Family and Medical Leave Act Regulations: A Report on the Department of
Labor’s Request for Information; Proposed Rule
[06/28/2007]
Volume 72, Number 124, Page 35549-35638
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Part II
Department of Labor
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Employment Standards Administration
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Wage and Hour Division
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29 CFR Part 825
Family and Medical Leave Act Regulations: A Report on the Department of
Labor's Request for Information; Proposed Rule
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DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB35
Family and Medical Leave Act Regulations: A Report on the
Department of Labor's Request for Information
AGENCY: Employment Standards Administration, Wage and Hour Division,
Department of Labor.
ACTION: Report on comments from the public.
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SUMMARY: The Department of Labor's Employment Standards Administration/
Wage and Hour Division undertook a review of the Family and Medical
Leave Act (``FMLA'' or the ``Act'') and its regulations, and published
a Request for Information (``RFI'') in the Federal Register on December
1, 2006 (71 FR 69504). The RFI asked the public to assist the
Department by furnishing information about their experiences with the
Act and comments on the effectiveness of the FMLA regulations. More
than 15,000 comments were submitted in response to the RFI. The
following report summarizes comments the Department received from its
RFI.
ADDRESSES: A complete copy of this report is also available at http://www.dol.gov/esa/whd/fmla2007report.htm.
It may also be obtained by
writing 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, NW., Washington, DC 20210.
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).
SUPPLEMENTARY INFORMATION:
Foreword
No employment law matters more to America's caregiving workforce
than the Family and Medical Leave Act (FMLA) of 1993. Since its
enactment, millions of American workers and their families have
benefited from enhanced opportunities for job-protected leave upon the
birth or adoption of a child, to deal with their own serious illness,
and when needed to care for family members.
After nearly fourteen years administering the law, two Department
of Labor studies (1996, 2001) and several U.S. Supreme Court and lower
court rulings, the Employment Standards Administration's Wage and Hour
Division issued a Request for Information (RFI) on December 1, 2006.
The RFI asked the public to comment on their experiences with, and
observations of, the Department's administration of the law and the
effectiveness of the regulations. More than 15,000 comments were
received in the next few months from workers, family members,
employers, academics, and other interested parties. This input ranged
from personal accounts, legal reviews, industry and academic studies,
surveys, and recommendations for regulatory and statutory changes to
address particular areas of concern.
There is broad consensus that family and medical leave is good for
workers and their families, is in the public interest, and is good
workplace policy. There are differing views on whether every provision
of the law is being administered in accordance with the statute and
with congressional intent. It is also evident from the comments that
the FMLA has produced some unanticipated consequences in the workplace
for both employees and employers.
A report of this kind is a unique step. Normally, the organization
of comments received in response to a Departmental Request for
Information would first be seen accompanying proposed changes to the
rules. There are no proposals for regulatory changes being put forward
by the Department with this Report. Rather, what we hope this Report
does is provide information for a fuller discussion among all
interested parties and policymakers about how some of the key FMLA
regulatory provisions and their interpretations have played out in the
workplace.
Finally, our thanks to the thousands of employees, employers, and
other members of the public who participated in this information
gathering by sharing their views, their research, and, in some cases,
very personal comments. We greatly value those insights.
Victoria A. Lipnic,
Assistant Secretary of Labor, Employment Standards Administration.
June 2007.
Executive Summary
The Family and Medical Leave Act of 1993 (FMLA) opened a new era
for American workers, providing employees with better opportunities to
balance work and family needs. This landmark legislation provided
workers with basic 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 family member.
For women dealing with difficult pregnancies or deliveries, or
parents celebrating the arrival of a newborn or adopted child, the FMLA
provides the opportunity to participate fully in these significant life
events. For other workers--especially those who struggle with health
problems or who are primary caregivers to ill family members--the FMLA
has made it possible to deal with these serious challenges while
holding on to jobs, health insurance, and some measure of economic
security.
Background: What the Law Covers
The Family and Medical Leave Act of 1993, Public Law 103-3, 107
Stat. 6 (29 U.S.C. 2601 et seq.) (the ``FMLA'' or the ``Act'') was
enacted on February 5, 1993 and became effective on August 5, 1993 for
most covered employers. The FMLA entitles eligible employees of covered
employers to take up to a total of twelve weeks of unpaid leave during
a twelve month period for the birth of a child; for the placement of a
child for adoption or foster care; to care for a newborn or newly-
placed child; to care for a spouse, parent, son or daughter with a
serious health condition; or when the employee is unable to work due to
the employee's own serious health condition. See 29 U.S.C. 2612. The
twelve weeks of leave may be taken in a block, or, under certain
circumstances, intermittently or on a reduced leave schedule. Id. When
taken intermittently, the Department's regulations provide that leave
may be taken in the shortest increment of time the employer's payroll
system uses to account for absences or use of leave, provided it is one
hour or less. 29 CFR 825.203(d).
Employers covered by the law must maintain for the employee any
preexisting group health coverage during the leave period 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
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
[[Page 35551]]
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.
Who the Law Covers
The law generally covers employers with 50 or more employees, and
employees must have worked for the employer for 12 months and have
1,250 hours of service during the previous year to be eligible for
leave. Based on 2005 data, the latest year for which data was available
the time the Request for Information was published, the Department
estimates that:
There were an estimated 94.4 million workers in
establishments covered by the FMLA regulations,
There were about 76.1 million workers in covered
establishments who met the FMLA's requirements for eligibility,\1\ and
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\1\ Recent data submitted to the Department on the size and
scope of the FMLA's reach support these estimates. See Chapter XI of
this Report.
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Between 8.0 percent and 17.1 percent of covered and
eligible workers (or between 6.1 million and 13.0 million workers) took
FMLA leave in 2005.\2\
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\2\ Recent data submitted to the Department support this
estimate as well. See Chapter XI of this Report.
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Nearly one-quarter of all employees who took FMLA leave
took at least some of it intermittently.
Recent information submitted to the Department also suggests that
FMLA awareness was higher in 2005 than in prior years. This information
supports the Department's estimate of increased FMLA usage since prior
studies of FMLA.
Request for Information and Prior FMLA Reports
After nearly fourteen years of experience implementing and
administering the new law, the Department's Employment Standards
Administration/Wage and Hour Division undertook a review of the FMLA
regulations, culminating in the publication of a Request for
Information (``RFI'') on December 1, 2006.\3\ The RFI asked the public
to assist the Department by furnishing information about their
experiences with FMLA and comments on the effectiveness of the current
FMLA regulations. The RFI generated a very heavy public response: More
than 15,000 comments were submitted, many of which were brief emails
with very personal and, in some cases, very moving accounts from
employees who had used family or medical leave; others were highly-
detailed and substantive legal or economic analyses responding to the
specific questions in the RFI and raising other complex issues.\4\
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\3\ 71 FR 69504.
\4\ 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. The names of individual employees have been
redacted from the Report where any personal medical information was
shared.
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Twice before, the Department has published reports about the FMLA
and its use. The statute established a bipartisan Commission on Family
and Medical Leave to study family and medical leave 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.'' In 1999, the
Department contracted with Westat, Inc. 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.\5\
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\5\ See ``Balancing the Needs of Families and Employers, Family
and Medical Leave Surveys, 2000 Update,'' Westat Inc., January 2001.
See also the description of the 2000 Westat Report in Chapter XI of
this Report. See also 71 FR 69510.
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Never before has the Department looked in such granular detail at
the legal developments surrounding the FMLA and its implementing
regulations, as well as the practical consequences of such in the
workplace. 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,
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 their three annual
reports to Congress on the FMLA's costs and benefits.\6\
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\6\ The 2001 report may be found at: http://www.whitehouse.gov/omb/inforeg/costbenefitreport.pdf
, the 2002 report at:
http://www.whitehouse.gov/omb/inforeg/2002_report_to_congress.pdf, and
the 2004 report at: http://www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf
.
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Unlike the 2000 Westat Report, the Department's Report on the RFI
Comments is not an analysis or comparison of one set of survey data
with another some years later. The RFI was not meant to be a substitute
for survey research about the leave needs of the workforce and leave
policies offered by employers. The record presented here is different
than the previous two Departmental reports because the RFI was a very
different kind of information-gathering tool than the two previous
surveys. Given the differences in data-gathering approaches, the depth
with which the RFI looked at the regulations, and, of course, the self-
selection bias by those who took the time to submit comments to the
RFI, differences in the outcomes should be expected. Care must be taken
to avoid improper comparisons of information collected in the RFI with
data from the two surveys.
General Overview of the Report
Commenters consistently stated that the FMLA is generally working
well--at least with respect to leave related to the birth or adoption
of a child or for indisputably ``serious'' health conditions. Responses
to the RFI substantiate that many employees and employers are not
having noteworthy FMLA-related problems. However, employees often
expressed a desire for a greater leave entitlement, while employers
voiced concern about their ability to manage business operations and
attendance control issues, particularly when unscheduled, intermittent
leave is needed for chronic health conditions. Indeed, the overwhelming
majority of comments submitted in response to the RFI addressed three
primary topics: (1) Gratitude from employees who have used family and
medical leave and descriptions of how it allowed them to balance their
work and family care responsibilities, particularly when they had their
own serious health condition or were needed to care for a family
member; \7\ (2) a desire for expanded benefits--e.g., to provide more
time off, to provide paid benefits, and to cover additional family
members; \8\ and (3) frustration by employers about difficulties in
maintaining necessary staffing levels and controlling attendance
problems in their workplaces as a result of one particular issue--
unscheduled intermittent leave used by employees who have chronic
health conditions.
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\7\ Many of these employee comments stated that there were no
problems with FMLA and there should be no changes to the program.
\8\ Because comments on the need for expanded benefits concern
matters outside the scope of the Department's authority and the
purposes of the RFI, these comments are not covered in any
significant detail in this Report.
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Many employees offered powerful testimonials about the important
role the FMLA has played in allowing them to continue working while
addressing their own medical needs or family caregiving
responsibilities. Chapter I,
[[Page 35552]]
Employee Perspectives: Experiences in the Value of FMLA, is an
important representative example of how meaningful the ability to use
the Family and Medical Leave Act has been for employees. The Department
could have written an entire report based simply on those comments.
But, no regulatory scheme, particularly at the outset, is perfect.
In 1993, the FMLA was a brand-new employment standard and many of the
concepts, particularly those that took effect in the final regulations,
were borrowed from other areas of law or were completely new. Thus, it
should come as no surprise that RFI commenters continued to debate some
of the choices made by the Department as it sought to implement the
statute in a manner consistent with Congressional intent.
As is evident from both the RFI record and from many of the legal
challenges to regulatory provisions over the years, the debate
continues on whether the Department successfully implemented the
statutory requirements and Congressional intent, or struck the right
balance in all places. That debate is reflected in Chapters II-XI. In
many instances, commenters expressed the view that a certain regulation
was ``exactly what Congress intended,'' while others said of the same
regulation that ``it could not possibly be what Congress intended.''
Because of that, in order to provide context to the comments received,
in many chapters legal background is provided and/or the evolution of a
particular regulatory section is retraced through the rulemaking
process. Indeed, many commenters did the same thing. While this is in
some cases done in great detail, without that history it may be
impossible to understand not just what suggestions are being offered,
but why they are being offered. These historical summaries are not
intended to endorse the legitimacy of any particular comment or
suggestion.
