[Federal Register: February 11, 2008 (Volume 73, Number 28)]
[Proposed Rules]
[Page 7875-8001]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe08-21]
[[Page 7875]]
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Part IV
Department of Labor
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Employment Standards Adminstration
Wage and Hour Division
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29 CFR Part 825
The Family and Medical Leave Act of 1993; Proposed Rule
[[Page 7876]]
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DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB35
The Family and Medical Leave Act of 1993
AGENCY: Employment Standards Administration, Wage and Hour Division,
Department of Labor.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Department of Labor's Employment Standards Administration/
Wage and Hour Division proposes to revise certain regulations
implementing the Family and Medical Leave Act of 1993 (``FMLA''), the
law that provides eligible workers with important rights to job
protection for absences due to the birth or adoption of a child or for
a serious health condition of the worker or a qualifying family member.
The proposed changes are based on the Department's experience of nearly
fifteen years administering the law, two previous Department of Labor
studies of the FMLA in 1996 and 2001, several U.S. Supreme Court and
lower court rulings, and the public comments received in response to a
Request for Information (``RFI'') published in the Federal Register in
December 2006 requesting information about experiences with the FMLA
and comments on the effectiveness of these regulations.
The Department is also seeking public comment on issues to be
addressed in final regulations regarding military family leave. Section
585(a) of the National Defense Authorization Act for FY 2008 amends the
FMLA to provide leave to eligible employees of covered employers to
care for injured servicemembers and because of any qualifying exigency
arising out of the fact that a covered family member is on active duty
or has been notified of an impending call to active duty status in
support of a contingency operation (collectively referred to herein as
military family leave). The provisions of this amendment providing FMLA
leave to care for a covered servicemember became effective on January
28, 2008, when the law was enacted. The provisions of this amendment
providing for FMLA leave due to a qualifying exigency arising out of a
covered family member's active duty (or call to active duty) status are
not effective until the Secretary of Labor issues regulations defining
``qualifying exigencies.'' Because of the need to issue regulations
under the military family leave provisions of the amendment as soon as
possible, the Department is including in this Notice a description of
the relevant military family leave statutory provisions, a discussion
of issues the Department has identified, and a series of questions
seeking comment on subjects and issues that may be considered in the
final regulations.
DATES: Comments must be received on or before April 11, 2008.
ADDRESSES: You may submit comments, identified by RIN 1215-AB35, by
either one of the following methods:
Electronic comments, through the Federal eRulemaking
Portal: http://www.regulations.gov. Follow the instructions for
submitting comments.
Mail: Address all written submissions to Richard M.
Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, Room S-3502, 200
Constitution Avenue, N.W., Washington, DC 20210.
Instructions: Please submit one copy of your comments by only one
method. All submissions must include the agency name and Regulatory
Information Number (RIN) identified above for this rulemaking. Please
be advised that comments received will be posted without change to
http://www.regulations.gov, including any personal information
provided. Because we continue to experience delays in receiving mail in
the Washington, DC area, commenters are strongly encouraged to transmit
their comments electronically via the Federal eRulemaking Portal at
http://www.regulations.gov or to submit them by mail early. For
additional information on submitting comments and the rulemaking
process, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov
.
FOR FURTHER INFORMATION CONTACT: Richard M. Brennan, Senior Regulatory
Officer, Wage and Hour Division, Employment Standards Administration,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone: (202) 693-0066 (this is not a toll
free number). Copies of this proposed rule may be obtained in
alternative formats (Large Print, Braille, Audio Tape or Disc), upon
request, by calling (202) 693-0675. TTY/TDD callers may dial toll-free
1-877-889-5627 to obtain information or request materials in
alternative formats.
Questions of interpretation and/or enforcement of the agency's
current regulations may be directed to the nearest Wage and Hour
Division District Office. Locate the nearest office by calling the Wage
and Hour Division's toll-free help line at (866) 4US-WAGE ((866) 487-
9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto
the Wage and Hour Division's Web site for a nationwide listing of Wage
and Hour District and Area Offices at: http://www.dol.gov/esa/contacts/whd/america2.htm
.
SUPPLEMENTARY INFORMATION:
I. Electronic Access and Filing Comments
Public Participation: This notice of proposed rulemaking is
available through the Federal Register and the http://www.regulations.gov
Web site. You may also access this document via the
Wage and Hour Division's home page at http://www.wagehour.dol.gov. To
comment electronically on Federal rulemakings, go to the Federal
eRulemaking Portal at http://www.regulations.gov, which will allow you
to find, review, and submit comments on Federal documents that are open
for comment and published in the Federal Register. Please identify all
comments submitted in electronic form by the RIN docket number (1215-
AB35). Because of delays in receiving mail in the Washington, DC area,
commenters should transmit their comments electronically via the
Federal eRulemaking Portal at http://www.regulations.gov, or submit
them by mail early to ensure timely receipt prior to the close of the
comment period. Submit one copy of your comments by only one method.
II. Background
A. What the Law Provides
The Family and Medical Leave Act of 1993, Public Law 103-3, 107
Stat. 6 (29 U.S.C. 2601 et. seq.) (``FMLA'' or ``Act'') was enacted on
February 5, 1993, and became effective for most covered employers on
August 5, 1993. The FMLA entitles eligible employees of covered
employers to take up to a total of twelve weeks of unpaid leave during
a twelve month period for the birth of a child; for the placement of a
child for adoption or foster care; to care for a newborn or newly-
placed child; to care for a spouse, parent, son or daughter with a
serious health condition; or when the employee is unable to work due to
the employee's own serious health
[[Page 7877]]
condition. See 29 U.S.C. 2612. The twelve weeks of leave may be taken
in a block, or, under certain circumstances, intermittently or on a
reduced leave schedule. Id.
Employers covered by the law must maintain for the employee any
preexisting group health coverage during the leave period under the
same conditions coverage would have been provided if the employee had
not taken leave and, once the leave period has concluded, reinstate the
employee to the same or an equivalent job with equivalent employment
benefits, pay, and other terms and conditions of employment. See 29
U.S.C. 2614.
If an employee believes that his or her FMLA rights have been
violated, the employee may file a complaint with the Department of
Labor (``Department'' or ``DOL'') or file a private lawsuit in Federal
or State court. If the employer has violated an employee's FMLA rights,
the employee is entitled to reimbursement for any monetary loss
incurred, equitable relief as appropriate, interest, attorneys' fees,
expert witness fees, and court costs. Liquidated damages also may be
awarded. See, 29 U.S.C. 2617.
Title I of the FMLA applies to private sector employers of fifty or
more employees, public agencies and certain Federal employers and
entities, such as the U.S. Postal Service and Postal Rate Commission.
Title II applies to civil service employees covered by the annual and
sick leave system established under 5 U.S.C. Chapter 63, plus certain
employees covered by other Federal leave systems. Title III established
a temporary Commission on Leave to conduct a study and report on
existing and proposed policies on leave and the costs, benefits, and
impact on productivity of such policies. Title IV contains
miscellaneous provisions, including rules governing the effect of the
FMLA on more generous leave policies, other laws, and existing
employment benefits. Title V originally extended leave provisions to
certain employees of the U.S. Senate and House of Representatives, but
such coverage was repealed and replaced by the Congressional
Accountability Act of 1995, 2 U.S.C. 1301.
B. Who the Law Covers
The FMLA generally covers employers with 50 or more employees, and
employees must have worked for the employer for 12 months and for 1,250
hours of service during the previous year to be eligible for FMLA
leave. Based on 2005 data, the latest year for which data are
available, the Department estimates that:
There were an estimated 95.8 million workers in
establishments covered by the FMLA regulations,
There were approximately 77.1 million workers in covered
establishments who met the FMLA's requirements for eligibility, and
About 7.0 million covered and eligible workers took FMLA
leave in 2005.
About 1.7 million covered and eligible employees who took
FMLA leave took at least some of it intermittently--and may have taken
that intermittent leave multiple times over the course of the year.
C. Implementing Regulations
The FMLA required the Department to issue regulations to implement
Title I and Title IV of the FMLA within 120 days of enactment, or by
June 5, 1993, with an effective date of August 5, 1993. Given this
short implementation period, the Department published a notice of
proposed rulemaking in the Federal Register on March 10, 1993 (58 FR
13394), inviting comments until March 31, 1993, on a variety of
questions and issues. The Department received a total of 393 comments
at that time from a wide variety of stakeholders, including employers,
trade and professional associations, advocacy organizations, labor
unions, State and local governments, law firms, employee benefit firms,
academic institutions, financial institutions, medical institutions,
Members of Congress, and others.
After considering these comments, the Department issued an interim
final rule on June 4, 1993 (58 FR 31794) that became effective on
August 5, 1993. The Department also invited further public comment on
the interim regulations through September 3, 1993, later extended to
December 3, 1993 (58 FR 45433). During this comment period, the
Department received more than 900 substantive and editorial comments on
the interim regulations, from a wide variety of stakeholders.
Based on this second round of public comments, the Department
published final regulations to implement the FMLA on January 6, 1995
(60 FR 2180). The regulations were amended on February 3, 1995 (60 FR
6658) and on March 30, 1995 (60 FR 16382) to make minor technical
corrections. The final regulations went into effect on April 6, 1995.
D. Legal Challenges
The Ragsdale Decision
Since the enactment of the FMLA, hundreds of reported Federal cases
have addressed the Act and/or implementing regulations. The most
significant court decision on the validity of the regulations is that
of the United States Supreme Court in Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81 (2002). In its first case involving the FMLA, the
Court ruled in March 2002 that the penalty provision in 29 CFR
825.700(a), which states ``[i]f an employee takes * * * leave and the
employer does not designate the leave as FMLA leave, the leave taken
does not count against an employee's FMLA entitlement[,]'' was invalid
because in some circumstances it required employers to provide leave to
employees beyond the 12-week statutory entitlement. ``The FMLA
guaranteed [Plaintiff] 12-not 42-weeks of leave[.]'' Ragsdale, 535 U.S.
at 96. While the Supreme Court did not invalidate the notice and
designation provisions in the regulations, it made clear that any
categorical penalty for a violation of such requirements set forth in
the regulations would exceed the Department's statutory authority. Id.
at 91-96.
Other Challenges to ``Categorical Penalty'' Provisions
As the Department explained in its December 2006 RFI \1\ and the
subsequent 2007 Report on the RFI comments,\2\ Ragsdale is not the only
court decision addressing penalty provisions contained in the
regulations. Another provision of the regulations, Sec. 825.110(d),
requires an employer to notify an employee prior to the employee
commencing leave as to whether or not the employee is eligible for FMLA
leave. If the employer fails to provide the employee with such
information or the information is not accurate, the regulation bars the
employer from challenging eligibility at a later date, even if the
employee is not eligible for FMLA leave according to the statutory
requirements. The majority of courts addressing this notice provision
have found it to be invalid, even prior to the Ragsdale decision. See,
e.g., Woodford v. Cmty. Action of Greene County, Inc., 268 F.3d 51, 57
(2d Cir. 2001) (``The regulation exceeds agency rulemaking powers by
making eligible under the FMLA employees who do not meet the statute's
clear eligibility requirements.''); Brungart v. BellSouth Telecomm.,
Inc., 231 F.3d 791, 796-97 (11th Cir. 2000) (``There is no ambiguity in
the statute concerning eligibility for family medical leave, no gap to
be
[[Page 7878]]
filled.''); Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th
Cir. 2000) (the regulation tries ``to change the Act'' because it makes
eligible employees who, under the language of the statute, are
ineligible for family leave; ``The statutory test is perfectly clear
and covers the issue. The right of family leave is conferred only on
employees who have worked at least 1,250 hours in the previous 12
months'').
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\1\See 71 FR 69504, 69505 (Dec. 1, 2006).
\2\See ``Family and Medical Leave Act Regulations: A Report on
the Department of Labor's request for Information,'' 72 FR 35550,
35560 (June 28, 2007).
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Legal Challenges to the Definition of Serious Health Condition
Other regulatory provisions have been challenged as well. In
particular, challenges to the regulatory section defining the term
``serious health condition'' as a condition causing a period of
incapacity of more than three consecutive calendar days and continuing
treatment, 29 CFR 825.114(a)(2)(i), has received significant attention.
