The Family and Medical Leave Act of 1993

DEPARTMENT OF LABOR

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:

Final rule.

SUMMARY:

This document provides the text of final regulations implementing the Family and Medical Leave Act of 1993 (“FMLA”), the law that provides eligible employees who work for covered employers the right to take job-protected, unpaid leave for absences due to the birth of the employee's son or daughter and to care for the newborn child; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for a son, daughter, spouse, or parent with a serious health condition; or because of the employee's own serious health condition that makes the employee unable to perform the functions of his or her job. The final regulations also address new military family leave entitlements included in amendments to the FMLA enacted as part of the National Defense Authorization Act for FY 2008, which provide additional job-protected leave rights to eligible employees of covered employers who provide care for covered servicemembers with a serious injury or illness and because of qualifying exigencies arising out of the fact that a covered military member is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.

EFFECTIVE DATE:

These rules are effective on January 16, 2009.

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 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 regulations may be directed to the nearest Wage and Hour Division (WHD) District Office. Locate the nearest office by calling the WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the WHD's Web site for a nationwide listing of WHD District and Area Offices at:

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

.

SUPPLEMENTARY INFORMATION:

I. Background

A. What the FMLA Provides

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

et seq.

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

On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (“NDAA”), Public Law 110-181. Section 585(a) of the NDAA expanded the FMLA to allow eligible employees of covered employers to take FMLA-qualifying leave “[b]ecause of any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

See

29 U.S.C. 2612(a)(1)(E) (referred to herein as “qualifying exigency leave”). The NDAA also provided that “an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a [single] 12-month period to care for the servicemember.”

See

29 U.S.C. 2612(a)(3)-(4) (referred to herein as “military caregiver leave”). In addition to establishing these two new leave entitlements (referred to together throughout this document as the “military family leave provisions”), section 585(a) of the NDAA included conforming amendments to incorporate the new military family leave entitlements into the FMLA's current statutory provisions relating to the use of FMLA leave and to add certain new terms to the FMLA's statutory definitions. The NDAA amendments were enacted January 28, 2008. The amendments require the Secretary of Labor to define “any qualifying exigency” through regulation.

See

29 U.S.C. 2612(a)(1)(E).

To be eligible for FMLA leave, an employee must have been employed for at least 12 months by the employer and for at least 1,250 hours of service with the employer during the 12 months preceding the leave, and be employed at a worksite at which the employer employs at least 50 employees within 75 miles of the worksite.

See

29 U.S.C. 2611(2). Employers covered by the FMLA must maintain any preexisting group health coverage for an eligible employee during the FMLA 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 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 is administered by the U.S. Department of Labor and applies to private sector employers of 50 or more employees, public agencies and certain federal employers and entities, such as the U.S. Postal Service and Postal Regulatory Commission. Title II is administered by the U.S. Office of Personnel Management and applies to civil service employees covered by the annual and sick leave system established under 5 U.S.C. Chapter 63, 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.

1

Title IV

(also administered by the Department of Labor) 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.

1

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.”

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

. In 1999, the

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

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

.

B. Regulatory History

The FMLA required the Department to issue initial regulations to implement Titles I and IV of the FMLA within 120 days of enactment, or by June 5, 1993, with an effective date of August 5, 1993. The Department issued a Notice of Proposed Rulemaking (“NPRM”) on March 10, 1993 (58 FR 13394), inviting comments until March 31, 1993, on a variety of questions and issues. After considering the comments received 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, the Department issued an interim final rule on June 4, 1993 (58 FR 31794), which became effective on August 5, 1993, and which also invited further public comment on the interim regulations. Based on this second round of public comments, the Department published final regulations on January 6, 1995 (60 FR 2180), which 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.

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

Federal Register

(71 FR 69504) requesting 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 areas of focus were derived from stakeholder meetings, a number of rulings of the U.S. Supreme Court and other federal courts, the Department's 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 the Congress on the FMLA's costs and benefits.

2

The Department received more than 15,000 comments in response to the RFI from workers, family members, employers, academics, and other interested parties.

3

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)).

2

These OMB reports may be found at the following Web sites:

2001 report: http://www.whitehouse.gov/omb/inforeg/costbenefitreport.pdf; 2002 report: http://www.whitehouse.gov/omb/inforeg/2002_report_to_congress.pdf; 2004 report: http://www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf

.

3

Comments are available for viewing at 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

.

On February 11, 2008, the Department published an NPRM in the

Federal Register

(73 FR 7876) inviting public comments for 60 days on proposed changes to the FMLA's implementing regulations. The proposed changes were based on the Department's experience of nearly 15 years administering the law, the two previous Department of Labor studies and reports on the FMLA issued in 1996 and 2001, several U.S. Supreme Court and lower court rulings, and a review of the public comments received in response to the RFI. The NPRM also sought public comment on issues to be addressed in final regulations to implement the 2008 amendments to the FMLA providing for military family leave pursuant to section 585(a) of the NDAA. The Department's NPRM included a description of the relevant military family leave statutory provisions, a discussion of issues the Department had identified under those provisions, and a series of questions seeking comment on subjects and issues for consideration in developing the final regulations.

In response to the NPRM, the Department received 4,689 comment submissions (the majority via the Federal eRulemaking Portal at

http://www.regulations.gov

) during the official comment period from a wide variety of individuals, employees, employers, trade and professional associations, labor unions, governmental entities, Members of Congress, law firms, and others. Two submissions attached the views of some of their individual members: The American Federation of Teachers (528 individual comments) and MomsRising.org (4,712 individual comments). Additional comments submitted via the Regulations.gov eRulemaking Portal after the comment period closed were not considered part of the official record and were not considered. (Comments may be viewed on the Regulations.gov Web site at

http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=ESA-2008-0001.

)

Nearly 90 percent of the comments received in response to the NPRM were either: (1) Very general statements; (2) personal anecdotes that do not address any particular aspect of the proposed regulatory changes; (3) comments addressing issues that are beyond the scope or authority of the proposed regulations, ranging from repeal of the Act to expanding its coverage and benefits; or (4) identical or nearly identical “form letters” sent in response to comment initiatives sponsored by various constituent groups, such as the American Postal Workers Union and several of its affiliated local unions, the Associated Builders and Contactors, MomsRising.org, the National Organization of Women, the Society for Human Resource Management, Teamsters for a Democratic Union, and Women Employed. The remaining comments reflect a wide variety of views on the merits of particular sections of the proposed regulations. Many include substantive analyses of the proposed revisions. The Department acknowledges that there are strongly held views on many of the issues presented in this rulemaking, and it has carefully considered all of the comments, analyses, and arguments made for and against the proposed changes.

The major comments received on the proposed regulatory changes are summarized below, together with a discussion of the changes that have been made in the final regulatory text in response to the comments received. In addition to the more substantive comments discussed below, the Department received some minor editorial suggestions (

e.g.

, suggested grammatical revisions and correction of misspelled words), some of which have been adopted and some of which have not. A number of other minor editorial changes have been made to improve the clarity of the regulatory text.

II. Summary of Comments on Changes to the FMLA Regulations

This summary begins with a general overview of how the new military

family leave entitlements have been incorporated into the existing FMLA regulatory framework, followed by a section-by-section presentation of the major comments received on the Department's other proposed revisions. As proposed in the NPRM, the section headings in the final rule have been reworded from a question into the more common format of a descriptive title, and several sections have been restructured and reorganized to improve the accessibility of the information. In addition, proposed sections of the regulations have been renumbered in the final rule to allow for the addition of new regulatory sections addressing the military family leave entitlements as described below.

Incorporation of New Military Family Leave Entitlements Into the FMLA Regulations

In crafting these final regulations on military family leave, the Department was mindful of the special circumstances underlying the need for such leave. In recognition of the military families who may have the need to take FMLA leave under these new entitlements, the Department worked to finalize these regulations as expeditiously as possible. In addition, because many of the NDAA provisions providing for military family leave under the FMLA adopt existing provisions of law generally applicable to the military, the Department engaged in extensive discussions with the Departments of Defense and Veterans Affairs before finalizing these regulations. The Department also consulted with a number of military service organizations. These discussions focused on creating regulatory requirements under the FMLA that reflect an understanding of and appreciation for the unique circumstances facing military families when a servicemember is deployed in support of a contingency operation or injured in the line of duty on active duty, as well as providing appropriate deference to existing military protocol. The Departments of Defense and Veterans Affairs are fully cognizant of the central role each of them will play in ensuring that military families are able to avail themselves of the new entitlements when needed and to comply with the statutory and regulatory requirements for the taking of job-protected leave under the FMLA when a servicemember is deployed or seriously injured or ill. The Department also acknowledges the critical role employers play in helping the men and women serving in the military, especially those in the National Guard and Reserves. In workplaces around the country, employer support is vital to the implementation of the military family leave provisions in a manner that recognizes and contributes to the success of the members of the military and their families.

In the NPRM, the Department specifically requested comments on whether the new military family leave entitlements should be incorporated into the broader FMLA regulatory framework, or whether completely separate, stand-alone regulatory sections should be created for one or both of the new entitlements. The Department proposed to adopt many of the same or similar procedures for taking military family leave as are applied to other types of FMLA leave and suggested a number of sections to which conforming changes would need to be made in order to reflect these new leave entitlements. For example, the Department cited §§ 825.100 and 825.112(a) as sections that would need to be updated to reflect the military family leave entitlements. Among other items, the Department also suggested that the poster and general notice discussed in proposed § 825.300(a), the eligibility notice in proposed § 825.300(b), and the designation notice in proposed § 825.300(c) would need to incorporate appropriate references to the military family leave entitlements. The Department also requested comments on any other regulatory sections that should be revised in light of the military family leave entitlements.

After reviewing the public comments, the Department concurs with the majority of comments that stated that the procedures used when taking military family leave should be the same as those used for other types of FMLA leave whenever possible. The Department believes that this approach is beneficial to both employees and employers—each of whom should find it easier to apply the same or similar procedures for taking and administering FMLA leave regardless of the qualifying reason. Accordingly, the Department has, when feasible, incorporated a discussion of the new military family leave entitlements into the proposed regulatory provisions that concern the taking of FMLA leave for other qualifying reasons. The Department also has created four new regulatory sections—numbered as §§ 825.126, 825.127, 825.309 and 825.310—which address specific employee and employer responsibilities for purposes of military family leave.

The Department received a few comments regarding the incorporation of the military family leave entitlements into the proposed FMLA regulatory framework. The National Partnership for Women & Families and MomsRising.org both stated:

Because the military leave provisions have different time requirements, different certification requirements, and different definitions than the rest of the FMLA, we strongly recommend that the regulations for these provisions not be incorporated in the rest of the FMLA regulations. Rather, these regulations should have their own sections within the FMLA regulations and can refer to the rest of the FMLA when necessary. This organization will reduce confusion and will allow DOL to issue the military leave regulations much more promptly.

The Pennsylvania Governor's Office of Administration also recommended “that the regulations for [the military family leave entitlements] be separate from the FMLA regulations.”

On the other hand, a number of commenters urged that the Department, as much as possible, incorporate the new regulations regarding military servicemember leave into the existing FMLA regulations. For example, TOC Management Services argued:

The DOL should take its cue from Congress, which chose to incorporate the provisions of H.R. 4986 into the existing FMLA statutes * * *. By organizing the statutes this way, Congress has clearly shown an intent to have the new FMLA provisions be an integrated part of the FMLA; not a stand-alone provision within the other FMLA provisions. Although carving out a section to address the new military servicemember leave provisions would be the most convenient option for the DOL, it would ultimately lead to confusion. Employees and employers reading through the regulations to determine their leave rights/obligations may not be aware that there is an entirely separate section dealing with military servicemember leave. For instance, an employee may read § 825.112 to determine whether they qualify for leave to care for their injured servicemember spouse and end their inquiry after reading through that section. It would be confusing to have an entirely different section regarding qualifying reasons for leave that relates only to military servicemembers. To the extent possible, the DOL should follow Congress's lead in incorporating the new provisions into the existing ones.

Similarly, the Illinois Credit Union League stated that, “[because] the military and medical provisions are companion regulations, they should be incorporated into one statutory scheme to ensure consistency. To act otherwise would be to assure a regulatory legal patchwork * * *.” WorldatWork also suggested that the Department “should incorporate the notice provisions provided in this section with the notice provisions provided elsewhere in the FMLA regulations. Consistency will help in administration.”

The Department has decided to incorporate, wherever feasible, the new military family leave entitlements into the proposed FMLA regulations governing the taking of job-protected leave for other qualifying reasons. The Department believes that completely separating the military family leave provisions from the provisions governing the taking of other types of FMLA leave would create unnecessary confusion and complexity for employees and employers. By integrating the military family leave provisions into the proposed FMLA regulations where applicable and appropriate, employees and employers will be better able to understand their rights and obligations under the new entitlements. Because Congress chose to incorporate the new entitlements into the existing FMLA statutory framework rather than create a new entitlement separate from the rest of the FMLA, ensuring that the totality of the FMLA regulations reflects the new military family leave provisions is both necessary and consistent with congressional intent.

In most cases, these changes are modest technical changes that acknowledge the military leave entitlements in the context of the FMLA. For example, some references to certification in the regulations have been altered to clarify whether they refer only to “medical certifications” of a serious health condition or if they refer also to “certifications” under the military family leave provisions. In some places, certain references to an employee's entitlement to 12 workweeks of leave are changed to simply reference the employee's leave entitlement, including the entitlement of up to 26 workweeks for military caregiver leave. Minor changes such as this occur in §§ 825.101, 825.112, 825.122, 825.124, 825.200, 825.202-825.207, 825.213, 825.300, 825.301, 825.305-825.308, 825.400, and 825.500. In some instances, the changes are more substantial, such as in the notice provisions in §§ 825.302 and 825.303, and the general description of the FMLA in § 825.100. In addition, several new terms related to the military family leave provisions have been added to the definitions in § 825.800. Where significant, the specific changes required to incorporate the new military family leave entitlements into the proposed FMLA regulations are discussed in greater detail in the section-by-section analysis of the final regulations which follows.