As explained in the RFI, some of the issues brought to the
attention of the Department in various forums over the years are beyond
the statutory authority of the Department to address.\9\ Nonetheless,
many commenters provided suggestions for statutory changes to expand
the FMLA. Among others, and in no particular order, were comments on:
providing paid maternity leave, covering the care of additional family
members (e.g., siblings), changing the 75-mile eligibility test,
reducing the coverage threshold below 50 employees, and providing
coverage for part-time workers. Because these comments are beyond the
Department's authority to address, we do not detail them in the
chapters that follow.
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\9\ See 71 FR 69504.
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Finally, this Report is not a catalogue of every comment received
or every suggestion made about every part of the regulations. Nor is it
a catalogue of every organization or group that submitted comments. We
do believe that the comments selected for discussion are representative
and the chapters that follow accurately reflect the record according to
the most important subject matters presented--many of which, but not
all, follow and detail the subjects and questions asked in the RFI. The
chapters are designed to explain the questions asked in the RFI,
provide background on the law where needed, and detail the feedback
about the FMLA and the Department's implementation of it as raised in
comments from employees and employers.
Given the detailed presentations in many of the responses to the
RFI, and when the comments are read and studied in the aggregate,
certain observations about the record stand out. Those observations
follow in this Executive Summary or are found in Chapter XI: ``Data:
FMLA Coverage, Usage, and Economic Impact''. We believe the
observations included in this Report are evident from a plain reading
of the thousands of comments received from both employers and
employees.
The Department's Observations Regarding the Comments
The Department is pleased to observe that, in the vast majority of
cases, the FMLA is working as intended. For example, the FMLA has
succeeded in allowing working parents to take leave for the birth or
adoption of a child, and in allowing employees to care for family
members with serious health conditions. The FMLA also appears to work
well when employees require block or foreseeable intermittent leave
because of their own truly serious health condition. Absent the
protections of the FMLA, many of these workers might not otherwise be
permitted to be absent from their jobs when they need to be.
At the same time, a central defining theme in the comments involves
an area that may not have been fully anticipated: The prevalence with
which unscheduled intermittent FMLA leave would be taken in certain
workplaces or work settings by individuals who have chronic health
conditions. This is the single most serious area of friction between
employers and employees seeking to use FMLA leave. The Department is
cognizant that certain of its regulatory decisions and interpretations
may have contributed to this situation.
Certain types of industries and worksites and their workers appear
to be more impacted by unscheduled intermittent FMLA leave-taking than
others and there is considerable tension between employers and
employees over the use of this leave. The Department heard, in
particular, from employers, and from the representatives of employees
who work with them, whose business operations have a highly time-
sensitive component, e.g., delivery, transportation, transit,
telecommunications, health care, assembly-line manufacturing, and
public safety sectors.
While many employer comments used the words ``abuse'' and
``misuse'' to describe employee use of unscheduled intermittent leave,
the Department cannot assess from the record how much leave taking is
actual ``abuse'' and how much is legitimate. In some cases, the use of
unscheduled intermittent leave appears to be causing a backlash by
employers who are looking for every means possible (e.g., repeatedly
asking for more information in the medical certifications, especially
in cases of chronic conditions) to reduce absenteeism.
Another area that generated significant comments is the current
medical certification process. The Department recognizes that
communication about medical conditions is essential to the smooth
functioning of the FMLA in workplaces. However, none of the parties
involved with the medical certification process--employers, employees,
and health care providers--are happy with the current system. Employees
are concerned about the time and cost of visits to health care
providers to obtain medical certifications and the potential for
invasion of their privacy. Employers, especially when it comes to
intermittent leave use, seek predictability in attendance and are
frustrated with medical certifications that do not provide meaningful
guidance. Health care providers complain they cannot predict how many
times a flare-up of a particular condition will occur.
Despite much work by the Department, it also appears that many
employees still do not fully understand their rights under the law, or
the procedures they must follow when seeking FMLA leave. For example,
many employees are misinformed about the fact that paid leave can be
substituted for, and run concurrently with, an employee's FMLA leave.
Even
[[Page 35553]]
among employees who possess a general awareness of the law, many do not
know how the FMLA applies to their individual circumstances. In turn,
this failure in understanding may be contributing to some of the
problems identified with the medical certification process, and with
employers' ability to properly designate and administer FMLA leave. It
is clear the Department has more work to do to further educate
employees and employers regarding their rights and responsibilities
under the law.
Summary of Chapters I-XI
Employee Perspective: Experiences in the Value of the FMLA (Chapter I)
Chapter I provides a representative sampling of comments received
by the Department regarding the ``value'' FMLA provides to employees.
In general, employees commented they were very happy to have the
protections afforded by the FMLA. Many commented that the Act prevented
job loss, allowed them to spend time with sick or injured family
members, and, upon returning to work, encouraged a greater sense of
loyalty to their employer. Some pointed out that their employers went
above and beyond what is required by the law. Many employers also
submitted comments that outlined advantages to complying with the FMLA
and offering benefits beyond what the law requires.
The value of the FMLA was particularly noted by employees caring
for both children and parents with serious health conditions; this
observation was supported by employer comments, many of whom noted that
they increasingly receive FMLA leave requests from employees with elder
care responsibilities. Many employees commented that the FMLA would be
more useful if it provided paid leave, if more time off was available,
and if the program covered more types of family members, such as
siblings, grandparents, etc.
Ragsdale Decision/Penalties (Chapter II)
This chapter discusses the impact of the Supreme Court's decision
in Ragsdale v. Wolverine World Wide, Inc. on the FMLA implementing
regulations. Ragsdale invalidated the ``categorical penalty'' in
section 825.700(a) of the regulations, which provides that if an
employer does not designate an employee's leave as FMLA leave, it may
not count that leave against an employee's leave entitlement. Other
courts have struck down similar ``categorical penalty'' rules in
sections 825.110(d) (relating to deeming an employee eligible for
leave) and 825.208(c) (relating to designation of paid leave). Since
Ragsdale, many courts have applied equitable estoppel \10\ principles
when employers either fail to communicate required information or
communicate incorrect information.
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\10\ ``Equitable estoppel'' is a legal bar that prevents one
person from taking advantage of a second person where the second
party is injured by reasonably relying on the misrepresentations (or
silence when there is a duty to speak) of the first person.
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Employers commented that all categorical penalties should be
removed from the regulations and that employers should be permitted to
designate leave as FMLA leave retroactively. Some employers suggested
that any penalty should be tailored to the specific harm suffered by
the employee or suggested situations in which no penalty would be
appropriate. Employees supported the current notice and designation
requirements in the Department's regulations, with many noting that
they suffer hardships when they do not know promptly whether the
employer believes they are entitled to FMLA-protected leave. Some
employee commenters suggested that employers be required to provide
annual notices to employees regarding their FMLA eligibility status and
periodic reports regarding any FMLA leave used. Employers expressed
concerns that without some clarification they are unsure of their
liabilities for failure to follow the notification requirements. Both
groups expressed a need for the Department to clarify the impact of
Ragsdale on the notification requirements in the current regulations.
Serious Health Condition (Chapter III)
The Department received many comments on the regulatory definition
of serious health condition relating to a period of incapacity of more
than three consecutive calendar days and treatment two or more times by
a health care provider (sometimes called the ``objective test'')
contained at 29 CFR 825.114(a)(2)(i) and its interaction with 29 CFR
825.114(c) (which provides examples of conditions that ordinarily are
not covered). Chapter III summarizes these comments. Many of these
comments echoed (or had their origins in) earlier comments to the
record the Department received in 1993 when promulgating its current
regulations.
The Department received many comments from employees and employee
groups who believe that the objective test is a good, clear test that
is serving its intended purpose, consistent with the legislative
history, while a common theme from many employers was that the
regulatory definition of serious health condition is vague and/or
confusing. Moreover, comments from employer groups complained that
there is no real requirement that a health condition be ``serious'' in
the regulatory definition of serious health condition.
Many employee representatives felt section 825.114(c) imposes no
independent limitation on the definition of serious health condition
and therefore need not be changed. Other commenters took the very
opposite tack--that the objective test extinguished Congress' intent to
exclude minor illnesses and that the Department should breathe life
into subsection (c) by making it more of a per se rule, as it was
initially interpreted by Wage and Hour Opinion Letter FMLA-57 (Apr. 7,
1995).
Some employers offered to give meaning to subsection (c) by
changing the period of incapacity in the objective test from
``calendar'' days to ``business'' days. Still other commenters
suggested that the Department maintain the substantive language of both
regulatory sections but explicitly adopt a recent court interpretation
of the regulations that the ``treatment two or more times by a health
care provider'' in section 825.114(a)(2)(i)(A) must occur during the
period of ``more than three days'' incapacity. Some commenters
suggested reconciling the two regulatory provisions by simply
tightening the requirements for qualifying for a serious health
condition under the objective test (e.g., increasing the number of days
of incapacity required).
Unscheduled Intermittent Leave (Chapter IV)
Chapter IV of the Report discusses the use of unscheduled
intermittent leave under FMLA. Based on the comments received,
unscheduled intermittent FMLA leave is crucial to employees with
chronic serious health conditions resulting in sudden, unpredictable
flare-ups. Conversely, it is precisely the use of unscheduled (or
unforeseeable) intermittent leave for chronic conditions that presents
the most serious difficulties for many employers in terms of
scheduling, attendance, productivity, morale, and other concerns. With
respect to employer comments, no other FMLA issue even comes close.
The Act itself does not provide a definition of ``chronic'' serious
health conditions. During the 1993-1995 notice-and-comment rulemaking
phase, the Department filled in this gap, as the regulatory definition
of ``serious health condition'' evolved in response to public comments
urging that this
[[Page 35554]]
definition specifically cover chronic conditions.
Regarding intermittent leave, the Act provides for the taking of
leave in small blocks, or intermittently, but does not specify the
minimum increment. 29 U.S.C. 2612(b)(1). In its regulations, the
Department rejected any minimum limitations on intermittent leave,
citing the statute, and stating a concern that such limits would cause
employees to take leave in greater amounts than necessary, and thus
erode a worker's 12-week leave entitlement. 60 FR 2236. The Department
also predicted initially that incidents of unscheduled intermittent
leave would be unusual. 58 FR 31801.
The Act sets out a clear, 30-day notice requirement for leave that
is foreseeable, but for leave foreseeable less than 30 days in advance,
the Act has a less clear, ``as soon as practicable'' notice
requirement. 29 U.S.C. 2612(e)(2)(B). The Department, through its
interpretive actions, has defined ``as soon as practicable'' to mean
two working days after the need for leave becomes known.\11\
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\11\ See Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999).
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Fourteen years later, the comments indicate that unscheduled
intermittent FMLA leave for chronic conditions has become commonplace
and it is difficult for employers to determine or monitor employees'
incapacity when the chronic condition does not involve any active,
direct treatment or care by a health care provider (i.e., self-
treatment by employees with chronic conditions such as asthma,
diabetes, migraine headaches, and chronic back pain).