See, e.g., Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001); Thorson
v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000).
As the Department explained in its December 2006 RFI \3\ and
subsequent Report on the RFI,\4\ the Department itself has struggled
with this definition. After the Act's passage, the Department
promulgated Sec. 825.114(c), which states that ``[o]rdinarily, unless
complications arise, the common cold, the flu, ear aches, upset
stomach, minor ulcers, headaches other than migraine, routine dental or
orthodontia problems, periodontal disease, etc., are examples of
conditions that do not meet the definition of a serious health
condition and do not qualify for FMLA leave.'' This regulatory language
was intended to reflect the legislative history of the FMLA and
expresses the Congressional intent that minor, short-term illnesses for
which treatment and recovery are very brief would be covered by
employers' sick leave programs and not by the FMLA. See H.R. Rep. No.
103-8, at 40 (1993); S. Rep. No. 103-3, at 28-29 (1993). Consequently,
in an early response about the proper handling of an employee's request
for leave due to the common cold, the Department responded by stating
``[t]he fact that an employee is incapacitated for more than three
days, has been treated by a health care provider on at least one
occasion which has resulted in a regimen of continuing treatment
prescribed by the health care provider does not convert minor illnesses
such as the common cold into serious health conditions in the ordinary
case (absent complications).'' Wage and Hour Opinion Letter FMLA-57
(Apr. 7, 1995). More than a year and a half later, however, the
Department reversed its interpretation, stating that Wage and Hour
Opinion Letter FMLA-57 ``expresses an incorrect view, being
inconsistent with the Department's established interpretation of
qualifying `serious health conditions' under the FMLA regulations.''
Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996). The Department
further stated that such minor illnesses ordinarily would not be
expected to last more than three days, but if they do meet the
regulatory criteria for a serious health condition under Sec.
825.114(a), they qualify for FMLA leave. The Department received
significant commentary about its changing interpretations of the
definition of serious health condition in response to its RFI. See
Chapter III of the Department's 2007 Report on the RFI comments (72 FR
at 35563).
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\3\See 71 FR at 69506.
\4\See 72 FR at 35563.
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Other Legal Challenges
Many other legal issues have arisen over the nearly thirteen years
the final regulations have been in effect. For example, litigation has
ensued under Sec. Sec. 825.302-.303 as to what constitutes sufficient
employee notice to trigger an employer's obligations under the FMLA.
See, e.g., Sarnowski v. Air Brook Limousine, Inc.,--F.3d ,--2007 WL
4323259 (3rd Cir. 2007) (employee with chronic heart problems who
informed employer of need for continuing medical monitoring and
possible surgery provided sufficient notice); Spangler v. Fed. Home
Loan Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002) (employee who had
made employer aware that she had problems with depression gave
sufficient notice when she called in and indicated she was out because
of ``depression again'').
Among other cases, the Tenth Circuit Court of Appeals considered
the definition of ``worksite'' for determining whether an employee
seeking FMLA leave was employed at a worksite where 50 or more
employees were employed by the employer within 75 miles. Section
825.111(a)(3) states that when an employee is jointly employed by two
or more employers, the employee's worksite is the primary employer's
office from which the employee has been assigned or to which the
employee reports. In Harbert v. Healthcare Services Group, Inc., 391
F.3d 1140 (10th Cir. 2004), the Court of Appeals invalidated Sec.
825.111(a)(3), insofar as it is applied to the situation of an employee
with a long-term fixed worksite at a facility of the secondary
employer. The First Circuit Court of Appeals looked at a different
eligibility criterion, the requirement that the employee has been
employed by the employer for at least 12 months, and addressed whether
an employee who had a break in service may count previous periods of
employment with the same employer toward satisfying the 12-month
employment requirement (29 U.S.C. 2611(2)(A)(i); 29 CFR 825.110(a)(1)
and (b)). See Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006) (a
complete break in service of a period of five years does not prevent
the employee from counting previous employment to meet the 12-month
employment requirement). Another regulation that has been the subject
of litigation is Sec. 825.220(d), which in part discusses the impact
of a light duty work assignment on an employee's FMLA rights. Further,
most recently, the Fourth Circuit Court of Appeals ruled in Taylor v.
Progress Energy, 493 F.3d 454 (4th Cir. 2007), petition for cert.
filed, 76 U.S.L.W. 3226 (U.S. Oct. 22, 2007) (No. 07-539), that other
language in Sec. 825.220(d) prevents an employee and employer from
independently settling past claims for FMLA violations without the
approval of the Department or a court.
E. Prior Studies and Reports
Title III of the FMLA established a temporary Commission on Leave
to conduct a study and report on existing and proposed policies on
leave and the costs, benefits, and impact on productivity of such
policies. The Commission surveyed workers and employers in 1995 and
issued a report published by the Department in 1996, ``A Workable
Balance: Report to Congress on Family and Medical Leave Policies.'' \5\
In 1999, the Department contracted with Westat, Inc.,\6\ to update the
employee and establishment surveys conducted in 1995. The Department
published that report, ``Balancing the Needs of Families and Employers:
Family and Medical Leave Surveys, 2000 Update'' in January 2001.\7\
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\5\ See http://www.dol.gov/esa/whd/fmla/fmla/1995Report/Family.htm
.
\6\ Westat is a statistical survey research organization serving
agencies of the U.S. Government, as well as businesses, foundations,
and State and local governments.
\7\See http://www.dol.gov/esa/whd/fmla/fmla/toc.htm.
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F. Request for Information
On December 1, 2006, the Department published a Request for
Information (RFI) in the Federal Register (71 FR 69504).
The RFI asked the public to comment on its experiences with, and
[[Page 7879]]
observations of, the Department's administration of the law and the
effectiveness of the FMLA regulations. The RFI's questions and subject
areas were derived from a series of stakeholder meetings the Department
conducted in 2002-2003, a number of rulings of the U.S. Supreme Court
and other Federal courts as discussed above, the Department's own
experience administering the law, information from Congressional
hearings, and public comments filed with the Office of Management and
Budget (OMB) as described by OMB in three annual reports to Congress on
the FMLA's costs and benefits.\8\ More than 15,000 comments were
received from workers, family members, employers, academics, and other
interested parties.\9\ This input ranged from personal accounts, legal
reviews, industry and academic studies, and surveys to recommendations
for regulatory and statutory changes to address particular areas of
concern. The Department published its Report on the comments received
in response to the Department's RFI in June 2007 (see 72 FR 35550 (June
28, 2007)).
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\8\ These OMB reports may be found at the following Web sites:
2001 report at: http://www.whitehouse.gov/omb/inforeg/costbenefitreport.pdf; 2002 report at: http://www.whitehouse.gov/
gov/
http://www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf.
\9\ All comments are available for viewing via the public docket
of the Wage and Hour Division of the Employment Standards
Administration, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210. Many comments are also available on
http://www.regulations.gov.
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G. Stakeholder Meeting
The Department also conducted a stakeholder meeting regarding the
medical certification process on September 6, 2007. This meeting
included representatives from employee organizations, employer
organizations, and the health care provider community.
H. Other Statutory and Regulatory Developments
As discussed in the RFI and the Report on the RFI, in addition to
developments in the courts, several important legislative and
regulatory developments have occurred that either directly or
indirectly impact the FMLA regulations. In 1996, Congress enacted the
Health Insurance Portability and Accountability Act (HIPAA), Public Law
104-191, which addresses in part the privacy of individually
identifiable health information. On December 28, 2000, and as amended
on August 14, 2002, the Department of Health and Human Services issued
regulations that provide standards for the privacy of individually
identifiable health information, codified at 45 CFR Parts 160 and 164
(``HIPAA Privacy Rule''). These standards apply to ``covered
entities,'' defined as a health plan, a health care clearinghouse, or a
health care provider who transmits any health information in electronic
form in connection with a transaction as defined in the privacy
regulations.\10\
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\10\See 45 CFR 160.102(a) and 45 CFR 160.03.
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The HIPAA Privacy Rule has had an impact on the FMLA's medical
certification process in a number of ways. For example, the FMLA
provides employers with the right to obtain medical information to
determine that a requested leave qualifies as FMLA leave, and the
employee is required to assure that this information, if requested, is
provided to the employer to be entitled to FMLA leave for a serious
health condition. If an employee does not do this, the absence does not
qualify for FMLA leave.\11\ While these rules are fairly
straightforward, recent enforcement experience reveals that there is
confusion with regard to the interaction of the HIPAA Privacy Rule and
FMLA. For example, some employees incorrectly believe that the HIPAA
Privacy Rule prevents employers from requiring FMLA certification. See
discussion of Sec. Sec. 825.306-.308 for further discussion of the
impact of the HIPAA Privacy Rule on the medical certification process.
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\11\See Wage and Hour Opinion Letter FMLA2005-2-A (Sept. 14,
2005).
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Similarly, since the final FMLA regulations were implemented in
1995, the Equal Employment Opportunity Commission (EEOC), the agency
responsible for enforcing the Americans with Disabilities Act (ADA),
has issued guidance with regard to the privacy of employee medical
information. See, e.g., Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans
with Disabilities Act (ADA) (EEOC 2000). The FMLA looks to the ADA for
guidance on privacy of employee medical information.\12\
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\12\See 29 CFR 825.500(g).
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III. Proposed Changes to the FMLA Regulations
The following is a section-by-section discussion of the proposed
revisions. Where a change is proposed to a regulatory section, that
section is discussed below. However, even if a section is not
discussed, there may be minor editorial changes or corrections that did
not warrant discussion. The titles to each section of the existing
regulations are in the form of a question. The proposal would reword
each question into the more common format of a descriptive title and
the Department invites comments on whether this change is helpful. In
addition, several sections have been restructured and reorganized to
improve the accessibility of the information (e.g., guidance on leave
for pregnancy and birth of a child is addressed in one consolidated
section; an employer's notice obligations are combined in one section).
Section 825.102 (Effective date of the Act)
The proposal deletes this section, which discussed when the Act
became effective, because it is no longer needed. The section number
itself is reserved to avoid extensive renumbering of other sections in
the regulations.
Section 825.103 (How the Act affects leave in progress on, or taken
before, the effective date of the Act)
The proposal deletes and reserves this section, which discussed how
the Act affected leave in progress on, or taken before, the Act's
effective date, because it is no longer needed.
Section 825.106 (Joint employer coverage)
Sections 825.106 and 825.111(a)(3) of the existing regulations
govern employer coverage and employee eligibility in the case of joint
employment and set forth the responsibilities of the primary and
secondary employers. Under Sec. 825.106(d), employees jointly employed
by two employers must be counted by both employers in determining
employer coverage and employee eligibility. Thus, for example, an
employer who jointly employs 15 workers from a leasing or temporary
help agency and 40 permanent workers is covered by the FMLA. Likewise,
if an employer with 15 permanent workers jointly employs 40 workers
from a leasing company that employer is also covered by the FMLA.
Although job restoration is the primary responsibility of the
primary employer, the secondary employer is responsible for accepting
the employee returning from FMLA leave if the secondary employer
continues to utilize an employee from the temporary or leasing agency
and the agency chooses to place the employee with that secondary
employer. The secondary employer is also responsible for compliance
with the prohibited acts provisions with respect to its
[[Page 7880]]
temporary/leased employees, and thus may not interfere with an
employee's attempt to exercise rights under the Act, or discharge or
discriminate against an employee for opposing a practice that is
unlawful under FMLA. See the existing Sec. 825.106(e).
In Wage and Hour Opinion Letter FMLA-111 (Sept. 11, 2000), the
Department considered the application of the FMLA regulations' ``joint
employment'' test in current Sec. 825.106 to a ``Professional Employer
Organization'' (PEO). The PEO in question had a contract with the
client company under which it appeared to enter into an employer-
employee relationship with the client's employees (who were leased back
to the client and continued to work at the client's worksite pursuant
to the terms of the contract). The PEO in this case assumed substantial
employer rights, responsibilities and risks, including the
responsibility for personnel management, health benefits, workers'
compensation claims, payroll, payroll tax compliance, and unemployment
insurance claims. Moreover, the PEO in this case had the right to hire,
fire, assign, and direct and control the employees.
