence for self-treatment. (
See, e.g.
, discussion of Workplace Consequences of Unscheduled Intermittent Leave in the Report on the RFI comments, 72 FR at 35575.) Employee representatives commenting on the RFI, however, stressed that self-treatment is appropriate for many chronic conditions and that coverage for such absences is crucial to ensuring that employees with chronic serious health conditions are able to maintain their employment.
Id.
at 35575; 35580.

While many employers urged the Department to alter the definition so that only chronic conditions that they perceive to be “serious” will be covered, and to eliminate the self-treatment provision, the Department declines to do so. As explained in the preamble when the current rule was adopted in 1995,

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.

60 FR at 2195.

Although the Department acknowledges employers' concerns regarding the inability to verify the medical necessity for an absence involving self-treatment, to eliminate coverage for such absences at this time would, like changing the calendar days standard to a work days standard, effectively render many currently-covered employees who have received the protections of the law ineligible. As the Department acknowledged in the Report on the RFI, it has no way to distinguish between those employees with chronic conditions who may be, in their employers' views, taking advantage of the self-treatment standard and those who are not and for whom the standard has worked very well.

The Department does propose one modification to the definition of a chronic serious health condition. Current § 825.114(a)(2)(iii) provides that a chronic serious health condition “[r]equires periodic visits for treatment” (§ 825.114(a)(2)(iii)(A)). The current regulations do not define the term “periodic.” The Department understands that some employers have chosen to provide their own definition of the term “periodic” for FMLA purposes to the detriment of employees. For example, one employer defined the term to require a visit to a health care provider at least once a month in order to satisfy this prong of the continuing treatment definition. The Department believes that not all serious health conditions Congress intended to cover require such frequent visits. For example, an employee may have epilepsy, which renders the employee unable to work periodically but does not require monthly doctor visits since the employee knows how to self-medicate. At the same time, because “periodic” is left open-ended in the current regulations, employers have struggled with the “periodic” requirement. The Department believes such a lack of definition leaves employers and employees in an untenable situation. (
See
Executive Summary and Chapters IV and VI of the Department's 2007 Report on the RFI comments, 72 FR at 35550, 35571, 35588.) The Department proposes to define the term “periodic” as twice or more a year, based on an expectation that employees with chronic serious health conditions generally will visit their health care providers with that minimum

frequency, but they may not visit them more frequently, especially if their conditions are stable. The Department believes this is reasonable but seeks public comments on whether the proposed definition of the term “periodic” is appropriate.

Proposed § 825.115(d), titled “Permanent or long-term conditions,” incorporates language from current § 825.114(a)(2)(iv) without change. Proposed § 825.115(e), titled “Conditions requiring multiple treatments,” incorporates language from current § 825.114(a)(2)(v), which provides coverage for any period of absence to receive multiple treatments by a health care provider for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment for conditions such as cancer, severe arthritis, and kidney disease. Multiple treatments are required to satisfy this prong of the continuing treatment definition.

Sections 825.116 Through 825.118 (Reserved)

Provisions in current § 825.116 defining the phrase “needed to care for” a family member are moved to proposed § 825.124, discussed below. Provisions in current § 825.117 addressing the “medical necessity” for taking and scheduling intermittent or reduced schedule leave are moved to proposed §§ 825.202 and .203, discussed below. Current § 825.118 defining “health care provider” is renumbered as § 825.125 of the proposed rule. Section numbers .116-.118 of the current rule are, therefore, reserved to reflect these organizational changes, as discussed further below.

Section 825.119 (Leave for Treatment of Substance Abuse)

The Department proposes to create a single, consolidated section to address substance abuse, which is currently addressed in two different sections of the regulations, specifically §§ 825.112(g) and .114(d). Current § 825.112(g) provides that while FMLA leave is available for substance abuse treatment, treatment does not prevent an employer from taking employment action against an employee for violating the employer's substance abuse policy, such as being intoxicated at work. The section further explains when such action is appropriate. Current § 825.114(d) states that substance abuse treatment may be covered as a serious health condition in certain circumstances.

Section 825.120 (Leave for Pregnancy or Birth)

The Department proposes to create a single section that addresses FMLA rights and responsibilities related to pregnancy and birth of a child. The current regulations contain regulatory guidance pertaining to pregnancy and birth throughout a number of regulatory sections. This new proposed section collects the existing guidance from the various regulatory sections into one comprehensive section.