Employers expressed frustration about what they perceive to be
employees' ability to avoid promptly alerting their employers of their
need to take unscheduled leave in situations when it is clearly
practicable for them to do so. A common example cited by employers
involves ignoring mandatory shift call-in procedures even when the
employee is fully able to comply, and then later reporting the absence
as FMLA-qualifying after-the-fact. Thus, some employers allege,
employees may use FMLA: (1) As a pretext for tardiness or to leave work
early for reasons unrelated to a serious health condition, (2) to
obtain a preferred shift instead of the one assigned by the employer,
or (3) to convert a full-time position to a permanent part-time one.
These employers believe the Department's regulatory interpretations
have exacerbated this situation.
Other commenters said that when an employer is unable to verify
that an employee's unscheduled absence is in fact caused by a chronic
serious health condition, and the employer cannot seek additional
medical verification of the need for the absence, the employer cannot
distinguish between employees who legitimately need FMLA leave and
employees who misuse the protections of FMLA to excuse an otherwise
unexcused absence from work.
Notice: Employee Rights and Responsibilities (Chapter V)
Chapter V of the Report summarizes comments received regarding the
FMLA rights and responsibilities of employees. The comments to the RFI
indicate that many employees are not knowledgeable about their rights
and responsibilities under the FMLA. Even among employees who possess a
general awareness of the law, many do not know how the FMLA applies to
their individual circumstances. This reported lack of employee
awareness may contribute to frustrations voiced by the employer
community concerning employee notice of the need for FMLA leave.
Employers and their representatives commented on employees not
providing notice of the need for leave in a timely fashion and
receiving notice without sufficient information to make a determination
as to whether or not the leave is FMLA-qualifying.
The Medical Certification and Verification Process (Chapter VI)
The Department received significant comments regarding the FMLA
medical certification process. These comments are discussed in Chapter
VI. Generally speaking, all parties involved in the certification
process--employees, employers and health care providers--believed the
current process needs to be improved.
Many employers commented that they are frustrated with
certifications that do not provide meaningful guidance regarding the
employee's expected use of intermittent leave. They also noted that the
current regulatory framework provides them with limited options for
verifying that employees are using FMLA leave for legitimate reasons.
Employers also stated they want to be able to talk directly with the
employee's health care provider (without using a health care provider
of their own) and feel that greater communication would allow decisions
regarding FMLA coverage to be made more quickly.
Employees commented that employers are not using the existing FMLA
procedures appropriately to challenge medical certifications and are
instead simply refusing to accept certifications without seeking
clarification or a second opinion. Some employees also claimed that
their use of unscheduled intermittent leave for chronic conditions
seems to be causing a backlash among some employers who refuse FMLA
coverage for any absences that exceed what is on the medical
certification. Employees also expressed concern that increased
communication between the employer and their health care providers
could lead to an erosion of their right to medical confidentiality.
Finally, although the certification requirement calls for an
estimate of the expected use of intermittent leave, health care
providers commented that often there is no way they can furnish a
reliable estimate of the frequency or severity of the flare ups and
thus are unable to provide all the information required in the
certification. Based on the comments received, employers, employees and
health care providers almost universally believe the Department's model
certification form WH-380 could be improved.
Interplay Between the FMLA and the Americans with Disabilities Act
(Chapter VII)
A number of commenters discussed the relationship between the FMLA
and the Americans with Disabilities Act (``ADA'').\12\ Although the ADA
also may provide employees with job-protected medical leave, the
legislative history of the FMLA indicates that Congress intended for
``the leave provisions of the [FMLA to be] * ** wholly distinct from
the reasonable accommodation obligations of employers covered under the
[ADA].'' \13\ Nonetheless, the Department borrowed several important
concepts from the ADA when finalizing the FMLA regulations. The
practical realities of the workplace also mean that employee requests
for medical leave often are covered by both statutes, thus requiring
employers to consider carefully the rights and responsibilities imposed
by each statute. Chapter VII summarizes the comments received by the
Department regarding the interplay between FMLA and ADA.
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\12\ 42 U.S.C. 12101-12117, 12201-12213.
\13\ S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993).
---------------------------------------------------------------------------
Almost uniformly, employers and their representatives urged the
Department to consider implementing more consistent procedures for
handling and approving medical leave requests under the FMLA and ADA.
These commenters argued that, in many instances--but particularly with
respect to obtaining medical information--the ADA and its implementing
regulations provided a ``much better model'' and struck a more
appropriate balance between an employee's right to take
[[Page 35555]]
reasonable leave for medical reasons and the legitimate interests of
employers. Many of these commenters cited their own experience in
administering the ADA as support for the idea that additional limits
imposed by the FMLA were unnecessary, particularly because both
statutes require employers to review similar types of medical
information and make determinations about an employee's ability to work
based on that information. These commenters also noted that, in many
instances, the same human resources person reviews an employee's
absences under both statutes, thus further blurring the line between
what an employer could permissibly do under each statute.
Other commenters, including unions and other employee groups,
argued that the differences between the two statutory schemes were a
direct result of the distinctively different purposes of each law.
These commenters noted that the ADA is intended to ensure that
qualified individuals with disabilities are provided with equal
opportunity to work, while the FMLA's purpose is to provide reasonable
leave from work for eligible employees. These commenters generally
opposed implementing procedures they viewed as placing additional
limits on the availability of FMLA leave, or increasing requirements
under the FMLA medical certification process.
Transfer to an Alternative Position (Chapter VIII)
The RFI did not specifically ask any questions about an employer's
ability to transfer an employee to an ``alternative position'' but the
Department received many comments on this topic. These comments are
discussed in Chapter VIII of the Report. Under the FMLA, an employer
may transfer an employee to an ``alternative position'' with equivalent
pay and benefits when the employee needs to take intermittent or
reduced schedule leave ``that is foreseeable based on planned medical
treatment[.]'' 29 U.S.C. 2612(b)(2). Section 825.204 of the regulations
explains more fully when an employer may transfer an employee to an
alternative position in order to accommodate foreseeable intermittent
leave or a reduced leave schedule.
A significant number of employer commenters questioned why the
regulations only permit an employer to transfer an employee when the
employee's need for leave is foreseeable based on planned medical
treatment as opposed to a chronic need for unforeseeable (unscheduled)
leave. Many commenters saw no practical basis for differentiating
between foreseeable and unforeseeable need for leave in this context.
In fact, many employers reported that the underlying rationale for the
transfer provision--to provide ``greater staffing flexibility'' while
maintaining the employee's same pay and benefits--is best served where
the employee's need for leave is unforeseeable.
Substitution of Paid Leave (Chapter IX)
Chapter IX of the Report summarizes comments regarding the
substitution of paid leave for unpaid FMLA leave. Under the statute,
employees may substitute accrued paid leave for FMLA leave under
certain circumstances. If employees forego the option to substitute
paid leave, employers may then require such substitution.\14\ The
legislative history indicates that Congress had two purposes in
providing for the substitution of accrued paid leave for unpaid FMLA
leave. First, Congress sought to clarify that where employers provided
paid leave for FMLA-covered reasons, they were only required to provide
a total of 12 weeks of FMLA-protected leave including the period of
paid leave (i.e., employees could not stack 12 weeks of unpaid FMLA
leave on top of any accrued paid leave provided by the employer). The
second purpose of substitution of paid leave was to mitigate the
financial impact of income loss to the employee due to family or
medical leave.
---------------------------------------------------------------------------
\14\ 29 U.S.C. 2612(d).
---------------------------------------------------------------------------
A major concern of the employer commenters was that when employees
substitute paid vacation or personal leave for unpaid FMLA leave, they
are able to circumvent certain aspects of employers' existing paid
leave policies, such as notification requirements, minimum increments
of leave, seniority, or time of year restrictions. These commenters
stated that employees substituting such paid leave for unpaid FMLA
leave are, therefore, treated more favorably than those employees who
use their accrued leave for other reasons. Employee commenters noted
that the ability to substitute paid leave is a critical factor in their
ability to utilize their FMLA entitlements, because many employees
simply cannot afford to take unpaid leave.
The comments also identified a number of other issues affected by
substitution of paid leave. For example, employers questioned the
wisdom of the regulation forbidding substitution if employees are
receiving payments from a benefit plan such as workers' compensation or
short-term disability plans. On the other hand, employees commented
that they are improperly required by employers to substitute paid
leave, despite contrary language in existing collective bargaining
agreements providing employees with the right to decide when to use
their leave.
Joint Employment (Chapter X)
Chapter X of the Report discusses comments regarding employer
coverage under FMLA in cases in which a company utilizes the services
of a Professional Employer Organization (PEO). Unlike a staffing or
placement agency, PEOs generally are service providers that handle
payroll and other human resource work for the employer and which, under
the current regulations, may qualify in some circumstances as a primary
employer in a joint employment arrangement.
The comments indicated that PEOs generally are not responsible for
employment decisions like hiring, firing, supervision, etc. All of the
comments in this area supported the view that the primary ``employer''
in these cases should be the client company that actually hires and
uses the employees who are provided benefit services by the PEO. Thus,
according to these comments, the client company, and not the PEO,
should be responsible for the placement of employees returning from
FMLA leave.
Data: FMLA Coverage, Usage, and Economic Impact (Chapter XI)
The Department received a significant number of comments on the
usage and impact of the FMLA, including a variety of national surveys
and numerous data on FMLA leave from individual companies or government
and quasi-government agencies. This information, when supplemented by
the data from the 2000 Westat Report (and despite its limitations),
provides considerable insight and a far more detailed picture of the
workings of the FMLA, and the impact of intermittent leave, in
particular. Chapter XI of this Report provides a full discussion of the
data received.
Several themes arose out of the data comments submitted in response
to the RFI:
The benefits of FMLA leave include retaining valuable
human capital; having more productive employees at work; lower long-run
health care costs; lower turnover costs; lower presenteeism costs; and
lower public assistance costs.
There are unquantifiable impacts on both sides. On the
benefit side, the value of FMLA leave is often immeasurable. On the
cost side, there
[[Page 35556]]
can be a negative impact on customers and the public when workers do
not show up for their shifts on time.
A significant number of workers, especially for some
facilities or workgroups, have medical certifications on file for
chronic health conditions, and the number is increasing.
Unscheduled intermittent FMLA leave causes staffing
problems for employers requiring them to overstaff some positions and
use mandatory overtime to cover other positions. Both of these increase
costs and prices.
The lack of employee notification can cause some positions
to go temporarily understaffed resulting in service or production
delays. This not only increases costs in the short run but also may
potentially impact future business.
Unscheduled intermittent FMLA leave can adversely impact
the workplace in a variety of ways, including missed holidays and time-
off for other employees, lower morale, and added stress that can result
in health problems.
Further, it appears that the Department's intermittent FMLA leave
estimates presented in the RFI--that about 1.5 million workers took
intermittent FMLA leave in 2005, and that about 700,000 of these
workers took unscheduled intermittent FMLA leave--may be too low.
While the percentage of FMLA covered and eligible workers who take
FMLA leave may appear to be low relative to the total workforce and the
percentage who take unscheduled intermittent leave may appear to be
even smaller, the record shows that these workers can have a
significant impact on the operations of their employers and their
workplaces for a variety of reasons. First, as a number of commenters
pointed out, these workers can repeatedly take unscheduled intermittent
leave, over nine hours per week, and still not exhaust their allocation
of FMLA leave for the year (generally, 12 weeks x 40 hours/week = 480
hours). Second, the record reveals that workplaces with time-sensitive
operations, such as assembly-line manufacturing, transportation,
transit, and public health and safety occupations can be
disproportionably impacted by just a few employees who repeatedly take
unscheduled intermittent leave. Third, the comments indicate that if
the morale or health of workers covering for the absent employees on
FMLA leave begins to suffer, either because they believe the absent
workers are misusing unscheduled intermittent leave or from the stress
caused by an increased workload, these workers may in turn seek and
need their own FMLA certifications causing a ripple effect in
attendance and productivity.