Based on the facts described in the incoming letter, the Opinion
Letter concluded that the PEO was in a joint employment relationship
with its client companies for these reasons:
1. The PEO was a separately owned and distinct entity under
contract with the client to lease employees for the purpose of
handling ``critical human resource responsibilities and employer
risks for the client.''
2. The PEO was acting directly in the interest of the client in
assuming human resource responsibilities.
3. The PEO appeared to also share control of the leased
employees consistent with the client's responsibility for its
product or service.
The Opinion Letter stated that ``it would appear that'' the PEO is
the ``primary employer'' for those employees ``leased'' under contract
with the client. Thus, under existing Sec. 825.106, the PEO would be
responsible for giving required FMLA notices to its employees,
providing FMLA leave, maintaining group health insurance benefits
during the leave, and restoring the employee to the same or equivalent
job upon return from leave. The ``secondary employer'' (i.e., the
client company) would be responsible for accepting the employee
returning from FMLA leave if the PEO chose to place the employee with
the client company. The Opinion Letter concluded that the client
company, as the ``secondary employer,'' whether a covered employer or
not under the FMLA, was prohibited from interfering with a ``leased''
employee's attempt to exercise rights under the Act, or discharging or
discriminating against an employee for opposing a practice that is
unlawful under the Act.
While no specific questions concerning PEOs were contained in the
RFI, the Department did seek information on ``any issues that may arise
when an employee is jointly employed by two or more employers'' (71 FR
at 69509). In response to the RFI, a number of stakeholders commented
that it is not correct to consider PEOs (sometimes called ``HR
Outsourcing Vendors'') to be joint employers with their client
companies and explained the differences between a temporary staffing
agency and a PEO. ``A temporary staffing agency is a labor supplier. It
supplies employees to a client while a PEO is a service provider
providing services to existing employees of a company.'' See comments
by Jackson-Lewis. Unlike a temporary staffing agency, a PEO does not
have the ability to place an employee returning from FMLA leave with a
different client employer. Id.
The AFL-CIO commented that PEOs engage in a practice known as
``payrolling,'' in which the client employers transfer the payroll and
related responsibilities for some or all of their employees to the PEO,
and that typically, the PEO also makes payments on behalf of the client
employer into State workers' compensation and unemployment insurance
funds, but the PEO does not provide placement services. In contrast
with temporary staffing agencies, the AFL-CIO commented, PEOs do not
match people to jobs.
The law firm of Littler Mendelson advised that ``Employee leasing
arrangements''--like those involving temporary services firms and other
staffing companies--refer to arrangements in which the staffing firm
places its own employees at a customer's place of business to perform
services for the recipient's enterprise. The PEO, in contrast, assumes
certain administrative functions for its clients such as payroll and
benefits coverage and administration (including workers' compensation
insurance and health insurance). The PEO typically has no direct
responsibility over the employees of its clients including ``hiring,
training, supervision, evaluation, discipline or discharge, among other
critical employer functions.''
The law firm of Fulbright & Jaworski commented that PEO
responsibilities vary by organization and contract, but that most are
not involved in the day-to-day operations of their client's business
and do not exercise the right to hire, fire, supervise or manage daily
activities of employees. The firm urged the Department to clarify that
opinion letter FMLA-111 (Sept. 11, 2000) is about an atypical PEO that
actually exercised control over the client's employees.
The Department proposes to amend Sec. 825.106(b) to clarify that
PEOs that contract with client employers merely to perform
administrative functions, including payroll, benefits, regulatory
paperwork, and updating employment policies, are not joint employers
with their clients, provided they merely perform such administrative
functions. On the other hand, if in a particular fact situation a PEO
has the right to hire, fire, assign, or direct and control the
employees, or benefits from the work that the employees perform, such a
PEO would be a joint employer with the client company.
Some of the comments concerning PEOs suggest confusion over how to
count employees jointly employed for purposes of employer coverage
(``over 50 workers'') and employee eligibility (``over 50 employees
within 75 miles''). Some of these comments suggest that all of the
employees of both the primary and secondary employers (and even those
of other secondary employers) must be combined and counted together for
purposes of these two tests. However, under the existing Sec.
825.106(d) only those employees who are jointly employed by the primary
and each of the secondary employers are included in the employee counts
of both firms. The home office employees of the primary employer and
the employees placed with other secondary employers are not included,
for example, in the employee counts for each secondary employer.
For the reasons discussed above, existing paragraph (b) of Sec.
825.106 is proposed to be changed to paragraph (b)(1) and a new
paragraph (b)(2) is proposed to be added to clarify how the joint
employment rules apply to PEOs. Under the proposal, PEOs that contract
with client employers merely to perform administrative functions--
including payroll, benefits, regulatory paperwork, and updating
employment policies--are not joint employers with their clients,
provided: (1) They do not have the right to exercise control over the
activities of the client's employees, and do not have the right to
hire, fire or supervise them, or determine their rates of pay, and (2)
do not benefit from the work that the employees perform. On the other
hand,
[[Page 7881]]
if in a particular fact situation a PEO has the right to hire, fire,
assign, or direct and control the employees, or benefits from the work
that the employees perform, such a PEO would be a joint employer with
the client employer. The proposal also includes a cross-reference in
paragraph (d) to proposed Sec. 825.111(a)(3), which, as discussed
below, would change the determination of the ``worksite'' for purposes
of employee eligibility with respect to employees who are placed by a
primary employer at the worksite of a secondary employer for more than
12 months.
Section 825.108 (Public agency coverage)
This section addresses what constitutes a ``public agency'' for
purposes of coverage under the Act. Under the current regulations, the
dispositive test for determining whether a public agency is a separate
and distinct entity (and therefore a separate employer for determining
employee eligibility) or simply is part of another public agency is the
U.S. Bureau of the Census' ``Census of Governments.'' See U.S. Census
Bureau, 2002 Census of Governments, Volume 1, Number 1, Government
Organization, GC02(1)-1, U.S. Government Printing Office, Washington,
DC 20002 \13\ (http://www.census.gov/prod/2003pubs/gc021x1.pdf). In
contrast, regulations issued under the Fair Labor Standards Act (FLSA)
use this test merely as one factor in determining what constitutes a
separate public agency for its purposes. See 29 CFR 553.102. The
Department proposes no changes to this section. Because the FMLA
definition of ``public agency'' refers to the definition under the FLSA
(29 U.S.C. 203(x)), however, the Department seeks public comment on
whether this test in the FMLA regulations should be amended to conform
with the test in the FLSA regulations.
---------------------------------------------------------------------------
\13\ The Census of Governments is taken at five-year intervals.
---------------------------------------------------------------------------
Section 825.109 (Federal agency coverage)
This section of the existing regulations identifies the Federal
agencies that are covered by the Department of Labor's FMLA
regulations. Shortly after these regulations were promulgated, Congress
enacted the Congressional Accountability Act of 1995, 2 U.S.C. 1301
(CAA), which in part amended the FMLA by repealing Title V of the FMLA
pertaining to Congressional employees. See Section 504(b), Public Law
104-1. As a result, Congressional employees are now covered by the CAA
as administered by the Office of Compliance created by the CAA.
Section 202(c) of the CAA also specifically provided that the
General Accounting Office (now named the Government Accountability
Office) (GAO) and Library of Congress (LOC) are subject to Title I of
the FMLA. For those agencies, the FMLA is administered by the
Comptroller General and the Librarian of Congress, respectively. See 29
U.S.C. 2611(4)(A)(iv) and 2617(f).
The CAA also called for a study of how the FMLA is administered for
the Government Printing Office (GPO), as well as the GAO and LOC. 2
U.S.C. 1371. The Congressional Office of Compliance issued its study on
December 31, 1996. The study concluded that the GPO is covered by Title
II and the Office of Personnel Management's regulations, rather than
Title I and the Department of Labor regulations. In a letter dated
April 25, 2000, the GPO asked the Department to amend its FMLA
regulations to delete the reference to GPO coverage, because that
agency is covered by Title II. In its response of January 31, 2001, the
Department concurred with the conclusion that the GPO is covered by
Title II and stated that it would amend the regulations accordingly
whenever they were next modified. The proposal would amend paragraphs
(a) and (d) of this section to reflect these changes.
Pursuant to section 604(f) of the Postal Accountability and
Enhancement Act, Public Law 109-435, Dec. 20, 2006, 120 Stat. 3242, the
Postal Rate Commission was redesignated as the Postal Regulatory
Commission, and the proposed rule would amend paragraph (b)(2) of this
section to reflect this change.
Section 825.110 (``Eligible'' employee)
Current Sec. 825.110 sets forth the eligibility standards
employees must meet in order to take FMLA leave. Specifically, current
Sec. 825.110(a) restates the statutory requirement that to be eligible
for FMLA leave, an employee must have been employed by an employer for
at least 12 months, have been employed for at least 1,250 hours of
service during the 12 months preceding the leave, and be employed at a
worksite where 50 or more employees are employed by the employer within
75 miles of the worksite.
Current Sec. 825.110(b) provides detail on the requirement that
the employee must have been employed by the employer for at least 12
months, stating that the 12 months need not be consecutive. It further
explains that if the employee was maintained on the payroll for any
part of a week, that week counts towards the employee's fulfilling the
12 months employment requirement and that 52 weeks is deemed equal to
12 months.
In its RFI, the Department sought comment on whether and how to
address the treatment of combining nonconsecutive periods of employment
to meet the 12 months of employment requirement. (71 FR at 69508) This
eligibility criterion has been the subject of litigation. In Rucker v.
Lee Holding, Co., 471 F.3d 6 (1st Cir. 2006), the court considered
whether an employee's previous employment of five years counted toward
the 12-month employment eligibility requirement even though it was
separated by a five-year break in service from his current employment.
The First Circuit Court of Appeals held that ``the complete separation
of an employee from his or her employer for a period of years, here
five years, does not prevent the employee from counting earlier periods
of employment toward satisfying the 12-month requirement.'' Id. at 13.
In regard to whether a break in service of more than five years would
be permissible, the court stated that this important policy issue
should be resolved by the Department in the first instance as a part of
its exercise of its statutory authority. Id.
A number of commenters urged the Department to support the Rucker
decision that prior months of service may be combined for eligibility
purposes even when separated by breaks in service of many years. The
National Partnership for Women & Families, for example, stated that
``an arbitrary time limit on how long a worker could leave the
employment of a particular employer would operate as an unfair and
disproportionate burden on women workers. Many women leave work for
extended periods of time, for example, to stay home with young children
during their formative years.'' (See comments by National Partnership
for Women & Families.)
Employer comments received on this issue overwhelmingly disagreed
with the First Circuit ruling on combining prior periods of service
together. For example, the University of Notre Dame stated, ``There is
a tremendous administrative burden associated with adopting the First
Circuit Court of Appeals' interpretation of section 825.110 that an
employer has the duty to aggregate non-consecutive service to establish
`12 months of service.' As we understand this possible interpretation,
the ability to aggregate past service with current service to equate to
12 months
[[Page 7882]]
is virtually unlimited.'' Other comments received on this issue
included suggestions for amending the regulations to allow the employer
to: disregard prior employment periods if all ties between the company
and worker were severed; follow company policy or State law regarding
the treatment of previous employment; and require that the 12 months of
employment be consecutive. Employer commenters cited the administrative
burden associated with combining previous employment periods as the
rationale for their recommendations including that the FMLA itself only
requires recordkeeping for three years and not indefinitely.
The Department received comments similar to these in response to
the 1993 interim final regulations, which suggested limiting the period
of time used in determining whether the employee had been employed by
the employer for 12 months. In the final regulations, however, the
Department declined to include such a limit, reasoning that ``[m]any
employers require prospective employees to submit applications for
employment which disclose employees' previous employment histories.
Thus, the information regarding previous employment with an employer
should be readily available and may be confirmed by the employer's
records if a question arises.'' (60 FR at 2185) Furthermore, the
Department did not find a basis under the statute or its legislative
history for adopting the recommendations received in response to the
Interim Final Rule. Id. Indeed, the statute does not directly address
the issue of whether the 12 months of employment must be consecutive,
and the legislative history provides limited insight into Congressional
intent regarding extended breaks in employment. The Senate Committee
Report in discussing the requirement that the employee must have worked
for the employer for 12 months states ``[t]hese 12 months of employment
need not have been consecutive.'' S. Rep. No. 103-3, at 23 (1993). The
House Committee Report uses the same language in describing the 12-
month requirement. See H.R. Rep. No. 103-8, pt. 1, at 35 (1993).
