**Comments to the Proposed Changes to the FMLA**

**Submitted by Carl C. Bosland, Esq.**

**Bosland Consulting Group**

**825.109 Federal agency coverage**

[The Presidential and Executive Accountability Act of 1996]{.underline}

I suggest you include a reference to the Presidential and Executive
Accountability Act of 1996 (PEOAA), 3 USC 401 et. seq. Like the CAA, the
PEOAA applies certain labor and employment laws to the Executive Office
of the President, including the FMLA. 3 USC 412.

[NAFI employees]{.underline}

FMLA coverage of individuals employed by a Nonappropriated Fund
Instrumentality under the jurisdiction of the armed forces is currently
unclear. DOL includes NAFI employees within the definition of an
"employee" in 29 CFR 825.800. OPM defines an employee for purposes of
the FMLA by cross reference to 5 USC 2105. See 5 USC 6381(1)(A). That
section includes NAFI employees.

The only case I am aware of addressing the issue found that NAFI
employees are covered by Title II of the FMLA. See *Mann v. Haigh*, 120
F.3d 34, 36 -37(4^th^ Cir. 1997).

The DOL and OPM should get together and decide what version of the FMLA
applies to NAFI employees.

[825.109(e) & small employer eligibility exception of
825.110]{.underline}

The current regulation provides that the U.S. Government constitutes a
single employer for purposes of determining employee eligibility,
including for purposes of the requirement that the Federal Government
employ 50 employees within 75 miles of the employee's worksite. The
regulation needs to be modified.

As currently written, the regulation fails to take into account the
structure and operation of the federal government. It also fails to
recognize that there are four different variants of the FMLA that apply
to different segments of the federal work force.

The small employer exception (50 employees within 75 miles) was created
to address problems that potentially large employers may have in
securing temporary replacement for employees who work at scattered
locations. If an employer does not have a significant pool (50
employees) within a close geographic proximity (75 miles) to cover for
an absent employee, the employee is not required to provide FMA leave to
that employee.

The above works fine with a single employer who, presumably, is
knowledgeable regarding their workforce and has the authority to direct
personnel to where they are needed. The same rule falls apart when
applied to the federal government as a single employer.

The federal government is not set up to secure temporary replacements
from the local federal workforce as if it was one gigantic employer. For
example, the Postal Service is not able to secure a temporary
replacement from the local office of the U.S. Department of Agriculture
when a Postal employee needs to take FMLA leave, and vice versa. Unlike
a single employer, there is simply no means in the federal workforce to
make this happen.

Nor is there a central source to even found out how many federal
employees are within 75 miles of a federal agency worksite. Even if we
assume that there are more than 50 federal employees within 75 miles in
large metropolitan areas, the same cannot be said for suburban or rural
areas. What is the telephone number to find out how many total federal
employees are within 75 miles of a one-person post office in rural
northeastern Montana? There is no such number.

Because the federal government does not operate that way, the rationale
for the small employer exception is defeated when the federal government
is treated as a single employer. .

Recommendation: Section 109(e) and 825.110 should be modified to limit
the small employer exception to the federal employer of the employee
requesting leave.

**825.110 (Eligibility)**

[12 months]{.underline}

The comments use the phrase *continuous break in service*. The actual
regulation drops the word *continuous*. To avoid confusion I suggest you
use *continuous break in service* if that is what you mean.

I suggest you supplement the definition of a c*ontinuous break in
service* beyond temporal length. That is, you should indicate that a
continuous break in service means that the employer-employee
relationship has been severed. Indicia of this include an employee's
receipt of unemployment or disability retirement benefits during the
five-year period at issue.

You should also consider how you are going to treat situations where an
employee is retained on the rolls but performs no work for the employer
during the five-year period. For example, an employee may be continued
on the rolls but is on workers' compensation. Similarly, an employee is
kept on the rolls while a grievance or discrimination complaint is
pending -- which can take years. You need to determine whether these
situations constitute a *continuous break in service*.