The Department also recognizes that the NDAA amendments to the FMLA created certain new concepts that are applicable only to the taking of military family leave. Accordingly, the final rule includes four new regulatory sections, numbered §§ 825.126, 825.127, 825.309, and 825.310, which address those unique aspects of the military family leave entitlements. These four sections are discussed in greater detail below in the section-by-section analysis. Generally speaking, §§ 825.126 and 825.127 discuss an employee's entitlement to qualifying exigency and military caregiver leave respectively. Sections 825.309 and 825.310 of the final rule cover the certification requirements for taking qualifying exigency and military caregiver leave respectively. The proposed FMLA provisions beginning with § 825.309 and ending with § 825.311 have been renumbered in the final rule as §§ 825.311-825.313 to allow for the addition of these two new military family leave certification provisions.

Section-by-Section Analysis of Final Regulations

Section 825.100 (The Family and Medical Leave Act)

The Department proposed no substantive changes to this section. Section 825.100 in the final rule is amended to include a description of the military family leave provisions in the general discussion of the FMLA. Section 825.100(a) reflects that the FMLA has been amended, and also adds the new qualifying reasons for taking leave. Section 825.100(b) adds the serious injury or illness of a covered servicemember for whom the employee is eligible to provide care under the FMLA as another reason that precludes an employer from recovering health benefits from an employee who does not return to work. Section 825.100(d) now includes references to military caregiver leave and qualifying exigency leave in the overview of certification.

Section 825.101 (Purpose of the Act)

The Department proposed no substantive changes to this section. Section 825.101(a) in the final rule is amended to include a reference to the military family leave provisions in the general discussion of the purpose of the FMLA.

Sections 825.102-825.103 (Reserved)

The NPRM proposed to delete and reserve §§ 825.102 (Effective date of the Act) and 825.103 (How the Act affected leave in progress on, or taken before, the effective date of the Act), because they are no longer needed. The final rule reserves these sections.

Section 825.104 (Covered Employer)

The Department proposed no changes to this section, which discusses employer coverage under the FMLA, and received no comments on this section. The final rule adopts the section as proposed.

Section 825.105 (Counting Employees for Determining Coverage)

The Department proposed no substantive changes to this section, which addresses how to count employees for purposes of determining coverage. The only change proposed was to update the dates used in the example in paragraph (f). The final rule adopts the section as proposed.

TOC Management Services stated that it believes the rule is confusing because it states in paragraph (c) that there is no employer/employee relationship when an employee is laid off. It noted that there may be a continuing obligation to that employee, such as under a collective bargaining agreement, because the employee has an expectation of recall in the event that business picks up again. It also stated that many employers mistakenly use the word “layoff” when the action truly is an administrative termination or downsizing and the employee has no expectation of recall.

The Department has not heard from any other commenters that this rule is confusing. Moreover, the fact that an employer may have continuing contractual obligations to an individual on layoff does not mean that it has a current employer-employee relationship with that person within the meaning of the FMLA. Employees who are laid off typically are eligible for unemployment insurance benefits, which demonstrates the lack of an ongoing employer/employee relationship as it is commonly understood. Therefore, the Department is not making any changes to the section and is adopting the rule as proposed.

Section 825.106 (Joint Employer Coverage)

Section 825.106 addresses joint employment. The proposed rule added a new paragraph at § 825.106(b)(2) to address joint employment in the specific context of a Professional Employer Organization (“PEO”). PEOs are unlike traditional placement or staffing agencies that supply temporary employees to clients. PEOs operate in a variety of ways, but typically provide payroll and administrative benefits services for the existing employees of an employer/client. The proposed rule stated that PEOs that contract with clients merely to perform administrative

functions are not joint employers with their clients; however, where the PEO has the right to hire, fire, assign, or direct and control the employees, or benefits from the work they perform, such a PEO would be a joint employer.

The commenters generally applauded the Department's recognition of the differences between PEOs and traditional staffing agencies, but they had a number of suggestions for further improvements and clarifications.

See, e.g.

, Strategic Outsourcing, Inc.; TriNet Group; National Association of Professional Employer Organizations (“NAPEO”); American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”); and Fulbright & Jaworski.

But see

Harrill & Sutter (stating proposed change is completely unnecessary and probably harmful because companies will begin to call themselves PEOs regardless of facts). Based on the comments received, the Department has made a number of additional changes, as described below.

First, many of the commenters expressed concern regarding the proposed rule's focus on a PEO's “right” to make certain employment decisions rather than the “actual” role it exercises when evaluating whether the PEO is a joint employer. They were concerned particularly in light of the fact that several states' laws require PEOs to reserve such rights in their contracts with client employers. The commenters had different suggestions for further clarification on this point. For example, NAPEO noted that PEOs “contractually assume or share certain employer obligations and responsibilities.” Therefore, NAPEO conceded that the “reality of PEO arrangements is that PEOs do co-employ client worksite employees.” NAPEO recommended, however, that the regulation designate PEO clients as the primary employers for FMLA purposes.

See also

TriNet Group. Both NAPEO and TriNet Group stated that PEOs do not create the jobs for which they provide administrative services; rather, the client employer creates those jobs and the PEO has no authority to move an employee to another client. Therefore, they believed that the primary employer duty of job restoration should be the responsibility of the entity that creates the job opportunity. The AFL-CIO similarly stated that “it makes no sense to consider PEOs as primary employers. In fact, designating the PEO as the primary employer for purposes of job restoration threatens to deprive employees of their key post-leave FMLA right.”

See also

Greenberg Traurig (PEOs do not fit the model of a primary employer because they do not hire and place employees at a work location and thus should not be responsible for reinstatement).

On the other hand, Strategic Outsourcing, Inc. objected to NAPEO's per-se rule designating the clients of PEOs as the primary employers, stating that the PEO industry has changed throughout its history and will continue to evolve, and that there is great variety among PEOs as to the scope of services they deliver. “[A]ny per-se rule that fails to take into account the unique facts of each case will inevitably result in improper application of the FMLA.” Therefore, Strategic Outsourcing, Inc. asked the Department to focus on the economic realities of the situation, both to determine whether a joint employment relationship exists and, if so, to determine which employer is the primary employer. “Such an approach would allow for the multifarious forms PEOs take, and would avoid making the application of the FMLA dependent on state law and nuances of contractual terms.” Fulbright & Jaworski similarly noted that the FMLA borrows the definition of “employ” from the FLSA, which utilizes an economic realities analysis. Moreover, it disagreed with NAPEO's suggestion, stating that PEOs that do not exercise control over a client's employees and that do not hire and fire should not be considered joint employers.

See also

Duane Morris (disagreeing with NAPEO's assertion that PEOs are always joint employers); Greenberg Traurig (suggesting that the regulation follow the case law “which emphasizes that it is the economic realities of the relationship and actual practices that determine the employer/employee relationship”); Kunkel Miller & Hament (referencing a number of court decisions holding that PEOs/employee leasing companies were not joint employers).

Jackson Lewis concluded that the joint employment concept “is entirely inapposite to the relationship between a PEO and its client companies” because, although a PEO assumes a number of employer responsibilities, it does not have the day-to-day control over the employees, cannot meaningfully affect the terms and conditions of their employment, and does not benefit from the work of those employees. Proskauer Rose similarly stated that, although each relationship must be evaluated in its totality, with no single factor controlling, “the joint employer doctrine should rarely, if ever, be applied to PEOs,” and that the right to hire and fire “should be irrelevant to the joint employer analysis unless the PEO actually exercises that right.” In contrast, the Equal Employment Advisory Council emphasized that the proposed language (stating that where the 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”) makes a “critical” point that “must be retained, since an organization maintaining one or more of these types of control indeed would be a `joint employer' under the FMLA and other laws.”

Some of these commenters also addressed the issue of how employers must count their employees, if the PEO is a joint employer, to determine whether there are 50 employees within 75 miles.

See, e.g.

, Proskauer Rose, Greenberg Traurig, and NAPEO. They noted that the size of the average PEO client (17 employees) falls squarely within the statutory exception to coverage, and they stated that a small company that would otherwise be exempt from the FMLA should not be deprived of the exception just because it partners with a PEO.

Finally, a number of commenters stated that the Department used confusing terminology in the proposed rule that did not keep clear the distinction between a traditional temporary placement or staffing agency and an employee leasing agency or PEO.

See, e.g.

, American Staffing Association.

The Department agrees with the commenters that suggested that the economic realities analysis is the proper standard for assessing whether a PEO is a joint employer.

See

§ 825.105(a). The FMLA incorporates the FLSA definition of “employ,” which is “to suffer or permit to work.” 29 U.S.C. 2611(3), incorporating 29 U.S.C. 203(g). As the Supreme Court has repeatedly recognized, that definition is strikingly broad.

See, e.g.

,

Rutherford Food Co.

v.

McComb

, 331 U.S. 722, 730 (1947). Whether an employment relationship exists must be determined in light of the economic realities of the situation.

Goldberg

v.

Whitaker House Cooperative, Inc.

, 366 U.S. 28, 33 (1961). An economic realities analysis does not depend on “isolated factors but rather upon the circumstances of the whole activity.”

Rutherford Food Co.

, 331 U.S. at 730. The Department also applied this economic realities principle when it promulgated regulations to clarify the definition of “joint employment” under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(5), which also incorporates the FLSA definition of “employ.”

See

62 FR 11734 (Mar. 12, 1997); 29 CFR Part 500.

Therefore, the final rule modifies § 825.106(b)(2) of the proposed rule by

adding a sentence to clarify that the “determination of whether a PEO is a joint employer also turns on the economic realities of the situation and must be made based upon all the facts and circumstances.” The final rule retains the proposed sentence clarifying that a PEO is not a joint employer if it simply performs administrative functions, such as those related to payroll and benefits and updating employment policies. The final rule modifies the proposed sentence pertaining to the right to hire, fire, assign, or direct and control to clarify that “such rights may lead to a determination that the PEO would be a joint employer with the client employer, depending upon all the facts and circumstances.” The final rule also adds a sentence at the end of § 825.106(c) to clarify that, unlike the situation involving traditional placement agencies, the client employer most commonly would be the primary employer in a joint employment relationship with a PEO.

With regard to how to count employees in the joint employment context, some of the comments demonstrated confusion about which employees an employer must count. There appeared to be a misperception that if a PEO jointly employs its client employers' employees, each client employer therefore also must jointly employ (and count) both the office staff of the PEO and the employees of the PEO's other unrelated clients. That would only be true, however, if the economic realities showed that the PEO office staff or the employees of the other unrelated clients were economically dependent on the client employer, something which is unlikely. Therefore, the final rule adds a new sentence in § 825.106(d) to clarify employee counting in the PEO context.

Finally, the final rule makes minor editorial changes in response to the comments noting that the terminology used was confusing with regard to leasing agencies. The Department deleted that terminology, and the final rule refers only to temporary placement agencies and PEOs, the two main categories of employment agencies. Of course, the labeling or categorization of a particular employer does not control the outcome; all the facts and circumstances in each situation must be evaluated to assess whether joint employment exists and, if so, which employer is the primary employer.

Section 825.107 (Successor in Interest Coverage)

No changes were proposed in this section of the current rule, and no substantive comment was received. The final rule adopts this section as proposed.

Section 825.108 (Public Agency Coverage)

The Department proposed no changes to this section, which addresses what constitutes a “public agency” for purposes of coverage. The current regulation states that, where there is any question about whether a public entity is a public agency as distinguished from a part of another public agency, the U.S. Bureau of the Census's “Census of Governments” will be determinative. In contrast, the regulations implementing the Fair Labor Standards Act use this test as just one factor in determining what constitutes a separate public agency.

See

29 CFR § 553.102. Because the FMLA incorporates the FLSA's definition of “public agency” (

see

29 U.S.C. 2611(4)(A)(iii), incorporating 29 U.S.C. 203(x)), the proposal asked whether the FMLA regulation should be conformed to the test in the FLSA regulations. The final rule makes this regulation consistent with the FLSA regulation.

Very few commenters addressed this issue. The AFL-CIO stated that the “FLSA test is more appropriate” because the FLSA factors include employment-specific criteria rather than relying primarily on governance and taxation issues as the Census does. In contrast, Catholic Charities, Diocese of Metuchen stated that a change was not necessary because the Census test was “sufficient for determining whether a public agency is a separate and distinct entity.” It stated that, because the test focuses on whether the agency has independent fiscal powers and looks at the type of governing body that the agency has and the functions that this body performs, the factors are clear and concise and less subjective than the FLSA case-by-case determination.

See also

Harrill & Sutter (no need for an amendment because, although the FMLA definition of “public agency” incorporates the FLSA definition, the definition of “employer” is broader and refers simply to conduct affecting commerce); Robert Jusino (agencies should promulgate their rules by using standardized tests and definitions unless the FLSA multiple factors tests is significantly superior).

The final rule amends this section to be consistent with the FLSA regulation, pursuant to which the Census is just one factor. Because the FMLA incorporates the FLSA's definition of “public agency,” the Department believes that the regulatory tests should be consistent. Moreover, as the AFL-CIO noted, the FLSA test allows employment-related factors to play a greater role than they do in the Census analysis, which the Department believes is appropriate.

Section 825.109 (Federal Agency Coverage)

The NPRM proposed to update the existing regulations that identify the Federal agencies covered by Title I of the FMLA and the Department of Labor's regulations to reflect changes in the law resulting from the Congressional Accountability Act of 1995, 2 U.S.C. 1301, and a nomenclature change in the Postal Regulatory Commission required by section 604(f) of the Postal Accountability and Enhancement Act, Public Law 109-435, Dec. 20, 2006, 120 Stat. 3242. No substantive comments were received on this section and it is adopted in the final rule as proposed.