Based on the Department's experience in administering the FMLA, the
First Circuit's ruling in Rucker, and comments received in response to
the RFI, the Department proposes a new Sec. 825.110(b)(1) to provide
that although the 12 months of employment need not be consecutive,
employment prior to a continuous break in service of five years or more
need not be counted. Thus, under the proposed rule, if an employee in
2008 has worked five months for an employer and worked for the same
employer for two full years in 1997-8, the employer would not have to
consider the two years of prior employment in determining whether the
employee currently is eligible for FMLA leave. The FMLA requires
covered employers to maintain records for three years. 29 CFR
825.500(b) (``[E]mployers must keep the records specified by these
regulations for no less than three years and make them available for
inspection, copying, and transcription by representatives of the
Department of Labor upon request.''). The Department is not proposing
to change the three-year record keeping requirements under FMLA. Thus,
employers would have documentation to confirm previous employment for a
former employee who at the time of rehiring had a break in service of
three years or less. Where an employee relies on a period of employment
that predates the employer's records, it will be incumbent upon the
employee to put forth some proof of the prior employment. This is
consistent with the employee's obligation to establish he or she is an
eligible employee. See Novak v. MetroHealth Medical Center, 503 F.3d
572, 577 (6th Cir. 2007); Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th
Cir. 2006). Of course, in determining whether an employee has met the
eligibility criterion, an employer may have a policy to consider
employment prior to a longer break in service, but in that event must
do so in a uniform manner for all employees with similar breaks in
service.
The Department considered several alternatives in developing this
proposed change to Sec. 825.110(b). Because the legislative history
states that the 12 months of employment need not be consecutive, the
Department could not adopt suggestions that any break in service
``resets'' the count for determining whether the employee has met the
12 months employment eligibility criterion. On the other hand, the
Department believes it is not reasonable that the time frame used for
considering prior employment for eligibility should be without end. At
the same time, the Department is mindful of the comment by the National
Partnership for Women & Families about the burden on women workers who
may leave and reenter the workforce after the formative years of their
children. But see S. Rep. No. 103-3, at 16 (1993). The Department
believes that the proposed outer limit of a five year break in service
is a permissible interpretation of the statute and strikes an
appropriate balance between providing re-employed workers with FMLA
protections and not making the administration of the Act unduly
burdensome for employers.
However, the Department also proposes new paragraph (b)(2) of this
section to address two exceptions to the general rule contained in
proposed new paragraph (b)(1): a break in service resulting from the
employee's fulfillment of military obligations; and a period of
approved absence or unpaid leave, such as for education or child-
rearing purposes, where a written agreement or collective bargaining
agreement exists concerning the employer's intent to rehire the
employee. In these situations, employment prior to the break in service
must be used in determining whether the employee has been employed for
at least 12 months, regardless of the length of the break in service.
The current discussion of how weeks are counted for fulfilling the
12 months requirement is proposed to be re-designated as paragraph
(b)(3) of this section.
Further, the Department proposes to add a new paragraph (b)(4) in
this section to note that nothing prevents an employer from considering
employment prior to a continuous break in service of more than five
years when determining if an employee meets the 12-month employment
criterion provided the employer does so uniformly with respect to all
employees with similar breaks in service.
Paragraph (c) of Sec. 825.110 is proposed to be revised to address
hours an employee would have worked for his or her employer but for the
employee's fulfillment of military service obligations. This revision
codifies the protections and benefits offered by the Uniformed Services
Employment and Reemployment Rights Act (USERRA).
In addition, the Department proposes several changes to Sec.
825.110 in light of the Ragsdale decision. Current Sec. 825.110(c) may
result in some instances in employees who are ineligible for FMLA leave
nonetheless being ``deemed eligible'' because of an employer's failure
to meet its burden of maintaining records needed to establish the
employee's eligibility. Current Sec. 825.110(d) may also result in an
employee who is not eligible for FMLA leave being ``deemed eligible''
based on the employer's lack of (or incorrect) notice to the employee.
Read in concert with Ragsdale, in which the U.S. Supreme Court
invalidated a similar provision in the current Sec. 825.700(a),
[[Page 7883]]
the Department believes these provisions in current Sec. 825.110(c)
and (d) need to be modified.
On the other hand, the Court in Ragsdale suggested that if an
employer fails to notify an employee of his or her FMLA rights, the
employee may have a remedy if the employee can show that the employer
interfered with, restrained or denied the employee the exercise of his
or her FMLA rights and that the employee suffered damages as a result.
See Ragsdale, 535 U.S. at 89. Therefore, the Department has
incorporated into the proposed text of Sec. 825.300 a statement that
in these situations if an employee shows individualized harm because
the employer interferes with, restrains or denies the employee of his
or her FMLA rights, the employee is entitled to the remedies provided
by the statute. The Department also proposes to add this language to
Sec. 825.220, which addresses how employees are protected when they
assert their FMLA rights, and proposed Sec. 825.301, which addresses
designation of FMLA leave.
For organizational purposes, the notice provisions contained in
current Sec. 825.110(d) have been moved to proposed Sec. 825.300(b)
with other notice requirements employers must provide to employees
under the regulations. This organizational change should make it easier
for employees and employers to locate these requirements by
consolidating them into one section. The proposal includes a cross-
reference to Sec. 825.300 in paragraph (d) of Sec. 825.110.
The Department also proposes to clarify the language in current
Sec. 825.110(d) stating that employee eligibility determinations
``must be made as of the date leave commences.'' This language has led
to confusion when employees who have fulfilled the 1,250 hours worked
requirement for eligibility, but not the 12 months of employment
requirement, begin a block of leave. (Although periods of leave do not
count towards the 1,250 hour requirement because leave is not ``hours
worked,'' periods of leave do count towards the 12 months of employment
requirement because the employment relationship continues, and has not
been severed, during the leave.) For example, where an employee who has
worked for an employer for 11 months and 1,300 hours commences a three
month block of leave for birth and bonding, confusion exists as to
whether that portion of the leave that occurs after the employee
reaches 12 months of employment is FMLA protected. Compare Babcock v.
BellSouth Advertising and Publishing Corp., 348 F.3d 73 (4th Cir.
2003), with Willemssen v. The Conveyor Co., 359 F.Supp.2d 813 (N.D.
Iowa 2005). The proposal clarifies that when an employee is on leave at
the time he or she meets the 12-month eligibility requirement, the
period of leave prior to meeting the statutory requirement is non-FMLA
leave and the period of leave after the statutory requirement is met is
FMLA leave.
The Department proposes to delete current Sec. 825.110(e),
regarding counting periods of employment prior to the effective date of
the FMLA, because the revisions proposed in Sec. 825.110(b) discussed
above render the provision unnecessary.
The Department proposes no changes to current paragraph (f)
(paragraph (e) in the proposal) of this section, which states that
whether an employee works for an employer who employs 50 or more
employees within 75 miles of the worksite is determined as of the date
the leave request is made. In the RFI, the Department sought comment on
the differing regulatory tests used for determining employee
eligibility: the determination of whether the employee has been
employed for at least 12 months and for at least 1,250 hours in the 12
months preceding the leave is made as of the date the leave is to
commence; however, the determination of whether 50 employees are
employed by the employer within 75 miles of the worksite is made as of
the date the leave request is made (emphasis added). (71 FR at 69508).
Some of the comments received in response to the RFI urged the
Department to make these tests the same, namely, to require the
determination of employee eligibility in both cases as of the date the
leave is to begin. The Department appreciates the difficulty
experienced by many employers in complying with these different
regulatory tests; however, the proposal does not adopt this suggestion
for the reasons discussed in the preamble to the 1995 final
regulations:
[T]he purpose and structure of FMLA's notice provisions
intentionally encourage as much advance notice of an employee's need
for leave as possible, to enable both the employer to plan for the
absence and the employee to make necessary arrangements for the
leave. Both parties are served by making this determination when the
employee requests leave. Tying the worksite employee-count to the
date leave commences as suggested could create the anomalous result
of both the employee and employer planning for the leave, only to
have it denied at the last moment before it starts if fewer than 50
employees are employed within 75 miles of the worksite at that time.
This would entirely defeat the notice and planning aspects that are
so integral and indispensable to the FMLA leave process.
(60 FR at 2186)
Section 825.111 (Determining whether 50 employees are employed within
75 miles)
Current Sec. 825.111 sets forth the standards for determining
whether an employer employs 50 employees within 75 miles for purposes
of employee eligibility. Paragraph (a)(3) of this section provides that
when an employee is jointly employed by two or more employers, the
employee's worksite is the primary employer's office from which the
employee is assigned or reports.
In Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140 (10th
Cir. 2004), the Court of Appeals held that Sec. 825.111(a)(3), as
applied to the situation of an employee with a long-term fixed worksite
at a facility of the secondary employer, was arbitrary and capricious
because it: (1) Contravened the plain meaning of the term ``worksite''
as the place where an employee actually works (as opposed to the
location of the long-term care placement agency from which Harbert was
assigned); (2) contradicted Congressional intent that if any employer,
large or small, has no significant pool of employees nearby (within 75
miles) to cover for an absent employee, that employer should not be
required to provide FMLA leave to that employee; and (3) created an
arbitrary distinction between sole and joint employers.
The court noted that Congress did not define the term ``worksite''
in the FMLA, and it concluded that the common understanding of the term
``worksite'' is the site where the employee works. With respect to the
employee eligibility requirement of 50 employees within 75 miles, the
court noted that Congress recognized that even potentially large
employers may have difficulty finding temporary replacements for
employees who work at geographically scattered locations. The court
stated that Congress determined that if any employer (large or small)
has no significant pool of employees in close geographic proximity to
cover for an absent employee, that employer should not be required to
provide FMLA leave to that employee. Therefore, the court concluded:
An employer's ability to replace a particular employee during
his or her period of leave will depend on where that employee must
perform his or her work. In general, therefore, the congressional
purpose underlying the 50/75 provision is not effected if the
``worksite'' of an employee who has a regular place of work is
defined as any site other than that place.
[[Page 7884]]
391 F.3d at 1150.
In comparing how the regulations apply the term ``worksite'' to
joint employers and sole employers, the court stated:
The challenged regulation also creates an arbitrary distinction
between sole employers and joint employers. For example, if the
employer is a company that operates a chain of convenience stores,
the ``worksite'' of an employee hired to work at one of those
convenience stores is that particular convenience store. See 58 Fed.
Reg. 31794, 31798 (1993). If, on the other hand, the employer is a
placement company that hires certain specialized employees to work
at convenience stores owned by another entity (and therefore is
considered a joint employer), the ``worksite'' of that same employee
hired to work at that same convenience store is the office of the
placement company.
Id.
Importantly, the court did not invalidate the regulation with
respect to employees who work out of their homes: ``We do not intend
this statement to cast doubt on the portion of the agency's regulation
defining the `worksite' of employees whose regular workplace is his or
her home. See 29 C.F.R. Sec. 825.111(a)(2).'' Id. at 1150 n.1. Nor did
the court invalidate the regulatory definition in Sec. 825.111(a)(3)
with respect to employees of temporary help companies: ``An employee of
a temporary help agency does not have a permanent, fixed worksite. It
is therefore appropriate that the joint employment provision defines
the `worksite' of a temporary employee as the temporary help office,
rather than the various changing locations at which the temporary
employee performs his or her work.'' Id. at 1153.
The RFI requested specific information, in light of the court's
decision in Harbert, on the definition in Sec. 825.111 for determining
employer coverage under the statutory requirement that FMLA-covered
employers must employ 50 employees within 75 miles.