Administratively, it is probably easier to have a bright line rule that
a break in service means that the employee is continuously off the
rolls.

I also suggest you address the effect of independent contractor status
on this issue.

**825.112**

The consolidation of the covered condition regulations is a very welcome
development.

**825.113(c) Minor illnesses**

The current definition, as modified by Wage and Hour Opinion Letter FMLA
-86 (Dec. 12, 1996) needs to clean up a lingering issue. The DOL needs
to make clear that "complications" of an otherwise excluded minor
illness means that the condition meets one of the regulatory definitions
of a serious health condition. You want to foreclose the possibility
that the FMLA covers an employee with a minor illness complicated by a
second minor illness, the combination of which does not satisfy the
requirements of any serious health condition definition.

**825.113(c) Treatment**

Make it clear that "treatment" does/does not include telephonic
conversations with a health care provider. This issue is litigated all
the time. You might also need to think through whether video
conferencing with a health care provider would be covered. Most courts
have required actual physical presence of the individual and health care
provider.

**825.114 Inpatient care**

DOL should define what it means by an *overnight stay*. What is the
minimum number of hours that an employee has to stay overnight? If an
employee arrives ten minutes before dawn and stays until after daylight,
have they stayed overnight?

How about an employee who works nights? The employee checks in a night,
remains in the hospital all day, and is released to work the next night?
Is this person deprived of FMLA leave coverage?

What does it meant to "stay" at a hospital, et. al. Does that mean the
individual has to be admitted to the facility? How about time spent in
the Emergency room waiting area?

I suggest you define *stay* as formal admission. I suggest you define an
*overnight stay* to include daytime hours for employees who work nights.
I suggest that an *overnight stay* is demonstrated by records of the
facility establishing that an employee was admitted on one date and
released on the next regardless of the time spent.

.

**824.115(c) Chronic Serious Health Condition**

I concur with your decision to apply the decision of the Sixth Circuit
in *Fink v. Ohio Health Corp.*, 139 Fed. Appx. 667 (6^th^ Cir. July 7,
2005) that periodic treatments require a minimum of two health care
provider treatments as twice or more a year.

I suggest you define what 12-month period is included in making this
determination. I suggest that the employee must have received periodic
treatments from a health care provider two or more times in the 12 month
period immediately preceding the request for leave (or absence) at
issue.

I also recommend that you define what you mean that the condition
*continues over an extended period of time*. For purposes of clarity you
need to state a temporal minimum. For example: 6 months. Otherwise, you
will run into the situation where, for example, a newborn has a chronic
condition from day 1. The condition lasts 3 days. For most folks, a
3-day condition doesn't appear to be an extended period of time. From
the newborn's perspective, the condition lasted every day of his or her
life.

119. **Substance abuse**

I concur with the proposal to identify this is a separate regulations.

**825.120 Leave for Pregnancy or Birth**

I concur with the proposal to identify this is a separate regulations.

**825.121 Foster Care**

I concur with the proposal to identify this is a separate regulations.

**825.124 Needed to care for a Family Member**

I recommend that you add language to make it clear that physical and
psychological care requires the actual physical presence of the employee
and the individual receiving care. Court cases, mainly in the Ninth
Circuit, have addressed this issue. For example, telephonic care has
been found to be an insufficient means of providing psychological care.

You should also address whether an employee can be needed to care for a
covered family member when the family member is not seeking medical
treatment. This frequently arises when the family member is taking a
vacation, visiting what appears to be a vacation site, or is doing some
traveling activity for purposes other than the receipt of medical
treatment.

Ninth Circuit cases that have looked at this have generally found that
the employee was not "needed to care for" a family member because the
purpose of travel was not to secure medical treatment. For example, an
employee travels with an ill spouse to wrap up the affairs of a recently
deceased parent. The spouse has an FMLA --covered condition. During the
trip the employee administers medication to the ill spouse. All things
being equal, that should be covered by the FMLA even though the spouse
is not traveling to secure medical treatment but to deal with family
affairs. The court found otherwise.