Finally, the data indicate that if unscheduled intermittent FMLA
leave is taken, most employers will be able to resolve these infrequent
low cost events on a case-by-case basis by using the existing workforce
(or possibly bringing in temporary help) to cover for the absent
worker, and likely will view unscheduled intermittent FMLA leave as an
expected cost of business. On the other hand, for those establishments
and workgroups with a high probability (rate) of unscheduled
intermittent leave and where the cost of such leave is high, the
comments suggest that none of the measures that are typically used to
reduce the risk and costs associated with unscheduled intermittent FMLA
leave appear to work very well. These establishments, whose risk
management systems (e.g., absence control policies, overstaffing,
mandatory overtime) appear to be overwhelmed, are likely the employers
reporting that intermittent FMLA leave has a moderate to large negative
impact on their productivity and profits (1.8 to 12.7 percent of
establishments according to the 2000 Westat Report). In addition, many
of the traditional methods used to encourage good attendance or control
absenteeism (e.g., perfect attendance awards or no fault attendance
polices) may not be used if they interfere with FMLA protected leave.
These employers may try to make it more difficult for their workers to
take unscheduled intermittent FMLA leave by repeatedly questioning the
medical certifications or asking for recertifications--creating tension
in the workplace.
Conclusion
In those sections of the FMLA dealing with leave for the birth of a
child, for the adoption of a child, and associated with health
conditions that require blocks of leave and are undeniably ``serious''
(e.g., cancer, Alzheimer's, heart attack), the law appears to be
working as anticipated and intended, and working very successfully.
When addressing these areas, there is near unanimity in the comments--
FMLA leave is a valuable benefit to the employee, improves employee
morale, improves the lives of America's families, and, as a result,
benefits employers. These aspects of the FMLA are fully supported by
workers and their employers.
But to the extent that the use of FMLA leave has continued to
increase in unanticipated ways, primarily in the area of intermittent
leave taken as self-treatment for chronic serious health conditions,
the Department has heard significant concerns. These unanticipated
facets of the FMLA are the source of considerable friction in the
following areas:
How serious is ``serious''?
What does ``intermittent'' leave mean and how long should
it go on?
What are the rules surrounding unforeseeable leave?
How much information can an employer require before
approving leave?
What are an employee's responsibilities under the Act?
What workplace rules may an employer actually enforce?
How has other legislation, including the ADA and HIPAA,
affected the FMLA?
Absent the protections of the FMLA, many workers with chronic
conditions might not otherwise be permitted to be absent from their
jobs. This is unquestionably a valuable right. But it is precisely the
use of FMLA leave by a subset of these workers--those seeking
unscheduled intermittent leave for a chronic condition--that appears to
present the most serious difficulties for many employers in terms of
scheduling, attendance, productivity, morale, and other concerns. As
was clear from the record, these comments are not inconsistent with
each other. These things are true at the same time.
The success of the FMLA depends on smooth communication among all
parties. To the extent that employees and employers become more
adversarial in their dealings with each other over the use of FMLA
leave, it may become harder for workers to take leave when they need it
most.
The Department hopes that this Report will further the discussion
of these important issues and is grateful to all who participated in
this information-gathering process.
I. Employee Perspective: Experiences in the Value of the FMLA
The chapters that follow in this Report deal in large part with the
substantive comments from individual employers and employees, law
firms, and groups representing employers and employees, assessing what
works or does not work particularly well with specific regulatory
sections of the FMLA. Because of that, it is easy to lose perspective
about the overall value of the workplace protections provided by the
Act. That value is best shown in the comments submitted by individual
employees and, in some instances their employers or representatives.
While it would be impossible for the Department
[[Page 35557]]
to catalog every comment it received in response to the Request for
Information (``RFI'') about the value of the FMLA, this chapter
provides a representative collection of comments recounting those
personal experiences.\1\ These comments also include some examples of
best practices of employers in carrying out the FMLA--practices that
often create or strengthen good relationships between employers and
employees. These comments reflect the belief stated in the regulations
that a ``direct correlation exists between stability in the family and
productivity in the workplace'' and demonstrate that the underlying
intent of the Act ``to allow employees to balance their work and family
life by taking reasonable unpaid leave'' for certain qualifying family
and medical reasons is being fulfilled. 29 CFR 825.101.
---------------------------------------------------------------------------
\1\ The Request for Information can be found at 71 FR 69,508
(December 1, 2006).
---------------------------------------------------------------------------
Many employees were grateful that the Act existed and that they
were able to utilize the leave entitlement in a time of need. Some
employees specifically commented that the Act helped them during
difficult periods of caring for loved ones who were ill. For example,
one employee wrote that she used FMLA leave twice, once to care for a
seriously ill child and again ``when my husband was injured in
Afghanistan and needed assistance in his recovery[.]'' An Employee
Comment, Doc. 2666, at 1.\2\ She noted that ``without this [FMLA]
protection, I probably would have lost my job and all its benefits[.]''
Id. Another employee said he could not have cared for his ill wife
without FMLA. An Employee Comment, Doc. FL18, at 1. ``My wife * * * has
a medical condition that is covered by the FMLA. I have used
intermittent FMLA leave to take her to the doctor whose office is
located approximately 4 hours away by car from where we live. I have
been doing this on average once a month for approximately 3 years. I
would not be able to do this without the FMLA.'' Id.
---------------------------------------------------------------------------
\2\ The names of individual employees have been redacted from
the Report where any personal or medical information was provided.
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One employee, whose comment echoed the sentiment that the FMLA
allows employees to balance their work obligations with the need to
care for their loved ones, appreciated how his family benefited from
FMLA leave. ``Presently, my sister is having to care for our ailing
mother while holding down a job. The Family and Medical Leave Act is
very important to her as well as her family in her continued effort to
care for our mother in her final days.'' An Employee Comment, Doc. FL9,
at 1. Another employee said, ``I * * * recently returned from taking a
two week FML[A leave] to care for my elderly stepfather after open
heart surgery. My family and I were appreciative that because of the
FML[A] I was able to request time to assist with his care and
recuperation at home. We all have no doubt that my time was invaluable
with his improvement once home.'' An Employee Comment, Doc. 139, at 1.
Other commenters also noted the value of FMLA when they needed
leave because of their own serious health conditions. For example, one
employee said, ``As a cancer survivor myself, I cannot imagine how much
more difficult those days of treatments and frequent doctor
appointments would've been without FMLA. I did my best to be at work as
much as possible, but chemotherapy and radiation not only sap the body
of energy, but also take hours every day and every week in treatment
rooms.'' An Employee Comment, Doc. 5798, at 1. Another employee, who
used FMLA leave on several occasions for her own serious health
condition, stated that she was ``very thankful for the existence of the
Family and Medical Leave Act (FMLA). As a two-time survivor of breast
cancer, I have taken FMLA leave both on a continuous and an
intermittent basis--continuous leave to recover from my surgeries
(therapeutic and reconstructive) and intermittent for doctors
appointments, radiation therapy, and chemotherapy treatments.'' An
Employee Comment, Doc. 234, at 1. Other employees specifically pointed
out the value of the FMLA in allowing them to focus completely on
recovery. For example, a correctional officer commented, ``I was out of
work for a short period of time due to a serious medical condition that
was treatable. FMLA gives the employee the ability to tend to these
concerns with their full attention, to recuperate without sacrificing
their career [or] their livelihood.'' An Employee Comment, Doc. FL87,
at 1.
Several employees commented specifically about the value of
intermittent leave under the FMLA. A railroad employee of thirty-six
years said he uses intermittent leave to care for his wife, who suffers
from Multiple Sclerosis (``MS''). An Employee Comment, Doc. FL115, at
1. Acknowledging the sporadic need for leave, the commenter said,
``Since MS is an incurable disease without a schedule or any way of
knowing when an episode is going to [occur], I cannot always foresee
when I am needed at home. The only time I know I am needed is when [my
wife] has an appointment with her doctor. This is subject to change if
she is unable to go to the doctor due to weakness.'' Id. Similarly, an
AT&T employee commented that intermittent leave under the Act makes it
possible for her to care for her mother, who has Alzheimer's disease.
``I only take an hour here and there as needed. I try to work doctor
appointments and other things around my work schedule. However, it is
impossible to always do that. FMLA has been a life saver for me. Had I
not had FMLA for this reason I don't know what I would do.'' An
Employee Comment, Doc. 10046A, at 1.
Many employees commented that the Act helped save their jobs. For
example, one employee, who commented that her child's health condition
sometimes keeps her out of work for several days at a time, said,
``FMLA has tremendously helped my family. I have a child born w/
[asthma], allergies & other medical issues. And, there are times I'm
out of work for days[. I]f I didn't have FMLA I would have been fired
[a long] time ago. I've been able to maintain my employment and keep my
household from having to need assistance from the commonwealth.'' An
Employee Comment, Doc. 229, at 1. Another employee said, ``I returned
home after three months [of FMLA leave] to be told I no longer had a
job. I was told it would be unfair of me to expect my coworkers to
cover for me so they were forced to hire a new employee * * * When I
asked the manager about the previous assurances that my job would be
held until I returned I wasn't given a direct answer. I invoked the
FMLA and was able to keep my job.'' An Employee Comment, Doc. 61, at 1.
A teacher stated, ``Without [the FMLA], I couldn't have cared for both
of my parents at different times in their lives and kept my job * * *
Because of the act I was able to keep my parents out of nursing homes
and still keep my job to support them later. This is the best thing you
can do for working families around our country.'' An Employee Comment,
Doc. 1181, at 1.
Similarly, an employee with a chronic serious health condition
commented, ``I can get sick at any time and need brain surgery. This
can put me out of commission for a month or two. FMLA gives me the
peace of mind that I cannot be fired after I have been in a job for a
year. I cannot stress how monumental that assurance is.'' An Employee
Comment, Doc. 159, at 1. Another employee said, ``Without the
availability of FMLA I'm not certain of what would have happened to my
family when my husband was diagnosed with ALS 5
[[Page 35558]]
years ago. Thankfully it was there, so I could be with him as he was
dying.'' An Employee Comment, Doc. 4332, at 1. A union steward, using
FMLA leave for his own serious health condition, commented that ``FMLA
not only allows me to take time off for * * * therapy/medical
appointments but also allows [me] to take time off as needed when I
have sporadic episodes in which the medicine does not work, needs to be
fine tuned or changed which is essential to my well-being.'' An
Employee Comment, Doc. 4619, at 1. He further commented, ``Without FMLA
I would have been fired long ago[.] * * * FMLA saved my job and I also
believe saved my life, and to this day gives me a sense of security
against any discipline or termination based on my legitimate medical
needs.'' Id.
