**TO:** Department of Labor

**FROM:** Tara Ann Rabenold

**RE:** Proposed amendment to the Family Medical Leave Act (FMLA)

**DATE:** March 31, 2008

I am writing to comment on the Proposed Amendments for the FMLA
regulations. I am a second-year law student at Drexel University:
College of Law. I am learning about the FMLA regulations in my
employment law class and think that the proposed amendments will be a
very helpful change to an already helpful act. Specifically, my comments
will address proposed amendments §825.302(b) and §825.303(c) concerning
the content of notice and complying with employer policies when an
absence is not foreseeable.

**Notice for Unforeseeable Absence**

The current FMLA regulation concerning unforeseeable absence is entitled
"What are the requirements for an employee to furnish notice to an
employer where the need for FMLA leave is not foreseeable." 29 C.F.R.
§825.303. This regulation requires an employee to provide notice to the
employer either "in person or by telephone, telegraph, facsimile ("fax")
machine or other electronic means." 29 C.F.R. §825.303(b). This section
also allows an employee's spouse or other responsible party to give
notice if the employee is unable. [Id.]{.underline} The employee or
other party is not required to specifically mention FLMA when requesting
leave. [Id.]{.underline} It is enough for the employee to state that
leave is needed. It is the burden of the employer to obtain any
necessary information by informal methods. [Id.]{.underline} The
employee will only be required to furnish the employer with more
information when it can "readily be accomplished as a practical matter,
taking into consideration the exigencies of the situation."
[Id.]{.underline}[^1]

The amendments to regulation §825.303(b) propose that an employee must
give sufficient information to put the employer on notice that the
absence may be FMLA protected. Sufficient information is defined as
"information that indicates that the employee is unable to perform the
functions of the job, the anticipated duration of absence, and whether
the employee intends to visit a health care provider." 7911 Federal
Register Vol. 73 No. 28 (Feb. 11, 2008). The proposed amendment also
specifically states that calling in "sick" will no longer suffice.
[Id.]{.underline} However, the writers of the proposed amendment
understand that a sickness can turn into a serious health condition.
[Id.]{.underline} In this case, an employee will also be required to
provide the employer with more details about the sickness to help the
employer determine if a serious health condition exists. Finally, the
Department of Labor specifically asks for comments as to whether a
different notice standard is required when an employee has previously
provided sufficient information regarding a serious health condition and
needs to give the employer notice of dates of leave that were changed or
previously unknown. [Id.]{.underline}

I think the proposed amendment to 29 C.F.R. §825.303(b) is definitely on
the right track. The employer should not bear the burden of eliciting
enough information from employees concerning their FMLA leave. This is
especially difficult if an employee leaves a message that simply states
that leave is needed. However, the requirement regarding performing the
functions of the job may be vague to most employees. It would be more
helpful to require employees to state exactly the reason (as much as
possible) for the absence. For example, if an employee works in a
restaurant and calls in with a broken arm, the employer can safely
assume that the employee cannot perform the functions of the job. Or
course many illnesses are not that cut and dry. Instead of requiring
employees to state in some way how they will not be able to perform the
functions of the job, they should be required to state:

> The reason for the absence and if possible, the impact on their job
> performance whether it concern a need to stay home, an inability to
> work efficiently, or anything that can relate the need for leave to
> the job.

It is very helpful for an employer to know the anticipated duration of
absence; however, that can be very difficult for an employee to
determine. Therefore, along with the requirement that an employee
provide notice to an employee of the excepted duration of absence, it
should also be noted that an employee may be unsure of the duration and
will not be penalized if they are unsure of the duration of absence. An
employee should only be required to specify the duration as soon as
practicable and if needed, at another time than the original notice.
Finally, it is important for an employee to specify whether they intend
to visit a health care facility so the employer is aware of the
seriousness of the condition. This will also trigger the employer to
consider requesting a medical certification.

I also agree completely that the proposed amendment should specify that
calling in "sick" is not appropriate. An average person would associate
being sick with having a simple cold and would not consider it enough to
trigger FMLA leave. Many employers have sick day policies and that is
the only thing that should be triggered when an employee calls in
"sick." I also agree that sickness can turn into a serious health
condition and then an employee would then be required to furnish the
employer with sufficient information. However, the proposed amendment
concerning this issue seems vague. There should be a standard given to
employees to follow in this situation. This should read as follows:

> Any time that an employee's leave becomes more serious, the employee
> is required to update the employer with sufficient information that
> may trigger FMLA leave. Something is considered more serious if: an
> employee that did not intend on visiting a health care facility now
> intends to do so, a new condition appears after the employee
> previously requested non-FMLA leave, or a condition becomes worse
> after an employee previously requests non-FMLA leave.