Similarly, an employee travels with a covered family member with a
serious health condition on vacation, or to visit the land where the ill
family member was born before they die. During the trip the employee
provides psychological comfort and care to the family member. All things
being equal, the leave should be covered by the FMLA. Courts have found
otherwise.

Another issue that has arisen and DOL might address is whether the
recipient must be aware that they are receiving psychological care. That
is, can an employee take FMLA leave to provide psychological care to a
covered family member who is unconscious or in a coma? An argument in
favor of allowing leave would be that the Act does not predicate the
availability of FMLA leave based on the quality of psychological care
provided or on evidence that the care was received. Rather, the Act
gives an employee the right to provide psychological care.

**825.125 Definition of Health Care Provider**

I recommend that you modify the regulations to make it clear that "any
health care provider from whom an employer or the employer's group
health plan's benefits manager will accept certification of the
existence of serious health condition..." is limited to the health plan
of the employee requesting FMLA leave only.

That is, just because an employer allows employees to choose from many
different health plans each of which recognizes different health care
professionals as "health care providers" does not mean that an employee
under Plan A can establish that a certification from an individual
(Naturopath) is from an FMLA "health care provider" where Plan A would
not so recognize the individual, but Plan R, which the employee is not
under, would.

**825.205 Increments of Leave for Intermittent or Reduced Schedule
Leave**

To address the problems inherent in allowing short increments of FMLA
where an employee has the right to leave but the employer cannot replace
the employee for the leave period or allow the employee to return
mid-way through their shift, the DOL should look to the school FMLA
rules that permit a school employer to briefly delay an employees return
from FMLA leave.

Unless you charge the entire absence against the employee's FMLA leave
balance I don't see how you get around the fact that if the excess leave
is not protected by the FMLA. To do otherwise would amount to providing
more than 12 weeks of FMLA leave, which *Ragsdale* basically said is
constitutionally impermissible. DOL by regulation can't provide an
employee with more than the statutory maximum of 12 weeks of FMLA leave.

The best you can do is use the language in the legislative history that
leave "for a particular duration" can be counted as FMLA leave, and give
the employee the option to having the leave covered or not.

**As a second issue**, the DOL should address the decision of the Fifth
Circuit in *Mauder v.Metro. Transit Autho. Of Harris County*, 446 F.3d
574 (5^th^ Cir. 2006), cert. denied, 127 S.Ct. 230 (2006). In that case,
the court found that intermittent FMLA leave was not available to cover
an employee's unrestricted bathroom breaks at work. Essentially, the
court opined that the FMLA was available to an employee who needed time
away from work and not time off from working. I believe the decision is
wrong.

**A third issue**, DOL needs to clarify or define what constitutes an
employee's "schedule" for purposes of calculating how much leave an
employee is entitled to have in a 12-month period. Specifically, what is
the "schedule" an exempt employee whose personnel folder says they work
9 to 5, but the employee has never worked 9-5 and always worked 8 to 6
and a half day on Saturday. Lets say employee has done this for 20
years, and the employer is aware of it and suffers and permits the
employee to work this schedule. Is the employee entitled to 480 hours
based on the 9 to 5 schedule? Or is the employee entitled to 648 hours
of leave based on the schedule the employee actually works?

**825.207 Substitution of Paid Leave**

The DOL should modify the regulation to make it clear that
"substitution" means that accrued and available paid leave will run
concurrently with unpaid FMLA leave.

At least once court has defined "substitute" to mean that the leave is
no longer covered by the FMLA but replaced with the paid leave. See
*Strickland v. Water Works and Sewer Bd*., 239 F.3d 1199, 1204 (11^th^
Cir. 2001).