Section 825.120(a)(1) of the proposed rule, titled “[g]eneral rules,” restates language from current § 825.112(b) that both the mother and father are entitled to FMLA leave for the birth of their child. Proposed paragraph (a)(2) of this section restates language from current § 825.201 explaining that leave following the birth of a healthy child (“bonding time”) must be completed within a year from the birth unless State law provides for a longer period of time or with an employer's agreement. Based on the statutory requirements (
see
29 U.S.C. 2612(a)(2)), if leave is extended beyond a year from the birth per State law or employment agreement, the additional leave would not receive the FMLA protections. Proposed paragraph (a)(3) of this section incorporates language from current § 825.202(a), that husbands and wives who work for the same employer may be limited to a combined 12 weeks of FMLA leave for the birth or placement for adoption or foster care of a healthy child, or to care for an employee's parent with a serious health condition. (
See
29 U.S.C. 2612(f).) This limitation does not apply if only one spouse is eligible for FMLA leave. For example, if a wife commenced employment with the employer only 6 months earlier and therefore does not meet the 12-month/1,250-hour eligibility requirement, but the husband has worked for the employer for five years and otherwise meets the eligibility requirements, the husband could take twelve weeks of leave to be with the newborn child. However, if the husband and wife have both worked for the same employer for five years and the husband already has used six weeks of his entitlement to care for his parent, the wife may be limited to six weeks to be with the newborn child (the wife would also be entitled to leave for her own serious health condition related to the birth).

Proposed § 825.120(a)(4) combines language from current §§ 825.114(a)(2)(ii), 825.114(e), and 825.112(a) and (c) to make clear that a mother may be entitled to FMLA leave for both prenatal care and incapacity related to pregnancy, and the mother's serious health condition following the birth of a child.

Proposed § 825.120(a)(6) has been added to reemphasize that both spouses may each take their full 12 weeks of leave to care for a child with a serious health condition, regardless of whether the spouses work for the same employer.

Proposed § 825.120(b), titled “[i]ntermittent and reduced schedule leave,” combines language from current §§ 825.203(b) and 825.204(a) on the use of intermittent or reduced schedule leave for pregnancy and birth of a child.
See
29 U.S.C. 2612(b)(1). Current § 825.203(b) provides that leave taken after the birth of a healthy newborn child may only be taken on an intermittent or reduced leave schedule if the employer agrees. Current § 825.204(a) explains that in these cases, an employer may temporarily transfer an employee to an available alternative position that better accommodates the need for intermittent or reduced schedule leave if the employer does in fact agree to such a leave schedule.
See
29 U.S.C. 2612(b)(2). The hours not worked due to a reduced leave schedule in this situation are considered intermittent FMLA leave and are counted toward the employee's FMLA leave entitlement (
see
proposed § 825.205). Proposed § 825.120(b) emphasizes that if intermittent or reduced schedule leave is medically necessary for a serious health condition of the mother or the newborn child, no employer agreement is necessary.

Section 825.121 (Leave for Adoption or Foster Care)

For the same reasons discussed above, the Department also proposes a single section that discusses FMLA rights and obligations with regard to adoption and foster care. The current regulations contain guidance pertaining to adoption and foster care throughout a number of sections. This new proposed section collects the existing guidance from the various regulatory sections into one comprehensive section on adoption and foster care.

Proposed § 825.121(a) is titled “[g]eneral rules” and provides that leave for adoption or foster care may begin prior to the actual birth or adoption. Examples incorporated from current § 825.112(d) include leave to attend counseling sessions, appear in court, consult with an attorney or doctor, or submit to a physical examination. The proposed section also cross-references proposed paragraph (b) of this section, which explains the statutory limitation that leave following the placement for

adoption and foster care of a healthy child can
only
be taken on an intermittent or reduced schedule basis if the employer agrees.
See
29 U.S.C. 2612(b)(1).