The FMLA appears to be particularly valued by employees caring for
both children and parents with serious health conditions. A telephone
company employee providing care for her asthmatic son and for her 84-
year-old mother commented: ``I am part of what is known as the
``Sandwich Generation''[.] * * * I have had several occasions to use
FMLA[.] * * * Without FMLA protection I would have lost my job.'' An
Employee Comment, Doc. R133, at 1. Another employee described taking
leave for a three-month period for the birth of her child, then needing
leave intermittently to care for her father ``for a few days after each
hospitalization'' for his chronic heart disease. An Employee Comment,
Doc. 6311, at 1. According to this commenter, ``Knowing that I was
protected meant I didn't have to choose between my Father's health and
my job.'' Id. at 1.
In a similar vein, one commenter who administers FMLA leave for her
employer noted, ``What I am seeing with increasing regularity are FMLA
requests for employees to care for an elderly parent who is ill and not
able to afford a caregiver to attend to his/her needs. These are
usually for intermittent leaves that will allow the employee to
chauffer their parent to the doctor [or] attend to their parent post
surgery. As our working population ages, [the need for leave related
to] caring for elderly parent(s) will increase.'' Doreen Stratton, Doc.
696 at 1. An employee agreed: ``There are multiple factors putting
stress on the American family, making the FMLA a good thing for
families with children. Also, millions of baby-boomers are getting old,
many of them without adequate retirement funds--so we will be seeing
more family caregivers, not fewer.'' An Employee Comment, Doc. 5473, at
1. As these comments show, the importance of the FMLA is growing for
this key group of employees and their employers. As one commenter put
it, ``In most families, since both parents have to work to support
themselves and their children and perhaps their older parents, the more
a company provides pay and good will towards a family['s] caretaking
abilities, the more that employee will be loyal to the company.'' An
Employee Comment, Doc. 5521, at 1.
In addition to these individual employee and employer comments, the
American Federation of Labor and Congress of Industrial Organizations
(``AFL-CIO'') conducted an ``online survey among members of Working
America, the Federation's community-based affiliate in response to the
RFI. Within a period of two weeks, over 1,660 members responded.'' Doc.
R329A, at 6. As a result of their survey, several hundred personal
experiences were included in an Appendix to the AFL-CIO's comment--a
sampling of which is provided here:
``My daughter was mauled by a dog. I had to take 2 months
of leave (permitted under FMLA). Had FMLA not been in place, I would
have lost my job for sure.''
``FMLA has made a big difference to me. I have a chronic
health condition along with being a single mother and have my aging
mother living with me. I can't imagine not being able to use this so
that I know that my job will still be there whether I have a
[reoccurrence] of my health condition or like when my 4 year old broke
his leg.''
``My step mother had a debilitating stroke. Since I work
in social services, I was [the] best person in the family to assist her
with setting up her benefits. My direct supervisor did not like it, but
my request could not be denied. Human Resources was more than helpful
in telling me how much vacation and sick time I had accrued. It was
required that I use that up while I was on FMLA. I was paid for all but
a week and a half of my leave. Without FMLA, I could not have taken the
5 weeks off work.''
When my mother was diagnosed with lung cancer, my brother
and I decided I would be the one to take her to all her appointments
and therapy. I would have lost my job or had to leave it without FMLA.
It was difficult for the people I worked with because it put a strain
on the office, however, they were, for the most part, emotionally
supportive as well.''
``My mother was diagnosed with cancer and she had a stroke
that left her paralyzed and wheelchair bound. With the help of the
FMLA, I was able to take her to her appointments and tell the doctors
what was going on with her since I was her primary caregiver. I was
able to be with her when she took her last breath and was grateful for
the time I was able to [spend] with her until her death.''
Id. at 46-59.
Similarly, the Communications Workers of America submitted several
hundred examples of their members' personal experiences with FMLA ``to
illustrate the continued importance of the FMLA[.]'' Doc. R346A, at 16.
A representative sample of those experiences follows:
``A Cingular employee with a good work record has Lupus
which causes periodic flare-ups that prevent her from working and
require weekly therapy and regular doctor visits. FMLA has allowed her
to remain stress-free * * * because she does not need to worry about
losing her job.''
``A Pacific Bell Telephone employee with chronic lower
back pain that prevents sitting or walking when it flairs up has been
able to take FMLA leave when these symptoms occur without facing
discipline for absence issues. As a result, this employee remains a
productive and committed employee.''
``A [Communications Workers of America] member reports
that in 1995 his late wife was diagnosed with colon cancer. After she
was operated on, she needed extensive chemotherapy. His employer
allowed him to substitute paid leave for unpaid FMLA leave whenever he
needed to go with his wife to chemotherapy treatments since she was
unable to drive herself to or from these appointments. This made a big
difference especially because some of the medical care was not covered
by the employee's insurance.''
``An employee of AT&T has used FMLA leave to care for her
husband, her son, her elderly mother and for her own serious health
condition. She reports that she learned about the availability of FMLA
leave from her union and the union representatives were very helpful to
her in trying to understand complicated FMLA application forms and
other related documents sent to her in connection with these leaves.''
``An employee of AT&T used FMLA leave five years ago when
her father developed a brain tumor that ultimately took his life. She
states that `it was devastating to our family, but I am so grateful
that, with the FMLA I was able to help care for him in our home and was
by his side when he passed. This is how life and death should be.
Losing the protections of FMLA would force us to have strangers care
for our [loved] ones in their time of need.' ''
[[Page 35559]]
Id. at 16-42.
Numerous employees commented that requesting and using FMLA leave
was a positive experience because their employers were helpful and
straightforward in providing such leave. Several of these employees
commented that their employers initially suggested they request FMLA
leave and helped them through the process. See, e.g., Employee
Comments, Doc. 4734, at 1 (``My employer did not give me any difficulty
in using my sick/personal time[.] * * * I spoke to my Human Resources
person and she suggested I apply [for FMLA leave].''); Doc. 874, at 1
(an employee who needed leave to care for her mother in a different
state ``first heard of FMLA when I contacted my HR office about my
dilemma, and I was so amazed and relieved that such a worker-centric
law actually existed! With the help of FMLA, I was able to spend a
month in Michigan helping my Mom--away from my job--without having to
worry that I would be fired.'').
Other employees observed that their employers put them at ease when
they requested FMLA leave. Specifically, an employee recalled when her
child became ill with a brain tumor that her ``company was very
understanding about granting me [FMLA] leave. I felt very safe and
secure knowing that I could take leave and still have my job when I
returned.'' An Employee Comment, Doc. 95, at 1. Similarly, an employee
said she was ``[s]o thankful when my employer informed me of this law
because it gave my mom peace of mind knowing that I would be available
for her when she needed me.'' An Employee Comment, Doc. 4773, at 1.
Often employees were thankful because their employers were
sympathetic to their family needs while on FMLA leave. The National
Association of Working Women provided the example of ``a 41-year-old
single mother in Aurora, Colorado. The FMLA allows her to take off
whenever her 11-year-old son * * * has an attack caused by his chronic
asthma. `When he does get sick, I have to be up practically 24 hours,'
[the mother] says, praising her employer, Kaiser Permanente, and her
supervisor for understanding her situation.'' Doc. 10210A, at 1. One
employee said her employer's sympathy during FMLA leave prevented her
from looking for new work: ``Thanks to the FMLA, I was able to take
three months off work with full salary in order to take care of [my
husband] when he was reduced to a state of complete dependency. * * * I
was secure in the knowledge that I could come right back to my job, and
I developed a keen sense of loyalty to my employer which has more than
once prevented me from looking for work elsewhere.'' An Employee
Comment, Doc. R62, at 1. Finally, one employee stated she did not find
requesting FMLA leave to be ``cumbersome or unreasonable'' because her
Human Resources department was ``very helpful with the entire
process.'' An Employee Comment, Doc. 4720, at 1. Further, she noted
that ``the process and leave itself [was a Godsend] as caring for our
Mother was very, very stressful[.]'' Id.
Many comments recounted employer policies that go above and beyond
what is required under the Act. See, e.g., An Employee Comment, Doc.
5069, at 1 (employer ``gives paid medical leave based on how much time
is medically necessary.''); Jill Ratner, President, The Rose Foundation
for Communities and the Environment, Doc. 4877, at 1 (A non-profit
foundation that provides ``one week of paid family leave (in addition
to two weeks of paid sick leave) to all employees'' commented that
``providing family leave is critical to recruiting and retaining
qualified staff, and to maintaining staff morale and effectiveness.'');
An Employee Comment, Doc. 1106, at 1 (``Altogether, I was away from
work for about two months or so. My employer, Monsanto, was very
generous with me. In addition to granting the time off and guaranteeing
I would still have my job when I returned, they paid sick leave during
this period.''); An Employee Comment, Doc. 70, at 1 (The employer of an
employee who had been employed for less than one full year when she
needed FMLA leave to care for her sick mother ``essentially applied the
FMLA rules anyway; they let me use all my vacation time and then gave
me unpaid leave. I cannot tell you what a difference that made.'');
National Employment Lawyers Association, Doc. 10265A, at 3 (An attorney
association commented that one of her clients suffered from chronic
fatigue syndrome, which shortened her work day by 1 to 2 hours, but
``her employer was very cooperative with her efforts to continue
working by allowing her to use her FMLA [leave] in these short blocks
of time and wasn't even really counting whether she was using up her
FMLA leave.'').
A professor commented that her college provided leave periods in
addition to FMLA leave, lasting the length of a full school term. An
Employee Comment, Doc. R79A, at 1. ``I also underwent surgery, several
cycles of adjuvant chemotherapy, and a series of medical tests for the
management of my cancer and am currently considered to be cancer-free
and doing well. These treatments were possible, not only because of my
excellent medical coverage as a full-time university employee, but
because I could take a one-term medical leave in the fall and still
receive paychecks[.]'' Id.
Some employers also noted that making it easier on employees to use
FMLA leave was a positive experience from their perspective. One
employer commented:
If I have an employee with a child or family member with a
serious illness, and this employee is unable to be with that family
member when needed, they are distracted at work and their
productivity suffers. In contrast, if they are allowed time to take
care of that family member, their productivity increases. They know
what they have to accomplish and--sometimes by working at home, or
working extra hours, or skipping lunch, or working exceptionally
hard--they get it done. And in the end I have an extremely loyal
employee.
Marie Alexander, President & CEO, Quova, Inc., Doc. 5291, at 1. A
public sector employer commented that administering FMLA leave was ``no
more difficult to navigate than any other labor oriented legislation.
In fact, I find it very straightforward, and it has been a literal
lifesaver for some of our people.'' Kevin Lowry, Nassau County
Probation, Doc. 86, at 1. The commenter went on to say, ``In the long
run, most people will appreciate the extra protection offered by the
employer during a difficult time and will return as more motivated
employees once the crisis has passed.'' Id. The benefit to employers of
providing FMLA leave to employees was also the topic of another
employer's comment: ``As a supervisor, FMLA allowed me to keep a good
employee while she cared for her terminally ill husband. After he
passed away, she came back to work and has continued to contribute to
[the company] in an extremely valuable way.'' Chris Yoder, Doc. 922, at
1.