Section 825.110 (Eligible Employee)

Section 825.110 addresses the requirement that employees are eligible to take FMLA leave only if they have been employed by the employer for at least 12 months and have at least 1,250 hours of service in the 12-month period preceding the leave. The proposed rule added a new paragraph at § 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. The Department also proposed a new paragraph (b)(2) setting forth two exceptions to the five-year rule for: (1) A break in service resulting from an employee's fulfillment of National Guard or Reserve military service obligations; and (2) where a written agreement, including a collective bargaining agreement, exists concerning the employer's intention to rehire the employee after the break in service. In those situations, the proposed rule provided that prior employment must be counted regardless of the length of the break in service. The proposed rule also stated, in paragraph (b)(4), that an employer may consider employment prior to a break in service of more than five years, provided that it does so uniformly with respect to all employees with similar breaks. The proposed rule stated in paragraph (c)(2) that an employer must credit an employee returning from his or her National Guard or Reserve obligation with the hours of service that would have been performed but for the military service when evaluating the 1,250-hour requirement, and paragraph (b)(2)(i) stated that the period of the military service also must be counted toward the

12-month requirement. Proposed paragraph (d) clarified that an ineligible employee on non-FMLA leave may become eligible for FMLA leave while on leave (by meeting the 12-month requirement), and that any portion of the leave taken for a qualifying reason after the employee becomes eligible would be protected FMLA leave. The proposed rule also deleted portions of current paragraphs (c) and (d), based upon the Supreme Court's decision in

Ragsdale

v.

Wolverine World Wide, Inc.

, 535 U.S. 81 (2002), because they improperly “deemed” employees eligible for FMLA leave. Finally, the proposal moved the notice provisions in current paragraph (d) to § 825.300(b) and deleted current paragraph (e), which relates to counting periods of employment prior to the effective date of the FMLA. The final rule adopts the changes made in the proposed rule with one modification that extends the period for breaks in service from five years to seven years.

Many commenters addressed various aspects of the proposed rule. Numerous employee representatives opposed the proposed five-year cap on breaks in service in order for prior employment to count toward the 12-month requirement. They asserted that the proposal was contrary to the statutory text, which does not have any time limit for the 12-month requirement; that the legislative history is clear that the months of employment do not need to be consecutive; and that the current regulation is appropriate and therefore any change would be arbitrary and contrary to the remedial purpose of the law.

See, e.g.

, AFL-CIO; American Postal Workers Union; Maine Department of Labor; Legal Aid Society—Employment Law Center; Sargent Shriver National Center on Poverty Law; and Harrill & Sutter. The AFL-CIO stated that most employers retain records for seven years as a routine business practice, and that employees also might have records for longer than five years. It further stated that employer objections regarding the administrative burdens associated with combining previous periods of employment were not credible in light of the advances in electronic compilation and retrieval of data. Therefore, the AFL-CIO suggested that, if any limit is imposed, it should be lengthened to seven years to conform to standard recordkeeping practices. The American Postal Workers Union similarly commented that a five-year cap strikes the wrong balance between employees' need for FMLA leave and employers' ability to identify prior periods of service. It stated that in most cases there will be no question whether an employee had a period of prior service sufficient to qualify the employee for protection, and that the increasing use of electronic recordkeeping will minimize the burden on employers. The National Partnership for Women & Families, the Coalition of Labor Union Women, and Women Employed all emphasized that the proposed change would cause particular hardships for women, who more frequently take extended time off to raise children or to care for ill family members and then return to their jobs; the National Partnership suggested six or seven years might have a less harmful effect. The Cleveland-Marshall College of Law, Employment Law Clinic, commented that an employer is not required to rehire a separated employee; therefore, the issue arises only if the employer has made a conscious decision to rehire a former employee after determining that the burden of hiring an employee who qualifies for FMLA rights sooner is outweighed by the value that the former employee would have to the employer.

Numerous employers expressed the opposite view and stated that having some cap on the length of the gap was at least a step in the right direction. For example, the Equal Employment Advisory Council (“EEAC”) noted that with the passage of time, manufacturing methods, technology, equipment, customers, marketing methods and product lines may change dramatically, and an employee who has been gone for a number of years is functionally no different from a new employee. Therefore, EEAC commented that having an established cutoff beyond which a break in service will be ignored balances the interests of employers and employees and allows employers to focus benefits on employees who exhibit loyalty. However, EEAC and many other employers stated that allowing a five-year gap was too long. They suggested that the Department should allow a gap of three years, because that would be consistent with the length of the FMLA record keeping requirement and, thus, there would be appropriate documentation available. They commented that allowing a five-year gap would cause administrative problems by putting pressure on employers to retain records for that longer period, which would be burdensome and yet of little practical value to employees because so few would return to their employer after that long a gap.

See, e.g.

, EEAC; Chamber of Commerce of the United States of America (the “Chamber”); HR Policy Association; Fisher & Phillips; Food Marketing Institute; and Catholic Charities, Diocese of Metuchen.

Other employers suggested that there should be an even shorter period. For example, the National Coalition to Protect Family Leave stated that the eligibility determination should be based simply upon continuous service for a 12-month period, and it opposed any aggregation of service other than pursuant to the two exceptions in paragraph (b)(2).

See also

College and University Professional Association for Human Resources; Spencer Fane Britt & Browne; Metropolitan Transportation Authority (NY); and National Business Group on Health. Jackson Lewis commented that the Department should reject an absolute time period, and instead look to each employer's normal “break in service” policies applicable to seniority, eligibility for benefits, and accrual of paid leave time; however, if an absolute limit is necessary, it suggested a cap of two years. Jackson Lewis regarded it as unfair that a returning employee who left employment five years ago would be entitled to FMLA leave before a colleague who had recently devoted 12 consecutive months of service to the company, and that the unfairness would be compounded unless the rules also accounted for FMLA leave taken in the last few months of that individual's previous employment.

Some employers stated that allowing a five-year gap brings clarity to the decision and strikes the right balance between allowing an employee to count previous periods of employment and protecting an employer from the burden of tracking former employees for potentially long periods of time. They viewed the proposal as consistent with the Act, which does not require the 12 months of employment to be consecutive, but which also recognizes that there must be balance and that the goals must be accomplished in a way that takes account of employers' legitimate interests.

See, e.g.

, Burr & Forman; TOC Management Services; Retail Industry Leaders Association; Association of Corporate Counsel's Employment and Labor Law Committee; Society of Professional Benefit Administrators; Cummins Inc.; Domtar Paper Company.

Finally, a number of employers suggested that the Department should clarify that employers are required to maintain employee records for only three years and provide further guidance on what it means that the employee is responsible for putting forth some proof of the prior

employment for the earlier years.

See, e.g.

, the Chamber; College and University Professional Association for Human Resources; Hewitt Associates; Retail Industry Leaders Association; Fisher & Phillips. Hewitt Associates asked: What would happen if the employer actually has the data from the earlier years; what if the data would be difficult to retrieve; and how can an employer challenge the employee's proof? Vercruysse Murray & Calzone asked whether it would be sufficient for an employee to merely assert, by affidavit or otherwise, that he or she was employed for a specific period of time five years ago, or to present a document evidencing previous employment, even though that document may not contain sufficient information to establish the actual duration of the previous employment. EEAC suggested that employees should be required to provide proof such as pay stubs, W-2 forms, or other documentary evidence beyond the employee's mere word that he or she is a former employee. In contrast, the AFL-CIO commented that an employee should only have to prove prior employment where the employer does not have records, because it stated that most employers keep employment and tax records for several years beyond the three years the FMLA requires.

Only a few commenters addressed the two exceptions to the five-year rule in proposed § 825.110(b)(2), which are applicable where the break in service is for National Guard or Reserve service or where there is a written agreement regarding the employer's intention to rehire the employee. Those commenters generally agreed with or did not oppose the exceptions.

See, e.g.

, HR Policy Association; National Coalition to Protect Family Leave; EEAC. Burr & Forman stated that the military exception is unnecessary because the same administrative burdens apply when an employee is gone for over five years for military reasons, and the proposed rules already provide sufficient protection by counting military service both toward the 12-month requirement and toward the 1,250 hour requirement in determining employee eligibility.

With regard to proposed § 825.110(c)(2), which counts the hours the employee would have worked for the employer but for the National Guard or Reserve service, EEAC stated that it should be deleted because it was beyond the Department's authority to legislate FMLA eligibility for employees who have been absent for military service and thus lack the minimum 1,250 hours of service within the previous year, as statutorily required. EEAC recognized that the Department's proposal codifies guidance previously issued concluding that, because the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) entitles returning service members to the rights and benefits they would have had if they had been continuously employed, they are entitled to count the time. EEAC disagreed, however, with the Department's reconciliation of the two statutes.

Several commenters addressed the clarification in proposed § 825.110(d) providing that an employee who is on non-FMLA leave may become eligible for FMLA leave while on leave (by meeting the 12-month requirement), and that any portion of the leave taken for a qualifying reason after the employee becomes eligible would be protected FMLA leave, while any leave taken before the employee passed the 12-month mark would not be FMLA leave. The AFL-CIO approved of this clarification, which is consistent with the court's decision in

Babcock

v.

Bell South Advertising and Publishing Corporation

, 348 F.3d 73 (4th Cir. 2003), stating that this is the interpretation of the regulation that best effectuates the 12-month eligibility requirement of the FMLA.

See also

Society of Professional Benefit Administrators (agreeing that the proposal would clarify a very confusing issue for employers); Domtar Paper Company.

Other commenters opposed the proposal and suggested that eligibility for FMLA leave should attach only to leave that actually begins after the employee meets the 12-month and 1,250-hour requirements, regardless of whether and when the employee gives notice by requesting leave, and should not attach to a block of leave or intermittent leave that begins before the employee becomes eligible and continues after the employee becomes eligible.

See, e.g.

, National Coalition to Protect Family Leave; EEAC; National Business Group on Health; and Food Marketing Institute. EEAC stated that, in situations where employers provide more generous leave benefits than the FMLA requires by providing leave for those who lack the minimum 12 months of service, the employer then must provide future FMLA benefits that it would not otherwise be required to provide. It stated this “creates a perverse incentive for employers (1) not to provide leave in excess of the FMLA requirements and (2) to act swiftly to terminate employees before they become eligible for FMLA protection.” EEAC also noted that it results in an employee with only nine months of service who is allowed to take three months of approved leave becoming eligible for three more months of leave at the 12-month mark, while an employee with nine years of service is eligible for only three months total.

See also

Spencer Fane Britt & Browne; Vercruysse Murray & Calzone (also commenting that the proposal would create significant administrative burdens for employers because they would have to revisit employees' eligibility for FMLA leave during the middle of their non-FMLA leave, and when an employee reaches 12 months of service the employer will have to issue an Eligibility Notice a second time). This commenter also asked what happens if the employer's policies do not require group health benefits to be continued during the period of a non-FMLA absence. Hewitt Associates stated that employers might fear that replacing an employee during the first non-FMLA portion of the leave would run afoul of the FMLA's prohibition against interfering with an employee's right to take leave, thereby effectively extending the FMLA's protections through the first non-FMLA portion of the leave and providing an employee with greater than 12 weeks of leave. Therefore, Hewitt Associates suggested that the Department clarify that the employee would have no expectation of, or right to, these FMLA non-interference protections during the first non-FMLA phase of the leave. Finally, Jackson Lewis urged the Department to provide that any non-FMLA leave that would otherwise qualify counts towards an employee's annual entitlement of 12 weeks of FMLA leave.

A number of the commenters also asked the Department to create consistency between the language in § 825.110(d), which states that eligibility is determined when the leave commences, and § 825.110(e), which states that the determination of whether an employer has 50 employees within 75 miles is made when the employee gives notice of the need for leave.

See, e.g.

, National Coalition to Protect Family Leave; Associated Builders and Contractors; International Franchise Association. The National Coalition to Protect Family Leave stated that it applauded the Department's interest in promoting as much advance notice of an employee's need for leave as possible to allow both the employer and the employee to plan, but it believed that the statute requires the 50/75 eligibility determination to be made when the employee actually takes leave rather than when advance notice is given. On the other hand, EEAC stated that it “understands the Department's

reasoning for selecting a different date,” and it simply sought clarification that the employer could reevaluate the 50/75 determination at the beginning of each new FMLA leave year, consistent with other provisions.

Finally, a number of commenters applauded the Department for the deletions from existing § 825.110(c) and (d) in response to the Supreme Court's decision in

Ragsdale. See, e.g.

, EEAC; HR Policy Association; and Association of Corporate Counsel's Employment and Labor Law Committee. The National Association of Letter Carriers, however, objected to the deletion of the requirement that the employer must project when an employee will become eligible for leave or advise the employee when the employee becomes eligible, stating that the requirement minimizes disputes.

With regard to the cap in proposed § 825.110(b)(1) on gaps in service in order for the prior employment to count toward an employee's 12-month requirement, the final rule modifies the proposal by extending the permissible gap to seven years. The court in

Rucker

v.

Lee Holding Co.