Proposed § 825.121(a)(2) contains language from current § 825.201 explaining that leave for adoption or foster care must be completed within a year from the placement unless State law provides for a longer period of time or with an employer's agreement. Such leave taken under State law or with an employer's agreement beyond the one year period is not protected as FMLA leave. Section 825.121(a)(3) also incorporates language from current § 825.202(a), that husbands and wives working for the same employer are limited to a combined 12 weeks of leave for purposes of bonding with the healthy adopted or foster child, to care for the healthy child following the birth of the child, and to care for an employee's parent with a serious health condition. As discussed above under proposed § 825.120, this limitation does not apply if only one spouse is eligible for FMLA leave.
See
29 U.S.C. 2612(f).

Proposed § 825.121(a)(4) has been added to emphasize that both spouses may each take their full twelve weeks of FMLA leave to care for an adopted or foster child with a serious health condition, regardless of whether the spouses work for the same employer.

Proposed § 825.121(b), titled “[u]se of intermittent and reduced schedule leave,” combines language from current §§ 825.203(b) and 825.204(a) on the use of intermittent or reduced schedule leave for adoption and foster care. Current § 825.203(b) provides that leave taken after the placement of a healthy child for adoption or foster care may only be taken on an intermittent or reduced leave basis if the employer agrees.
See
29 U.S.C. 2612(b)(1). Current § 825.204(a) explains that in such cases, an employer may temporarily transfer an employee to an available alternative position that better accommodates the need for intermittent or reduced schedule leave.
See
29 U.S.C. 2612(b)(2). The hours not worked due to a reduced leave schedule in this situation are considered intermittent FMLA leave and are counted toward the employee's FMLA leave entitlement (
see
proposed § 825.205). Proposed § 825.121(b) provides that if intermittent or reduced schedule leave is needed for a serious health condition of the adopted or foster child, no employer agreement is necessary.

Section 825.122 (Definition of Spouse, Parent, Son or Daughter, Adoption and Foster Care)

Current § 825.113 provides definitions of spouse, parent, and son or daughter for purposes of determining whether an employee qualifies for FMLA leave. These definitions are repeated in current and proposed § 825.800. The Department proposes to move the existing section to proposed § 825.122 for purposes of organization. Proposed § 825.122(a) and (b) defining spouse and parent are unchanged except for minor editorial changes in paragraph (b) to the definition of “parent.”

Proposed § 825.122(c) that addresses, and is now titled, “[s]on or daughter,” has been rewritten for clarity. The one substantive addition the Department proposes is to specify that the determination of whether an adult child has a disability should be made
at the time leave is to commence.
In
Bryant
v.
Delbar,
18 F.Supp.2d 799 (M.D. Tenn. 1998), the court conducted an analysis of whether an adult child had a disability for purposes of FMLA coverage based on facts and circumstances that occurred
well after
the leave commenced. In the Department's view, employers should decide FMLA eligibility based on information at the time the leave begins. A rule that takes into account information acquired after-the-fact causes confusion about coverage for both employees and employers. The Department aims to eliminate such confusion by adding the proposed language.

Proposed § 825.122(c)(1), (2) and (3) remain unchanged from current § 825.113(c)(1), (2) and (3).

A new § 825.122(d) has been added that defines “adoption.” The current regulations do not define the term, and the Department believes that providing such guidance will benefit both employees and employers. Language from current § 825.112(d) has been retained to clarify that the adoption source is not relevant to FMLA leave eligibility.

Proposed § 825.122(e), titled “[f]oster care,” incorporates the definition of foster care from the current § 825.112(e) without change.

Proposed § 825.122(f) addresses the documentation of relationships and incorporates the current language from § 825.113(d) with two clarifications. First, the current regulation states that in addition to a child's birth certificate or a court document, a simple statement from an employee is sufficient to establish a family relationship. The Department adds language in proposed paragraph (f) to clarify that the example of a statement by the employee as documentation should be a sworn, notarized statement. This provides consistency with the other examples used in the current regulations. Second, the Department proposes to add the example of a submitted and signed tax return as evidence of a qualified family relationship because in the case of an
in loco parentis
relationship, it may be difficult to determine what kind of proof may be reasonable to establish such a relationship.