Some commenters who argued that the current regulations are sound
and do not require change pointed to the legislative history that the
term ``worksite'' is to be construed in the same manner as the term
``single site of employment'' under the WARN Act and the regulations
under that Act. See comments by AFL-CIO and National Partnership for
Women & Families. The AFL-CIO agreed with the dissent in Harbert that
the Secretary's interpretation of ``single site of employment'' under
the WARN Act regulations as applying equally to employees with and
without a fixed worksite is a ``permissible and reasonable
interpretation'' and does not result in arbitrary differences between
sole and joint employers under the FMLA. The National Partnership
commented that the purpose of designating the primary office as the
worksite is to ensure that the employer with the primary responsibility
for the employee's assignment is the one held accountable for
compliance with these regulations. The National Partnership stated that
the same principles articulated in the regulations with regard to ``no
fixed worksite'' situations also should apply to this factual scenario.
``In cases where employees have long-term assignments, we believe the
purposes of the FMLA are best served by using the primary employer from
which the employee is assigned as the worksite for determining FMLA
coverage.''
On the other hand, the law firm of Pilchak Cohen & Tice commented
that, under the current regulations, employees at the same size
establishment are treated differently because one works for a
traditional sole employer and the other works for a staffing firm:
For example, where a small retail store chain may have many
employees nationwide, each store could employ fewer than 50
employees. Those employees clearly would not be eligible for FMLA in
the traditional employment context. Yet, under the current
regulation, if that same retail chain utilized contract employees
from an entity which employed more than 50 employees from its home
office and that is where the contract employees received their
assignments from or reported to, those contract employees could have
FMLA rights at the retail chain. This creates an arbitrary
distinction between sole and joint employers. . . .Under 29 C.F.R.
Sec. 825.106(e), an employer could contract for an engineer,
Employee A, for a six-month project, and then find out after the
employee has only been there for two weeks, that Employee A will
need 12 weeks off due to the upcoming birth of his child. Upon
Employee A's departure, the employer would then have to spend the
time and expense training Employee B only to [be] forced to return
Employee A to the position, even though it had already spent time
training two individuals. The employer would then have to spend
additional time and expense bringing Employee A ``up to speed'' on
the project and complete the training initially started.
Pilchak Cohen & Tice stated that the regulation would be more palatable
if, to qualify for FMLA job restoration with the client company, the
contract employee had to have at least 12 months of service at that
location.
The National Coalition to Protect Family Leave commented that the
court in Harbert was correct in distinguishing between a jointly-
employed employee who is assigned to a fixed worksite and a jointly-
employed employee who has no fixed worksite and changes worksites
regularly. ``As for the former, the worksite for purposes of
determining whether they are eligible employees * * * would be the
fixed worksite of the secondary employer. As for the latter, the
worksite would continue as stated in the regulation[.]''
After weighing the comments on this issue submitted in response to
the RFI, the Department believes it needs to amend the regulations to
reflect the decision in Harbert. The proposed rule would modify Sec.
825.111(a)(3) to state that after an employee who is jointly employed
is stationed at a fixed worksite for a period of at least one year, the
employee's worksite for purposes of employee eligibility is the actual
physical place where the employee works. No changes are proposed with
respect to employees whose worksite has not been fixed for at least one
year. Also, no changes are proposed for Sec. 825.111(a)(2) with
respect to employees who work out of their homes, except to update the
current language ``as under the new concept of flexiplace'' to give it
a more modern meaning, ``as under the concept of flexiplace or
telecommuting.''
The Department has not adopted the comment from Pilchak Cohen &
Tice that in order to qualify for FMLA job restoration with the client
company, a contract employee should have at least 12 months of service
at that location. To do so would take away the job restoration
protections for an employee who is entitled to FMLA leave under the
law. However, the primary responsibility for placement following FMLA
leave rests with the primary employer, the staffing firm in the example
given. The client company must consent to the placement only if it has
used another contract employee from the same staffing firm to
temporarily fill the position during the period of the FMLA leave.\14\
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\14\ See 29 CFR 825.106(e). In the preamble to the final rule,
the Department agreed with comments that joint employment
relationships present special compliance concerns for temporary help
and leasing agencies in that the ease with which they may be able to
meet their statutory obligations under FMLA may depend largely on
the nature of the relationship they have established with their
client-employers. However, the Department found there were no viable
alternatives that could be implemented by regulation that would not
also deprive eligible employees of their statutory rights to job
reinstatement at the conclusion of FMLA leave. See 60 FR at 2182.
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Section 825.112 (Qualifying Reasons for Leave, General Rule)
To make it easier to find information in the regulations, the
Department has
[[Page 7885]]
reorganized some sections, including portions of current Sec. 825.112,
which sets forth the qualifying reasons that entitle an eligible
employee to FMLA-protected leave. For example, there is no single place
in the current regulations for the provisions that address leave taken
for the birth of a child or placement of a child for adoption or foster
care. Rather, these provisions are scattered throughout several
sections of the current regulations, including paragraphs (c) and (d)
of current Sec. 825.112.
No changes have been made to current paragraphs (a) and (b) of this
section except for the addition of new paragraph titles. Language from
current paragraphs (c) and (d) addressing leave taken prior to the
birth of a child or placement of a child for birth or adoption has been
moved to new sections in the proposed regulations that cover pregnancy,
birth, adoption and foster care. See proposed Sec. Sec. 825.120 and
825.121.
Current paragraph (e) of this section that addresses foster care
has been moved to proposed Sec. 825.122, which provides definitions
for the various family relationships covered by the Act. Similarly,
current paragraph (g) of this section, which addresses leave for
substance abuse treatment and an employer's ability to take
disciplinary action in connection with substance abuse, has been moved
to proposed Sec. 825.119 that specifically addresses leave in
connection with substance abuse.
Sections 825.113, 825.114, and 825.115 (Serious Health Condition,
Inpatient Care, and Continuing Treatment)
In response to the RFI, the Department received extensive
commentary on the regulatory definition of a serious health condition.
The full range of comments is discussed in detail in Chapters III and
IV of the Department's 2007 Report on the RFI comments (see 72 FR at
35563; 35571). There are six separate definitions of serious health
condition in the regulations. Many stakeholders addressed their
comments toward what is called the ``objective test'' contained in the
regulations at Sec. 825.114(a)(2), which defines ``continuing
treatment'' as:
(i) A period of incapacity * * * of more than three consecutive
calendar days * * * that also involves:
(A) Treatment two or more times by a health care provider * * *
or
(B) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the
supervision of the health care provider.
29 CFR 825.114(a)(2)(i)(A)-(B). Many of the comments--including several
from health care providers--reported that the current regulatory
definition is ``vague and confusing.'' The American College of
Occupational and Environmental Medicine stated, ``The term `serious
health condition' is unnecessarily vague. Employees, employers and
medical providers would be well served if the FMLA were to more clearly
define the criteria for considering a health condition serious.'' The
American Academy of Family Physicians agreed: ``The definition of a
serious health condition within the Act creates confusion not only for
the administrators of the program and employers but also for
physicians. Requiring a physician to certify that a gastrointestinal
virus or upper respiratory infection is a serious health condition in
an otherwise healthy individual is incongruous with medical training
and experience. * * * . [Moreover, t]he categories of `Serious Health
Conditions' are overly complicated and * * * contradictory.''
Many in the employer community focused their comments on the
perceived lack of ``seriousness'' inherent in certain conditions the
definition covers. The Coolidge Wall Company stated: ``The DOL needs to
limit the definition of serious health condition to what it was
originally intended by Congress. For example, while a common cold or
flu were never intended to be serious health conditions, in case law
courts have essentially done away with all the exclusions from the
original definition by stating that `complications' (without defining
this) could cause virtually anything (a cold, an earache, a cut on
finger) to become a serious health condition.'' ORC Worldwide
concurred: ``Uniformly, employers have found the definition of `serious
health condition' and the criteria for determining whether or not an
employee has a `serious health condition' to be extremely broad and
very confusing.'' The City of Philadelphia wrote, ``What constitutes a
serious health condition? The definition is not clear.''
Stakeholders proposed a number of potential revisions to the
current definition of serious health condition. First, many commenters
focused on the list of ailments in Sec. 825.114(c), which states
``Ordinarily, unless complications arise, the common cold, the flu, ear
aches, upset stomach * * * etc., are examples of conditions that do not
meet the definition of a serious health condition.'' These commenters
recommended that, consistent with the legislative intent that these
conditions are not FMLA-covered conditions, this list be converted into
a per se rule whereby these conditions can never be covered under the
Act. That is, the flu--no matter how severe--could not be a serious
health condition. Second, some commenters recommended that the ``more
than three days'' period of incapacity in the objective test be
measured by work days as opposed to calendar days. Here, too, the
commenters cited to legislative history to support their position:
``[w]ith respect to an employee, the term `serious health condition' is
intended to cover conditions or illnesses that affect an employee's
health to the extent that he or she must be absent from work on a
recurring basis or for more than a few days for treatment or
recovery.'' H.R. Rep. No. 103-8, at 40 (1993); S. Rep. No. 103-3, at 28
(1993) (emphasis added). Third, a number of stakeholders commented that
the two health care provider visits in Sec. 825.114(a)(2)(i)(B) must
occur during the ``more than three days'' period of incapacity.
Finally, a number of comments recommended that the required period of
incapacity be extended from ``more than three days'' to five or seven
or ten days or more.
At the same time, the Department also received many comments from
employees and employee groups who felt that the current objective test
is a good, clear test that is serving its intended purpose. For
example, the National Partnership for Women & Families stated, ``[T]he
current regulations are crafted appropriately to provide guidance on
what constitutes a serious health condition without imposing overly
rigid criteria that could hinder the ability of workers to take leave
when necessary.'' Families USA concurred: ``To protect employers from
employee abuse of this provision, the regulations establish an
objective criteria to be used to determine whether conditions presented
qualify for leave. This criteria creates a standard that can be applied
in individual cases with sufficient flexibility to adjust for
differences in how individuals are affected by illness. It also
specifies that routine health matters cannot be considered serious
health conditions, unless complications arise.''
After a review of the statute, the legislative history, and the
significant feedback received from stakeholders in response to the RFI,
the Department has not identified an alternative approach to the
definition that would still cover all the types of conditions Congress
intended to cover under the FMLA, but without also including some
conditions that many believe the legislative history indicated should
not be covered. The Department is well aware, as evidenced
[[Page 7886]]
by the extensive comments on this issue to the RFI, that many of the
policy choices made in defining a serious health condition have not
been without consequence. For example, the Department could put a
higher degree of ``seriousness'' into the regulatory definition if we
chose to adopt any one of the suggestions offered by employers to
increase the required number of days of incapacity or to simply adopt a
work days rather than a calendar days standard. Doing so would also go
a long way to eliminate what many employers believe to be the
``weekend'' problem--that is, employers' inability to know or verify
that an employee, who works a regular Monday through Friday schedule,
is off on Saturday and Sunday, then calls in sick on Monday claiming an
FMLA absence, was in fact incapacitated during the two days he or she
was off work for the weekend, and meets the more than three consecutive
calendar days standard (see e.g., comment by Southwest Airlines Co.,
``Unscheduled intermittent leave, which is typically based on recurring
episodes of minor health conditions, gives employees many opportunities
to misuse FMLA leave--to take vacations or a long weekend when they
otherwise would be unable to do so * * *.''). However, Congress itself
did not provide a statutory ``bright line'' of demarcation for
``seriousness.'' The Act defines serious health condition as either
``an illness, injury, impairment, or physical or mental condition that
involves--(A) inpatient care in a hospital, hospice, or residential
medical care facility; or (B) continuing treatment by a health care
provider.'' 29 U.S.C. 2611(11). ``Continuing treatment'' is not further
defined by the Act and Congress declined to establish any bright-line
rules of what was covered and what was not. See discussion infra about
chronic conditions specifically.
A review of the Preamble accompanying the current regulations
reflects the struggle then, as now, to craft such an objective
definition of serious health condition that covers all the conditions
intended to be covered by the Act while still giving meaning to the
legislative history that minor ailments like colds and flus generally
not be covered. It also reflects the choice then, as now, between an
objective test versus a list of types of health conditions that would
qualify as serious. See 60 FR at 2191. There is no question, as
explained by the legislative history, that Congress expected minor
conditions (those that last less than a few days) to not be covered by
the FMLA because they would likely be covered by a company's sick leave
policy. See H.R. Rep. No. 103-8, at 40 (1993); S. Rep. No. 103-3, at 28
(1993). The difficulty is in adequately drawing the line between
conditions that usually resolve in a few days, and those that are
``serious.'' Medical conditions that are benign to some may be truly
incapacitating to others. For example, the Communication Workers of
America submitted a comment to the RFI noting an employee who had a
severe reaction to poison oak and was incapacitated for more than three
days even though most individuals would have only a mild reaction to
poison oak. As a result of all these factors, the Department has
retained essentially the current definition of ``serious health
condition,'' with some slight modifications as discussed below.
