**April 9, 2008**

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

**Re: RIN 1215-AB35: Comments on the Department of Labor's Notice of
Proposed Rulemaking**

Dear Mr. Brennan:

I am writing to comment on the Department of Labor's Notice of Proposed
Rulemaking on the Family and Medical Leave Act (FMLA), published in the
*Federal Register* on Feb. 11, 2008*.*

As a human resource professional and a member of the Society for Human
Resource Management, I respectfully submit these comments and I
appreciate the opportunity to share my views on how to improve the
implementation of this important law.

I support the original intent of the FMLA. However, over the past 15
years that this law has been administered, I have come to believe that
the original regulations issued in implementing the FMLA are in need of
reform. I believe that the improvements I recommend here will benefit
both employees and employers alike.

I have organized my comments to correspond with the topic areas and
section numbers as set forth in the Department's proposed rulemaking.

**Eligibility (Section 825.110)**

While I applaud DOL for its proposed FMLA improvements, I urge that they
include revisions regarding eligibility that would make the regulations
more reasonable and workable. I urge the DOL to reconsider its proposed
section 825.110(d) that was amended so that any period of employment
within five years would be considered in determining if an employee had
worked for an employer for 12 months, since that 12-month period need
not be consecutive. In my experience as an HR professional, a five-year
period is unrealistic and will create an undue burden and cause
administrative headaches for employers, especially since FMLA and FLSA
regulations only require that an employer keep certain employment
records for three years. I strongly recommend against adding to the
current 12 month provision.

In addition, in proposed section 825.110, the Department should
harmonize the point at which an employee's eligibility for FMLA leave is
determined---at the point when leave begins, or when an employee informs
his or her employer of a need for leave. One current regulation requires
that determination of whether an employee meets the 12-month and
1,250-hour requirements be made as of when the leave begins. This
language is retained in proposed section 825.110(d). Another regulation
says determination of eligibility for an employee who ostensibly meets
the 12-month and 1,250-hour requirements, and who works for an employer
with at least 50 employees, must be made when the employee gives notice
of the need for leave. That language is retained in proposed section
825.110(e).

Serious Health Condition (Section 825.113)

While I was pleased that the Department suggested clarifications for
many elements of the FMLA regulations, I was particularly disappointed
to see that the definition of serious health condition was not
addressed. Unfortunately, the definition retained in the proposed
regulation remains vague and difficult for HR professionals to
administer. In light of this lack of clarity, I agree with the
Department's recommendation to retain the list of what are considered by
regulation to not be serious health conditions. For instance, I believe
that Wage and Hour Opinion Letter FMLA-57 correctly states the law, and
it should be given a very narrow construction. However, I believe that
the language regarding mental illness "resulting from stress" should be
removed from the last sentence of Section 825.113(d).

**Continuing Treatment (Section 825.115)**

I strongly disagree with the Department's decision to not require an
employee to make more than two visits to a health care provider during
the period of incapacity. As an HR professional who struggles with
administering leave due to the chronic serious health conditions of
employees, I believe an employee should be required to see such a
provider at least four times per year.

It would also be helpful for DOL to include a comprehensive (but not
necessarily inclusive) list of common chronic conditions and a better
explanation (including concrete examples) of what the Department means
by a chronic serious health condition that results in an episodic period
of incapacity, rather than a continuing period.

If an increase in required health care provider visits is not made, then
I suggest that the second visit or treatment must occur within one week
of the initial treatment, and regulation should require the provider to
provide that follow-up treatment. Accommodations should be made for
clearly defined extenuating circumstances, such as instances where an
employee, despite good faith efforts, is unable to secure an appointment
within the applicable period. Regulation should state that the
applicable period begins with the date of the incapacity.

Finally, regarding the period of incapacity, I suggest that the
Department reconsider 2007 recommendations that the number of days for
incapacity plus treatment be increased from "in excess of three
consecutive calendar days" to seven consecutive calendar days (or at
least five consecutive scheduled work days). Also, the regulation
section regarding treatment on one occasion plus a regimen of continuing
treatment should be eliminated.

The Department has also asked for comments on whether a 30-day time
frame should be added to Section 825.115(a)(2), which allows for
treatment on one occasion followed by a "regimen of continuing
treatment." I agree with the Department that this language should *not*
be added.

**Intermittent Leave (Sections 825.202 -- 825.205)**

The greatest disappointment I have with proposed improvements to the
FMLA is the failure to increase the minimum increment of intermittent
leave (section 825.205). As an HR professional, I know that one of the
greatest FMLA compliance challenges that employers face is when an
employee takes leave on an unscheduled or unforeseeable basis.