Section 825.123 (Unable to Perform the Functions of the Position)

The Department proposes to renumber current § 825.115 as § 825.123 in the proposed regulation due to other organizational changes made. Proposed paragraph (a), titled “[d]efinition,” defines the statutory requirement that an individual be unable to perform the functions of a job in order to qualify for FMLA leave. The current regulatory definition states that the employee must be “unable to work at all” or be unable to perform “one or more of the essential functions of the job.” The Department proposes no substantive changes to this definition.

The Department proposes no substantive changes to current paragraph (b), now titled “[s]tatement of functions,” except to include language from current § 825.115 to clarify that the employer may provide a statement of the employee's essential functions to the employee's health care provider, and to clarify that the employer may require that the health care provider's medical certification specify what functions the employee cannot perform. This information is part of the “medical facts” the statute states an employer may obtain as part of the medical certification.
See 29
U.S.C. 2613(b)(4)(B).

Section 825.124 (Needed to Care for a Family Member)

The current regulations define the phrase “needed to care for” a family member in § 825.116. The Department proposes to move this section to proposed § 825.124 and clarify that the employee need not be the
only
individual or family member available to care for the qualified family member. A number of comments received in response to the RFI recommended that the Department impose some sort of limitation on what it means for an employee to be “needed to care for” a family member. A number of commenters, including the National Council of Chain Restaurants suggested that “care” be limited to actual physical

care only. The National Council of Chain Restaurants also recommended that the employee be required to provide a written certification “that explains why the employee cannot rely upon other family members to care for” the qualifying family member. Similarly, the law firm of Blank Rome suggested that the regulations “be modified to allow for leave under these circumstances only when there is no other alternative care giver or provider.” The Pepsi Bottling Group recommended that employers be “able to deny or delay leave if an employee has a family member at home who is available to provide necessary medical care.” The United Parcel Service suggested “add[ing] language requiring that requests for intermittent leave to care for a family member be supported by a representation that the employee is the only family member available to provide such care.” Finally, Manufacturers Alliance recommended the Department clarify that the term “needed to care” for a family member means “that it [is] necessary for the employee to actually be providing care during * * * work time.”

After review of these comments, the Department has declined to adopt any of these proposals. The statute provides leave “[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. 2612(a)(1)(C). There is no additional limitation that the employee be the only available care giver in order to take FMLA leave. Indeed, it will often be the case that there are multiple potential care givers—none of whom is the only care giver without alternative—but all of whom would need to take FMLA leave in order to provide care. Moreover the legislative history to the Act indicates that the “phrase `to care for' * * * be read broadly to include both physical and
psychological
care.” H.R. Rep. No. 103-8, at 36 (1993); S. Rep. No. 103-3, at 24 (1993). The Department intends to retain the psychological care language and to make clear that employers cannot impose an additional requirement upon employees for FMLA leave purposes that the employee needs to be the only individual, or even family member, available to provide care to the qualified family member with a serious health condition.

Section 825.125 (Definition of Health Care Provider)

Current § 825.118 is renumbered as § 825.125 in the proposed rule to reflect organizational changes. In its comments to the RFI, the American Academy of Physician Assistants noted that physician assistants (PAs) are usually recognized as authorized health care providers for FMLA purposes under the existing provision that recognizes “[a]ny health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits” (current § 825.118(b)(4)). Other language in § 825.118(c) of the current rule has created confusion over the status of PAs, however, where the phrase “authorized to practice in the State” is defined to mean that “the provider must be authorized to diagnose and treat physical or mental health conditions without supervision by a doctor or other health care provider.” The Department proposes to clarify the status of PAs as health care providers under proposed § 825.125(b)(2) (formerly § 825.118(b)(2) in the current rule) by adding “physician assistants” to the list of recognized health care providers and by deleting the requirement that PAs operate “without supervision by a doctor or other health care provider.” The Department has made corresponding changes to proposed § 825.115 (Continuing treatment) and § 825.800 (Definitions) to reflect this change that PAs would now generally be considered health care providers.