The Department has reorganized the structure of the definition so
both employees and employers can better understand what constitutes a
serious health condition. As noted above, serious health condition is
currently defined in six different ways, and only one of the
alternatives actually requires an absence of more than three
consecutive calendar days under the current regulations. The Department
believes that the new proposed structure will make the definition
clearer.
Section 825.113 (Serious Health Condition)
Current Sec. 825.113 addresses the definition of a parent, spouse,
son or daughter. In the proposed regulations, the Department has moved
this to Sec. 825.122 for purposes of organization. Proposed Sec.
825.113 is titled ``Serious health condition'' and provides the general
rules and accompanying definitions governing what constitutes a serious
health condition. Proposed Sec. 825.113(a) provides the basic
definition of what constitutes a serious health condition currently
found in Sec. 825.114(a). Proposed paragraph (b) contains a definition
of what constitutes ``incapacity'' and incorporates language from
current Sec. 825.114(a)(2)(i) and (ii) without change. Proposed
paragraph (c) contains the definition of ``treatment'' found in current
Sec. 825.114(b) without change.
Proposed paragraph (d) addresses the types of treatments and
conditions not ordinarily expected to be covered by the definition and
incorporates language from current Sec. 825.114(c). As discussed
above, this section has been the focus of considerable debate as to
when the list of conditions enumerated (colds, flus, etc.) are or are
not serious health conditions. The Department received many comments in
response to the RFI on this issue from both employer and employee
groups but has not been able to construct an alternative regulatory
definition better than the objective test of more than three days
incapacity plus treatment. The language of current Sec. 825.114(c)
listing common ailments and conditions--``Ordinarily, unless
complications arise, the common cold, the flu, ear aches, upset
stomach, * * * etc., are examples of conditions that do not meet the
definition of a serious health condition''--was intended to be merely
illustrative of the types of conditions that would not ordinarily
qualify as serious health conditions. This sentence was not intended to
create its own substantive definition of serious health condition that
categorically excluded the listed conditions. Section 825.114(c) did
not create a definition of covered conditions separate and apart from
the regulatory definitions of serious health condition in Sec.
825.114(a).
The Department's original opinion letter in 1995 stated that a
minor illness such as the common cold could not be a serious health
condition because colds were on the regulatory list of non-covered
ailments. ``The fact that an employee is incapacitated for more than
three days, has been treated by a health care provider on at least one
occasion which has resulted in a regimen of continuing treatment
prescribed by the health care provider does not convert minor illnesses
such as the common cold into serious health conditions in the ordinary
case (absent complications).'' Wage and Hour Opinion Letter FMLA-57
(Apr. 7, 1995). Unfortunately, this was an incorrect statement of the
law. As the Department explained in its subsequent 1996 opinion letter:
The FMLA regulations * * * provide examples, in section
825.114(c), of conditions that ordinarily, unless complications
arise, would not meet the regulatory definition of a serious health
condition and would not, therefore, qualify for FMLA leave: the
common cold, the flu, ear aches, upset stomach, minor ulcers,
headaches other than migraine, routine dental or orthodontia
problems, periodontal disease, etc. Ordinarily, these health
conditions would not meet the definition in 825.114(a)(2), as they
would not be expected to last for more than three consecutive
calendar days and require continuing treatment by a health care
provider as defined in the regulations. If, however, any of these
conditions met the regulatory criteria for a serious health
condition, e.g., an incapacity of more than three consecutive
calendar days that also involves qualifying treatment, then the
absence would be protected by the FMLA.
[[Page 7887]]
Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996) (emphasis in
original). This objective regulatory definition was upheld as a
reasonable implementation of the Act by two United States Courts of
Appeals even though the definition may sweep into its coverage some
conditions Congress did not necessarily anticipate would be covered.
See Miller v. AT&T Corp., 250 F.3d 820, 835 (4th Cir. 2001) (``It is
possible, of course, that the definition adopted by the Secretary will,
in some cases-- and perhaps even in this one--provide FMLA coverage to
illnesses that Congress never envisioned would be protected. We cannot
say, however, that the regulations adopted by the Secretary are so
manifestly contrary to congressional intent as to be considered
arbitrary.''); Thorson v. Gemini, Inc., 205 F.3d 370, 380 (8th Cir.
2000) (``Under the DOL's definition, it is possible that some absences
for minor illnesses that Congress did not intend to be classified as
`serious health conditions' may qualify for FMLA protection. But the
DOL reasonably decided that such would be a legitimate trade-off for
having a definition of `serious health condition' that sets out an
objective test that all employers can apply uniformly.'').
The Department considered whether the list of examples of non-
serious ailments such as colds and flus in current Sec. 825.114(c)
should be deleted as surplusage. Both the Fourth and Eighth Circuit
courts treated the list of examples of non-serious ailments in current
Sec. 825.114(c) as merely clarifying that common ailments such as
colds and flu normally will not qualify for FMLA leave because they
generally will not satisfy the regulatory criteria for a serious health
condition. The Department continues to believe that the Sec.
825.114(c) list serves a baseline purpose as explanatory language
similar to that which is included in a preamble. Therefore, the
sentence has been retained in the proposed regulations. Nevertheless,
the Department agrees with the Fourth and Eighth Circuit Courts of
Appeals and restates its view that the Department's objective
regulatory definition is dispositive.
Section 825.114 (Inpatient Care)
Proposed Sec. 825.114, titled, ``Inpatient care,'' defines what
constitutes inpatient care. As noted above, the Department proposes a
stand-alone definition of ``incapacity'' in Sec. 825.113(b) in
contrast to the current regulations. Therefore, the definitional
language of incapacity has been removed from the definition of
``inpatient'' care, but the requirement remains and a cross-reference
to Sec. 825.113(b) has been included.
Section 825.115 (Continuing Treatment)
Proposed Sec. 825.115, titled ``Continuing treatment,'' defines
continuing treatment for purposes of establishing a serious health
condition. The five different definitions are contained in Sec.
825.115(a)-(e). Proposed Sec. 825.115(a) (``Incapacity and
treatment'') incorporates language from current Sec.
825.114(a)(2)(i)(A) and (B), which establishes that an employee can
meet this definition if, in connection with a period of incapacity of
more than three consecutive calendar days, the employee or family
member has one visit to a health care provider and a regimen of
continuing treatment, such as a prescription, or two visits to a health
care provider.
As discussed further below concerning proposed Sec. 825.125, the
Department proposes a conforming change in the definition of
``continuing treatment'' to generally recognize physician assistants as
health care providers, which eliminates the need to refer to them
separately in this section as performing ``under direct supervision of
a health care provider'' (see current Sec. Sec. 825.114(a)(2)(i)(A)
and (iii)(A)). Otherwise, the current definition has been retained with
one further proposed clarification. The Department proposes to specify
that the two visits to a health care provider must occur within 30 days
of the beginning of the period of incapacity unless extenuating
circumstances exist, instead of the completely open-ended time frame
under the current regulations. Accordingly, if an ill employee visits
his/her health care provider, is told not to report to work for more
than 3 days due to the health condition but is not prescribed any
medication, whether the condition is considered a serious health
condition for FMLA purposes will depend on whether the health care
provider determines that additional treatment is needed within 30 days
of the beginning of the initial period of incapacity (for example,
whether the provider determines that an additional follow-up
appointment should be scheduled in two weeks or two months). The
beginning of the period of incapacity will usually correspond with the
date of the employee's first absence, however, as under the current
regulations, the more than three calendar day period of incapacity may
commence on a day on which the employee is not scheduled to work. See
60 FR 2195.
The Department proposes this clarification because it believes, as
a practical matter, that leaving the treatment requirement open-ended
does not provide sufficient guidance for determining when the employee
has a qualifying serious health condition. For example, under the
current definition, an employer could decide that an employee does not
qualify for FMLA coverage a week after an employee has been to see a
health care provider on one occasion and has had more than three days
of incapacity but no follow-up visit during that week-long time period.
If the employee had a follow-up visit three months later, however, the
test would be met but the employer may not be aware of that fact. The
Department does not believe the regulations should leave such
determinations open-ended and unresolved indefinitely. Rather, the
period of incapacity and the timing of the health care provider's
treatment regimen should be connected in a temporal sense to meet the
definitional requirement and not left undefined as under the current
rule.
The Department received many comments to the record on this issue,
including a number suggesting that the Department adopt into regulation
the interpretation offered by the United States Court of Appeals for
the Tenth Circuit that the two treatments actually occur during the
period of more than three days' incapacity in order to qualify as a
serious health condition. See Jones v. Denver Pub. Sch., 427 F.3d 1315,
1323 (10th Cir. 2005) (``[U]nder the regulations defining `continuing
treatment by a health care provider,' the `[t]reatment two or more
times' described in 825.114(a)(2)(i)(A) must take place during the
`period of incapacity' required by 825.114(a)(2)(i).''). However, the
Department believes the proposed 30-day limitation is more appropriate
in that it guards against employers making quick judgments that deny
FMLA leave when employees otherwise should qualify for FMLA
protections. The Department is also aware that occasionally an employee
may need a second visit to a health care provider or further diagnostic
testing within a 30-day period but may experience difficulty scheduling
the second appointment in time. The regulations therefore acknowledge
an ``extenuating circumstances'' exception to the 30-day rule in
proposed Sec. 825.115(a)(1).
The Department is not proposing to extend the 30-day rule to
treatment by a health care provider on at least one occasion, which
results in a regimen of continuing treatment under the supervision of
the health care provider. The Department's enforcement
[[Page 7888]]
experience suggests that the doctor visit which results in a regimen of
continuing treatment generally occurs close in time to the more than
three days of incapacity. Accordingly, the 30-day limitation is not
needed and could, in fact, extend the time period for receiving the
regimen of treatment well beyond what is current practice. The
Department, however, seeks comments on this approach, and whether this
regulatory provision should be changed.
Proposed Sec. 825.115(b), titled ``Pregnancy or prenatal care,''
incorporates language from current Sec. 825.114(a)(2)(ii) without
change except for a reference to the new consolidated section found in
proposed Sec. 825.120 addressing leave for pregnancy and childbirth
discussed in detail below. The Department wishes to emphasize, however,
that the phrase ``incapacity due to pregnancy, or for prenatal care''
includes time spent with a health care provider for prenatal care
purposes. By definition, while an employee is visiting a health care
provider for prenatal care purposes (i.e., a doctor's appointment), the
employee is unable to work and therefore incapacitated. In contrast,
however, an employee is not entitled to FMLA leave to visit the store
to purchase infant clothes because the employee is not incapacitated in
such circumstances. In a case where a male employee is needed to care
for (as defined by proposed Sec. 825.124) a pregnant spouse who is
incapacitated or requires prenatal care, the male employee will be
entitled to FMLA leave. For example, a male employee's pregnant spouse
may have severe morning sickness and need his assistance. Similarly, a
male employee may be entitled to FMLA leave to accompany his pregnant
spouse to a doctor's appointment for prenatal care. In this case,
physical care may not be needed, but psychological care may be
involved.
Proposed Sec. 825.115(c), titled ``Chronic conditions,''
incorporates language from current Sec. 825.114(a)(2)(iii) with one
modification. The Department received extensive comments about the
definition of ``chronic'' serious health conditions in response to the
RFI. As a result, the Department provided extensive discussion and
explanation in its Report on the RFI to the evolution of the
``chronic'' serious health condition definition. See Chapter IV of the
RFI Report, 72 FR at 35571.
