April 11, 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: Comments on the Department of Labor's

Notice of Proposed Rulemaking (RIN 1215-AB35)

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*.* I appreciate the opportunity to
share my views, as both a Human Resources professional with an employer
perspective and as an employee affected by these regulations.

I strongly support the original intent of the FMLA, although in many
instances it has caused employers to be more restrictive in their leave
entitlements than they otherwise would be. Over the past 15 years that
this law has been administered, it has become increasingly apparent that
the original regulations issued in implementing the FMLA are in need of
reform. I believe that the recommendations contained herein will benefit
both employees and employers alike.

# Calculation of Leave

There needs to be an exception for "physical impossibility" that would
allow an employer to charge an entire absence to FMLA leave when the
time off actually needed for FMLA leave makes it physically impossible
for an employee to work the remainder of their shift even if the
employee is able to do so. In situations when an employee's absence
requires the employer to replace them with an alternate worker, it is
unfair to the employer to be saddled with the burden of only accounting
for a portion of the time not worked under FMLA. It would also give an
employee more incentive to utilize their intermittent leave time more
frugally.

Voluntary light duty should be permitted, but the employer should not be
required to hold the employee's original position open for reinstatement
indefinitely. If an employee has work restrictions that can be
accommodated by a light duty assignment, the employer should be allowed
to replace that employee's original position after the employee exhausts
their 12 weeks entitlement to FMLA. However, this time should not be
counted against that employee's 12 weeks of leave rights.

**Serious Health Condition**

I was particularly disappointed to see that the definition of serious
health condition was not addressed. This definition remains vague and
difficult for employers to administer and for employees to understand.

The one portion of the definition related to Chronic Conditions that was
changed, requiring treatment by a health care provider at least twice
within a year for that condition, is too vague and impossible to
administer (Are employers expected to wait until one year from the
initial treatment to determine if the second treatment occurs? How could
an employer approve the FMLA prior to the second treatment date? If the
employer approves it initially, and the second treatment within the one
year portion of the requirement is not satisfied, can the employer
retroactively disallow the FMLA time taken?) This definition still
misses the element of "seriousness" that should be present. The
definition of "periodic" treatment needs to be changed to require
treatment at LEAST quarterly. This would not be unreasonable for anyone
who is truly suffering from a chronic condition that is a "serious"
health condition.

Accommodations should be made for 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.

# Transfer to Alternative Job 

One of the most difficult aspects of FMLA is trying to maintain required
staffing levels when employees can call-off without advance notice. Many
employers are struggling with staffing issues because we cannot transfer
an employee who is approved for intermittent unforeseeable leaves to
another position that would better accommodate his/her absences. The
transfer to an alternative position that would better accommodate an
unreliable work pattern would provide significant relief to employers
who struggle with these staffing issues.

# Employee Notice Requirements

Employees should be required to mention FMLA, especially when calling
off for Chronic conditions that require intermittent time off. Once the
Intermittent FMLA is established, the employee should know which
occurrences are related to the FMLA-approved condition(s) and which
occurrences are NOT related, and it should be their responsibility to
notify the employer at the time of call-off if the time off is related
to the FMLA condition.

# Employer Notice Requirements

The new requirement that the FMLA posting or general notice be made
available to applicants needs to be removed. Posting the notice for
applicants is not a problem, but as more employers are going to
electronic applications, sending a detailed notice regarding FMLA to an
electronic applicant is an undue hardship on employers, especially since
applicants would not be affected by FMLA rights until after they have
been employed for 12 months.

The prototype general notice should be all that is needed, and any
additional employer-specific responsibilities should not need to be
included on the "poster" notice (making it impossible to read). My
recommendation is that there should be a reference to employer-specific
leave policies in the posted notice, but the content of those policies
should not have to be included.

The new requirement to provide a new notice every 30 days to any
employee who utilizes unscheduled intermittent leave needs to be
removed. These employees already know about FMLA, and all they need to
know is how much time has been applied against their FMLA and how much
FMLA time they have remaining (which employers will need to provide).
This every 30-day notice requirement is not meaningful and would be an
undue burden on most employers.

# Medical Certification

Employers should not be required to give an AUTOMATIC extension of 7
days if medical certification or recertification is not returned within
the 15 days. It should be the employee's responsibility to make sure the
medical certification is submitted on time, or, if an extension is
needed, the employee should be required to request it (and an extension
automatically granted if requested).

**Content of Medical Certification**

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. 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.

# Medical Recertification

Medical recertification should be allowed every 3 months (in conjunction
with the change in definition of a chronic condition as a serious health
condition which should require treatment at least once per quarter).
Although the 30-day recertification allowed in the current regulation is
too short and burdensome on employees as well as the provider, the
proposed 6-month requirement is too long and needs to be changed to 3
months.

Second and third opinions on recertifications should be permitted in
light of the change in restricting recertifications from every 30 days
to every 6 months (or 3 months as requested above). The current rules
which grandfather an employee "once approved, always approved" are
enabling too many employees who took advantage of lax administration in
the past to continue to abuse their FMLA rights, and allowing employers
to get second opinions on these abusers will have a great impact on
making the FMLA more amenable to all.

One important factor that needs to be taken into consideration is that
there are many employees who are upset about the abuse of FMLA that they
see their fellow employees getting away with. When the employer is
helpless to deal with the situation, other employees become disgruntled
and it is a cause for much dissatisfaction in the workplace.

# Fitness for Duty Certification

Second/third opinions and employer-required fitness for duty evaluations
NEED to be permitted to enable employers to maintain a safe work
environment. We have seen numerous cases where employees have been able
to obtain a fitness for duty certification from one physician (who may
not even be the physician who certified the disabling condition), and
the employee returns to work putting the employer at risk of safety for
that employee as well as a risk of safety to others. I work in a
healthcare environment and as an employer we are also responsible for
the safety of our patients, and allowing an employee who is clearly not
able to function at full capacity to return to work without the ability
to get a second opinion or fitness for duty evaluation puts the employer
and fellow workers at a great risk.

**Military Family Leave Provisions and Regulatory Issues**

I support the legislative intent of expanding the FMLA to cover these
qualifying events. However, the DOL needs 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.

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. Therefore, 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, the
term "exigency" implies that 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. 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 from both an employee
and employer perspective on how the implementing regulations of the
Family and Medical Leave Act can be improved.

Sincerely,

Judi Moran