Section 825.200 (Amount of Leave)

This section explains the basic leave entitlement provided under the Act, as well as how to determine the 12-month period during which the FMLA leave entitlement may be used. The Department asked in its December 2006 RFI whether “scheduled holidays [should] count against an employee's 12 weeks of FMLA leave when the employee is out for a full week as they do now?” (71 FR at 69509) The Department heard from all sides on this issue. The Unum Group stated, “Changing this process could add difficulty to the already complex method of calculating FMLA leave entitlements.” The Pennsylvania Turnpike Commission agreed: “We feel that scheduled holidays should continue to count against the 12 weeks of FMLA. That block of time is covered in the employee request—it is incidental that they would not have had to work due to a holiday. Because of differing holiday eligibility for different employee groups (
i.e.
mgmt/union), it would greatly complicate the calculation of eligible days if holidays were excluded. It would be more time consuming for an FMLA administrator to calculate the amount of time/days an employee [would] be off under FMLA if they had to make sure to subtract any holidays that the employee is eligible for during the time period they need to be off.” The State of Ohio said it “supports the current regulations in this area, and believes that scheduled holidays should continue to be counted against an employee's 12 weeks of FMLA leave when the employee is out a full week. This provision would allow employee's 12 weeks of FMLA leave to be treated consistently with employees participating in other Ohio benefit programs.” The National Partnership for Women & Families disagreed: “Under the current regulations, such holidays are counted as part of an employee's FMLA leave. We believe such a policy is inconsistent with how holidays are typically treated in other leave contexts. If an employee is out on FMLA leave and a scheduled holiday occurs, we believe the employee should be able to use holiday leave just like other employees rather than losing a day of FMLA leave. Thus, we would urge DOL to modify the regulations accordingly.”

A number of commenters noted a serious problem that would occur if holidays were not counted toward FMLA leave when an employee is out on a weekly block of leave; that is, such a rule could result in the employee obtaining greater than 12 weeks of FMLA leave per year. One commenter stated: “For some employees counting holidays or days not worked during a full week of absence, may mean employees could be gone beyond the 12 weeks/60 days if it is determined that non-work days or holidays are not counted as part of the work week thus pro-longing an FMLA beyond the 60 days/12 weeks[.]” The United Parcel Service concurred: “DOL should maintain its current position that holidays occurring during an employee's scheduled work-week count against the 12 weeks of leave. That position is supported by the plain language of the FMLA, which provides for 12 weeks of unpaid leave, not 12 weeks of leave plus all holidays falling therein.” The Commonwealth of Pennsylvania noted, “Because the law references the absence period in terms of weeks, rather than days, and considers calendar days rather than work days, the practice of counting holidays seems to be within the spirit of the Act and regulations.”

Upon review of the comments received to the record, the Department believes it may lack the authority to change this regulation to not count against the FMLA entitlement holidays that fall within weeks-long blocks of FMLA leave. The statute grants

employees “12 workweeks of leave” which the Department has interpreted to mean 12 weeks of the employee's normal work schedule. See 60 FR at 2203. (“The statute uses the ‘workweek’ as the basis for the leave entitlement, and an employee's normal ‘workweek’ prior to the start of the FMLA leave is the controlling factor for determining how much leave an employee uses when switching to a reduced leave schedule.”) Holidays regularly occur during normal workweeks. Discounting the holidays that regularly fall within those weekly blocks of leave could well impermissibly extend an employee's leave period beyond the statutory 12 normal workweeks of leave that the Act permits. Moreover, the current rule is clear and apparently working well.
See, e.g., Mellen
v.
Trustees of Boston University
, 504 F.3d 21, 25 (1st Cir. 2007) (“[The Department's regulations governing] [w]hether holidays are to be counted against intermittent leave taken in an interval of a week or more * * * fit together naturally.”).

However, consistent with the discussion regarding § 825.205 below, when an employee is taking leave in increments of less than one week, the pertinent question for both overtime and holidays is whether the employee is required to be at work. If an employee is not required to be at work because of a holiday on the day he or she requested leave, then no leave would be charged to the employee's FMLA entitlement. Thus, the Department proposes language in § 825.200(f) to clarify that, if an employee needs less than a full week of FMLA leave, and a holiday falls within the partial week of leave, the hours that the employee does not work on the holiday cannot be counted against the employee's FMLA leave entitlement if the employee would not otherwise have been required to report for work on that day. If an employee needs a full week of leave in a week with a holiday, however, the hours the employee does not work on the holiday will count against the employee's FMLA entitlement. Accordingly, for an employee with a Monday through Friday work week schedule, in a week with a Friday holiday on which the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-2062. Public record. Not legal advice.