, 471 F.3d 6 (1st Cir. 2006), in permitting the five year gap at issue in that case, recognized that the statutory language is ambiguous as to whether previous periods of employment count toward the 12-month requirement, and it stated that the appropriate way to resolve this important policy issue was through agency rulemaking. The Department believes that a seven-year cap draws an appropriate balance between the interests of employers and employees. It recognizes and gives effect to the legislative history's clear statement that the 12 months of employment need not be consecutive, while limiting the burden on employers of attempting to verify an employee's claims regarding prior employment in the distant past. In light of the legislative history, the Department rejects the comments suggesting that no gap should be permitted. By allowing a gap of up to seven years, the rule takes account of the comments noting that employees sometimes take extended leaves from the workforce to raise children or to care for ill family members and emphasizing that women are particularly likely to fill this role. The final rule also recognizes that many employers keep records for seven years for tax or other standard business reasons; thus, allowing a seven-year gap will not impose a burden on those employers. The FMLA, however, only requires employers to keep records for three years, and the burden of proving eligibility is always on the employee. Accordingly, if an employer retains records only for the required three years, it may base its initial determination of the employee's eligibility for leave on those records. If it therefore advises the employee in the eligibility notice that the employee is not eligible for FMLA leave, the employee will have to submit sufficient proof of his or her periods of employment in years four through seven to demonstrate eligibility. Such proof might include W-2 forms; pay stubs; a statement identifying the dates of prior employment, the position the employee held, the name of the employee's supervisor, and the names of co-workers; or any similar information that would allow the employer to verify the dates of the employee's prior service. Any application for employment the employee had completed also might provide additional relevant information.

The final rule also adopts the two exceptions to the cap set forth in paragraph (b)(2) for breaks in service resulting from an employee's fulfillment of National Guard or Reserve military service obligations and breaks where a written agreement exists concerning the employer's intention to rehire the employee after the break in service. The final rule also adopts the provision in paragraph (b)(4) stating that an employer may consider prior employment falling outside the cap, provided that it does so uniformly with respect to all employees with similar breaks. There were very few comments addressing these provisions and they generally were supportive. The Department believes these exceptions are quite limited and will not impose any burden on employers. The final rule does make conforming changes in paragraphs (b)(2) and (b)(4) to reflect the change from five years to seven years.

The final rule also includes the proposed provisions regarding counting the time an employee would have worked for the employer but for the employee's fulfillment of National Guard or Reserve military obligations toward the 12-month and 1,250-hour requirements. USERRA requires that service members who conclude their tours of duty and are reemployed by their employer must receive all benefits of employment that they would have obtained if they had remained continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation. Therefore, the Department believes that USERRA requires this outcome.

The final rule clarifies in § 825.110(d), as did the proposed rule, that an employee may attain FMLA eligibility while out on a block of leave when the employee satisfies the requirement for 12 months of employment. Some commenters indicated that this would result in newly-hired employees being treated more favorably than long-term employees. Any such peculiar situations that may occur, however, are not the result of the FMLA, but rather would result from the employer's own policies. An employer that voluntarily allows a new employee with no FMLA rights to go out on leave for a family or medical condition could similarly voluntarily allow a more senior employee with the same condition to extend a leave beyond the legally required 12 weeks. Nothing in the FMLA prohibits an employer from treating employees who have exhausted their FMLA rights more favorably than the law requires. Moreover, the Department believes that this clarification of the current rule is the best interpretation of the statutory language, which defines an “eligible employee” as one “who has been employed for at least 12 months.” 29 U.S.C. 2611(2)(A). Because an employee remains employed while out on employer-provided leave, the employee becomes eligible under the statutory definition upon reaching the 12-month threshold. Of course, as the proposed and final rules also clarify, any leave that employers voluntarily provide before an employee attains eligibility under the FMLA is not FMLA leave. Therefore, the FMLA protections do not apply to such leave, and employers may apply their normal policies to such leave. Employers may not, however, count any such non-FMLA leave toward the employee's 12-week FMLA entitlement. Finally, as the Department explained in Opinion Letter FMLA2006-4-A (Feb. 13, 2006), the FMLA only requires an employer to “maintain” group health insurance coverage at the same level and under the same conditions as prior to the FMLA leave; it does not require an employer to provide insurance if it did not do so at the commencement of the FMLA leave.

The final rule also adopts the proposed changes in paragraphs (c) and (d), deleting the “deeming” provisions. In light of the Supreme Court's decision in

Ragsdale

, the Department believes that it does not have regulatory authority to deem employees eligible for FMLA leave who do not meet the 12-month/1,250-hour requirements, even where the employer fails to provide the required eligibility notices to employees or provides incorrect information. As noted in § 825.300(e), however, such failures may have the effect of interfering with, restraining or denying the employee the exercise of FMLA

rights and result in harm, in which case the employee would have statutory remedies. Section 825.300(b) also requires employers to provide employees with an eligibility notice, and if the employee is not yet eligible for leave, the notice must inform the employee of the number of months the employee has been employed by the employer or other reason why the employee is ineligible.

Finally, the Department is making no changes in § 825.110(e), which states that the determination of whether an employer employs 50 employees within 75 miles is made when the employee gives notice of the need for leave. The Department continues to believe that retaining the standard in the current rule encourages as much advance notice of an employee's need for leave as possible and allows both the employer and the employee to plan for the absence. This is consistent with the statutory requirement that, when the need for leave is foreseeable, employees must provide at least 30 days' advance notice or such notice as is practicable if the leave must begin in less than 30 days. Therefore, consistent with the proposed rule, the Department is making no changes to this provision.

Section 825.111 (Determining Whether 50 Employees Are Employed Within 75 Miles)

The NPRM proposed one change to § 825.111(a)(3) of the current rule, relating to the location of an employee's worksite when the employee is jointly employed by two or more employers and is stationed at a fixed worksite for at least one year. The proposed rule stated that after one year at the fixed worksite, the employee's worksite for purposes of determining employee eligibility is the actual physical place where the employee works, rather than the primary employer's office from which the employee is assigned or reports. The proposed change responded to the court's decision in

Harbert

v.

Healthcare Services Group, Inc.

, 391 F.3d 1140 (10th Cir. 2004), in which the court held that the current regulation is arbitrary and capricious as applied to an employee with a long-term fixed worksite. The court held that the current regulation contravened the plain meaning of the term “worksite”; contradicted Congressional intent that employers with fewer than 50 employees within 75 miles who could cover for an absent employee should not have to provide FMLA leave; and created an arbitrary distinction between sole and joint employers. Although the court acknowledged the legislative history stating that the term “worksite” should be construed in the same manner as the term “single site of employment” under the Worker Adjustment and Retraining Notification (“WARN”) Act and its implementing regulations, the court held that that definition “governs only employees without a fixed place of work.”

The final rule adopts the proposed rule, stating in § 825.111(a)(3) that, for purposes of determining an employee's eligibility, the worksite of a jointly employed employee is the primary employer's office from which the employee is assigned or reports “unless the employee has physically worked for at least one year at a facility of a secondary employer, in which case the employee's worksite is that location.”

The commenters expressed a variety of divergent views about the proposed change. The National Coalition to Protect Family Leave supported the proposed change to follow the court's decision in

Harbert

, stating that it concurred with the court's reasoning that there should be a distinction “between a jointly employed employee who is assigned to a fixed worksite, versus a jointly employed employee who has no fixed worksite and changes worksites, be it regularly or irregularly.” Vercruysse Murray & Calzone stated that the proposed 12-month rule establishes the same type of arbitrary standard struck down by the court, and that the standard “should be whether or not the leased employee is assigned to a

fixed worksite

, not

how long

the leased employee has been assigned to a fixed worksite.” Thus, only if the leased employee's worksite is variable should the worksite be the location from which the employee receives his or her assignments or reports. Burr & Forman stated that the 12-month period is too short and recommended that an employee's worksite change from the primary employer's office to the customer's premises only after the temporary employee has worked on the premises for two years, to reduce the burden on small, start-up employers that use a significant number of temporary employees and would have to count them when determining the eligibility of their own direct employees.

Jackson Lewis commented that the Department's proposal was “ineffective and misguided” and it urged the Department to define “worksite” as “the physical location where the person works, both for single and jointly employed workers.” Jackson Lewis noted that the purpose behind the requirement for 50 employees within 75 miles was to protect employers that cannot readily replace absent workers who are assigned to smaller, remote locations. It stated that the length of time that a jointly employed employee has been working at a small, remote location has nothing to do with whether his or her primary employer can find a replacement employee; it also found it anomalous that an employee assigned to such a location for a short period of time may remain entitled to FMLA leave (because that employee's worksite is the primary employer's office), while an employee assigned for more than a year is less likely to receive FMLA leave.

The AFL-CIO opposed the proposed modification for different reasons, stating that the current regulation is a permissible construction of the statute, as the dissent found in

Harbert.

It stated that defining the worksite in a joint employment situation as the primary employer's office appropriately maintains the focus on the entity most likely to have the ability to find a replacement worker. It added that shifting the worksite after 12 months to the physical location where the employee performs his or her work does not effectuate the statutory purpose behind the 50/75 rule, since that worksite belongs to an employer who bears no responsibility for hiring and transferring the employee. The AFL-CIO concluded that the proposal creates an arbitrary distinction between jointly employed employees who have a fixed worksite for at least a year and those who do not, resulting in an employee who is eligible for FMLA leave on one day becoming ineligible for leave the next day because the worksite has shifted to a new location where the employee cannot satisfy the 50/75 rule. The AFL-CIO agreed, however, that the current rule creates a reasonable distinction between sole and joint employers, which is in harmony with the purpose of the Act, because it alleviates the burden on small businesses to find replacement workers in situations where they would not normally bear that burden. The National Partnership for Women & Families similarly opposed this change, stating that the legislative history of the FMLA shows clearly that the term “worksite” was to be defined as it is under the WARN Act. It stated that while “the WARN Act regulations do not specifically address situations where employees are placed in a temporary worksite long term, there is no sound reason to consider these employees differently than other temporary employees.” It further stated that the Department has not explained why one year should be the cut off, and asserted that it is contradictory to count the

assigning employer as the primary employer with the majority of FMLA responsibilities but to count the worksite of the employee as that of the employer to which he or she is assigned.

Hewitt Associates requested further guidance regarding the worksite of “virtual” or telecommuting employees under the rule, particularly for employees who work out of their home and may receive assignments from various locations. Catholic Charities, Diocese of Metuchen wanted clarity regarding the example in § 825.111(a)(2), which states that construction workers sent from New Jersey to Ohio to work at a construction site opened in Ohio would continue to have the headquarters in New Jersey as their “worksite.” This commenter stated the regulations should clarify whether the “worksite” of these workers might eventually change from New Jersey to Ohio if these workers are employed in Ohio for a long period of time.

The commenters' divergent views reflect the difficulty of crafting a simple resolution that fits perfectly in all situations. The Department continues to believe that its proposed rule, which modifies the current rule only with regard to jointly employed employees who have been assigned to a fixed worksite for at least 12 months, is the best solution. The general definition of “worksite” remains the same and, in accordance with the legislative history, it is consistent with the WARN Act standards. The Department does not believe it would be appropriate to adopt the Jackson Lewis suggestion that the definition for all employees should be the actual physical location of their work, because the WARN Act's regulatory definition for employees with no fixed worksite refers to such employees' home base, from which their work is assigned, or to which they report. The Department also does not believe it is appropriate to adopt the suggestion of Vercruysse Murray & Calzone that how long the employee has been assigned to a fixed site is irrelevant, because a series of one-week or one-month assignments do not constitute fixed worksites.

Because the WARN Act regulation is silent, however, as to joint employment and long-term fixed worksites, the proposal created an exception for those few cases where an employee who is jointly employed is assigned to a fixed worksite for more than one year. As the

Harbert

court held, the plain meaning of the term “worksite,” the general FMLA principle that an employer with fewer than 50 employees within 75 miles should not have to find temporary replacements for employees on leave, and the interest in having consistency between sole and joint employers counsel in favor of a different rule in that situation. When a temporary employee has worked for a secondary employer for such an extended length of time, the employer depends upon the temporary employee to the same degree as it does its direct employees, and it faces the same difficulties in obtaining a fully adequate replacement employee. Therefore, the final rule adopts the proposed rule's change with regard to jointly employed employees who have physically worked for at least one year at a facility of a secondary employer, in which case the worksite is that location.

Finally, with regard to the commenters' requests for clarification, both the proposal and the final rule add the term “telecommuting” in § 825.111(a)(2) to the existing rule's use of the term “flexiplace.” This further clarifies that “virtual” employees who work out of their home do not have their personal residence as their worksite; rather, they are considered to work in the “office to which they report and from which assignments are made.” Because the current definition of “worksite” remains unchanged for employees who are not jointly employed, the worksite for construction employees who travel from their headquarters to a construction site remains their home base,

i.e.

, the company's headquarters.

Section 825.112 (Qualifying Reasons for Leave, General Rule)

The Department proposed no substantive changes to this section, which addresses the qualifying reasons that entitle an eligible employee to take FMLA leave. The proposal did, however, move several paragraphs of the current rule to other sections to improve the organization (for example, to place all provisions that address leave taken for the birth of a child in one section, and all provisions related to leave for adoption or foster care in another section). The final rule adopts the rule as proposed with additional modifications to reflect the military leave entitlements.

Very few commenters addressed this section. WorldatWork stated that it agreed with the proposed reorganization, both specifically with regard to this section as well as with regard to other sections that were similarly reorganized to put a particular topic in one spot. WorldatWork noted that it will make the regulations much easier to read and make it easier to find relevant topics. In contrast, Harrill & Sutter opposed the change, stating that people have been working with the FMLA regulations for 13 years, and a change is going to lead to more confusion. TOC Management Services again commented that the Department should eliminate the statement that the employer/employee relationship ends when an employee is placed on layoff status and clarify the statement made in § 825.112(c) that an employee must be recalled or otherwise be re-employed before being eligible for FMLA leave.

The Department believes that the reorganization of sections to put information related to particular topics in one spot is an improvement. Many commenters approved of the reorganization overall, without commenting on specific sections.

See, e.g.