Current regulations cause administrative problems for employers, and
unfairly penalize other employees who must work overtime or cover for an
absent employee. They lead to operational challenges for businesses that
get little or no notice of the employee absence, and thus no means to
plan accordingly.

I commend the Department for its proposed section 825.203. It accurately
implements the language of the FMLA and clarifies that an employee who
needs intermittent or reduced schedule leave for planned medical
treatment must make a "reasonable effort" to schedule the leave so that
the leave does not unduly disrupt the employer's business. The
Department's proposed section 825.203 is a vast improvement over the
existing regulation.

The Department should change the size of an increment of FMLA leave,
increasing it to two or four hours when an employee takes unforeseeable
or unscheduled intermittent or reduced schedule leave.

I also suggest that the department extend an employer's authority to
transfer an employee (section 825.204) to include an employee who takes
intermittent or reduced schedule leave on an unforeseeable or
unscheduled basis. Under the department's proposal, an employer may
require an employee to transfer to an alternative, equivalent position
when an employee needs *foreseeable* intermittent or reduced schedule
leave for *planned* medical treatment.

Finally, even though the Department erred by not increasing the size of
an increment of intermittent or reduced schedule leave, it has requested
comments on whether there should be an exception in proposed section
825.205 for circumstances in which it is physically impossible for an
employee to return to work after taking intermittent or reduced schedule
leave. I encourage DOL to include such an exception. It could be limited
in application to circumstances in which an employee's physical
impossibility to return to work is due to the location of the work,
travel associated for such work, or the ongoing nature of a project.

Essential Functions (Section 825.123)

In determining eligibility for FMLA leave, one of the criteria that an
employer can currently apply is whether an employee is unable to perform
"any **one"** of the essential functions of the employee's position. I
recommend that the Department revise that section to read, "unable to
perform the essential functions of the employee's position, unless
modified by the employer to accommodate a temporary restriction." I have
no objection to adding clarifying information on Form WH-380 that
includes a section for employers to list an employee's essential job
functions, and where a copy of the job description can be attached.

**Treatment of a Holiday (Section 825.200) and Incentive Awards (Section
825.215)**

I thank the Department for two specific proposed changes regarding the
treatment of holidays and incentive awards. First, retention of the
current rule in section 825.200(f) that a holiday counts as FMLA leave
when it falls within a week of that leave is reasonable and workable, as
DOL notes. Also, the Department's additional clarification on a holiday
that falls during FMLA leave that is for less than the week is helpful.

Similarly, I appreciate proposed section 825.215(c)(2), regarding
incentive awards. Under this proposal, it would no longer be illegal for
an employer to disqualify an employee from receiving a perfect
attendance award or safety bonus if the employee does not meet the
requirements for those incentives due to absences for FMLA leave. Not
only is this a better and fairer interpretation of the FMLA, it will
help employee morale, since employees on FMLA leave will not be treated
more favorably than other employees.

Substitution of Paid Leave (Section 825.207)

Generally, I support DOL's proposed revisions to 29 C.F.R. 825.207
regarding substitution of paid leave. Specifically, I support the
proposal that substitution may occur only when the terms and conditions
of the paid leave policy are met, unless an employer waives such terms
and conditions. I also support the department's proposal that paid leave
may be substituted to make an employee "whole" when disability benefits
are received. However, I believe the proposal could be improved further
by allowing substitution of paid leave to supplement the unpaid portion
of leave when disability payments are made, regardless of employer and
employee agreement.

**Light Duty (Section 825.220(d))**

I believe that an employer should be permitted to require light duty
that is consistent with an employee's restrictions, but this should not
affect an employee's FMLA entitlement. Therefore, I agree with the
Department's recommendation that it strike the sentence regarding
placement in a light duty position that has been interpreted to "count"
against FMLA leave entitlement. I also do not believe that this revision
would negatively affect an employee's ability to return to his or her
original position from a voluntary light duty position.

**Employer Notice Requirements (Sections 825.300, 825.302, 825.303)**

The Department's proposal on employer notice requirements and
communications with employees (section 825.300) should help broaden
awareness of the FMLA. Specifically, I agree with the proposal to allow
electronic postings of FMLA rights and responsibilities; to consolidate
all notice obligations into one section; to clarify when relevant
notices must be provided; and to extend the time frame to provide such
notices from two to five business days. However, I believe that some new
notice requirements that the proposal imposes on employers when an
employee requests leave are extremely burdensome and not consistent with
employers' statutory obligations under the Act. I urge the Department to
eliminate the requirement that employees be told why they are not
eligible for or otherwise not entitled to FMLA coverage for their leave.

