+---------------+---------------------------------------+-------------+
| MAJORITY      | ![](media/ima                         | MINORITY    |
| MEMBERS:      | ge1.png){width="1.1340277777777779in" | MEMBERS:    |
|               | height="1.073611111111111in"}         |             |
| GEORGE        |                                       | HOWARD P.   |
| MILLER,       | COMMITTEE ON EDUCATION AND LABOR      | "BUCK"      |
| CALIFORNIA,   |                                       | McKEON,     |
| Chairman      | U.S. HOUSE OF REPRESENTATIVES         | CALIFORNIA, |
|               |                                       |             |
| DALE E.       | 2181 RAYBURN HOUSE OFFICE BUILDING    | Senior      |
| KILDEE,       |                                       | Republican  |
| MICHIGAN,     | WASHINGTON, DC 20515-6100             | Member      |
| Vice Chairman |                                       |             |
|               | \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_    | THOMAS E.   |
| DONALD M.     |                                       | PETRI,      |
| PAYNE, NEW    | MAJORITY -- 202-225-3725              | WISCONSIN   |
| JERSEY        |                                       |             |
|               | MINORITY -- 202-225-4527              | PETER       |
| ROBERT E.     |                                       | HOEKSTRA,   |
| ANDREWS, NEW  | http://edlabor.house.gov              | MICHIGAN    |
| JERSEY        |                                       |             |
|               |                                       | MICHAEL N.  |
| ROBERT C.     |                                       | CASTLE,     |
| "BOBBY"       |                                       | DELAWARE    |
| SCOTT,        |                                       |             |
| VIRGINIA      |                                       | MARK E.     |
|               |                                       | SOUDER,     |
| LYNN C.       |                                       | INDIANA     |
| WOOLSEY,      |                                       |             |
| CALIFORNIA    |                                       | VERNON J.   |
|               |                                       | EHLERS,     |
| RUBÉN         |                                       | MICHIGAN    |
| HINOJOSA,     |                                       |             |
| TEXAS         |                                       | JUDY        |
|               |                                       | BIGGERT,    |
| CAROLYN       |                                       | ILLINOIS    |
| McCARTHY, NEW |                                       |             |
| YORK          |                                       | TODD        |
|               |                                       | RUSSELL     |
| JOHN F.       |                                       | PLATTS,     |
| TIERNEY,      |                                       | P           |
| MASSACHUSETTS |                                       | ENNSYLVANIA |
|               |                                       |             |
| DENNIS J.     |                                       | RIC KELLER, |
| KUCINICH,     |                                       | FLORIDA     |
| OHIO          |                                       |             |
|               |                                       | JOE WILSON, |
| DAVID WU,     |                                       | SOUTH       |
| OREGON        |                                       | CAROLINA    |
|               |                                       |             |
| RUSH D. HOLT, |                                       | JOHN KLINE, |
| NEW JERSEY    |                                       | MINNESOTA   |
|               |                                       |             |
| SUSAN A.      |                                       | CATHY       |
| DAVIS,        |                                       | McMORRIS    |
| CALIFORNIA    |                                       | RODGERS,    |
|               |                                       | WASHINGTON  |
| DANNY K.      |                                       |             |
| DAVIS,        |                                       | KENNY       |
| ILLINOIS      |                                       | MARCHANT,   |
|               |                                       | TEXAS       |
| RAÚL M.       |                                       |             |
| GRIJALVA,     |                                       | TOM PRICE,  |
| ARIZONA       |                                       | GEORGIA     |
|               |                                       |             |
| TIMOTHY H.    |                                       | LUIS G.     |
| BISHOP, NEW   |                                       | FORTUÑO,    |
| YORK          |                                       | PUERTO RICO |
|               |                                       |             |
| LINDA T.      |                                       | CHARLES W.  |
| SÁNCHEZ,      |                                       | BOUSTANY,   |
| CALIFORNIA    |                                       | JR.,        |
|               |                                       | LOUISIANA   |
| JOHN P.       |                                       |             |
| SARBANES,     |                                       | VIRGINIA    |
| MARYLAND      |                                       | FOXX, NORTH |
|               |                                       | CAROLINA    |
| JOE SESTAK,   |                                       |             |
| PENNSYLVANIA  |                                       | JOHN R.     |
|               |                                       | "RANDY"     |
| DAVID         |                                       | KUHL, JR.,  |
| LOEBSACK,     |                                       | NEW YORK    |
| IOWA          |                                       |             |
|               |                                       | ROB BISHOP, |
| MAZIE HIRONO, |                                       | UTAH        |
| HAWAII        |                                       |             |
|               |                                       | DAVID       |
| JASON         |                                       | DAVIS,      |
| ALTMIRE,      |                                       | TENNESSEE   |
| PENNSYLVANIA  |                                       |             |
|               |                                       | TIMOTHY     |
| JOHN A.       |                                       | WALBERG,    |
| YARMUTH,      |                                       | MICHIGAN    |
| KENTUCKY      |                                       |             |
|               |                                       |             |
| PHIL HARE,    |                                       |             |
| ILLINOIS      |                                       |             |
|               |                                       |             |
| YVETTE D.     |                                       |             |
| CLARKE, NEW   |                                       |             |
| YORK          |                                       |             |
|               |                                       |             |
| JOE COURTNEY, |                                       |             |
| CONNECTICUT   |                                       |             |
|               |                                       |             |
| CAROL         |                                       |             |
| SHEA-PORTER,  |                                       |             |
| NEW HAMPSHIRE |                                       |             |
+---------------+---------------------------------------+-------------+