, National Coalition to Protect Family Leave; the Chamber; Equal Employment Advisory Council. Thus, the Department does not believe that this reorganization will lead to confusion. Furthermore, as explained previously with regard to § 825.105, the Department believes that the employment relationship ends for purposes of the FMLA when an employee is laid off. Proposed § 825.112(c) is identical to paragraph (f) of the current regulation. The Department is not aware of any confusion regarding this section and other commenters did not identify problems with its implementation. Therefore, the Department is adopting the rule as proposed. In addition, in § 825.112(a), new paragraphs (a)(5) and (a)(6) have been added to reflect the two new qualifying reasons for taking leave under the military family leave provisions.

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

The FMLA 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 defined in the Act and Congress did not establish any “bright-line” rules of what conditions were covered.

The appropriate meaning of the term “serious health condition” has been the topic of debate for many years. The Department's Report on the RFI (

see

72 FR at 35563-70 (June 28, 2007)) and the NPRM (

see

73 FR 7885-89 (Feb. 11, 2008)) both contained a discussion of this debate and the positions taken by the courts and the Department in opinion letters in defining “serious health condition.” The proposed rule

reorganized the structure of the regulations defining “serious health condition” for clarity, but maintained the substance of the current regulation's definition with some modifications to clarify the time period in which continuing treatment following a period of incapacity must take place and the frequency of periodic treatment for chronic conditions. The Department concluded, after extensive consideration, that there was no alternative approach to the existing regulatory definition that would more effectively cover the types of conditions Congress intended to cover under the FMLA without also including some conditions that many believe should not be covered.

An overwhelming majority of comments from employers and employer groups voiced disappointment that the proposed rule failed to address their concerns that the rule is an overly broad definition of serious health condition.

See, e.g.

, U.S. Postal Service; Food Marketing Institute; National Association of Convenience Stores; National Association of Manufacturers. For example, the National Restaurant Association commented that it “does not believe that the intent of Congress in enacting FMLA was to include such minor illnesses within its coverage. Unfortunately, however, the DOL proposals, while acknowledging this area of concern, fail to address the issue.” Hoffinger Industries commented, “a definitive, more precise definition of Serious Health Condition should be developed that will not allow an employee to transform a short-term acute condition into a qualifying serious health condition.” The Equal Employment Advisory Council said it was “disappointed that the Department is not proposing to * * * narrow * * * the definition of ‘serious health condition' * * *. In our view, this provision grants FMLA coverage in many, many situations in which a health condition is not actually ‘serious.' ” The Retail Industry Leaders Association commented, “[t]he definition of a serious health condition has provided FMLA coverage for many non-serious conditions where Congress intended no such coverage * * *. RILA member companies are disappointed that the DOL has retained essentially the current definition of serious health condition.” The Chamber commented, “[t]hese minor changes fall well short of the revisions necessary to clarify the current definition of serious health condition, which employers believe is overbroad and inconsistent with the intent behind the Act.”

Comments from employee representatives generally favored the proposal's retention of the current definition of “serious health condition,” but did not support the few proposed changes to the definition. For example, the AFL-CIO commented, “[w]e support the Department's substantive treatment of serious health condition because it does not—despite the urging of many employers—rewrite the definition against Congress's intent * * * [but the changes proposed interfere] with the legitimate decisions of health care providers * * * [and] will likely result in a financial hardship for a significant number of employees.” The National Partnership for Women & Families supported the Department's decision not to make “major changes” to the definition of serious health condition, but expressed concern that the Department lacked data to show the effect of the changes it did propose. The National Postal Mail Handlers Union and the Coalition of Labor Union Women objected to the proposed changes because they believed the changes would result in employees being required to have additional medical appointments. Finally, the Communications Workers of America supported the retention in the proposed rule of an objective test to define “serious health condition,” but objected to the additional requirements the Department proposed for defining continuous treatment and chronic serious health conditions.

Section 825.113 (Serious Health Condition)

Proposed § 825.113, “Serious health condition,” provided the general rules and accompanying definitions governing what constitutes a serious health condition. Proposed § 825.113(a) provided the basic definition of what constitutes a serious health condition currently found in § 825.114(a). Proposed § 825.113(b) incorporated the definition of “incapacity” from current § 825.114(a)(2)(i). Proposed § 825.113(c) incorporated the definition of “treatment” found in current § 825.114(b) with minor editorial changes. The final rule makes no changes to the proposed text for these three paragraphs.

Proposed § 825.113(d) incorporated language from current § 825.114(c), which addresses the types of treatments and conditions not ordinarily expected to be covered by the definition of a serious health condition. The language states, in part: “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.” This provision has been the focus of longstanding debate as to whether the conditions enumerated can or cannot be serious health conditions. The NPRM contained a discussion of the history of both the Department's and the courts' interpretation of this language. 73 FR 7886-87 (Feb. 11, 2008). In the NPRM, the Department maintained that this provision merely illustrates the types of conditions that would not

ordinarily

qualify as serious health conditions.

Id.

at 7886. The Department also stated its belief that this language (1) does not categorically exclude the listed conditions; and (2) does not create its own definition separate and apart from the objective regulatory definition of serious health condition in current § 825.114(a) (and proposed §§ 825.113(a), 825.114, 825.115).

Id.

The Department received significant comments from both employer and employee groups regarding the retention of this provision in the regulations, which are discussed below. The final rule makes no substantive changes to proposed § 825.113(d).

In their comments, a number of employer groups agreed with the Department's view that the list should be preserved because it serves a baseline purpose as explanatory language similar to that in a preamble. For example, Southwest Airlines commented that “[i]t is clear that the list is not a per se rule of exclusions, but rather provides helpful, useful examples of minor conditions that in the absence of complications do not qualify as serious health conditions under the FMLA. The list aids all who are involved in the medical certification process and with the administration of FMLA leaves.”

Many employer groups, however, differed as to when a non-serious health condition can become a serious health condition. The Society for Human Resource Management and the National Coalition to Protect Family Leave both argued that “the situations where any condition on this list rises to the level of a serious health condition should be construed narrowly” and suggested that the Department “add language to the regulation specifying that some sort of serious complication must result in order for an otherwise ‘non-serious' health condition to be considered a serious health condition.” The U.S. Postal Service and the Chamber both expressed concern that the rule as proposed would result in continued confusion on the part of both employers and the courts as to when otherwise minor conditions rise to the level of serious health conditions. The Chamber

urged the Department to “explicitly exclude minor ailments from the definition of serious health condition, even where such conditions may require a regimen of continuing, supervised treatment.”

Comments received from employees and employee groups overwhelmingly supported the Department's decision to retain the existing definition of serious health condition instead of creating a per se list of covered conditions. The AARP and the National Partnership for Women & Families both commented that the current definition of serious health condition allows employees the opportunity to be covered by the FMLA depending on how the specific illness affects that particular employee, rather than depending on how the illness affects individuals generally.

See also

American Association of University Women. The Communications Workers of America commented that “an objective test provides the fairest way to define the statute's coverage of [serious health conditions], especially because every individual's experience with a medical condition or disease can vary widely.”

PathWaysPA addressed the Department's decision to retain the list of conditions that ordinarily are not serious health conditions in proposed § 825.113(d) and argued that the provision was surplusage. This commenter stated that “no ‘list' of conditions should be defined as unable to qualify for FMLA certification.” The AFL-CIO agreed with the Department's interpretation in the NPRM of this provision, stating that “employers have long complained that certain illnesses should never qualify as serious health conditions and have argued that Section 825.114(c) supports such a restrictive definition. Courts have rejected this argument * * *. The Department has taken an important step towards foreclosing argument on this point by explaining in the NPRM that the definition of serious health condition does not ‘categorically exclude' the ‘common ailments and conditions' enumerated * * *.”

The Department carefully considered the comments received on the definition of serious health condition and has concluded that there is no regulatory alternative that would address the concerns raised by the business community regarding coverage of what some perceive to be minor ailments without excluding absences that should be FMLA-protected. The final rule reflects the Department's conclusion that the objective test defining what constitutes a serious health condition under the FMLA (in both the proposed and final versions of §§ 825.113(a), 825.114, and 825.115) is the controlling regulatory standard, and the list of common ailments such as colds and flu (in proposed and final § 825.113(d)) is helpful as identifying ailments that ordinarily will not qualify for FMLA leave because they generally will not satisfy these regulatory criteria.

On a different matter, the Associated Builders and Contractors and the Navy Federal Credit Union commented that the phrase “resulting from stress” should be removed from the last sentence of proposed § 825.113(d). The Society for Human Resource Management and the National Coalition to Protect Family Leave agreed, commenting that “[t]he cited phrase improperly suggests that stress alone can cause mental illness * * *. Also, by placing allergies in sequence, it suggests that mental illness can be developed from allergies.” The Department has deleted the phrase “resulting from stress” in § 825.113(d) of the final rule to clarify that a mental illness, regardless of its cause, can be a serious health condition under the FMLA if all the regulatory requirements are met. No other changes to the text of § 825.113 have been made in the final rule.

Section 825.114 (Inpatient Care)

Section 825.114 of the proposed rule defined what constitutes inpatient care, adopting language from the current regulations. The definition of “inpatient care” in current § 825.114(a)(1) incorporates a definition of “incapacity,” which was removed from proposed § 825.114 and replaced by a cross-reference to the stand-alone definition of “incapacity” in proposed § 825.113(b).

The Equal Employment Advisory Council commented, “[w]e hope that setting ‘incapacity' apart will emphasize for both employees and health care providers that actual inability to work is a fundamental prerequisite for FMLA protection.” There were no substantive comments on this section of the proposal, and the Department made no changes to the proposed text of this section in the final rule.

Section 825.115 (Continuing Treatment)

Proposed § 825.115 defined “continuing treatment” for purposes of establishing a serious health condition, incorporating the five different definitions contained in current § 825.114(a)(2)(i)-(v) with some changes. Proposed § 825.115(a) (“Incapacity and treatment”) incorporated language from current § 825.114(a)(2)(i), which provides that the continuing treatment requirement is satisfied 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 course of a prescription medication, or two visits to a health care provider. The proposal made one change to the current definition, specifying in proposed § 825.115(a)(1) that the two visits to a health care provider must occur within 30 days, unless extenuating circumstances exist. The Department indicated in the NPRM that it did not believe the 30-day time limit should be applied to proposed § 825.115(a)(2) (treatment on one occasion resulting in regimen of continuing treatment), but invited comments on the issue. Proposed § 825.115(b), titled “Pregnancy or prenatal care,” incorporated language from current § 825.114(a)(2)(ii) without change except for a cross-reference to the new consolidated section in proposed § 825.120, addressing leave for pregnancy and childbirth. Proposed § 825.115(c), “Chronic conditions,” retained the definition in current § 825.114(a)(2)(iii) with one change, specifying that the term “periodic treatment” be defined as treatment two or more times a year. Proposed § 825.115(d), “Permanent or long-term conditions,” incorporated language from current § 825.114(a)(2)(iv) without change. Proposed § 825.115(e), “Conditions requiring multiple treatments,” incorporated 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. The Department did not receive substantive comments regarding proposed § 825.115(b), (d), or (e) and the final rule adopts these sections as proposed. The Department has made additional changes to § 825.115(a) and (c), which are discussed below.

Although the Department did not propose to change the period of incapacity required to satisfy the “incapacity and treatment” definition of continuing treatment in proposed § 825.115(a), many employers and employer groups urged the Department to expand the period of incapacity from the current requirement of “more than three consecutive calendar days.” The

Society for Human Resource Management, the National Coalition to Protect Family Leave, and other employer groups commented that the current requirement for a period of incapacity of more than three consecutive calendar days has played a significant role in permitting otherwise minor medical conditions to satisfy the definition of serious health condition. These commenters suggested that extending the period of incapacity to five consecutive scheduled work days or seven consecutive calendar days would significantly reduce the instances in which these minor ailments receive FMLA protection. The Pennsylvania Governor's Office of Administration also suggested a five consecutive day period of incapacity, commenting specifically on the difficulty it has encountered in trying to protect three-day absences. The Chamber commented that “[t]he brevity of the three-day period creates significant administrative burdens for employers” and suggested that the period be extended to five business days or seven calendar days. The Society for Human Resource Management, the National Coalition to Protect Family Leave, and others suggested that a longer period of incapacity would be consistent with the waiting period employed in many short-term disability plans. Additionally, the Society for Human Resource Management and others stated that the final rule should clarify that “more than three consecutive, calendar days” refers to whole or complete calendar days.

Employee groups, on the other hand, strongly supported maintaining the “more than three calendar days” minimum requirement for incapacity. For example, 9to5, the National Association of Working Women commented, “[t]he current definition reflects the practical reality that serious health conditions requiring family or medical leave can sometimes be of a fairly short duration * * * such as pneumonia, acute appendicitis, or kidney stones.” The National Partnership for Women & Families supported the Department's decision to maintain the standard of more than three “calendar days” rather than “workdays.”

After reviewing the comments, the Department continues to believe it is more appropriate to keep the basic regulatory requirement of a minimum period of incapacity of “more than three consecutive calendar days” than to adopt a “work day” or “business day” test or to increase the number of calendar days required. In the Department's view, a test based on calendar days of incapacity measures the severity of an illness better than a test based on days absent from work. This is particularly true for employees who do not work a traditional, fixed five-day week. The Department recognizes the legitimate employer concerns about the ability to verify employee incapacity over weekends, but to increase the minimum number of days of incapacity required would invariably exclude some employees the statute currently protects. The final rule does make one minor clarification, as suggested by the Society for Human Resource Management and others, that the test cannot be met by partial days. To eliminate any possible misunderstanding of the existing requirement, the word “full” is added to the test in the final rule (

i.e.

, a period of incapacity of more than three consecutive, “full” calendar days).

Many employer groups offered different views about the proposed change in § 825.115(a)(1) that the two treatments occur within 30 days. Those employer groups opposed to it urged that the regulations require that the minimum of two treatments occur during the “more than three day” period of incapacity. Several groups, including the Society for Human Resource Management and the National Coalition to Protect Family Leave, commented that the Department should reconsider its position and adopt the Tenth Circuit's ruling in

Jones

v.

