memorandum

+----------------+-----------------------------------------------------+
| To:            | Richard M. Brennan                                  |
|                |                                                     |
|                | Senior Regulatory Officer                           |
|                |                                                     |
|                | Wage & Hour Division, Employment Standards          |
|                | Administration                                      |
|                |                                                     |
|                | U.S. Department of Labor                            |
|                |                                                     |
|                | Room S-3502                                         |
|                |                                                     |
|                | 200 Constitution Avenue, NW                         |
|                |                                                     |
|                | Washington, DC 20210                                |
+----------------+-----------------------------------------------------+
| From:          | James D. Masur II                                   |
+----------------+-----------------------------------------------------+
| Date:          | February 16, 2007                                   |
+----------------+-----------------------------------------------------+
| Re:            | RIN 1215-AB35                                       |
|                |                                                     |
|                | Indiana Chamber of Commerce                         |
|                |                                                     |
|                | Comments on FMLA Regulations 29 C.F.R. Part 825     |
+----------------+-----------------------------------------------------+
|                | Our File No. 2210-31470                             |
|                |                                                     |
|                | ***SENT VIA EMAIL (***Whdcomments@dol.gov***) AND   |
|                | FASCIMILE (202-693-1432)***                         |
+----------------+-----------------------------------------------------+

The Indiana Chamber of Commerce is an organization representing business
interests throughout Indiana's 92 counties. The Indiana Chamber has more
than 26,000 members and customers. These comments are submitted in the
spirit of advancing the interests of policies embodied in the FMLA in a
manner consistent with the public good.

worksite/eligible employee

Regulation: 29 C.F.R. §§ 825.110(a)(1); (3); (b); (d); (f); 825.11 (a);
(b)

Statute: 29 U.S.C. § 2611(2)

The regulation is currently impractical in light of the obvious
underlying assumption of 29 U.S.C. § 2611(2)(B)(ii)---that employees
within a relatively small distance by accessible highway may easily be
substituted for one another. This seems particularly incongruous in
light of traffic patterns that may turn such distances into an
insurmountable obstacle time-wise. The advent of remote offices being
responsible for functions such as customer service, data processing, and
the like, where employees lack interchangeable skills with those
employed at the worksite, further shows a slight disconnect between
current law and day-to-day workplace realities. Consequently, the
Indiana Chamber of Commerce would recommend that the law be revised, so
that the definition of an employee would not be inclusion of employees
from another location, unless at least 25% of the hours worked at a
worksite in the prior year have been staffed by those not indefinitely
assigned there. Absent a statutory change, the regulations should make
clear that the 75 mile distance presumes that the sites are typically
accessible to one another within a 1½ hour "rush hour" commute.

Further, employees should not be able to aggregate periods of employment
separated by more than 12 months to meet the "eligible employee"
criteria. This is a fairly typical line of demarcation, for neutral
break-in-service policies.

serious health condition

Regulation: 29 C.F.R. §§ 825.114(a)(2)(i); 825.115; 825.307(a); (c)

Statute: 26 U.S.C. §§ 2611(11); 2613

Form: WH-380

The definition of a serious health condition has been eroded on two
fronts. First, it is apparent that doctors may not understand what is
expected of them in the certification process. We are aware of
circumstances involving doctors providing employees incomplete, albeit
signed WH-380 forms, permitting the employee to fill in the blanks.
Employers should be permitted to "preemptively" reject certification
from up to two physicians without cause. This would help minimize a
problem that also manifests itself from time to time - - the emergence
of a favorite "excuse slip" doctor. This would enhance reliability in
the certification process.

As well, the serious health condition definition of 29 C.F.R. § 825.115
has been chipped away at by case law decisions. It seems simple to
rectify the situation, by declaring unequivocally that a serious health
condition, for each leave requested, must meet the following criteria:
(1) it is one that prevents the employee from performing the essential
functions of the employee's job (or one into which the employee may be
temporarily assigned), (2) the incapacity is expected to have a
continuous duration for no less than 1/50^th^ of the employee's
annualized expected time on the job, and (3) this determination is made
at the time of the employer's receipt of an FMLA request.

As far as contact with physicians goes, it is an undue burden to
restrict employer contact with the physician providing certification, as
set forth in 29 C.F.R. § 825.307(a). Simple questions should be able to
be asked, and answered, through the simple expedient process of a phone
call or e-mail (which had much less extensive usage at the time the
regulation first came out). In the day of instantaneous electronic
communication, the regulatory restriction on employer contact with
employee physicians has no real justification, and appears antiquated.
Restrictions against an employer utilizing its worker's compensation
physician in 825.307(c) has no utility.

definition of day

Regulation: 29 C.F.R. §§ 825.200; 203; 205; 207; 208

Statute: 26 U.S.C. § 2612

As far as the definition of a day is concerned, this too has evolved in
somewhat an unfortunate way from its anticipated meaning. This may be
due, in part, to the fact that workweeks and workdays have a different
connotation altogether in the age of instantaneous digital electronic
communication within a predominantly non-manufacturing service-oriented
economy. Even in the manufacturing sector, flex schedules, and workweeks
consisting of workdays in excess of 8 hours are not unusual,
particularly given the advent of just in time manufacturing, inventory
and process control systems.