April 11, 2008

*Via Electronic Mail*

Mr. 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

> In re: *Comments on Department of Labor's Proposed Rulemaking "Family
> and Medical Leave Act Proposed Rule" (RIN 1215-AB35)*

Dear Mr. Brennan:

We write as members of the U.S. House of Representatives Committee on
Education and Labor (the "Committee"), the committee of the House with
exclusive jurisdiction over the Family and Medical Leave Act ("FMLA" or
the "Act") as it relates to private-sector employees.

At the outset, we commend the Department of Labor ("DOL" or the
"Department") and the leadership of Secretary Chao for undertaking this
critical initiative. As policymakers, we have overseen the
administration and interpretation of the Act, and as it reaches its
fifteenth year, the time is right for critical examination of the
statute, its text, and its regulations. We strongly believe in the vital
role and vigorous use of congressional oversight to ensure that federal
statutes are interpreted in the manner in which they are intended, and
that such laws are serving the purpose for which they were enacted.  At
the same time, we recognize the particular role and expertise of
administrative agencies in administering and interpreting statutes
within their purview, and commend the Department for engaging in this
exercise of self-examination of its regulations under the FMLA.

We have heard from many of our constituents over the years how important
the FMLA has been to them and their families, and what a difference it
has made in the lives of millions of working Americans. The FMLA
provides countless employees each year the ability to attend to their
own illness or that of a family member, and to form and care for their
family, without incident, and without fear that their job or livelihood
is in jeopardy.  This is as it should be. 

We have heard from stakeholders that over its fifteen year history, much
of the Act has, in fact, worked as Congress has intended, particularly
with respect to the "family" components of the legislation. At the same
time, we are concerned that aspects of the law -- either through
regulation, judicial interpretation, or otherwise -- have not lived up
to their congressionally-intended expectations. We have heard from many
that key components of the Act have failed to live up to expectations,
or have resulted in unwieldy and unintended consequence. In that light
we commend the Department for turning its attention to these measures.

A thorough examination of each item contained in the proposed regulation
is beyond the scope of this comment. We urge that the Department give
close and thorough examination to the numerous stakeholder comments
which we expect will be submitted, and give due weight and credit to the
practical experiences of those stakeholders who administer this law on a
daily basis. We would nonetheless take this opportunity to highlight a
number of items within the proposal which we feel merit particular
support, and to urge that the Department consider further revision to
key components of these regulations. These include:

[Medical Certification (Sections 825.305, 825.307)]{.underline}: We have
heard from employee and employer groups that several challenges have
arisen over the present certification requirements of applicable FMLA
regulations as well the ambiguity and restrictions in communications
between employers, employees and health care professionals. In
particular, these challenges have led to uncertainty over designating
leave as FMLA-qualified leave, as well as notice to employees of their
rights and responsibilities. In addition, we are concerned that the lack
of specific information in the medical certification process may often
not provide enough information to determine whether leave may be
designated as FMLA-qualified.  In that light, we welcome the
Department's inclusion of provisions which will ensure the ability of
employers to obtain necessary medical certification information to
qualify FMLA leave properly. Proposed Section 825.305 will improve the
medical certification process, insuring that employers are able to
quickly and efficiently obtain the information necessary for making an
FMLA determination, while protecting employees from harassment or
inconsistency. The Department's acknowledgment of the role the
subsequently-enacted Health Insurance Portability and Accountability Act
(HIPPA) plays in safeguarding employee health information is well-taken.