Denver Public Schools

, 427 F.3d 1315 (10th Cir. 2005), that the two visits must occur within the period of incapacity. The Society for Human Resource Management and the National Coalition to Protect Family Leave stated, “[u]nder the Department's proposal, the employer's hands would be tied for 30 days, which would create uncertainty for all parties * * *.” They also stated, however, that if the 30-day requirement becomes part of the final regulations, the 30-day period should run from the first day the employee is incapacitated and the second visit should always be at the direction of the health care provider. The Portland (OR) Office of Management and Finance commented that the proposal would “allow employees to obtain FMLA protection simply by scheduling a second doctor's appointment.” The Pennsylvania Governor's Office of Administration commented that the 30-day period would force employers to retroactively designate leave as FMLA-protected. Other employers, however, supported the proposed 30-day period for the two treatments. The National Association of Manufacturers, the National Roofing Contractors Association, AT&T, and other employer groups commented that the proposal would clarify what is currently a vague area in the rules.

See also

National Business Group on Health.

A number of employee groups, for different reasons, opposed the proposed requirement in § 825.115(a)(1), that the two treatments occur within 30 days. The AFL-CIO commented that the 30-day period was arbitrary and would prove a significant obstacle to employees seeking FMLA leave. Commenters including the Association of Professional Flight Attendants, the National Postal Mail Handlers Union, and the National Treasury Employees Union offered the examples of conditions that would incapacitate employees for more than three days, but generally do not require follow-up appointments within 30 days. The National Employment Lawyers Association noted that it can often take more than 30 days to schedule an appointment with a specialist and suggested that a three to six months time period would be more appropriate. Finally, the American Postal Workers Union objected to any temporal limitation on treatment appointments, arguing that any limitation was inconsistent with the statute, which requires only continuing treatment by a health care provider.

A number of employee and employer groups asked for clarification of the “extenuating circumstances” exception to the 30-day rule and suggested that a definition of “extenuating circumstances” should be included in the regulatory text. The Society for Human Resource Management and the National Coalition to Protect Family Leave asserted that leaving “extenuating circumstances” undefined would result in “extensive litigation.”

See also

Hewitt Associates. The National Partnership for Women & Families commented that the preamble example of scheduling difficulties as extenuating circumstances was not reflected in the regulation.

See also

Association of Professional Flight Attendants; National Postal Mail Handlers Union. The National Retail Federation recommended deleting the “extenuating circumstances” exception altogether.

Employee and employer groups also generally agreed with the Department's decision not to apply a 30-day time limit to § 825.115(a)(2), which addresses treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment (

e.g.

, a course of prescription medication).

See, e.g.

, Society for Human Resource Management. The American Postal Workers Union asserted that applying a 30-day time frame under § 825.115(a)(2)

would be unreasonable. The National Association of Manufacturers commented that in situations covered under § 825.115(a)(2), the treatment visit with the health care provider should take place during the initial period of incapacity. Vercruysse Murray & Calzone commented that employees should be required to receive the regimen of continuing treatment during the initial period of incapacity because to permit the regimen of treatment to commence after the employee returns to work would allow employees to retroactively qualify for FMLA leave.

Finally, some commenters asked whether a phone call or email contact with a health care provider could qualify as a visit or treatment under either prong of § 825.115(a).

See, e.g.

, Spencer Fane Britt & Browne; Society for Human Resource Management, Northern California Human Resources Association, Legislative Affairs Committee.

The Department continues to believe that the proposed “30-day” limit in § 825.115(a)(1) is useful because the current regulation, § 825.114(a)(2)(i)(A), provides no guidance as to the time frame during which the two treatments by a doctor must occur. The Department recognizes that many of the comments from employers and employer groups favor the adoption of the ruling by the United States Court of Appeals for the Tenth Circuit in

Jones

v.

Denver Public Schools

, 427 F.3d 1315 (10th Cir. 2005), that both treatments must occur during the period of the incapacity in order for the condition to qualify as a serious health condition. Nonetheless, the Department believes a 30-day test is a more appropriate guideline than a test limited to just the period of incapacity because it is consistent with usual treatment plans, and guards against employers making quick judgments that deny FMLA leave when employees otherwise should qualify for the law's protections. To clarify when the 30-day period begins, § 825.115(a)(1) of the final rule states that the 30-day period begins with the first day of incapacity. By starting the 30-day period on the first day of incapacity, the final rule provides a clearly defined period during which the continuing treatment must occur.

Some employer groups expressed the concern that under the proposed rule an employee retroactively would be able to transform a minor condition into a serious health condition by going to a health care provider for the first time as much as 30 days after the initial incapacity in an effort to foreclose any proposed disciplinary action. The Department notes that a single visit to a health care provider will not satisfy the requirements of § 825.115(a) unless the health care provider determines that additional treatment (either visits or a regimen of treatment) is medically necessary, and therefore employees will not be able to “transform” a condition into a FMLA-protected serious health condition as suggested by these commenters. Nonetheless, a new paragraph (3) of § 825.115(a) has been added to the final rule to provide that the first visit (in the case of § 825.115(a)(1)) and the only visit (in the case of § 825.115(a)(2)) must occur within seven days of the first day of incapacity. As with the requirement for two treatment visits within 30 days, the Department believes that the need to make an initial visit to a health care provider within seven days of the day on which the incapacity begins is an appropriate indicator of the seriousness of the medical condition. The Department considered whether the first visit should be required during the initial period of incapacity. As some employer commenters pointed out, the initial treatment visit will normally occur during the incapacity and the treatment regimen (such as prescription medication) will be prescribed at that time.

See, e.g.

, National Association of Manufacturers. The Department is cognizant, however, that it can often take several days to get an appointment with a health care provider, particularly in rural areas and communities with limited numbers of providers, and therefore believes that a seven-day outer limit for the first visit or only visit is more appropriate. Additionally, in response to comments about whether a phone call or email contact with the health care provider qualifies as treatment, § 825.115(a)(3) also clarifies that treatment means an in-person visit to a health care provider for examination, evaluation, or specific treatment, and does not include, for example, a phone call, letter, email, or text message.

The 30-day test is intended to gauge the health care provider's assessment of the severity of the illness. Accordingly, in response to comments from employers who suggested that employees may schedule follow-up appointments simply to meet the test of a second visit, a new paragraph (4) is added to § 825.115(a) of the final rule to clarify that the health care provider, and not the employee or the patient, must make the determination as to whether a second visit during the 30-day period is needed. The Department anticipates that in many cases the health care provider will determine at the initial treatment visit whether an additional visit is required and, if so, when it should occur. There will, however, be some situations in which the health care provider initially determines that such follow-up treatment is not necessary, but because the condition does not resolve or deteriorates, the health care provider later determines that an additional treatment visit is needed within the 30-day time period. Providing the other requirements of the definition are met, the Department intends the final rule to cover all situations in which the health care provider determines that additional treatment is necessary within the 30-day period.

Finally, in response to the comments from both employer and employee groups regarding the “extenuating circumstances” exception to the 30-day limit, the final rule includes a new paragraph (5) in § 825.115(a) that provides an explanation of “extenuating circumstances.” The new paragraph provides that the term “extenuating circumstances” means circumstances that prevent the follow-up visit from occurring as planned by the health care provider, and includes an example of such circumstances.

As discussed in the NPRM, the Department did not propose substantive changes to the construction of chronic serious health conditions under the regulations.

See

73 FR 7888-89 (Feb. 11, 2008). The Department, however, did propose in § 825.115(c) to define the term “periodic treatment,” which is used in the definition of a chronic serious health condition, as treatment “at least twice a year.”

Several employers and employer groups supported defining “periodic visits” as “at least twice a year.”

See, e.g.

, TOC Management Services; National Association of Manufacturers; Southwest Airlines. The U.S. Postal Service called the proposal “reasonable” and commented that “the potential benefit of such monitored medical care strikes a comfortable balance with the minimal burden involved.”

Other employer commenters suggested requiring more frequent treatment than twice per year. The Portland (OR) Office of Management and Finance suggested that the Department consider requiring biannual visits for employees with no more than two days of absence per month and quarterly visits for employees absent more frequently. A labor attorney, Scott MacDonald, suggested that treatment “at least once every four months” would be more appropriate and that if the twice per year standard were maintained it should be clarified as “at least once

every six months.” The Southern Company and the Society for Human Resource Management suggested that the appropriate standard should be four treatment visits per year. Catholic Charities, Diocese of Metuchen and the National Association of Convenience Stores suggested that treatment only twice per year indicates that the condition is not serious.

See also

Illinois Credit Union League. Finally, Spencer Fane Britt & Browne argued that requiring only two treatment visits per year “will render just about any condition to be a ‘chronic' one and totally eliminates the need for the condition to be ‘serious' in nature.” They suggested that chronic conditions should not be separately included in the definition of serious health condition and that incapacity due to such conditions should only be covered when it exceeds three calendar days as required by § 825.115(a).

On the other hand, many employees and employee groups viewed the requirement of treatment visits of “at least twice a year” as excessive. The AFL-CIO commented that after an initial series of treatment visits at the onset of a chronic condition, many individuals may only visit their health care providers once per year. The National Postal Mail Handlers Union commented that requiring a second visit in a year, regardless of whether the employee's condition has changed, would impose an unnecessary burden on both the employee and the health care system. The National Partnership for Women & Families also expressed concern about the additional cost the proposed requirement would impose on employees.

See also

A Better Balance: The Work and Family Legal Center.

The Department recognizes employers' concerns regarding requiring only two treatment visits per year, and their desire for some clearer way to assess the seriousness of a chronic health condition, but is concerned that imposing some greater standard could effectively render ineligible many employees who are entitled to the protections of the law. On the other hand, the Department does not agree with comments from employee groups that because many chronic conditions are stable and require limited treatment, the twice per year standard is unreasonable since that effectively ignores the requirement for “periodic” visits in the current regulations. The need for two treatment visits per year is a reasonable indicator that the chronic condition is a serious health condition. The Department believes the requirement for two visits per year thus strikes a reasonable balance between no minimum frequency at all, as supported by many employee groups, or four or more times per year, as suggested by many employer groups, for employees who use FMLA leave for chronic serious health conditions. As with the requirement of two treatment visits within 30 days under § 825.115(a), the determination of whether two treatment visits per year are necessary is a medical determination to be made by the health care provider. Because the need for treatment visits is a function of the condition, the Department does not agree with comments suggesting the rule will increase the burden or cost to employees. The Department also notes that “two visits to a health care provider” every year is not the sole criterion in the regulations for determining a covered chronic serious health condition.

As discussed in the NPRM, the legislative history of the Act clearly indicates that Congress intended to cover chronic serious health conditions (73 FR 7888, Feb. 11, 2008); the Department therefore specifically rejects the suggestion that chronic serious health conditions should not be separately included in § 825.115.

Sections 825.116-825.118 (Reserved)

The proposed rule moved the provisions in current § 825.116 defining the phrase “needed to care for” a family member to § 825.124, which is discussed below. The proposal moved the provisions in current § 825.117 regarding the “medical necessity” for taking and scheduling intermittent or reduced schedule leave to §§ 825.202 and 825.203, which are discussed below. Current § 825.118 defining “health care provider” was renumbered as § 825.125 in the proposed rule. Sections 825.116-825.118 were designated as “reserved” in the proposal to reflect these organizational changes. The final rule adopts the proposed organizational changes.

Section 825.119 (Leave for Treatment of Substance Abuse)

The Department proposed no substantive changes in this new section, which consolidates in a single location the provisions in current §§ 825.112(g) and 825.114(d) related to substance abuse. It reaffirms that FMLA leave is available for the treatment of substance abuse when it qualifies as a serious health condition, but not for an absence because of the employee's use of the substance, and that the FMLA does not prevent an employer from taking action against an employee for violating the employer's uniformly-applied substance abuse policy. The final rule adopts the rule as proposed.

Very few commenters addressed this reorganization. TOC Management Services suggested that the rule should clarify that an absence because of a family member's use of the substance, rather than for treatment, also does not qualify for FMLA leave. The National Retail Federation stated that the clarification regarding permitted employment actions for violation of a substance abuse policy was helpful. Robert Jusino commented that an employer should be barred from taking adverse action against an employee for breaking company policy.

The Department continues to believe that the rule, which is simply a consolidation of existing sections, is clear and sets forth the appropriate distinction between an absence for treatment for a serious health condition and an absence because of an employee's use of the substance. The general lack of comments supports that view. Therefore, the final rule is adopted as proposed.

Section 825.120 (Leave for Pregnancy or Birth)

The current regulations contain guidance pertaining to pregnancy and birth throughout a number of different sections. Proposed § 825.120 collected the existing guidance from these various regulatory sections into one comprehensive section. Proposed § 825.120(a)(1), titled “[g]eneral rules,” restated language from current § 825.112(b) that both the mother and father are entitled to FMLA leave for the birth of their child. Proposed § 825.120(a)(2) restated language from current § 825.201 explaining that FMLA-protected leave following the birth of a healthy child (“bonding time”) must be completed within a year from the birth. Proposed § 825.120(a)(3) incorporated 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). Proposed § 825.120(a)(4) combined 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)(5) summarized a husband's right to take leave when needed to care for his pregnant spouse because of her serious

health condition. Proposed § 825.120(a)(6) was added to make clear 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. Finally, proposed § 825.120(b) combined language from current §§ 825.203(b) and 825.204(a), which provides that intermittent or reduced schedule leave may only be taken to care for a healthy newborn child with the employer's agreement, and, in such cases, the employer may temporarily transfer the employee to an alternative position that better accommodates the leave schedule.