The proposals in sections 825.302 and 825.303 on employee notice
obligations make sense. Specifically, I support the proposal to require
employees to follow normal call-in procedures when an employee takes
FMLA leave, as well as the clarification as to what constitutes
sufficient information to trigger an employer's obligations under the
FMLA. Again, however, the proposals could be improved even further.

They should make clear that specific timing requirements required by an
employer as part of its call-in procedures (e.g., by a certain time each
day) also need to be followed when an employee requests FMLA leave,
unless extraordinary circumstances exist. I also suggest that if the
proposal requires that employees understand and articulate certain
information that would be sufficient to trigger the FMLA obligations of
the employers (and such obligations will be included in the general
notice communicated to employees), it would eliminate confusion over the
current requirement, which says that an employee is simply required to
specifically request "FMLA" leave in order to trigger the follow-up
process.

**Designation of FMLA Leave (825.301)**

I generally concur with DOL's approach regarding employer designation
requirements and the remedy provision for failing to designate FMLA
leave in section 825.301. Specifically, I agree that employers should be
allowed to retroactively designate FMLA leave, absent a showing of
individualized harm; that employers and employees should be able to
mutually agree to retroactively designate FMLA leave; and that the
penalty for not designating FMLA leave in a timely fashion should be
based on an individualized showing of harm, consistent with the general
statutory scheme for FMLA violations. I believe that this interpretation
is consistent with the statute and the Supreme Court's interpretation of
it in *Ragsdale*.

I do believe, however, that this regulatory section could be improved.
It could make clear at what point an employer' obligations are triggered
to make follow-up inquiries, as well as what follow-up questions may be
asked. Employers are routinely concerned that asking follow-up questions
could expose them to liability under the Americans with Disabilities
Act's medical inquiry provisions. Thus, having bright-line guidance as
to what questions are appropriate will help facilitate the process and
improved communications will ensure that those who are entitled to FMLA
receive protections. I also believe it is appropriate to cross-reference
this section to 825.302 and 825.303 (employee notice obligations for
foreseeable and unforeseeable leave) so that employers and employees are
assured that these regulatory sections have consistent interpretations.

General Rule on Medical Certification (Section 825.305)

I generally support DOL's proposed changes in section 825.305 that apply
to the rules for obtaining a medical certification to substantiate
whether leave qualifies under the FMLA. Specifically, I support DOL's
proposal to define what constitutes either an incomplete and
insufficient certification, and clarifies that once an employer gives an
employee seven days to correct the deficient certification (whether
incomplete or insufficient), the FMLA protections do not apply. I also
support DOL's proposal that a new "initial" certification may be
obtained each leave year. I believe, however, that the proposal could be
improved. 1.) Establish that if an employee does not return the
certification within the initial 15-day period, the employee is not
entitled to FMLA leave, limited to extraordinary circumstances. 2.)
Define what constitutes extraordinary circumstances, to support the
delay in the return of the certification.

Content of Medical Certification (Section 825.306)

As an HR professional, I applaud the Department's proposed changes
regarding what kind of information an employer can request on the
medical certification form to substantiate the need for FMLA leave.

Specifically, I support the proposal to define what types of medical
facts are required to constitute a sufficient medical certification; to
clarify that employees must provide certification that leave is
medically necessary to substantiate the need for intermittent or reduced
scheduled leave; to clarify that employers may require greater medical
information under their own paid leave policies; to clarify that
employers can still follow the ADA guidelines for requesting medical
information if the need for leave also constitutes a reasonable
accommodation that must be provided under the ADA; and to clarify that
employees who do not sign a HIPAA release to authorize the release of
medical information still have an obligation to provide sufficient
medical documentation to substantiate the need for FMLA leave. I also
support the elimination of a check box to certify a "serious health
condition" on the prototype medical certification form.

However, I believe that the proposal could be improved even further by
making the following changes: 1) Make clear that medical facts including
information on symptoms, diagnosis, hospitalization, doctor visits,
prescribed medication, and referrals for evaluation or treatment or
other regimen of continuing treatment "must" be provided, as opposed to
"may" be provided. 2) Make clear in the instructions to the health care
provider that responses such as "lifetime, unknown or indeterminate"
will not be sufficient, as opposed to "may" not be sufficient to
establish FMLA coverage.

