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 Notice of Proposed Rulemaking on the
Family and Medical Leave Act (FMLA) published in the February 11, 2008
*Federal Register*. As an employer, I respectfully submit these comments
and I appreciate the opportunity to share my views on how to improve the
implementation of this important law.

**Eligibility (Section 825.110)**

When determining eligibility, the 12 month period of service need not be
consecutive and in section 825.110(b)(1) the department proposes
allowing a break in service of up to five years. We believe that such a
long break in service is burdensome to employers, whose record keeping
requirements have only a three-year look back period. We would urge the
Department to reconsider by eliminating any breaks in service except for
military service or because the employer expressed an intent to rehire
the employee either in a written agreement or under a collective
bargaining agreement. Alternatively, the look back period should be no
longer than the record-keeping period of three years.

**Serious Health Condition (Sections 825.113 through 825.115)**

We support the Department's proposal to retain the list of conditions
that generally will not constitute a serious health condition in Section
825.114(c). We also support the Department's proposal to place a time
frame on the two visits to a health care provider contained in Section
825.115. The current definition says that an employee will have a
serious health condition if in connection with a period of incapacity of
more than three consecutive calendar days, the employee (or family
member) has one visit to a health care provider and a regimen of
continuing treatment, such as a prescription, or two visits to a health
care provider. The Department proposes that those two visits be made
within 30 days from the beginning of incapacity unless extenuating
circumstances exist.

We believe that it would make more sense to require the two visits to a
health care provider to occur within the period of incapacity with an
exception for extenuating circumstances. Certainly 30 days is such a
long time there could actually exist two separate illnesses that are
combined to qualify for FMLA leave and this was not the intent of the
law -- to combine two non-serious illnesses. Instead, requiring the
health care visits to occur during the period of incapacity provides
evidence that the nature of the illness is serious -- as intended by the
law. The "extenuating circumstances" exception could be made for
illnesses that at first appear non-serious but later, after a follow-up
visit, show themselves to be serious.

**Treatment of Holidays (Section 825.200)**

We support the Department's proposed treatment of holidays -- if leave
is being taken in a full week increment the holiday is treated as any
other work day and is counted against the 12 weeks of FMLA leave
permitted. If leave is being taken in less than full week increments
then the holiday is not counted against the 12 weeks of leave permitted.

**Scheduling Intermittent Leave (Section 825.203)**

We also support the Department's clarification that an employee who
takes intermittent leave when medically necessary has a statutory
obligation to make a "reasonable effort" instead of merely an "attempt"
to schedule leaves so as not to disrupt unduly the employer's operation.

**Substitution of Paid Leave (Section 825.207)**

We support the proposal to allow public agencies to run accrued
compensatory time concurrently with unpaid FMLA leave when the leave is
taken for an FMLA-qualifying reason.

**Bonuses (Section 825.215)**

We also support the proposal to allow employers to award bonuses for
perfect attendance or the achievement of a goal if the employee does not
receive the bonus due to an FMLA absence as long as all other types of
leave are treated in a similar fashion. This change makes sense and will
make it easier for employers to give awards for perfect attendance and
goal-achievement without running afoul of the law.

**Employer Notification/Medical Certification (Sections 825.300 through
825.305)**

We are appreciative of the Department's efforts to relieve the
administrative burden on employers by clarifying the employer notice and
certification provisions. The Department provides a time frame of seven
calendar days for insufficient/incomplete certifications to be corrected
(with additional time allowed if the employee has been unable to obtain
the additional information through diligent good faith efforts.) The
Department does not provide a similar time frame for certifications that
are never returned by the employee to the employer. It appears there are
two areas of ambiguity here.

First, if an employee is unable to obtain additional information to cure
an insufficient/incomplete certification within seven days and is
provided additional time to cure the defect, at what point will there be
a cut-off? To say it another way, at what point can an employer infer
that the employee is no longer making diligent, good-faith efforts?

Second, in the case of a certification that is never returned by the
employee; at what point in time can the employer deny FMLA leave without
running afoul of the law? Of course, an exception for extraordinary
circumstances may be needed but we urge the Department to put a date
certain after which employers may deny leave, such as fifteen calendar
days.

**Content of Medical Certification/Authentication, Clarification and
Second Opinion (Section 825.306 through 825.307)**

We are again appreciative of the Departments efforts to clarify the
FMLA. In particular, we support the proposal to require health care
providers to certify the medical necessity for intermittent leave, which
as the Department notes, is a statutory requirement for the taking of
such leave. We also support the proposed changes to section 825.307 that
allow employers to obtain authentication of the medical certification
without first obtaining employee permission. We also support removing
the requirement that employer contact with the health care provider take
place only through the employer's provider.

**Recertification (section 825.308)**

We are generally supportive of the changes to the recertification
provisions but believe that it could be improved by allowing an employer
to obtain second and third opinions upon recertification and that for
long-term or permanent conditions an employer should be able to obtain
recertification every 30 days regardless of whether or not an absence
occurred in the preceding 30-day period. Such second and third opinions
as well as more frequent recertifications could remove some of the
burden employers face with respect to unscheduled intermittent leave.

**Fitness for Duty (section 825.310)**

We support the Department's proposed changes to the fitness-for-duty
process, in particular the changes that allow employers to get
certification that the employee can perform all the essential functions
of his or her job before returning from FMLA leave, as well as allowing
for fitness-for-duty certifications in connection with intermittent
leave. We would encourage the Department to allow fitness-for-duty
certifications after each use of intermittent leave if significant
safety concerns exist, instead of the proposed every --30-days. The
reason being that if a significant safety concern exists, every 30 days
may not be often enough and could expose the employee or others to
danger. While such fitness-for-duty certifications have the potential to
burden employees that burden is lessened by requiring a "significant
safety concern."

**Military Family Lease Provisions and Regulatory Issues**

We are generally supportive of the expansion of the FMLA to cover these
qualifying events but urge the Department to issue concise, complete and
well-defined regulations so that employers and employees will understand
what is expected of them. We would further urge the Department to
provide certainty to employers whenever possible by establishing
bright-line time frames

.

In defining a "qualifying exigency" we urge the Department to limit it
to those needs that are directly caused by military service itself and
to exclude routine, everyday life occurrences. A list of sample
exigencies or criteria could be helpful.

In defining the scope of the military caregiver leave, we would urge the
department to consider the impact multiple 26-week periods of leave over
the course of a career will have on the public sector's ability to
provide services. We also urge the Department to consider that employees
remain entitled to the current 12 weeks of leave under the FMLA if a
servicemember suffers from a serious health condition for many years.

Finally, in calculating the leave under the new law, the Department
should allow employers to calculate the 12-month period in the same
manner that it does for employees currently on FMLA leave.

Thank you for the opportunity to share my organization's views on the
implementing regulations.

Sincerely,

Bronda Silva

Human Resources Director

City of American Canyon

300 Crawford Way

American Canyon, CA 94503