See

29 U.S.C. 2612(b)(1). The final rule adopts § 825.120 as proposed with one minor clarification discussed below. Additionally, the final rule clarifies language in the regulatory text of § 825.120(a)(2).

The U.S. Postal Service commented that proposed § 825.120(a)(5), regarding a father's right to use FMLA leave to provide care for his spouse in connection with the pregnancy or birth, overstates these rights. The Department has modified the language of this provision to clarify that a husband is entitled to FMLA-protected leave if he is needed to care for his spouse who is incapacitated due to her pregnancy (

e.g.

, if the pregnant spouse is unable to transport herself to a doctor's appointment). As stated in the NPRM (73 FR 7888 (Feb. 11, 2008)), and as with all care for covered family members under the FMLA (

see

current § 825.116(a) and final § 825.124(a)), such care may include providing psychological comfort and reassurance. This provision merely codifies a husband's right to FMLA leave to care for his pregnant spouse under the current regulations—it neither expands nor contracts that right. As with any leave to care for a covered family member with a serious health condition, the employer has the right to request medical certification to verify the employee's need for leave. The wording of this provision has been changed in the final rule from “father” to “husband” to clarify that FMLA leave to care for a pregnant woman is available to a spouse and not, for example, to a boyfriend or fiancé who is the father of the unborn child.

On a related note, Southwest Airlines suggested that the 12-week combined limit on leave to care for a healthy newborn taken by spouses employed by the same employer in § 825.120(a)(3) should apply equally to unmarried parents who work for the same employer. The Department notes that this provision is based on section 102(f) of the statute, which was intended to eliminate employer incentives to refuse to hire married couples and applies only to “a husband and wife.”

See

29 U.S.C. 2612(f); S. Rep. No. 103-3, at 28 (1993); H. Rep. No. 103-8, at 38 (1993).

No other changes have been made to § 825.120 in the final rule.

Section 825.121 (Leave for Adoption or Foster Care)

The Department also proposed a single consolidated section on FMLA rights and obligations with regard to adoption and foster care in proposed § 825.121. The current regulations contain guidance pertaining to adoption and foster care throughout a number of sections. Proposed § 825.121(a)(1) provided that leave for adoption or foster care may begin prior to the actual birth or adoption. Proposed § 825.121(a)(2) contained language from current § 825.201 explaining that FMLA-protected leave for adoption or foster care must be completed within a year from the placement. Proposed § 825.121(a)(3) incorporated 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.

See

29 U.S.C. 2612(f). Proposed § 825.121(a)(4) was added to clarify that both spouses may each take their full 12 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), “Use of intermittent and reduced schedule leave,” combined language from current §§ 825.203(b) and 825.204(a), which provides that intermittent or reduced schedule leave after placement of a healthy child for adoption or foster care may only be taken with the employer's agreement and, in such cases, an employer may temporarily transfer the employee to an alternative position that better accommodates the leave.

See

29 U.S.C. 2612(b)(2). Proposed § 825.121(b) also clarified 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.

The Department received very few comments on this provision. The final rule clarifies language in the regulatory text at § 825.121(a)(2). Otherwise, the final rule adopts § 825.121 as proposed.

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

The proposed rule, at § 825.122, made minor changes to the definition of “parent” in current § 825.113, clarifying that a parent can be a biological, adoptive, step or foster mother or father, as well as an individual who stood

in loco parentis

to the employee. The proposal also added a definition of “adoption,” incorporated the statement in current § 825.112(d) that the source of the adoption is not relevant to FMLA leave eligibility, and moved the current rule's definition of “foster care” from § 825.112(e) to this section. In the definition of “son or daughter” in § 825.122(c), the proposal also specified that an adult child must be incapable of self-care because of a disability “at the time leave is to commence.” This addition was intended to eliminate the confusion about coverage that is caused when eligibility decisions are based on facts and circumstances that occur after the leave commences. Finally, the proposed rule stated in § 825.122(f) that an employer could require an employee to provide documentation to confirm a family relationship, such as a sworn, notarized statement or a submitted and signed tax return.

The final rule makes the clarifying changes to the definition of “parent,” adds the definition of “adoption,” and moves the definition of “foster care,” as set forth in the proposal. The final rule clarifies in paragraph (c) that whether an adult child has a disability is based upon the facts as they exist when the leave commences, as proposed. Paragraph (c) also makes clear that the definition of “son or daughter” is for purposes of FMLA leave taken for birth or adoption, or to care for a family member with a serious health condition. The final rule does not adopt the changes proposed in paragraph (f) to the documentation necessary to confirm the necessary family relationship, but rather retains the current regulation and moves the text to new paragraph (j). Lastly, to address terms that are unique to the military family leave provisions, the final rule contains definitions of “next of kin of a covered servicemember” in paragraph (d), “son or daughter on active duty or call to active duty status” in paragraph (g), “son or daughter of a covered servicemember” in paragraph (h), and, “parent of a covered

servicemember” in paragraph (i), respectively.

A number of commenters addressed the change in proposed § 825.122(c) stating that an adult child must be incapable of self-care because of a disability “at the time that FMLA leave is to commence.” The preamble to the proposed rule explained that the clarifying change was made in response to the court's decision in

Bryant

v.

Delbar

, 18 F.Supp.2d 799 (M.D. Tenn. 1998), in which the court analyzed whether an adult child had a disability for FMLA coverage purposes based on facts and circumstances that occurred well after the leave commenced. The Department stated that a coverage decision should not take into account such after-the-fact developments.

A few commenters supported this clarification, including the Equal Employment Advisory Council; Retail Industry Leaders Association; and TOC Management Services. A few other commenters found the proposal unclear. For example, the National Treasury Employees Union (“NTEU”) described the Department's preamble as going farther than the proposed regulation, because the preamble stated that “the new language is intended to specify that ‘the determination' of whether an adult child has a disability is to be made at the time leave is to commence.” NTEU opposed such a change, because the need for leave to care for a qualifying adult child might arise on relatively short notice, and it thought the “proposal would make it too easy for an employer to deny FMLA rights by insisting on immediate pre-leave certification of three difficult facts: That the adult child needs care for a serious health condition, is incapable of self-care, AND has a disability within the meaning of the Americans with Disabilities Act.” The AFL-CIO stated that it was concerned that the regulation could be read to mean that, where an employee takes non-FMLA leave to care for an adult child who “does not have a disability when the leave commences, the employee does not have the right to convert the absence into FMLA leave if the adult child subsequently satisfies the definition.” It wanted clarification that subsequent leave might qualify as FMLA leave, consistent with the Department's clarification that an employee who has not worked 12 months for the employer at the start of the leave has the right to treat the leave as FMLA-qualifying once the employee meets the 12-month eligibility requirement.

See

§ 825.110(d).

Proposed § 825.122(f) added a notarized statement or submitted tax return as reasonable documentation to establish the family relationship. A number of commenters objected to the proposed change from the current regulation, which states that an employee may confirm the requisite family relationship with a simple statement. For example, the AFL-CIO stated that the regulations have allowed a simple statement for 15 years, and in the “absence of any evidence that simple non-notarized statements have proven problematic, this change is nothing more than one more hurdle for employees to qualify for FMLA leave.” NTEU described the additional requirement as “needless” and an “obstacle” and stated that it “imposes a substantial new burden on an employee needing to care for a family member.” The National Partnership for Women & Families similarly commented that “DOL has not offered any data or rationale as to why this change is necessary, nor has it received widespread complaints regarding abuse of the definition of family member. This change could simply serve to make it more difficult for certain employees to take leave and should not be made.”

See also

AARP; Family Caregiver Alliance; American Association of University Women.

Many of the same commenters objected on privacy grounds to submitting a tax return, and they questioned whether an employer could require a tax return even if the employee had provided other documentation. In addition, Hewitt Associates expressed concern about the use of an employee's tax return to establish the family relationship. In light of “the heightened sensitivity around data privacy, the use of a tax return to prove a family relationship will likely require careful employer safeguards for such a limited purpose. Furthermore, such a provision may need to be reconciled with the tax code, particularly 26 U.S.C. 6103 which concerns the confidentiality of tax returns.” Hewitt Associates also noted that, although the preamble to the proposed rule suggested that a tax return might be helpful with regard to establishing an

in loco parentis

relationship, such a document actually would be ineffective where the employee is requesting leave for an

in loco parentis

parent, because that relationship was established when the employee was a child. Given the availability of other forms of documentation, Hewitt Associates suggested eliminating this clause from the regulations. A number of individual employee commenters also opposed this provision, stating that it was an unnecessary invasion of personal privacy.

See, e.g.

, Tom Landis; Cindy Whitmore; Nathan Grant.

A few employers favored the proposed changes.

See, e.g.

, National Association of Manufacturers; AT&T; Pennsylvania Governor's Office of Administration. They did not indicate, however, that there had been any problem or abuse involving the current rule's simple statement requirement. The Equal Employment Advisory Council (“EEAC”) offered a rationale for the requirement for a notarized statement, commenting that it “underscores the gravity of claiming federal protection for an absence from work and also confirms for employees that an actual family relationship must exist.” EEAC acknowledged, however, that “most employees would not even think of lying to their employer about a family relationship to obtain leave,” but stated that the proposed change would help “employers to combat the potential for abuse by the few who would.”

With regard to the proposed change clarifying that an adult child must be incapable of self-care because of a disability “at the time FMLA leave is to commence,” the Department did not intend to suggest that the employer's final determination as to whether the adult child was covered had to be made on the date the leave commenced, and that an employee could not subsequently communicate further information, such as in response to an employer request for a medical certification or if the child's condition changed. The intent of the proposal, as explained in the preamble, was to avoid a situation where the decision regarding whether there was coverage at one point in time was affected by events that did not occur until a much later date.

Thus, the focus is on the adult child's condition at the time of the parent's leave. The current rule states that a child who is 18 or older must be incapable of self-care “because of a physical or mental disability,” and it further defines the term “disability” as a “physical or mental impairment that substantially limits one or more of the major life activities of an individual.” The current rule cites the EEOC regulations implementing the ADA (at 29 CFR 1630.2) defining those terms, including the term “substantially limits,” which relates generally to the nature, severity, duration and long-term impact of the impairment. The proposal did not make any changes in this area from the current rule.

Therefore, for example, if a 25-year-old son breaks a leg in a car accident and is expected to recover in a short period of time, he would not normally be incapable of self-care because of a

physical or mental disability. The proposal clarifies that any leave the parent took to care for the adult child would not be FMLA-protected if the disability standard is not met. If the 25-year-old later suffered a stroke that left him with substantial and permanent mobility impairments, he likely would meet the regulatory standard. At that point, any subsequent leave the parent took to care for the adult child who is incapable of self-care due to a physical or mental disability would be protected by the FMLA. However, that protection would not extend retroactively to the parent's leave taken when the 25-year-old son had only a broken leg.

The Department believes that the proposed regulatory text, which refers to an adult child incapable of self-care due to a disability “at the time FMLA leave is to commence,” clarifies the requirements. That language mirrors the language in § 825.110(d), which addresses whether an employee has 12 months of service “as of the date the FMLA leave is to start.” Therefore, the Department is adopting the proposal as written, to clarify that circumstances that occur later affecting an adult child's disability status do not affect whether previous leave qualifies for FMLA protection.

Paragraph (c) in the final rule provides that if the FMLA leave is taken for birth or adoption, or to care for a family member with a serious health condition, then “son or daughter” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing

in loco parentis,

who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.

The Department has decided not to adopt the proposal's requirement for a notarized statement regarding the family relationship. Given the absence of evidence of actual problems with the current rule's simple statement requirement, and the comments stating that it would cause needless expense and delay for employees to have to obtain a notarized statement and intrusion into personal privacy to provide a tax return, the Department has decided to retain the current rule. Of course, an employer can require an employee to assert in the statement that the requisite family relationship exists. In other words, the employer may require the employee to state that he or she wants leave to care for a spouse, a son or daughter, or a parent, as defined in the regulations. This assertion will ensure that the employee fully understands that one of the specific family relationships must exist in order to qualify for FMLA leave.

In addition, to reflect the military family leave provisions, § 825.122 now contains a definition of “next of kin of a covered servicemember” in paragraph (d), with a cross-reference to § 825.127(b)(3), which also contains this definition of “next of kin of a covered service member” and provides examples and further detail. Section 825.122 of the final rule also contains a definition of “son or daughter on active duty or call to active duty status” with a corresponding cross-reference to § 825.126(b)(1), which contains this definition, as well as a definition of “son or daughter of a covered servicemember” with a corresponding cross-reference to § 825.127(b)(1), which contains this definition. In addition, final § 825.122 includes a definition of “parent of a covered servicemember” in paragraph (i), with a corresponding cross-reference to § 825.127(b)(2) containing this definition. These definitions are discussed in more detail in the preamble accompanying §§ 825.126 and 825.127.

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

The Department proposed no substantive changes to this section, which implements the statutory requirement that an individual must be unable to perform the functions of a job in order to qualify for FMLA leave. The proposal stated, as the current rule does, that an individual must be “unable to work at all” or be unable to perform “one or more of the essential functions of the job” in order to qualify, and that an employer may provide a statement of the employee's essential functions to the employee's health care provider. The proposal also clarified in paragraph (b) that a sufficient medical certification must specify what functions the employee is unable to perform. The final rule adopts the proposed rule, but clarifies that a certification will be sufficient if it specifies what functions of the position the employee is unable to perform such that an employer can determine whether the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position.

A few commenters addressed the unchanged definition in this section. The Chamber stated that the Department should change the rule so that an employee qualifies for FMLA leave only when the employee is unable to work at all or unable to perform the majority of his or her essential functions. This commenter described it as a “loophole” that employees can take leave when their condition prohibits them from performing only one aspect of the job and they are able to perform many other essential functions. The National Coalition to Protect Family Leave suggested that the Department change the definition to “unable to perform the essential functions of the employee's position, unless modified by the employer to accommodate a temporary restriction.”