As the Department explained in the Report on the RFI comments,
``[t]here is no definition or specific mention of a `chronic' serious
health condition in the Act. The House and Senate Committee Reports do,
however, refer to conditions where `the underlying health condition or
treatment for it requires that the employee be absent from work on a
recurring basis * * * [A] patient with severe arthritis may require
periodic treatment such as physical therapy.' '' 72 FR at 35572
(internal citations omitted). Many employer commenters were highly
critical of the choice made by the Department in the 1995 final rule to
allow employees to ``self-treat'' for ``any'' period of incapacity due
to chronic conditions. See current Sec. 825.114(e): ``Absences
attributable to incapacity under paragraphs (a)(2)(ii) or (iii)
[chronic conditions] qualify for FMLA leave even though the employee or
the family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three days.'' Indeed, many employer commenters believe that
coverage for absences due to chronic conditions which are accompanied
only by self-treatment impermissibly undercuts the statutory
requirement that intermittent leave may be taken only when medically
necessary (29 U.S.C. 2612(b)(1)) as there is no way to verify the
medical necessity of an absence for self-treatment. (See, e.g.,
discussion of Workplace Consequences of Unscheduled Intermittent Leave
in the Report on the RFI comments, 72 FR at 35575.) Employee
representatives commenting on the RFI, however, stressed that self-
treatment is appropriate for many chronic conditions and that coverage
for such absences is crucial to ensuring that employees with chronic
serious health conditions are able to maintain their employment. Id. at
35575; 35580.
While many employers urged the Department to alter the definition
so that only chronic conditions that they perceive to be ``serious''
will be covered, and to eliminate the self-treatment provision, the
Department declines to do so. As explained in the preamble when the
current rule was adopted in 1995,
The Department concurs with the comments that suggested that
special recognition should be given to chronic conditions. The
Department recognizes that certain conditions, such as asthma and
diabetes, continue over an extended period of time (i.e., from
several months to several years), often without affecting day-to-day
ability to work or perform other activities but may cause episodic
periods of incapacity of less than three days. Although persons with
such underlying conditions generally visit a health care provider
periodically, when subject to a flare-up or other incapacitating
episode, staying home and self-treatment are often more effective
than visiting the health care provider (e.g., the asthma sufferer
who is advised to stay home and inside due to the pollen count being
too high). The definition has, therefore, been revised to include
such conditions as serious health conditions, even if the individual
episodes of incapacity are not of more than three days duration.
60 FR at 2195.
Although the Department acknowledges employers' concerns regarding
the inability to verify the medical necessity for an absence involving
self-treatment, to eliminate coverage for such absences at this time
would, like changing the calendar days standard to a work days
standard, effectively render many currently-covered employees who have
received the protections of the law ineligible. As the Department
acknowledged in the Report on the RFI, it has no way to distinguish
between those employees with chronic conditions who may be, in their
employers' views, taking advantage of the self-treatment standard and
those who are not and for whom the standard has worked very well.
The Department does propose one modification to the definition of a
chronic serious health condition. Current Sec. 825.114(a)(2)(iii)
provides that a chronic serious health condition ``[r]equires periodic
visits for treatment'' (Sec. 825.114(a)(2)(iii)(A)). The current
regulations do not define the term ``periodic.'' The Department
understands that some employers have chosen to provide their own
definition of the term ``periodic'' for FMLA purposes to the detriment
of employees. For example, one employer defined the term to require a
visit to a health care provider at least once a month in order to
satisfy this prong of the continuing treatment definition. The
Department believes that not all serious health conditions Congress
intended to cover require such frequent visits. For example, an
employee may have epilepsy, which renders the employee unable to work
periodically but does not require monthly doctor visits since the
employee knows how to self-medicate. At the same time, because
``periodic'' is left open-ended in the current regulations, employers
have struggled with the ``periodic'' requirement. The Department
believes such a lack of definition leaves employers and employees in an
untenable situation. (See Executive Summary and Chapters IV and VI of
the Department's 2007 Report on the RFI comments, 72 FR at 35550,
35571, 35588.) The Department proposes to define the term ``periodic''
as twice or more a year, based on an expectation that employees with
chronic serious health conditions generally will visit their health
care providers with that minimum
[[Page 7889]]
frequency, but they may not visit them more frequently, especially if
their conditions are stable. The Department believes this is reasonable
but seeks public comments on whether the proposed definition of the
term ``periodic'' is appropriate.
Proposed Sec. 825.115(d), titled ``Permanent or long-term
conditions,'' incorporates language from current Sec.
825.114(a)(2)(iv) without change. Proposed Sec. 825.115(e), titled
``Conditions requiring multiple treatments,'' incorporates language
from current Sec. 825.114(a)(2)(v), which provides coverage for any
period of absence to receive multiple treatments by a health care
provider for restorative surgery after an accident or other injury, or
for a condition that would likely result in a period of incapacity of
more than three consecutive calendar days in the absence of medical
intervention or treatment for conditions such as cancer, severe
arthritis, and kidney disease. Multiple treatments are required to
satisfy this prong of the continuing treatment definition.
Sections 825.116 Through 825.118 (Reserved)
Provisions in current Sec. 825.116 defining the phrase ``needed to
care for'' a family member are moved to proposed Sec. 825.124,
discussed below. Provisions in current Sec. 825.117 addressing the
``medical necessity'' for taking and scheduling intermittent or reduced
schedule leave are moved to proposed Sec. Sec. 825.202 and .203,
discussed below. Current Sec. 825.118 defining ``health care
provider'' is renumbered as Sec. 825.125 of the proposed rule. Section
numbers .116-.118 of the current rule are, therefore, reserved to
reflect these organizational changes, as discussed further below.
Section 825.119 (Leave for Treatment of Substance Abuse)
The Department proposes to create a single, consolidated section to
address substance abuse, which is currently addressed in two different
sections of the regulations, specifically Sec. Sec. 825.112(g) and
.114(d). Current Sec. 825.112(g) provides that while FMLA leave is
available for substance abuse treatment, treatment does not prevent an
employer from taking employment action against an employee for
violating the employer's substance abuse policy, such as being
intoxicated at work. The section further explains when such action is
appropriate. Current Sec. 825.114(d) states that substance abuse
treatment may be covered as a serious health condition in certain
circumstances.
Section 825.120 (Leave for Pregnancy or Birth)
The Department proposes to create a single section that addresses
FMLA rights and responsibilities related to pregnancy and birth of a
child. The current regulations contain regulatory guidance pertaining
to pregnancy and birth throughout a number of regulatory sections. This
new proposed section collects the existing guidance from the various
regulatory sections into one comprehensive section.
Section 825.120(a)(1) of the proposed rule, titled ``[g]eneral
rules,'' restates language from current Sec. 825.112(b) that both the
mother and father are entitled to FMLA leave for the birth of their
child. Proposed paragraph (a)(2) of this section restates language from
current Sec. 825.201 explaining that leave following the birth of a
healthy child (``bonding time'') must be completed within a year from
the birth unless State law provides for a longer period of time or with
an employer's agreement. Based on the statutory requirements (see 29
U.S.C. 2612(a)(2)), if leave is extended beyond a year from the birth
per State law or employment agreement, the additional leave would not
receive the FMLA protections. Proposed paragraph (a)(3) of this section
incorporates language from current Sec. 825.202(a), that husbands and
wives who work for the same employer may be limited to a combined 12
weeks of FMLA leave for the birth or placement for adoption or foster
care of a healthy child, or to care for an employee's parent with a
serious health condition. (See 29 U.S.C. 2612(f).) This limitation does
not apply if only one spouse is eligible for FMLA leave. For example,
if a wife commenced employment with the employer only 6 months earlier
and therefore does not meet the 12-month/1,250-hour eligibility
requirement, but the husband has worked for the employer for five years
and otherwise meets the eligibility requirements, the husband could
take twelve weeks of leave to be with the newborn child. However, if
the husband and wife have both worked for the same employer for five
years and the husband already has used six weeks of his entitlement to
care for his parent, the wife may be limited to six weeks to be with
the newborn child (the wife would also be entitled to leave for her own
serious health condition related to the birth).
Proposed Sec. 825.120(a)(4) combines language from current
Sec. Sec. 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 Sec. 825.120(a)(6) has been added to reemphasize that
both spouses may each take their full 12 weeks of leave to care for a
child with a serious health condition, regardless of whether the
spouses work for the same employer.
Proposed Sec. 825.120(b), titled ``[i]ntermittent and reduced
schedule leave,'' combines language from current Sec. Sec. 825.203(b)
and 825.204(a) on the use of intermittent or reduced schedule leave for
pregnancy and birth of a child. See 29 U.S.C. 2612(b)(1). Current Sec.
825.203(b) provides that leave taken after the birth of a healthy
newborn child may only be taken on an intermittent or reduced leave
schedule if the employer agrees. Current Sec. 825.204(a) explains that
in these cases, an employer may temporarily transfer an employee to an
available alternative position that better accommodates the need for
intermittent or reduced schedule leave if the employer does in fact
agree to such a leave schedule. See 29 U.S.C. 2612(b)(2). The hours not
worked due to a reduced leave schedule in this situation are considered
intermittent FMLA leave and are counted toward the employee's FMLA
leave entitlement (see proposed Sec. 825.205). Proposed Sec.
825.120(b) emphasizes that if intermittent or reduced schedule leave is
medically necessary for a serious health condition of the mother or the
newborn child, no employer agreement is necessary.
Section 825.121 (Leave for Adoption or Foster Care)
For the same reasons discussed above, the Department also proposes
a single section that discusses FMLA rights and obligations with regard
to adoption and foster care. The current regulations contain guidance
pertaining to adoption and foster care throughout a number of sections.
This new proposed section collects the existing guidance from the
various regulatory sections into one comprehensive section on adoption
and foster care.
Proposed Sec. 825.121(a) is titled ``[g]eneral rules'' and
provides that leave for adoption or foster care may begin prior to the
actual birth or adoption. Examples incorporated from current Sec.
825.112(d) include leave to attend counseling sessions, appear in
court, consult with an attorney or doctor, or submit to a physical
examination. The proposed section also cross-references proposed
paragraph (b) of this section, which explains the statutory limitation
that leave following the placement for
[[Page 7890]]
adoption and foster care of a healthy child can only be taken on an
intermittent or reduced schedule basis if the employer agrees. See 29
U.S.C. 2612(b)(1).
Proposed Sec. 825.121(a)(2) contains language from current Sec.
825.201 explaining that leave for adoption or foster care must be
completed within a year from the placement unless State law provides
for a longer period of time or with an employer's agreement. Such leave
taken under State law or with an employer's agreement beyond the one
year period is not protected as FMLA leave. Section 825.121(a)(3) also
incorporates language from current Sec. 825.202(a), that husbands and
wives working for the same employer are limited to a combined 12 weeks
of leave for purposes of bonding with the healthy adopted or foster
child, to care for the healthy child following the birth of the child,
and to care for an employee's parent with a serious health condition.
As discussed above under proposed Sec. 825.120, this limitation does
not apply if only one spouse is eligible for FMLA leave. See 29 U.S.C.
2612(f).
Proposed Sec. 825.121(a)(4) has been added to emphasize that both
spouses may each take their full twelve weeks of FMLA leave to care for
an adopted or foster child with a serious health condition, regardless
of whether the spouses work for the same employer.
Proposed Sec. 825.121(b), titled ``[u]se of intermittent and
reduced schedule leave,'' combines language from current Sec. Sec.
825.203(b) and 825.204(a) on the use of intermittent or reduced
schedule leave for adoption and foster care. Current Sec. 825.203(b)
provides that leave taken after the placement of a healthy child for
adoption or foster care may only be taken on an intermittent or reduced
leave basis if the employer agrees. See 29 U.S.C. 2612(b)(1). Current
Sec. 825.204(a) explains that in such cases, an employer may
temporarily transfer an employee to an available alternative position
that better accommodates the need for intermittent or reduced schedule
leave. See 29 U.S.C. 2612(b)(2). The hours not worked due to a reduced
leave schedule in this situation are considered intermittent FMLA leave
and are counted toward the employee's FMLA leave entitlement (see
proposed Sec. 825.205). Proposed Sec. 825.121(b) provides that if
intermittent or reduced schedule leave is needed for a serious health
condition of the adopted or foster child, no employer agreement is
necessary.