In general we support the improvements to the medical certification
process contained in the proposed rule. We would nonetheless take the
opportunity to endorse the Department's elimination by way of Section
825.307 of requirements that: (a) require an employee to provide consent
to the mere verification of medical certification by an employer; and
(b) require follow-up communication between an employer and an
employee's medical provider be made through another health care
provider, rather than directly by the employer. We strongly urge that
these changes be retained in any final rule. Finally, we would recommend
that, consistent with initial certification procedures, the Department
consider including in the final rule provisions to allow that employers
may, at their own expense, seek additional medical opinions in the
recertification context.

[Call In Procedures (Section 825.302)]{.underline}. We support the
Department's clarification of regulations regarding the requirement that
an employee generally may be required to observe and follow an
employer's call-in procedures for notification of FMLA-covered absence.
We agree with the Department's observation that timely notice "is
critical to the balance struck" in the FMLA between an employee's need
to take leave and the legitimate business interest of employers. 73 Fed.
Reg. 28 at 7908. The Department's proposed rule, which recognizes that
absent unusual or emergency circumstances an employee may be required to
follow routine call-in procedures, strikes that balance, and we urge
that its substance be retained in the final rule. We would support
clarification in the final rule on this point indicating that,
ordinarily, an employee's requirement to follow call-in procedures
includes both the procedure and timing of such call-in (except where
such timing otherwise conflicts with time allowed under other sections
of these regulations).

[Voluntary and Knowing Waiver of Past FMLA Claims (Section
825.220(d))]{.underline}. We endorse the Department's clarification in
its proposed rule that employees may permissibly waive claims for
retrospective violations of FMLA. It is beyond doubt that the ability of
employers and employees to freely reach voluntary settlement of
employment disputes fosters both harmony in the workplace and the speedy
resolution of workplace disputes. We share the view of the Department
that the FMLA has, since its enactment, allowed for such voluntary
settlements of claims for alleged prior violations, and reject the
holding of the United States Court of Appeals for the Fourth Circuit in
*Taylor v. Progress Energy,* 493 F.3d 454 (4^th^ Cir. 2007) to the
contrary. We welcome the Department's inclusion of regulatory text to
clarify its long-standing position.

[Employer Notice Requirements (Section 825.300)]{.underline}. We commend
the Department for the inclusion of important proposed changes
concerning employer notice requirements. Foremost, we welcome DOL's
proposed language to provide that FMLA notice-posting requirements may
be satisfied by way of electronic publication. This is a simple
provision, but a meaningful one, and in a larger sense underscores the
need for examination of the FMLA's regulatory framework to address
workplaces changes (such as the advent and explosion of electronic
information technology) since the enactment of FMLA in 1993 and
subsequent promulgation of its regulations.

[Attendance Bonus (Section 825.215)]{.underline}. We commend the
Department for clarifying regulations in proposed Section 825.215 that
make clear that an employer may, for example, maintain incentive
programs such as perfect attendance awards which, in fact, require
perfect attendance. We have heard from many that the confusion resulting
from the existing regulatory scheme has resulted in the elimination of
these sorts of incentive plans, to the detriment of all employees. We
endorse the Department's common-sense approach to this issue, and urge
that it be included in a final regulation. Of course, we are equally
committed to the Department's acknowledgment that employees on
FMLA-leave must be treated no differently than employees on non-FMLA
leave, and that the anti-discrimination provisions of the FMLA be
maintained.

[Items for Additional Consideration]{.underline}. While recognizing that
the Department is constrained in its ability to address certain issues
in regulation by virtue of the Act's statutory text, we would urge the
Department give careful consideration to further regulatory revisions
that address several issues under current FMLA regulations which have
raised significant concern. We have heard from numerous stakeholders
with respect to the current failing of regulations relating to the
definition of serious health condition and the permissible use of
intermittent leave. We urge the Department to give consideration to
addressing these regulatory issues to the extent permitted by statutory
text. Of course we stand ready to assist you in this regard.

\* \* \*

Thank you for the opportunity to provide these comments. We once more
commend the Department for its initiative in this undertaking, and are
confident that the comments set forth above will be given due and
serious consideration.

Sincerely yours,

Howard P. "Buck" McKeon, M.C.

Senior Republican Member

Joe Wilson, M.C.

Senior Republican Member

Subcommittee on Workforce Protections

John Kline, M.C.

Senior Republican Member

Subcommittee on Health, Employment, Labor, and Pensions

Peter Hoekstra, M.C.

Judy Biggert, M.C.

Kenny Marchant, M.C.

David Davis, M.C.