See also

Associated Builders and Contractors; International Franchise Association; Jackson County (MO) Department of Corrections. The National Coalition to Protect Family Leave stated that employers should be allowed to require an employee to work in either the same job minus the restricted duties or in some other position, whether or not a part of a formal “light duty” program. This commenter approved of the clarification that the certification must specify what essential function the employee cannot perform. Southwest Airlines and the Equal Employment Advisory Council also supported this change. The Illinois Credit Union League stated that there should be consistency between the use of the term “function” and “essential functions,” but it emphasized that an employer should not be required to identify essential job functions, because employers are not required to draft job descriptions, and essential functions may change.

The National Association of Letter Carriers objected to the requirement that the health care provider specify the particular functions the employee cannot perform, stating that this is more onerous than section 103 of the Act, which requires only a statement that the employee is unable to perform the functions of the position.

See also

National Treasury Employees Union. Another commenter, Scott MacDonald, Esq., noted that unless the employer includes all of the essential functions on the form, it will be impossible for the medical care provider to indicate whether the employee is unable to perform any of them.

The Department believes that the proposed rule, which made only a minor change to the current rule, is the best interpretation of the statutory provision authorizing FMLA leave when an employee is “unable to perform the functions of the position of such employee.” 29 U.S.C. 2612(a)(1)(D). The Department continues to believe that if an employee cannot perform one or more essential functions of the job, the Act gives that employee the right to take leave, even if the employer is willing to provide a light duty job or modify the job in a way that would allow the employee to continue working. While

employers may not require employees to perform modified or light duty work in lieu of taking FMLA leave, employees may voluntarily agree to such arrangements.

See also

§ 825.220(d). The Department believes that the additional clarification in this section that a sufficient medical certification must identify the function(s) that the employee cannot perform will not be burdensome, that it is consistent with medical certification requirements of current and proposed § 825.306, and that it is a reasonable interpretation of the statutory requirements that a certification provide both appropriate medical facts regarding the employee's condition and a statement that the employee is unable to perform the functions of the position.

See

29 U.S.C. 2613(b)(3) and (4)(B). In response to the concern of some commenters, the Department notes that the rule gives employers the option of providing a list of essential functions when it requires a medical certification; an employer is not required to do so. Finally, in order to explain why the term “functions” and not “essential functions” is used in paragraph (b), the final rule clarifies that a certification will be sufficient if it provides information regarding the functions the employee is unable to perform so that an employer can then determine whether the employee is unable to perform one or more essential functions of the job. This revision reflects the fact that the determination of whether a particular job duty is an essential function is a legal, not a medical, conclusion, and is in accord with the medical certification requirements in § 825.306 and the Department's prototype medical certification form.

Section 825.124 (Needed To Care for a Family Member or a Covered Servicemember)

The FMLA 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). The legislative history indicates that the “phrase `to care for' * * * [is to] be read broadly to include both physical and psychological care.” S. Rep. No. 103-3, at 24 (1993); H.R. Rep. No. 103-8, at 36 (1993). The statute also provides leave to care for a covered servicemember. 29 U.S.C. 2612(a)(3). The current regulations define the phrase “needed to care for” a family member in § 825.116. The proposed rule moved this section to § 825.124 without making any substantive changes, other than to clarify that the employee need not be the only individual, or even the only family member, available to provide care to the family member with a serious health condition. The final rule adopts this provision as proposed, with minor revisions to reflect the new military caregiver leave entitlement.

A number of employers commented that employees should only be entitled to FMLA leave to care for a family member when they are actually providing care. For example, the Manufacturers Alliance/MAPI and the Metropolitan Transportation Authority (NY) commented that if an employee has arranged for others to care for the family member, the employee is not needed to provide care and should not be entitled to FMLA leave. Southwest Airlines commented, “[l]eave to care for a family member should not include, for example, an employee who lives out of state from the family member and who does not travel to the family member needing the care during the employee's entire FMLA leave. The logical meaning of ‘to care for' a family member, whether it be physical or psychological care, is active caregiver participation by the employee needing the leave.”

The Equal Employment Advisory Council recommended “that the Department further revise this section by reiterating in § 825.124(c), with a cross reference to § 825.202 and § 825.203, that in order to qualify for intermittent leave to care for a family member, that leave must be

medically necessary.

” (Emphasis in original.) Burr & Forman commented that the regulations should clarify that FMLA leave cannot be used to perform the job duties of either the ill family member (during the period in which the ill family member seeks treatment) or another family member (who then provides care to the ill family member).

On the other hand, AARP and many employee groups supported the Department's clarification that employees may take FMLA leave to care for a family member even if they are not the only caregiver available. The Family Caregiver Alliance commented that, in many cases, having more than one caregiver available for support and relief helps ensure the health and safety of the caregivers, as well as the care receiver. The National Partnership for Women & Families commented that the legislative history makes clear that Congress anticipated that both parents may take leave to care for a child, or that multiple siblings may take leave to care for a parent, and that such leave may be taken on either an overlapping or sequential basis.

Finally, Working America/Working America Education Fund included with its comments a number of short quotes from its members that help put a human face on the wide variety of situations in which employees need to care for a family member: “As a Hospice social worker, I have found FMLA to be extremely important to allow family members to care for loved ones in their final days.” “I have a friend who first took care of one dying parent and then was the sole caretaker of her second, remaining terminally ill parent. She took FMLA to care for her remaining parent and did not lose her sanity or her job.” “I had to use the FMLA a few times after my mother developed Alzheimers. We live 200 miles apart. I needed to go see her occasionally so that she didn't forget me and that I didn't just let go of her as well.” “* * * I am a widowed mother of five children. If one of them were to become seriously ill, I would need to take care of them.” These examples illustrate the difficulty in trying to include in the regulations prescriptive requirements for family leave when that leave may be needed in many different circumstances.

The Department acknowledges the difficulties employers face in meeting the FMLA's requirements to provide employees with the opportunity to use leave to care for family members. Nonetheless, the Department continues to believe that the FMLA does not permit adding requirements for family leave, such as a requirement that the employee furnish information about the availability of other caregivers. An employee is entitled to use FMLA leave to care for a spouse or covered family member, assuming the eligibility and procedural requirements are met, no matter how many other family members, friends, or caregivers may be available to provide this care. However, as a number of employer commenters stated, such FMLA leave may be taken only to care for the family member with a serious health condition or the covered servicemember with a serious illness or injury. An employee may not use FMLA leave to work in a family business, for example. No regulatory changes are necessary to address this, however, as both the statute and §§ 825.112(a)(3) and 825.124 make clear that FMLA leave is available only “to care for” a covered relative.

Finally, in order to qualify for intermittent leave to care for a family member or covered servicemember, the intermittent leave must be medically necessary as required by the statute. 29 U.S.C. 2612(b)(1). The cross-reference in § 825.124(c) to §§ 825.202-825.205 for the rules governing the use of intermittent or reduced schedule leave addresses this matter sufficiently.

Section 825.125 (Definition of Health Care Provider)

The proposed rule, at § 825.125, modified the definition of “health care provider” by clarifying the status of physician assistants (“PAs”). The proposal added PAs to the list of recognized health care providers and deleted the requirement that they operate “without supervision by a doctor or other health care provider.” The proposal made corresponding changes to proposed § 825.115 (Continuing treatment) and § 825.800 (Definitions). The current rule's definition of “health care provider” (at § 825.118) does not expressly mention PAs. However, as the preamble to the proposed rule noted, they generally fall within the current definition under § 825.118(b)(3), which includes any 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. The final rule adopts the proposed rule's definition of “health care provider.”

Most of the commenters that addressed this issue supported the proposed change. For example, the American Academy of Physician Assistants (“AAPA”) noted that the current regulations cause confusion because PAs are not named as health care providers, and yet they are usually covered as providers because the “overwhelming majority of private and public insurance plans reimburse medical care by PAs.” The AAPA stated that PAs are covered providers of physician services through Medicare, Medicaid, Tri-Care, Federal Employee Health Benefit plans and most private insurance plans; they may diagnose and treat injured workers through nearly all state workers' compensation programs; and the Department of Transportation regulations define PAs as “medical examiners” for purposes of performing the medical exam and signing the certificate of physical examination for truck drivers. The AAPA also stated that the current regulatory references to a PA working “under direct supervision of a health care provider” cause confusion because they suggest that the FMLA imposes supervisory requirements that are not required by state law. Finally, the AAPA stated that clarifying the status of PAs will avoid disruption in the continuity of care for workers who seek FMLA-related medical treatment or certification from a PA. Other commenters also expressed approval for the proposed change.

See

National Retail Federation; Retail Industry Leaders Association; HIV-Policy Collaborative; and Redfield Medical Clinic.

The Metropolitan Transportation Authority (NY) opposed the change, stating that it does not believe that a PA “has sufficient training or expertise to make the medical determinations necessary under the Act.” The Society of Professional Benefit Administrators commented that the change “will have a significant impact on plans by ratcheting up the potential for physician billing abuse,” and “would serve to disclose employees [sic] medical information to scrutiny by non-professionals which may have the potential of infringing on a patient's right to privacy and interfere in their relationships with their doctors.” The American Association of Occupational Health Nurses suggested adding occupational and environmental health nurses, who are registered nurses, as health care providers because they interface with workers, human resource personnel, safety personnel and others in administering the FMLA in many workplaces.

The Department believes that the express inclusion of PAs in the definition of “health care provider” is an appropriate clarification, not a significant change. As the AAPA noted, PAs generally already are included within the definition because the vast majority of group health plans accept them when substantiating a claim for benefits. Moreover, other government agencies recognize them as providers of health care services. Both of these facts demonstrate that PAs do have the necessary training to make the determinations required by the Act. The Department does not believe that this clarification will have an impact on potential billing abuse or the disclosure of medical information. Therefore, the final rule includes PAs as health care providers in § 825.125(b)(2), and it makes conforming changes in §§ 825.115 and 825.800. The final rule does not add occupational and environmental health nurses to the list of health care providers. Registered nurses are not currently included on the list, and the rulemaking record does not demonstrate that these registered nurses should be treated differently than other nurses.

Section 825.126 (Leave Because of a Qualifying Exigency)

The NDAA provides a new qualifying reason for taking FMLA leave which allows eligible employees of covered employers to take leave for any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. The Department has organized the discussion of this new leave entitlement into two major categories: (1) An employee's entitlement to qualifying exigency leave; (2) the specific circumstances under which qualifying exigency leave may be taken.

Entitlement to Qualifying Exigency Leave

Under the NDAA, an eligible employee of a covered employer may take leave for a qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. 29 U.S.C. 2612(a)(1)(E). Specifically, the statute defines “active duty” as duty under both a “call or order to active duty” and under a provision of law referred to in 10 U.S.C. 101(a)(13)(B). 29 U.S.C. 2611(14). In the NPRM, the Department proposed to add the NDAA's definition of “active duty” to proposed § 825.800 by cross-referencing 10 U.S.C. 101(a)(13)(B). The Department suggested that the statutory definition did not require additional clarification and thus did not further explain the various provisions of law that are specifically referenced in 10 U.S.C. 101(a)(13)(B).

The Department has added the statutory definition of “active duty” to § 825.800 in the final rule as proposed. In addition, in response to public comments requesting that the Department further explain the types of active duty service by the spouse, son, daughter, or parent of an employee that would trigger an entitlement to qualifying exigency leave, § 825.126(b)(2) of the final rule specifically enumerates the provisions of law referred to in 10 U.S.C. 101(a)(13)(B): Sections 688, 12301(a), 12302, 12304, 12305, and 12406 of Title 10 of the United States Code, chapter 15 of Title 10 of the United States Code, and any other provision of law during a war or during a national emergency declared by the President or Congress. This section of the regulations also makes clear that these existing provisions of military law refer only to duty under a “call or order to active duty” by members of the Reserve components and the National Guard, and also to certain retired members of the Regular Armed Forces and retired Reserve. Consistent with the statutory definition, this leave entitlement does

not extend to family members of the Regular Armed Forces on active duty status because members of the Regular Armed Forces either do not serve “under a call or order to active duty” or are not identified in the provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The final rule also provides that a “call or order to active duty” for purposes of leave taken because of a qualifying exigency refers to a Federal call to active duty, as opposed to a State call to active duty.

Many of the public comments received by the Department with regard to the military family leave provisions did not discuss the definition of “active duty” for purposes of qualifying exigency leave. A number of commenters, however, recognized the limiting nature of the statutory definition provided by Congress.

See

Society for Human Resource Management; Bank of the Commonwealth. The law firm of Spencer Fane Britt & Browne noted that this limited definition was logical:

In case of the Regular Armed Forces, those servicemembers are employed by the Federal government itself as a conscious career choice and have accepted the terms and conditions of that employment. In the case of Reservists and the National Guard, those individuals may work elsewhere, but are willing to serve the Federal government if necessary and are willing to allow their lives to be disrupted by a call to active duty. They have not, however, accepted the terms and conditions of employment with the Federal government except as it may be necessary in connection with a call to active duty. It is the unexpected disruption to their lives that appears to be the focus of exigency leave.

This view is consistent with the statement of Representative Jason Altmire on the floor of the U.S. House of Representatives, who introduced the provision providing leave for a qualifying exigency:

[W]hat this legislation does is allow family members of our brave men and women serving in the Guard and Reserve to use Family and Medical Leave Act time to see off, to see the deployment, or to see the members return when they come back, and to use that, importantly, to deal with economic issues, and get the household economics in order.

153 Cong. Rec. H15326 (

see

daily ed. Dec. 12, 2007).

Several commenters urged the Department to provide additional detail and explanation in the final rule as to the statutory references contained in the NDAA, noting that most employers are not familiar with the specific statutory references and

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