Some employees also noted that, upon returning from FMLA leave,
they felt more productive at work and more loyal to their employer. One
employee said, ``My mentor allowed me to use my own sick leave and
vacation and then to hold my position without pay until after my mother
passed and I was able to return to work. The course of my mother's
illness was quick, and I was gone about six weeks total. When I
returned to work, I was able to re-engage in it and be productive.'' An
Employee Comment, Doc. 885, at 1. Another employee commented, ``I used
FMLA three times in the last 9 years (with and without pay); each time
I was very grateful to know that my job status was protected when I was
out on leave. All three times I returned to work and
[[Page 35560]]
rededicated myself to my job. FMLA helped me, my family, and my loyalty
and productivity in the workplace.'' An Employee Comment, Doc. R2, at
1.
A telecommunications employee also commented that taking FMLA leave
allows her to be more productive: ``The FMLA has changed my life. It
has saved my job. Without the intermittent leave, and my taking only
1.5 days maximum per month, I would be on a disability. When I do miss
work, I work twice as hard to make up for the time I am gone. I
actually produce more than those who don't take the FMLA time.'' An
Employee Comment, Doc. 233, at 1. Another employee noted that FMLA
leave is not ``charity'' but ``instead it safeguard[s] loyal employees
who, because of unforeseen circumstances need a temporary helping
hand.'' An Employee Comment, Doc. 4732, at 1. Further, the commenter
noted, ``I have known a family which has benefited tremendously by the
FMLA. After assistance, they have emerged once again into a productive,
tax paying, exciting family that is contributing to our community.''
Id.
While other chapters of this Report detail areas where commenters
indicate the FMLA may not work as well as it could, the comments in
this chapter show the continued value to employees and employers of the
FMLA leave entitlements. While employees were relieved at having
available job-protected leave, they also often noted their increased
loyalty to their employers after using periods of FMLA leave,
especially where they felt their employers were sympathetic concerning
the leave circumstances and helpful with the procedures for taking
leave. Employers, as well as employees often noted increased
productivity among employees returning from FMLA leave and, in some
instances, provided greater benefits than those required by the Act.
The value of FMLA leave was pointed out for all types of qualifying
leave scenarios, but was particularly referenced in regard to employees
of the ``sandwich generation'' who frequently find themselves caring
for their own health needs, those of their children, and of their aging
parents.
II. Ragsdale/Penalties
In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the
Supreme Court held that the penalty provision in the Department's
regulation at section 825.700(a) is invalid. That regulation states
that ``[i]f an employee takes paid or unpaid leave and the employer
does not designate the leave as FMLA leave, the leave taken does not
count against an employee's FMLA entitlement.'' 29 CFR 825.700(a). The
Court held the provision is invalid because, in some circumstances, it
requires employers to provide leave in excess of an employee's 12-week
statutory entitlement. Although the Court did not invalidate the
underlying notice and designation provisions in the regulations, it
made clear that any ``categorical penalty'' for a violation of such
requirements would exceed the Department's statutory authority.
The Request for Information noted that a number of courts have
invalidated a similar penalty provision found in section 825.110(d),
which requires an employer to notify an employee prior to the employee
commencing leave as to whether the employee is eligible for FMLA leave.
If the employer fails to provide the employee with such information, or
if the information is not accurate, the regulation bars the employer
from challenging the employee's eligibility at a later date, even if
the employee is not eligible for FMLA leave pursuant to the statutory
requirements.
Therefore, the Department asked commenters what ``changes could be
made to the regulations in order to comply with Ragsdale and yet assure
that employers maintain proper records and promptly and appropriately
designate leave as FMLA leave?'' The Department received a significant
number of comments regarding this issue and related notice issues.
A. Background
The FMLA entitles eligible employees of covered employers to 12
weeks of leave per year for certain family and medical reasons. 29
U.S.C. 2612(a)(1). In order to allow employees to know when they are
using their FMLA-protected leave, the regulations state that ``it is
the employer's responsibility to designate leave, paid or unpaid, as
FMLA-qualifying, and to give notice of the designation to the
employee.'' 29 CFR 825.208(a). More specifically, ``[o]nce the employer
has acquired knowledge that the leave is being taken for an FMLA
required reason, the employer must promptly (within two business days
absent extenuating circumstances) notify the employee that the paid
leave is designated and will be counted as FMLA leave.'' 29 CFR
825.208(b)(1). See also 29 CFR 825.301(b)(1)(i) and (c). The employer's
designation may be oral or in writing, but if it is oral, it must be
confirmed in writing, generally no later than the following payday,
such as by a notation on the employee's pay stub. 29 CFR 825.208(b)(2).
The categorical penalty provision of the regulations with regard to
paid leave provides as follows:
If the employer has the requisite knowledge to make a
determination that the paid leave is for an FMLA reason at the time
the employee either gives notice of the need for leave or commences
leave and fails to designate the leave as FMLA leave (and so notify
the employee in accordance with paragraph (b)), the employer may not
designate leave as FMLA leave retroactively, and may designate only
prospectively as of the date of notification to the employee of the
designation. In such circumstances, the employee is subject to the
full protections of the Act, but none of the absence preceding the
notice to the employee of the designation may be counted against the
employee's 12-week FMLA leave entitlement.
29 CFR 825.208(c). See also 29 CFR 825.700(a) (``If an employee takes
paid or unpaid leave and the employer does not designate the leave as
FMLA leave, the leave taken does not count against an employee's FMLA
entitlement.'').
In Ragsdale, 535 U.S. 81, the Supreme Court considered a case in
which the plaintiff had received 30 weeks of leave from her employer.
At that point, her employer denied her request for additional leave and
terminated her employment. She alleged that her employer violated
section 825.208(a), which requires an employer to designate
prospectively that leave is FMLA-covered and to notify the employee of
the designation. Because her employer did not do so, she alleged that
she was entitled under section 825.700(a) to an additional 12 weeks of
FMLA-protected leave.
The Court found that this ``categorical penalty'' is ``incompatible
with the FMLA's comprehensive remedial mechanism,'' which puts the
burden on the employee to show that the employer interfered with,
restrained, or denied the employee's exercise of FMLA rights, and that
the employee suffered actual prejudice as a result of the violation.
Ragsdale, 535 U.S. at 89. The Court observed that, according to the
regulation, the ``fact that the employee would have acted in the same
manner if notice had been given is, in the Secretary's view,
irrelevant.'' Id. at 88. The Court also found that the regulation
``subverts the careful balance'' that Congress developed with regard to
``the FMLA's most fundamental substantive guarantee'' of an entitlement
to a total of 12 weeks of leave, which was a compromise between
employers who wanted fewer weeks and employees who wanted more. Id. at
93-94. Thus, the Court held that the penalty provision of section
825.700(a) is ``contrary to the Act and beyond the Secretary of Labor's
authority.'' Id. at 84.
[[Page 35561]]
The Supreme Court did not invalidate the notice and designation
provisions in the regulations. Indeed, the Court recognized that there
may be situations where an employee is able to show that the employer's
failure to provide the required notice of FMLA rights prejudiced the
employee in a specific way (such as depriving the employee of an
opportunity to take intermittent leave or to return to work sooner).
The Court stated, however, that the Act's remedial structure requires a
``retrospective, case-by-case examination'' to determine ``whether
damages and equitable relief are appropriate under the FMLA,'' based
upon the steps the employee would have taken had the employer given the
required notice, rather than a categorical penalty. Id. at 91. See
Sorrell v. Rinker Materials Corp., 395 F.3d 332, 336 (6th Cir. 2005)
(remanding the case for a determination of whether the doctrine of
estoppel bars the company from challenging the employee's entitlement
to FMLA leave because the employer had unconditionally approved the
leave request); Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 493-94
(8th Cir. 2002) (holding that the employer was equitably estopped from
asserting that the plaintiff had exhausted his 12 weeks of FMLA leave,
based on a letter expressly informing him after 22 weeks of disability
leave that he still had 12 weeks of FMLA leave left); Wilkerson v.
Autozone, Inc., 152 Fed. Appx. 444 (6th Cir. 2005) (based on the
employer's statement that the employee had six weeks of post-partum
FMLA leave, equitable estoppel applied because the employee reasonably
relied on it and showed the requisite prejudice).
The Ragsdale decision addressed only the penalty provision in
section 825.700(a), which is applicable to both unpaid leave and paid
leave (Ragsdale involved unpaid leave). The penalty provision in
section 825.208(c) (applicable only to paid leave) is virtually
identical. A number of courts have held that the rationale of the
Ragsdale decision applies equally to section 825.208(c), and that an
employee must show prejudice from the lack of notice to establish a
violation of the Act. See, e.g., Miller v. Personal-Touch of Va., Inc.,
342 F. Supp. 2d 499, 513-14 (E.D. Va. 2004); Donahoo v. Master Data
Ctr., 282 F. Supp. 2d 540, 554-55 (E.D. Mich. 2003); and Phillips v.
Leroy-Somer N. Am., No. 01-1046-T, 2003 WL 1790941, *5-7 (W.D. Tenn.
Mar. 28, 2003).
As discussed above, a number of courts also have found that the
``deeming'' provision in section 825.110(d) of the regulations is
invalid and contrary to the statute. The FMLA establishes that
employees are eligible for FMLA leave only if they have been employed
by the employer ``for at least 12 months'' and have ``at least 1,250
hours of service with such employer during the previous 12-month
period.'' 29 U.S.C. 2611(2)(A). The regulations generally require an
employer to notify an employee whether the employee is eligible for
FMLA leave prior to the employee commencing leave. If the employer
confirms the employee's eligibility, ``the employer may not
subsequently challenge the employee's eligibility.'' 29 CFR 825.110(d).
Furthermore, ``[i]f the employer fails to advise the employee whether
the employee is eligible prior to the date the requested leave is to
commence, the employee will be deemed eligible. The employer may not,
then, deny the leave. Where the employee does not give notice of the
need for leave more than two business days prior to commencing leave,
the employee will be deemed to be eligible if the employer fails to
advise the employee that the employee is not eligible within two
business days of receiving the employee's notice.'' Id.
Thus, even if an employee fails to satisfy the statutory
eligibility requirements, the regulation ``deems'' the employee to be
eligible for FMLA-protected leave. The courts have held that this
regulation is invalid. See, e.g., Woodford v. Comty. 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), cert. denied, 532 U.S. 1037 (2001) (``There is no ambiguity in
the statute concerning eligibility for family medical leave, no gap to
be filled.''); Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 582 (7th
Cir. 2000) (``The statutory text 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.''
Therefore, the Department ``has no authority to change the Act,'' as
the regulation attempts to do, by making ineligible employees eligible
for family leave).
The courts have concluded that an employee may pursue a case, based
on the principle of equitable estoppel, where the employer's failure to
advise the employee properly of his/her FMLA eligibility/ineligibility
is determined to have interfered with the employee's rights, and the
employee could have taken other action had s/he been properly notified.
See, e.g., Dormeyer, 223 F.3d at 582 (``an employer who by his silence
misled an employee concerning the employee's entitlement to family
leave might, if the employee reasonably relied and was harmed as a
result, be estopped to plead the defense of ineligibility to the
employee's claim of entitlement to family leave.''); Kosakow v. New
Rochelle Radiology Assocs., P.C., 274 F.3d 706, 722-27 (2d Cir. 2001).
See also Wage and Hour Opinion Letter FMLA2002-1 (Aug. 6, 2002).