In this context, the regulatory framework should include clarification
to the effect that while the statute was constructed with a presumption
of an 8 hour day/40 hour workweek, for those employers whose schedule of
employees is different, the employer who provides leave equating to 23%
of what would have otherwise been scheduled for the employee, whether
characterized in terms of hours, days, or weeks of leave, during a "FMLA
year," will be in full compliance of obligations under the Act. For
informational purposes, 23% equates to 12 weeks divided by 52 weeks. An
employer who provides paid time off of any variety, whether vacation,
holiday, sick, or personal, which fall within a leave, should be able to
count all such time against the FMLA allotment.

intermittent leave

Regulation: 29 C.F.R. §§ 825.205; 825.215

Statute: 26 U.S.C. § 2612(b)

Intermittent leave has been rife with abuse by employees that have a
knack for exploiting nuances, realizing that a never-ending FMLA leave
is possible under the present framework. Although attempts to eliminate
the abuse by way of regulation may be difficult, since the statute
states that such leave may be taken when medically necessary, it appears
that such abuses may be curtailed if the regulations were to provide
that a serious health condition under FMLA is not only one which
disables an employee from performing all the essential functions of his
or her job, but also from any other job into which the employer might be
able to place the employee. Particularly, the employer should be able to
place employees whose restrictions only require some additional rest
periods, or less strenuous work, into other slots, without requiring
time off.

Further, in the vast majority of intermittent leave cases, employers
should also be permitted to schedule make-up time.

When the employee is involved in providing direct services to clients,
particularly in the health care field, the term "equivalent" pay and
benefits should be construed so as to include a lesser-paid job. This
recognizes the obvious fact that employers will customarily not be
inclined to transfer employees that have well-developed patient
relations, unless that employee's idiosyncratic issues jeopardize the
very essence of the patient care being provided. The Indiana Chamber
recognizes that a statutory amendment, rather than a regulatory
interpretation, may be required in order to accomplish some of these
objectives.

forms

Form: WH-380

The medical certification form WH-380, needs to be modified, so as to
meet the objectives set forth above. Particularly, the certification
should specify whether a work function may be modified, or whether an
alteration of schedule/hours/rest periods would permit the employee to
accomplish both employment (temporary assignment to reduced/limited
functions) and medical leave objectives. In either case of \"medical\"
leave for the employee or a family member, sign-off by the certifying
physician should be allowed for relocation to a temporary alternative
duty, if consistent with the medical condition. In this same vein, an
employer should be permitted to construe a request for leave as being
for intermittent leave, when the physician certification suggests an
employee may have ongoing availability, whether on a reduced task, or
alternative hours schedule. At the very least, in either the situation
concerning an employee's, or a family member's, medical leave scenario,
the certification form should reflect whether the employee is required
to be absent for an uninterrupted period, or if working partial days or
a different schedule is feasible. Further, an employer should be able to
obtain certification for fitness to return to the employee's pre-FMLA
position by an employer's sanctioned physician, to preclude abuse.

Having a separate form for a family member's serious health condition
may be useful.

perfect attendance awards/longevity pay/service awards

Regulation: 29 C.F.R. § 825.215(c)(2)

Statute: 26 U.S.C. § 2612(b)(2)

FMLA regulations' restrictions against providing financial incentives to
reward employees who can maintain perfect attendance seems at odds with
the statute's intended scope and objective. The restriction codifies a
pointless disincentive to those employees who have the ability to
contribute to advancement of their employer in a tangible way. Instead
of the present language, the regulations should specify that there is no
restriction to employers granting rewards, bonuses and the like, for
things such as perfect attendance, so long as such awards are attainable
to employees coming off FMLA leave, for award periods commencing
post-leave. This is in keeping with the statute, as FMLA leave was never
intended to be a disincentive to attaining perfect attendance, but
rather a temporary, short-term solution to an acute health-related
issue. Simply, employees with greater productivity should be able to be
rewarded for that enhanced productivity. Many metrics in the employment
realm currently are based on time on task criteria, and \"production\"
is sometimes based on billable hours, rather than production of tangible
items. Incentive-based compensation schemes have proved to be a useful
way to enhance worker productivity, and consequently, enhance the
prospect for greater compensation and monetary reward for employees from
superlative efforts. An employer also would be less likely to incur an
FMLA "epidemic" by this sort of alteration to the regulations.

moonlighting

Regulation: 29 C.F.R. §§ 825.110; 115

Employees who "moonlight," or accept any form of remunerative
engagements during an FMLA leave, should be expressly declared in the
regulations to have forfeited their right to FMLA leave. The regulations
should state unequivocally that any employer who discharges an employee
under such circumstances where they reasonably believe moonlighting is
occurring should be held harmless for either liability or damages under
the statute.

waivers

Regulation: 29 C.F.R. § 825.220(d)

Currently, waivers of rights are seemingly not permitted by the
regulations. Rather than this framework, the same safeguards used in the
Older Worker's Benefit Protection Act (time period for consideration and
revocation) should be sufficient to protect employee rights. Thus, the
Older Worker Benefit Protection Act language, 29 U.S.C. 626(f), should
be adapted for "FMLA" waivers.

for additional input

Any inquiries respecting the above may be directed to either of the
persons listed below:

James D. Masur II, Esq. George L. Raymond, Esq.

Locke Reynolds LLP Vice President-Human Resources and

201 North Illinois Street Labor Relations

Suite 1000 Indiana Chamber of Commerce, Inc.

P.O. Box 44961 115 West Washington Street, Suite 850S

Indianapolis, IN 46244-0961 Indianapolis, IN 46204

jmasur@locke.com graymond@indianachamber.com

Telephone: 317/237-3800 Telephone: 317/264-6884

Fax: 317/237-3900 Fax: 317/264-6855

Respectfully,

LOCKE REYNOLDS LLP

*/s/ James D. Masur II*

James D. Masur II

JDM/jlr

816359_2