Section 825.122 (Definition of Spouse, Parent, Son or Daughter,
Adoption and Foster Care)
Current Sec. 825.113 provides definitions of spouse, parent, and
son or daughter for purposes of determining whether an employee
qualifies for FMLA leave. These definitions are repeated in current and
proposed Sec. 825.800. The Department proposes to move the existing
section to proposed Sec. 825.122 for purposes of organization.
Proposed Sec. 825.122(a) and (b) defining spouse and parent are
unchanged except for minor editorial changes in paragraph (b) to the
definition of ``parent.''
Proposed Sec. 825.122(c) that addresses, and is now titled,
``[s]on or daughter,'' has been rewritten for clarity. The one
substantive addition the Department proposes is to specify that the
determination of whether an adult child has a disability should be made
at the time leave is to commence. In Bryant v. Delbar, 18 F.Supp.2d 799
(M.D. Tenn. 1998), the court conducted an analysis of whether an adult
child had a disability for purposes of FMLA coverage based on facts and
circumstances that occurred well after the leave commenced. In the
Department's view, employers should decide FMLA eligibility based on
information at the time the leave begins. A rule that takes into
account information acquired after-the-fact causes confusion about
coverage for both employees and employers. The Department aims to
eliminate such confusion by adding the proposed language.
Proposed Sec. 825.122(c)(1), (2) and (3) remain unchanged from
current Sec. 825.113(c)(1), (2) and (3).
A new Sec. 825.122(d) has been added that defines ``adoption.''
The current regulations do not define the term, and the Department
believes that providing such guidance will benefit both employees and
employers. Language from current Sec. 825.112(d) has been retained to
clarify that the adoption source is not relevant to FMLA leave
eligibility.
Proposed Sec. 825.122(e), titled ``[f]oster care,'' incorporates
the definition of foster care from the current Sec. 825.112(e) without
change.
Proposed Sec. 825.122(f) addresses the documentation of
relationships and incorporates the current language from Sec.
825.113(d) with two clarifications. First, the current regulation
states that in addition to a child's birth certificate or a court
document, a simple statement from an employee is sufficient to
establish a family relationship. The Department adds language in
proposed paragraph (f) to clarify that the example of a statement by
the employee as documentation should be a sworn, notarized statement.
This provides consistency with the other examples used in the current
regulations. Second, the Department proposes to add the example of a
submitted and signed tax return as evidence of a qualified family
relationship because in the case of an in loco parentis relationship,
it may be difficult to determine what kind of proof may be reasonable
to establish such a relationship.
Section 825.123 (Unable to Perform the Functions of the Position)
The Department proposes to renumber current Sec. 825.115 as Sec.
825.123 in the proposed regulation due to other organizational changes
made. Proposed paragraph (a), titled ``[d]efinition,'' defines the
statutory requirement that an individual be unable to perform the
functions of a job in order to qualify for FMLA leave. The current
regulatory definition states that the employee must be ``unable to work
at all'' or be unable to perform ``one or more of the essential
functions of the job.'' The Department proposes no substantive changes
to this definition.
The Department proposes no substantive changes to current paragraph
(b), now titled ``[s]tatement of functions,'' except to include
language from current Sec. 825.115 to clarify that the employer may
provide a statement of the employee's essential functions to the
employee's health care provider, and to clarify that the employer may
require that the health care provider's medical certification specify
what functions the employee cannot perform. This information is part of
the ``medical facts'' the statute states an employer may obtain as part
of the medical certification. See 29 U.S.C. 2613(b)(4)(B).
Section 825.124 (Needed to Care for a Family Member)
The current regulations define the phrase ``needed to care for'' a
family member in Sec. 825.116. The Department proposes to move this
section to proposed Sec. 825.124 and clarify that the employee need
not be the only individual or family member available to care for the
qualified family member. A number of comments received in response to
the RFI recommended that the Department impose some sort of limitation
on what it means for an employee to be ``needed to care for'' a family
member. A number of commenters, including the National Council of Chain
Restaurants suggested that ``care'' be limited to actual physical
[[Page 7891]]
care only. The National Council of Chain Restaurants also recommended
that the employee be required to provide a written certification ``that
explains why the employee cannot rely upon other family members to care
for'' the qualifying family member. Similarly, the law firm of Blank
Rome suggested that the regulations ``be modified to allow for leave
under these circumstances only when there is no other alternative care
giver or provider.'' The Pepsi Bottling Group recommended that
employers be ``able to deny or delay leave if an employee has a family
member at home who is available to provide necessary medical care.''
The United Parcel Service suggested ``add[ing] language requiring that
requests for intermittent leave to care for a family member be
supported by a representation that the employee is the only family
member available to provide such care.'' Finally, Manufacturers
Alliance recommended the Department clarify that the term ``needed to
care'' for a family member means ``that it [is] necessary for the
employee to actually be providing care during * * * work time.''
After review of these comments, the Department has declined to
adopt any of these proposals. The statute provides leave ``[i]n order
to care for the spouse, or a son, daughter, or parent, of the employee,
if such spouse, son, daughter, or parent has a serious health
condition.'' 29 U.S.C. 2612(a)(1)(C). There is no additional limitation
that the employee be the only available care giver in order to take
FMLA leave. Indeed, it will often be the case that there are multiple
potential care givers--none of whom is the only care giver without
alternative--but all of whom would need to take FMLA leave in order to
provide care. Moreover the legislative history to the Act indicates
that the ``phrase `to care for' * * * be read broadly to include both
physical and psychological care.'' H.R. Rep. No. 103-8, at 36 (1993);
S. Rep. No. 103-3, at 24 (1993). The Department intends to retain the
psychological care language and to make clear that employers cannot
impose an additional requirement upon employees for FMLA leave purposes
that the employee needs to be the only individual, or even family
member, available to provide care to the qualified family member with a
serious health condition.
Section 825.125 (Definition of Health Care Provider)
Current Sec. 825.118 is renumbered as Sec. 825.125 in the
proposed rule to reflect organizational changes. In its comments to the
RFI, the American Academy of Physician Assistants noted that physician
assistants (PAs) are usually recognized as authorized health care
providers for FMLA purposes under the existing provision that
recognizes ``[a]ny health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits'' (current Sec. 825.118(b)(4)).
Other language in Sec. 825.118(c) of the current rule has created
confusion over the status of PAs, however, where the phrase
``authorized to practice in the State'' is defined to mean that ``the
provider must be authorized to diagnose and treat physical or mental
health conditions without supervision by a doctor or other health care
provider.'' The Department proposes to clarify the status of PAs as
health care providers under proposed Sec. 825.125(b)(2) (formerly
Sec. 825.118(b)(2) in the current rule) by adding ``physician
assistants'' to the list of recognized health care providers and by
deleting the requirement that PAs operate ``without supervision by a
doctor or other health care provider.'' The Department has made
corresponding changes to proposed Sec. 825.115 (Continuing treatment)
and Sec. 825.800 (Definitions) to reflect this change that PAs would
now generally be considered health care providers.
Section 825.200 (Amount of Leave)
This section explains the basic leave entitlement provided under
the Act, as well as how to determine the 12-month period during which
the FMLA leave entitlement may be used. The Department asked in its
December 2006 RFI whether ``scheduled holidays [should] count against
an employee's 12 weeks of FMLA leave when the employee is out for a
full week as they do now?'' (71 FR at 69509) The Department heard from
all sides on this issue. The Unum Group stated, ``Changing this process
could add difficulty to the already complex method of calculating FMLA
leave entitlements.'' The Pennsylvania Turnpike Commission agreed: ``We
feel that scheduled holidays should continue to count against the 12
weeks of FMLA. That block of time is covered in the employee request--
it is incidental that they would not have had to work due to a holiday.
Because of differing holiday eligibility for different employee groups
(i.e. mgmt/union), it would greatly complicate the calculation of
eligible days if holidays were excluded. It would be more time
consuming for an FMLA administrator to calculate the amount of time/
days an employee [would] be off under FMLA if they had to make sure to
subtract any holidays that the employee is eligible for during the time
period they need to be off.'' The State of Ohio said it ``supports the
current regulations in this area, and believes that scheduled holidays
should continue to be counted against an employee's 12 weeks of FMLA
leave when the employee is out a full week. This provision would allow
employee's 12 weeks of FMLA leave to be treated consistently with
employees participating in other Ohio benefit programs.'' The National
Partnership for Women & Families disagreed: ``Under the current
regulations, such holidays are counted as part of an employee's FMLA
leave. We believe such a policy is inconsistent with how holidays are
typically treated in other leave contexts. If an employee is out on
FMLA leave and a scheduled holiday occurs, we believe the employee
should be able to use holiday leave just like other employees rather
than losing a day of FMLA leave. Thus, we would urge DOL to modify the
regulations accordingly.''
A number of commenters noted a serious problem that would occur if
holidays were not counted toward FMLA leave when an employee is out on
a weekly block of leave; that is, such a rule could result in the
employee obtaining greater than 12 weeks of FMLA leave per year. One
commenter stated: ``For some employees counting holidays or days not
worked during a full week of absence, may mean employees could be gone
beyond the 12 weeks/60 days if it is determined that non-work days or
holidays are not counted as part of the work week thus pro-longing an
FMLA beyond the 60 days/12 weeks[.]'' The United Parcel Service
concurred: ``DOL should maintain its current position that holidays
occurring during an employee's scheduled work-week count against the 12
weeks of leave. That position is supported by the plain language of the
FMLA, which provides for 12 weeks of unpaid leave, not 12 weeks of
leave plus all holidays falling therein.'' The Commonwealth of
Pennsylvania noted, ``Because the law references the absence period in
terms of weeks, rather than days, and considers calendar days rather
than work days, the practice of counting holidays seems to be within
the spirit of the Act and regulations.''
Upon review of the comments received to the record, the Department
believes it may lack the authority to change this regulation to not
count against the FMLA entitlement holidays that fall within weeks-long
blocks of FMLA leave. The statute grants
[[Page 7892]]
employees ``12 workweeks of leave'' which the Department has
interpreted to mean 12 weeks of the employee's normal work schedule.
See 60 FR at 2203. (``The statute uses the `workweek' as the basis for
the leave entitlement, and an employee's normal `workweek' prior to the
start of the FMLA leave is the controlling factor for determining how
much leave an employee uses when switching to a reduced leave
schedule.'') Holidays regularly occur during normal workweeks.
Discounting the holidays that regularly fall within those weekly blocks
of leave could well impermissibly extend an employee's leave period
beyond the statutory 12 normal workweeks of leave that the Act permits.
Moreover, the current rule is clear and apparently working well. See,
e.g., Mellen v. Trustees of Boston University, 504 F.3d 21, 25 (1st
Cir. 2007) (``[The Department's regulations governing] [w]hether
holidays are to be counted against intermittent leave taken in an
interval of a week or more * * * fit together naturally.'').
However, consistent with the discussion regarding Sec. 825.205
below, when an employee is taking leave in increments of less than one
week, the pertinent question for both overtime and holidays is whether
the employee is required to be at work. If an employee is not required
to be at work because of a holiday on the day he or she requested
leave, then no leave would be charged to the employee's FMLA
entitlement. Thus, the Department proposes language in Sec. 825.200(f)
to clarify that, if an employee needs less than a full week of FMLA
leave, and a holiday falls within the partial week of leave, the hours
that the employee does not work on the holiday cannot be counted
against the employee's FMLA leave entitlement if the employee would not
otherwise have been required to report for work on that day. If an
employee needs a full week of leave in a week with a holiday, however,
the hours the employee does not work on the holiday will count against
the employee's FMLA entitlement. Accordingly, for an employee with a
Monday through Friday work week schedule, in a week with a Friday
holiday on which the employee would not normally be required to report,
if the employee needs FMLA leave only for Wednesday through Friday, the
employee would use only 2/5 of a week of FMLA leave because the
employee is not required to report for work on the holiday. However, if
the same employee needed FMLA leave for Monday through Friday of that
week, the employee would use a full week of FMLA leave despite not
being required to report to work on the Friday holiday.
Section 825.201 (Leave To Care for a Parent)
Current Sec. 825.201 on leave for the birth or placement for
adoption or foster care of a child has been incorporated into proposed
Sec. Sec. 825.120 and 825.121 discussed above. The current Sec.