B. Comments on Ragsdale: Notice and Designation Issues
A number of commenters addressed the Ragsdale categorical penalty
issue and responded to the Request for Information's question regarding
what ``changes could be made to the regulations in order to comply with
Ragsdale and yet assure that employers maintain proper records and
promptly and appropriately designate leave as FMLA leave?''
The National Coalition to Protect Family Leave stated that section
825.700(a) and the similar penalty provision in section 825.208 should
be removed from the regulations, and that ``any `penalty' that DOL
wants to impose on employers for failure to follow certain notice
obligations dictated by the regulations must be tailored to the
specific harm suffered by the employee for failure to receive notice.''
National Coalition to Protect Family Leave, Doc. 10172A, at 43, The
Coalition asserted that retroactive designation should be permitted, so
that employees ``could receive the FMLA protections despite their
failure to adequately communicate that the FMLA is at issue, and
employers who inadvertently fail to timely designate leave can have the
opportunity to count the absence toward the employee's FMLA leave bank.
Retroactive designation should be permitted in all cases where the
employee is eligible, the condition qualifies, and the employee has
adhered to his/her FMLA notice obligations that FMLA leave is at
issue.'' Id. at 44. See also Proskauer Rose LLP, Doc. 10182A, at 9 (the
regulations should allow an employer ``who initially fails to designate
a leave as FMLA leave, but nevertheless grants the employee the leave,
to retroactively designate the leave as FMLA leave''); Coolidge Wall
Co. LPA, Doc. 5168, at 1 (the regulations should state that an employer
that has an FMLA policy in its handbook, for which an employee has
acknowledged receipt, can send out the FMLA notice ``mid-leave and can
retroactively count the employee's time''); Commonwealth of
Pennsylvania, Doc. FL95, at 2-3 (retroactive
[[Page 35562]]
designation should be allowed ``when an employee's FMLA rights were
provided during the period of absence,'' because the two-day verbal
notification requirement is difficult to achieve, although the written
notification/designation requirements ``usually can occur * * * within
the timeframes prescribed by the Regulations'').
The Air Transport Association of American, Inc., and the Airline
Industrial Relations Conference suggested that the regulations be
revised in light of Ragsdale, because employers do not know which
regulations they must follow and which are no longer valid, and
employees who read them also are confused about which regulations their
employers must follow. Doc. FL29, at 15. See also Association of
Corporate Counsel, Doc. FL31, at 10 (section 825.700 should be deleted
to clarify that an employer's failure to timely designate leave does
not increase the statutory leave period).
United Parcel Service, Doc. 10276A, at 2, suggested that the
Department should clarify in section 825.208 the effect of an
employer's mistaken designation of FMLA leave, because some courts have
held that the doctrine of equitable estoppel prevents an employer from
denying protected leave based on a subsequent determination that the
employee was not eligible. The United States Postal Service similarly
suggested that both sections 825.700(a) and 825.208(c) should be
revised to clarify that ``a technical violation of the notice
provisions does not result in a windfall of surplus FMLA protection for
an employee who suffered no harm as a result.'' Doc. 10184A, at 4. A
large provider of human resources outsourcing services commented that
``by deleting the `penalty' provision and simply reinforcing employer
notification obligations,'' the Department would appropriately respond
to Ragsdale. Hewitt Associates, Doc. 10135A, at 8. Hewitt stated that
employers benefit by providing more notice because they: Educate
employees about their rights, responsibilities, and benefits; maximize
the likelihood that employees will return to work promptly; maintain or
enhance their engagement; minimize the impact on other HR
administrative processes; minimize the impact on business operations;
and reduce available time off balances accurately. Id. at 7-8.
Finally, as discussed in detail in Chapter V, a number of
commenters stated that the two-day time frame for designating leave is
inadequate, or that the designation requirement should apply only when
employees expressly request FMLA leave. The National Association of
Convenience Stores suggested that, in light of Ragsdale, ``DOL should
consider eradicating all formal employer designation requirements.''
Doc. 10256A, at 7.
Other stakeholders, however, presented views in support of the
current notice and designation requirements and had suggestions for
changes that would provide improved and prompt information to
employees. One commenter stated that the data show that two days is
sufficient to allow employers to review and respond to employees' leave
requests. ``Most organizations spend only between thirty and 120
minutes of administrative time per FMLA leave episode to provide
notice, determine eligibility, request and review documentation, and
request a second opinion. Therefore, no change to the current two-day
response requirement is warranted.'' National Partnership for Women &
Families, Doc. 10204A, at 21 (citation omitted). That commenter also
noted that while the Supreme Court struck down the ``categorical
penalty'' in the current regulations, it left intact the requirement
that employers designate leave, and it ``did not prohibit DOL from
imposing any penalties on employers for failing to properly designate
and notify employee about leave.'' Id. at 18. Therefore, in light of
the overall purposes of the notice and designation requirements, this
commenter suggested that any changes to the regulations should:
``Emphasize that the Court did not alter the obligation of
employers to both designate leave promptly and notify employees of how
that leave has been designated. Thus, employers must continue to adhere
to these designation and notice requirements or risk penalties.''
``Reaffirm and modify current recordkeeping requirements
that require employers to keep accurate and complete records of how
leave has been designated, and when the employee was notified of the
designation.''
``Prohibit employers from making any retroactive changes
to how leave has been designated without notification and consultation
with the employee, and require maintenance of records documenting such
notification and consultation.''
``Establish new penalties for employer non-compliance that
are not automatic, but can be imposed following a complaint by the
affected employee and an independent determination of the harm caused
by the employer's violation.''
Id. at 18-19. See also Letter from 53 Democratic Members of Congress,
Doc. FL184, at 2 (noting that Ragsdale invalidated only the penalty
provision of the regulations and that any changes in the regulations
should be limited to remedying that problem and should go no further).
Another commenter suggested that ``fines should be imposed'' on
employers that do not maintain accurate records, and they ``should not
be able to retroactively change how leave was originally designated
without notice and consultation with the employee.'' OWL, The Voice of
Midlife and Older Women, Doc. FL180, at 2.
A number of commenters emphasized the hardships employees suffer
when they do not know promptly whether the employer believes they are
entitled to protected leave. Employees then either feel compelled not
to take the time off that they need, or else they take off but are
afraid because they do not know whether they will be subject to
discipline for being off work. See, e.g., Frasier, Frasier & Hickman,
LLP, Doc. FL60, at 1-3. As discussed in detail in Chapter V, a number
of commenters therefore suggested that employers be required to inform
employees promptly when they are using FMLA leave.
Another commenter noted that his employer ``is able to delay, and
many times deny, for many weeks and months the benefits and protections
which the Act affords,'' because it repeatedly asks for more
information on the certification form. An Employee Comment, Doc.
10094A, at 2. During this ``very lengthy approval process, the employee
is subjected to attendance-related discipline when the absence should
have been approved or at the very least be treated as `pending.' '' Id.
See also An Employee Comment, Doc. 5335, at 1 (noting that she had gone
out on short-term disability leave for surgery but, despite her regular
contact with the benefits specialist, she was not notified that the
company had placed her on FMLA leave). This issue is addressed in more
detail in Chapter VI relating to medical certifications.
C. Deeming Eligible Issues
A number of commenters also addressed issues related to the
provision in 29 CFR 825.110(d) deeming employees eligible for FMLA
leave if an employer either fails to advise them of their eligibility
status within the allotted time period, or incorrectly advises them
that they are eligible when they have not satisfied the statutory
requirements of 12 months of employment and 1,250 hours of service in
the preceding 12 months.
One commenter stated that ``[t]he Supreme Court's decision in the
[[Page 35563]]
Ragsdale case casts grave doubt on the validity of other categorical
penalties in the Regulations.'' National Coalition to Protect Family
Leave, Doc. 10172A, at 13. It noted that a number of courts have struck
down both the provision in section 825.110(d) stating that an employer
may not later challenge an employee's eligibility if it mistakenly
confirms that an employee is entitled to leave, and the provision
deeming an employee eligible if the employer fails to notify the
employee that the employee is not eligible prior to the start of leave
(if the employer had advance notice) or within two business days of
receiving notice. This commenter stated that it ``urges DOL to delete
the language in section 825.110(d) that [the] federal courts have
invalidated.'' Id. at 14.
Another commenter stated that, in light of the Ragsdale decision,
the penalty provision for an employer's failure to timely notify
employees that they are eligible for FMLA leave should be deleted;
however, the regulation should continue to require that the employer
notify employees whether they are/are not eligible, but either delete
the consequences from the regulation or incorporate the interference/
estoppel theory approved by the Supreme Court in Ragsdale. ``That is,
if the employee can demonstrate that the failure to provide notice
caused actual harm to the employee's FMLA rights the employer's notice
failure is actionable interference.'' Carl C. Bosland, Esq., Preemptive
Workforce Solutions, Inc., Doc. 5160, at 2-3.
Another commenter suggested that, if an employer has a handbook,
bulletin board, orientation materials, etc., that show employees were
provided information about the FMLA, which leaves are protected, and
how to apply for protected leave, ``the employer should be exempted
from consequences under this part of the act.'' Ken Lawrence, Doc.
5228, at 1.
Hewitt Associates noted that while equitable estoppel provides some
guidance, it does not provide a rule. ``In fact, an employer that
wishes to `undeem' a leave is now required to make a subjective review
of the employee's circumstances (if the employer knows them) and
analyze whether it would be fair to revoke the designation. * * *
[R]evoking Sec. 825.110(d) allows employers to correct their errors by
undesignating these leaves but, considering the analysis required, at
an overly burdensome administrative price. The Department should craft
a bright-line rule that balances the right of employers to revoke an
`inappropriate' FMLA designation, with fairness to employees who have
relied upon that designation.'' Hewitt Associates, Doc. 10135A, at 10.
This commenter suggested a rule that both allows employers to count the
time that an ineligible employee is permitted to remain on leave
against that employee's eventual 12-week entitlement, and gives
employees a ``grace period'' to return to work (the length of which
would turn on circumstances such as the length of time left in the
leave, the reason for the leave, travel, etc.). The commenter also
would require the employer to provide an ``immediate and thorough
notification to the employee'' explaining that the employee was not
eligible for leave, how the absences would be treated, the length of
the grace period, etc. Id. at 11.
As discussed in detail in Chapter V, a substantial number of
employers emphasized the difficult and time-consuming nature of making
eligibility determinations, with regard to calculating both the number
of hours worked in the past 12 months and the amount of FMLA leave
used. They objected to any revision to the regulations that would
require employers to provide periodic reports to employees about the
amount of FMLA leave they have remaining. See, e.g., United Parcel
Service, Doc. 10276A, at 7-8. On the other hand, a few employers noted
that they use payroll tracking systems that tell them whether employees
are eligible for FMLA leave.
Other commenters emphasized the importance to employees of knowing
promptly whether they are eligible for leave, and they suggested that
the FMLA regulations should encourage employers to provide accurate,
thorough and timely information about FMLA eligibility and procedures.
As discussed in Chapter V, these commenters emphasized that many
employees still do not know whether they are protected by the FMLA;
they do not have information about their leave options; and they do not
know whether their leave is being designated as FMLA leave. Therefore,
a number of commenters suggested that the Department should consider
regulations that require employers to provide notice to employees, when
they have worked for one year and on an annual basis, explaining their
eligibility status, their leave entitlement, and the procedures for
applying for FMLA leave. See, e.g., American Federation of Labor and
Congress of Industrial Organizations, Doc. R329A, at 40.