Finally, the Department of Labor seeks comments as to whether a
different notice standard is required when an employee has previously
provided sufficient information regarding a serious health condition and
needs to give the employer notice of dates of leave that were changed or
previously unknown. [Id.]{.underline} There should be a different
standard. When an employee has already established a serious health
condition, an employer should have already put them on notice that they
qualify for FMLA leave. There is no need for an employee to provide as
much information as was previously needed to initially put the employer
on notice of a serious health condition. Therefore the amendment should
read as follows:

> If an employee has already provided the employer with sufficient
> notice to trigger FMLA leave because of a serious health condition and
> is subsequently providing notice of dates of leave due to that same
> condition that were previously unknown or changes, the employee is
> only required to state either that: FMLA leave is needed, the employee
> is visiting a health care facility, or that leave is necessary because
> of the condition.

Finally, if an employee has a serious health condition, the burden is on
the employer to furnish an exact copy of this language and explain what
is acceptable (as long as it is not more stringent than the proposed
amendment requires) taking into account the differences in many
conditions. Therefore, both the employer and employee will be on notice
of what is expected and confusion will be lessened between the two
parties.

**Compliance with Employer Policies when Absence is Unforseeable**

The proposed amendments include a separate section that specifically
deals with complying with employer policies when an absence is not
foreseeable. 7911 Federal Register Vol. 73 No. 28 (Feb. 11, 2008). This
is proposed amendment §825.303(c). The proposed amendment requires an
employee to comply with certain employer policies concerning unexpected
absences. [Id.]{.underline} Examples of employer policies consist of
timing and call-in procedures. However, an employee will not be required
to comply with employer policies if "extraordinary circumstances exist
(or the procedure imposes a more stringent timing requirement that the
regulations provide). [Id.]{.underline} If circumstances exist where an
employee is still required to follow employer procedures, the employee
can be punished for non-compliance. The employer may discipline the
employee in the "same manner as it would normally handle such an
infraction." [Id.]{.underline} FMLA qualifying leave may also be delayed
until the employee complies with the employers policies; however, FMLA
leave may not be depleted while FMLA leave is being denied because of
non-compliance. [Id.]{.underline} Finally, an employee is not forced to
comply with written advanced notice requirements of an employer where
the leave is needed because of a medical emergency.

This amendment should be included in the regulations. It is essential
that there is a good line of communication open between the employer and
the employee regarding FMLA leave or potential FMLA leave. If possible,
the employee should comply with an employer's policies regarding
absences. An employer should not need to search various mediums to learn
of an employee's whereabouts. In addition, the sooner an employer learns
of the reasons for an employee's absence, the sooner the proper steps
can be taken to determine whether the absence qualifies for FMLA leave
and the employer can notify the employee.

However, it may be helpful to be more specific in the regulation. The
amendment requires an employee to comply with an employer's policies
only if the policies are not more stringent than what FMLA requires.
Regarding timing, the proposed amendment has an "as soon as practicable"
standard. This is probably less stringent than many employer policies
and it should remain as such. Also, the FMLA allows an employee to
provide notice to the employer either "in person or by telephone,
telegraph, facsimile ("fax") machine or other electronic means." 29
C.F.R. §825.303(b). If an employer only has one suggested medium, then
the FMLA standard is also less stringent. Since it is more likely that
employer policies are more stringent than the FMLA, proposed §825.303(c)
will have no effect. The timing of as soon as practicable should remain
the standard; however, if the employer has a mandatory medium of
communication, the employee should be required to use that medium no
matter what the FMLA allows. The example given by the proposed amendment
suggests that the Department agrees[^2]; however, the language of the
proposed amendment seems to suggest otherwise. The amendment should read
as follows:

> "An employee is required to comply with employer policies regarding
> absences from work. This includes the form and timing of notice. The
> employee is not required to comply with employer policies if the
> policies are more stringent than the FMLA requires. However, the
> employee must comply with mandatory modes of communication (i.e.
> calling a certain phone number, e-mail, or other forms of
> communication). In the event that exigent circumstances do not allow
> an employee to use the mandatory form of communication and another is
> possible, the employee should use the other form of communication and
> shall not be penalized as long as the employee uses the mandatory form
> of communication as soon as practicable."

If this amendment is in place, there will be less confusion regarding
the medium of communications. The current proposed language may seem to
allow no notice if the mandatory mode of communication cannot be met.

Also, the proposed amendment regarding non-compliance for exigent
circumstances and regarding written notice should still be included. It
may not be possible for an employee to make any sort of communication,
especially written, and it is necessary that the FMLA notice
requirements and the employer take that into consideration. Finally, the
proposed amendment regarding discipline and delay of FMLA leave should
also be included as long as it specifies that it will only take effect
if an employee could have complied with the employer's policies but did
not.

The amendments will be a great change to the FMLA regulation because
they seem to correct many of the confusing situations that arise. I hope
that my suggestions will be helpful in formulating the final language of
the proposed amendments to the FMLA regulations.

Sincerely,

Tara Ann Rabenold

[^1]: There is no current regulation concerning compliance with employer
    policies when an absence is not foreseeable.

[^2]: The example concerns an employer requiring employees to call a
    specific number and required the employee to use that number instead
    of calling the supervisor directly.