Authentication, Clarification, and Second Opinions (Section 825.307)

I support DOL's proposed changes in section 825.307 regarding the
authentication, clarification, and second- and third-opinion processes.
Specifically, I support the proposal to remove the requirement that an
employer receive permission from an employee before obtaining
authentication of a medical certification. The new provision states that
for clarification purposes, an employee risks having leave not approved
if he or she does not grant permission for an employer to clarify the
medical information provided by the health care provider.

Similarly, I support removal of the requirement that contact with the
health care provider only take place through the employer's provider,
and the requirement that relevant medical information must be provided
to the health care provider performing the second opinion. However, I
believe the proposal could be improved further with the following: 1.)
Eliminate the requirement that an employer give an employee an
opportunity to cure a deficient medical certification before commencing
the clarification process. 2.) Define what constitutes "good faith" for
second and third opinions. 3.) Specify that when a certification is
obtained by a foreign health care provider, an employer has an automatic
right to get a second opinion and/or have appropriate information sent
to a health care provider in the United States for purposes of review.

Recertification (Section 825.308)

I support DOL's proposed changes with regard to the recertification
process in section 825.308. Specifically, I support DOL's clarification
as to what constitutes a change in circumstances, and that the
recertification obtained can mirror the information required in the
initial certification along with a confirmation from the health care
provider that the employee's leave pattern is consistent with the
employee's need for FMLA leave. I believe that the proposal could be
significantly improved, however, if the final regulation includes a
provision that an employer can get second and third opinions upon
recertification, and that for long-term or permanent conditions (those
lasting more than 12 weeks), an employer should be able to obtain
recertification every 30 days regardless of whether an absence occurs in
the prior 30 day period.

Fitness for Duty (Section 825.310)

The Department's proposed changes regarding the fitness-for-duty process
(section 825.310) represent a good first step at addressing this issue.
Specifically, I support the proposal to allow fitness-for-duty exams in
connection with intermittent leave when safety concerns exist, and that
allow an employer to get certification that the employee can perform all
the essential functions of his or her job before returning from FMLA
leave, as opposed to a simple statement. I believe the proposal could be
improved, however, by allowing fitness-for-duty examinations more
frequently than every 30 days if safety concerns exist, and by
confirming that if an employer has a reasonable basis to obtain a
fitness-for-duty exam before allowing an employee to return to work in
accordance with ADA standards, an employer should be allowed to do so.

**Military Family Leave Provisions and Regulatory Issues**

In most instances, I support the legislative intent of expanding the
FMLA to cover these qualifying events. However, I respectfully suggest
that DOL make every effort to provide complete, concise and well-defined
regulations to implement this expansion of the law. Such regulatory
language will go far in affording both employers and employees with a
clear understanding of their rights and responsibilities in
providing/seeking leave in response to these qualifying events.

In particular, I believe it will be very important to craft an
appropriate definition of the term "qualifying exigency." I recommend
that exigency leave should be limited to needs *directly caused by* the
military service itself and should specifically exclude routine,
everyday life occurrences. If we do not require a close causal
connection between the need for leave and military service, we run the
risk of subjecting employers to internal complaints and claims of
discrimination from other employees who believe they should also be
allowed to take leave for any occurrences. In fact, a recent SHRM survey
concluded that 98 percent of HR professionals agree that there should be
a demonstrable connection between the leave and the service-member's
active duty status.

I think it is generally agreed that military leave is not intended to
give greater rights to employees with family members called to active
duty than those employees would otherwise have for the normal and
ordinary life challenges faced by *all* employees. For instance, I
believe that exigency leave should be limited to non-medical situations.
FMLA leave is already available for employees whose family members have
serious health conditions, whether those eligible employees are
affiliated with the military or not. Also, because the term "exigency"
was used, I believe the leave is meant to be limited to situations that
are critical, require immediate attention, and can not be addressed
without taking time during work hours.

Lastly, DOL should clarify the interaction of military caregiver leave
and regular FMLA leave, including how the caregiver leave should be
calculated. I believe the final rule should make it clear that an
employer is permitted to apply its normal 12-month period in calculating
caregiver leave taken during that period, and that the 26-week maximum
leave entitlement during a 12-month period is measured by the employer's
normal 12-month period.

Thank you for this opportunity to share my views as a HR practitioner on
how the implementing regulations of the Family and Medical Leave Act can
be improved. I look forward to the issuance of final regulations soon
that include suggestions such as those offered here.

Sincerely,

Chad Austin Hall, SPHR

Director of Human Resources

Regional Steel Products, Inc.

4853 US HWY 87 S

Victoria, TX 77905