III. Serious Health Condition
The Department asked two questions in its Request for Information
about the definitions of serious health condition contained at 29 CFR
825.114: (1) ``Section 825.114(c) states `[o]rdinarily, unless
complications arise, the common cold, the flu, earaches, 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.' Have [the] limitations in
section 825.114(c) been rendered inoperative by the regulatory tests
set forth in section 825.114(a)?''; and (2) ``Is there a way to
maintain the substantive standards of section 825.114(a) while still
giving meaning to section 825.114(c) and congressional intent that
minor illnesses like colds, earaches, etc., not be covered by the
FMLA?''
The regulatory definition of serious health condition is central to
the FMLA because the primary reason that people take FMLA leave is to
attend to their own or a family member's health needs. See Westat,
``Balancing the Needs of Families and Employers, Family and Medical
Leave Surveys, 2000 Update,'' January 2001, at 2-5 (hereinafter ``2000
Westat Report'') (83.3% of employees report ``own health'' or health of
parent, child, or spouse as reason for taking leave); see also National
Coalition to Protect Family Leave, Doc. 10172A, Darby Associates,
Attachment at 10 (``The [employee's] own health * * * was the
predominant reason for leave[.]'').\3\ The Department received an
overwhelming response to these questions. In order to fully understand
these comments, though, and to give them some context it is necessary
to explain the regulatory history of the definition of serious health
condition.
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\3\ Westat is a statistical survey research organization serving
agencies of the U.S. Government, as well as businesses, foundations,
and state and local governments. These surveys were commissioned by
the Department of labor in 2000 as an update to similar 1995 surveys
ordered by the Commission on Family and Medical Leave, which was
established by the FMLA.
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A. History and Background
1. The Family and Medical Leave Act of 1993
Under the Act, an employee may be entitled to FMLA leave for any
one of the four following reasons:
(A) Because of the birth of a son or daughter of the employee and
in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee
for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent,
of the
[[Page 35564]]
employee, if such spouse, son, daughter, or parent has a serious health
condition.
(D) Because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.
29 U.S.C. Sec. 2612(a)(1). The Act defines a serious health condition
as ``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). The term ``continuing
treatment'' is not defined by the statute. The FMLA expressly grants to
the Secretary of Labor the authority to ``prescribe such regulations as
are necessary to carry out [the Act].'' 29 U.S.C. 2654.
The legislative history of the Act states that ``[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. Rep. No. 103-8, at
40 (1991); S. Rep. No. 103-3, at 28 (1993). The scope of coverage
intended by ``serious health condition'' is not unlimited, however:
The term `serious health condition' is not intended to cover
short-term conditions for which treatment and recovery are very
brief. It is expected that such conditions will fall within even the
most modest sick leave policies. Conditions or medical procedures
that would not normally be covered by the legislation include minor
illnesses which last only a few days and surgical procedures which
typically do not involve hospitalization and require only a brief
recovery period. * * * It is intended that in any case where there
is doubt whether coverage is provided by this act, the general tests
set forth in this paragraph shall be determinative.
Id. The House and Senate Committee Reports also list the types of
illnesses and conditions that would likely qualify as serious health
conditions:
Examples * * * include but are not limited to heart attacks,
heart conditions requiring heart bypass or valve operations, most
cancers, back conditions requiring extensive therapy or surgical
procedures, strokes, severe respiratory conditions, spinal injuries,
appendicitis, pneumonia, emphysema, severe arthritis, severe nervous
disorders, injuries caused by serious accidents on or off the job,
ongoing pregnancy, miscarriages, complications or illnesses related
to pregnancy, such as severe morning sickness, the need for prenatal
care, childbirth and recovery from childbirth.
H. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993). The
committee reports state, ``All of these conditions meet the general
test that either the underlying health condition or the treatment for
it requires that the employee be absent from work on a recurring basis
or for more than a few days for treatment or recovery.'' Id. The
reports further explained that these covered conditions either involve
inpatient care or significant continuing treatment. See id. (``For
example, someone who suffers a heart attack generally requires both
inpatient care at a hospital and ongoing medical supervision after
being released from the hospital. * * * Someone who has suffered a
serious industrial accident may require lengthy treatment in a hospital
and periodic physical therapy under medical supervision thereafter.'').
Significantly, the committee reports characterize covered FMLA
conditions as ones that are not only serious but also cause the
employee to be absent from work: ``With 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[.]'' H. Rep. No. 103-8, at 40; S. Rep. No.
103-3, at 28. ``All of these health conditions require absences from
work[.]'' H. Rep. No. 103-8, at 41; S. Rep. No. 103-3, at 29.
2. Department of Labor Regulations (1993-1995)
The Act, including the definition of serious health condition
described above, was enacted on February 5, 1993. Congress gave the
Department 120 days to promulgate regulations under the new statute.
See 29 U.S.C. 2654.
Pursuant to the Act, the Department promulgated interim regulations
on June 4, 1993, which became effective August 5, 1993 (the effective
date of the Act). The Department then received public comments on the
regulations and used the comments to further refine the regulations.
Final regulations were issued on January 6, 1995. These final
regulations, adopted pursuant to this notice-and-comment rulemaking,
established the comprehensive framework that exists today for
determining a serious health condition.
The final rulemaking yielded six separate definitions of serious
health condition that exist today. A statutory definition of serious
health condition that involved only two parts (inpatient care or
continuing treatment) has thus been expanded to six separate and
distinct regulatory tests for determining a serious health condition.
Giving meaning to the broad and undefined statutory term ``continuing
treatment'' presented a daunting task for the Department. Moreover, the
Department had to be careful to ensure the definition covered every
type of serious health condition that Congress intended to cover while
not extending the Act's protections to those conditions Congress
intended to exclude.
The first regulatory definition in the regulations is a stand-alone
definition from the statute--``inpatient care (i.e., an overnight stay)
in a hospital.'' This is followed by five separate definitions for
``continuing treatment,'' all of which also qualify as serious health
conditions. See 29 CFR Sec. 825.114(a)(1)-(2). One of these five
definitions is ``incapacity due to pregnancy,'' which is a discrete
definition clearly articulated in the legislative history (``ongoing
pregnancy, miscarriages, complications or illnesses related to
pregnancy, * * * the need for prenatal care, childbirth, and recovery
from childbirth.'').
Of the four remaining definitions of serious health condition,
stakeholders have focused significantly on one definition:\4\
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\4\ Stakeholders did also comment significantly on the
definition of a ``chronic'' serious health condition contained at 29
CFR 825.114(a)(2)(iii), which is discussed in Chapter IV.
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(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). This is an objective definition of
continuing treatment the Department established based in part on state
workers' compensation laws and the Federal Employees' Compensation Act
(``FECA''), which apply a three-day waiting period before compensation
is paid to an employee for a temporary disability. See 60 FR 2180, 2192
(Jan. 6, 1995). ``A similar provision [to FECA] was included in the
FMLA rules; a period of incapacity of `more than three days' was used
as a `bright line' test based on references in the legislative history
to serious health conditions lasting `more than a few days.' '' 60 FR
at 2192.
This objective test changed little during the rulemaking process
despite the numerous proposed revisions submitted to the Department.
These comments received in response to the interim regulations
represented a multitude of permissible alternative directions the
Department might have gone with this test, but were rejected as the
Department adhered to its original
[[Page 35565]]
standard, which is reflected in the current regulations stated above.
It is worth examining what some of those comments were to the original
rulemaking record to better inform the comments received to the current
RFI.
First, several parties contended that the period of incapacity--
whatever the exact length of days--should be judged by ``absence from
work'' as opposed to calendar days. 60 FR at 2192. Some stakeholders to
the rulemaking noted that the Department's proposed ``calendar day''
rule contradicted the legislative intent (reflected in the committee
reports) that ``the employee must be absent from work for the required
number of days[.]'' Id. at 2192. Another commenter noted that under the
three-calendar-day rule, employers would have no way of verifying
incapacity because a single absence on a Friday followed by a weekend
of incapacity could qualify as a serious health condition. See id.
Other commenters similarly favored the workday schedule because it was
more compatible with other sick leave and short-term disability
programs and ``removes any doubt as to whether an employee was
otherwise incapacitated and unable to work during days the employee was
not scheduled to work.'' Id. The Department originally chose ``calendar
days'' in the interim regulations. After receiving comments, the
Department chose, for two policy reasons, to retain calendar days as
opposed to work days: ``The Department has * * * concluded that it is
not appropriate to change the standard to working days rather than
calendar days because the severity of the illness is better captured by
its duration rather than the length of time necessary to be absent from
work.'' Id. at 2195. The Department further explained: ``[A] working
days standard would be difficult to apply to serious health conditions
of family members or to part-time workers [who might be incapacitated
but not necessarily absent from work].'' Id.
Second, there was also a broad range of suggestions as to what
length or type of incapacity was appropriate for defining a serious
health condition. Some comments rejected any fixed day limitation at
all, stating that a minimum durational limit had been specifically
rejected during a committee markup of the bill. See id. at 2192. Still
others suggested that three days was ``unreasonably low and trivialized
the concept of seriousness[.]'' Id. ``Fifteen commenters suggested
extending the three-day absence period to 5, 6, 7, or 10 days[,] * * *
two weeks[,] * * * or 31 days[.]'' Id. Other commenters suggested
eschewing a strict day standard in favor of adopting each individual
state's waiting period for workers compensation benefits or,
alternatively, the EEOC's definition of disability. See id. at 2193.
The Department rejected these various proposals in favor of its
original standard: ``Upon review, the Department has concluded that the
`more than three days' test continues to be appropriate. The
legislative history specifically provides that conditions lasting only
a few days were not intended to be included as serious health
conditions, because such conditions are normally covered by employers'
sick leave plans.'' Id. at 2195.
The Department did make one change of note in the definition of
serious health condition, however. After the 1993 interim regulations
were promulgated, several commenters urged ``clarifications [that
would] exclude from the definition [of serious health condition] minor,
short-term, remedial or self-limiting conditions, and normal childhood
or adult diseases (e.g., colds flu, ear infections, strep throat,
bronchitis, upper respiratory infections, sinusitis, rhinitis,
allergies, muscle strains, measles, even broken bones).'' 60 FR at
2193. Still others suggested that the Department expressly list every
ailment that would qualify as a serious health condition. See id. While
the Department declined to provide a ``laundry list of serious health
conditions,'' 60 FR at 2195, we did enumerate in the final regulations
examples of ailments that customarily would not be covered by the Act:
``Ordinarily, 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.'' 29 CFR Sec.
825.114(c). This language would become the subject of much reported
confusion in the regulated community (reflected in, among other things,
the many comments on this subject submitted in response to the RFI).
3. Wage and Hour Opinion Letters
In 1995, shortly after the regulations became final, the Department
provided its initial interpretation of the serious health condition
objective test when responding to an employer's objections that the
definition in sections 825.114(a)(2)(i)(A)-(B) did not reflect the
intent of the Act's authors. The Department's response reflects an
ongoing struggle to reconcile this objective test in the regulatory
definition (more than three calendar days of incapacity plus treatment)
with the legislative intent also reflected in the regulations that
common conditions like colds and flus not be covered by the Act.
The Department's opinion letter response 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 |
